On appeal from the a Final Administrative Decision of the Director of the Division on Civil Rights, DCR Docket No. PQ07IE-02596.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Alley and Yannotti.
The Toms River Regional Schools Board of Education (school district or district) appeals from a final determination of the Director of the Division on Civil Rights (Director) finding that the district violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, because complainant L.W. was subjected to discrimination and harassment by other students on the basis of his perceived sexual orientation. The Director imposed equitable relief and awarded compensatory damages. We affirm in part, reverse in part and remand for further proceedings.
On March 12, 1999, L.G. filed a complaint with the Division alleging that the school district violated the LAD because her son L.W. had been repeatedly subjected to harassment by other students at the district's Intermediate West school because of his perceived sexual orientation. The district filed an answer denying the allegations. On July 10, 2000, the Director issued a finding of probable cause and referred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ).
At the hearing, L.W. testified that, in the fourth grade, when he was a student at the South Toms River elementary school, other students referred to him at times as "gay," "homo" and "fag" in the hallways and in class. L.W. said that such comments were made "like once a week, or once a month." The remarks became more frequent when L.W. was in the fifth grade. At one point, L.W. refused to attend school because of the taunting by other students. L.W.'s teacher asked the students to write to L.W. and encourage him to return to school. He did return but the harassment did not stop. According to L.W., the harassment was worse when he was in the sixth grade.
L.W. began seventh grade at Intermediate West. L.W. was verbally harassed by other students. L.W. was called "faggot," "homo" and "butt boy." These derogatory references to L.W.'s perceived sexual orientation were made almost on a daily basis.
L.W. testified that, sometime in the fall of 1998, he found a note inserted into his school locker. Written on the note was the statement, "You're a dancer, you're gay, you're a faggot, you don't belong in our school, get out." L.W. said that he was shocked when he read the note. However, L.W. did not report the incident to his teachers or the school administrators.
On January 21, 1999, L.W. was eating lunch in the cafeteria when a group of students approached him and called him "faggot" and "homo." R.C. was one of the students. L.W. called R.C. a "whore" and she slapped L.W. on the back of his head. L.W. phoned his mother, who testified that L.W. was hysterical after this incident.
L.G. met with Raymond McCusker, the assistant principal for the eighth grade and discussed the incident. McCusker told L.G. that he would pass the information on to Irene Benn, the assistant principal for the seventh grade who was out that day. The next day, L.G. and L.W. spoke with Benn about the incident.
L.W. also told Benn about the note that had been left in his locker. He informed her that he was "getting mocked and made fun of" almost every day. Benn asked L.W. whether he wanted her to speak to the students who were involved. He agreed. Benn spoke with three students. She determined that R.C. and L.W. were the two main participants in the incident. Benn counseled R.C. and L.W. and told them that their conduct was inappropriate.
L.W. testified that some of his fellow students continued to taunt him about his perceived sexual orientation. He said that he would be lucky if he made it through a day without hearing such remarks. L.W. asserted that sometime in January 1999 he was in the locker room with a group of students when W. approached him and said, "If you had a pussy I'd fuck you up and down." L.W. testified that he felt "embarrassed, vulnerable, ashamed" and sick to his stomach.
L.G. spoke to Benn about this incident. Benn wanted to speak with W. about the matter but L.W. was adamant and did not want any "problems" because he would soon be performing in a school play. L.G. told Benn that she would call her the following week and Benn should not discuss the incident with L.W. or W. until L.G. had spoken with her. L.G. never called Benn; consequently, Benn did not take any action regarding this incident.
The next incident occurred in February 1999. L.W. was at practice for a school play. L.W. testified that R.G., another student who was in the play, referred to him as "fag" or "homo" at every play practice. L.W. reported the incident to Benn, who spoke to R.G. and informed him that his comments were hurtful and inappropriate. R.G. subsequently apologized to L.W.
