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L.W. v. Toms River Regional Schools Board of Education

February 21, 2007

L.W., A MINOR, BY HIS PARENT AND GUARDIAN, L.G., AND L.G., INDIVIDUALLY, COMPLAINANTS,
v.
TOMS RIVER REGIONAL SCHOOLS BOARD OF EDUCATION, RESPONDENT-APPELLANT.



On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 381 N.J. Super. 465 (2005).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue before the Court is whether a school district may be held liable under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, when students harass another student because of his perceived sexual orientation and, if so, what standard of liability governs such a cause of action.

As a fourth-grader at South Toms River Elementary School, L.W. was taunted with homosexual epithets such as "gay," "homo," and "fag." The harassment increased in regularity and severity as L.W. advanced through school. While in seventh grade at Intermediate West Middle School, L.W. was subjected to harassment almost daily, which escalated to physical aggression and molestation. Initially, the school's response to reported incidents was to talk to the students about their inappropriate behavior and to warn them of future consequences if the behavior continued. Eventually, as the harassment continued, discipline ranged from detention to suspension of repeat offenders and counseling for first-time offenders. L.W. was forced to miss school days following several of these incidents, a result of his fear and humiliation from the harassment. Eighth grade was a better year for L.W.

Throughout L.W.'s time at Intermediate West, a school-wide non-discrimination policy was in effect, one that the Tom's River Regional School Board (District) characterized as a