Later that month, L.W. went to a dress rehearsal of a play at High School North. L.W. was sitting in front of D.M., who took his program, hit L.W. on his head repeatedly and called him "faggot" and "homo." L.W. reported this incident to Benn. Benn told D.M. that his conduct was inappropriate and there would be more severe consequences if D.M. repeated this behavior. D.M.'s mother, who was a teacher in the school, also called L.G. and apologized for D.M.'s behavior. After this incident, L.W. was not subjected to further harassment by D.M.
At or about this time, L.W. sought assistance from the school's guidance counselor. She advised him to "toughen up" and "turn the other cheek." L.G. complained to Benn about this advice.
L.G. testified that the verbal harassment was having an adverse affect upon L.W.'s school work. She stated that one of L.W.'s teachers called her and reported that L.W. was not the same boy "who walked into [her] classroom in September." He was disruptive and his grades were falling. According to L.G., when she told the teacher about the harassment, the teacher was "shocked." She had not been aware of the problem.
On March 3, 1999, another incident occurred in the gym locker room. Several students made comments to L.W. about his perceived sexual orientation. L.W. reported the harassment to the gym teacher, who informed Benn. The students involved were P.D., E.B., S.L., R.B. and J.S. Benn spoke to the students individually. She told them that their conduct was inappropriate and she warned them that there would be more severe consequences if they repeated this behavior.
The next incident occurred on March 8, 1999. L.W. testified that he was standing with other students on the lunch line in the cafeteria. He was in front of a boy, who called L.W. "gay" and a "faggot." According to L.W., the boy grabbed L.W.'s genitals, "humped" him and said, "Do you like it, do you like it like this." L.W. said he walked away but the boy followed him and "humped" him again. L.W. informed Benn, who was in the cafeteria at the time.
Benn asked L.W. to identify the boy and he pointed to M.S. Benn called M.S. over and asked him if he had been saying anything inappropriate to anyone in the lunch line. M.S. denied rubbing against L.W. He told Benn that the lunch line had been crowded. Benn also asked M.S. whether any other students were involved in this incident and he identified J.A. and C.C. Benn warned the three students that their conduct was inappropriate and if repeated, would be dealt with more severely.
After the incident in the cafeteria, L.G. told Benn that she was dissatisfied with the school's response to the harassment of her son. Several days later, the school principal Mark Regan called L.G. and scheduled a meeting with the school's administrators to discuss the matter. Accompanied by her sister, L.G. met on March 15 with Regan, Benn, McCusker and Anne Baldi, the school's affirmative action officer. L.W. attended part of the meeting. Regan and Benn explained that they were doing the best that they could in dealing with the harassment.
Benn said that an understanding was reached for handling any further incidents of harassment. L.W. would be given permission to leave class in the event of any problem. He would report any incident directly to Benn or Regan. Benn would alert L.W.'s teachers and raise their awareness to the problem. In addition, L.W. was permitted to go to any lunchroom monitor or administrator if he was harassed in the lunchroom. L.W. was assured that any student who harassed him would be dealt with immediately. First time offenders would be counseled and warned of more severe consequences if they repeated inappropriate conduct.
L.W. had remained out of school after the incident on March 8 but he returned March 16. That day, a group of students approached L.W. and called him "gay" and "homo." L.W. reported the incident. One of the students involved was C.C., who had been previously counseled by Benn concerning his involvement in the March 8 incident in the cafeteria. Benn assigned C.C. disciplinary points, which resulted in detention, and a phone call was made to his family members. The other students were counseled.
Later that day in gym class, several students made comments to L.W. about his perceived sexual orientation. One of these students was P.D., who was involved in the previous incident in the gym locker room. L.W. reported the harassment. P.D. received disciplinary points and detention. His parents were contacted and he was warned that he would be suspended if he repeated the inappropriate conduct. The other students were counseled and warned of more severe discipline if the inappropriate conduct was repeated. Afterwards, all of the students apologized to L.W.
The following day, J.S. made remarks to L.W. about his perceived sexual orientation. J.S. also had been involved in the incident in the gym locker room. Because J.S. was a repeat offender, he received detention. Benn said she spoke to J.S.'s mother and told her that the next time J.S. harassed L.W. he would be suspended.
Another incident occurred on April 13, 1999. According to L.W., a few days earlier, he was walking down the hall with his friends when a female student "dared" them to hit her buttocks.
L.W. and his friends hit the student. Her brother D.R. approached L.W. on April 13 in the locker room and told him that he was a "fag" and "don't belong doing that [sic]." D.R. slapped L.W. in the face. A student who was present at the time testified that D.R. told the others, "If you looked at [L.W.], wouldn't you think he was gay?" D.R. turned to W.K. and said, "Why don't you hit this faggot right here?" W.K. removed a chain from his neck, struck L.W. with it and said, "Faggot ... get out of here, we don't want you here." L.W. reported the incident to Benn. D.R. and W.K. were suspended for five days. Benn counseled the other students.
L.W. testified that, although some comments about his perceived sexual orientation continued after April 13, 1999, he did not complain of the harassment to Benn and the school administrators during the remainder of his time in seventh grade and during his entire year in the eighth grade. L.W. also conceded that at his graduation from the intermediate school in June 2000, he thanked Regan for the assistance he had given to him.
L.W. started his freshman year at High School South in September 2000. L.W. testified that the harassment there began the second or third day after he started school. He stated that on the school bus he was called "fag," "homo" and "butt boy." He chose to walk rather than ride the bus because he did not want to be subjected to these comments. L.W. did not report the incidents to any teacher or school administrator.
On September 11, 2000, L.W. was walking home from school. He was a few blocks from his residence when a car pulled up in front of him. Four students were in the car. M.F. and two others got out of the car. M.F. approached L.W. and said that he heard L.W. had called M.F.'s sister a "whore." L.W. replied that it was none of his business. M.F. said, "Well, we don't like faggots, our whole family doesn't like faggots." L.W. testified that he became angry and again told M.F. that it was none of his business. M.F. punched L.W. in the face. L.W. began to cry hysterically. He ran down the street. At the corner, the car pulled up and M.F. threatened to knife L.W. if he told anyone about the incident.
L.W. called his mother, who reported the matter to the school. L.G. initially was told that because the incident had not taken place on its property, the school did not have jurisdiction in the matter. L.G. went to the police and filed an incident report. The following day, a school administrator called L.G. and informed her that, because L.W. had not crossed the threshold of his home when he was assaulted, the matter was within the school's jurisdiction. M.F. was suspended for ten days. L.W. was told that he should take the school bus but L.W. preferred to walk.
Another incident occurred on September 23, 2000 at a 7-Eleven near the high school. Students are allowed to leave school and go downtown for lunch. L.T. and several other students approached L.W. L.T. told L.W. that if he ever heard that L.W was attracted to any one of his friends, he would "kick his ass." L.T. thereupon kicked mulch into L.W.'s face. L.W. began to cry hysterically. L.W.'s friend called L.G., who reported the matter to Lawrence McCauley, the assistant principal. L.T. was suspended for ten days.
Afterwards, the administrators told L.G. that they could protect L.W. if he remained on school grounds for lunch but L.G. was adamant that L.W. should be allowed to go into town for lunch like the other students. L.G. told the administrators that she would not send L.W. back to school unless they could guarantee his safety. L.W. did not return to High School South.
L.G. testified that the admnistrators never provided any alternatives to L.W.'s attendance at High School South. L.G. explored placement in a religious school but she was informed that the district would not pay for L.W.'s attendance there.
L.W. applied for admission to the Red Bank Regional High School, which has a performing arts program. L.W. auditioned and was accepted. The district agreed to bear the expense of L.W.'s attendance at the school. The district also agreed to pay L.W.'s transportation costs. L.W. completed his freshman year in Red Bank and then ...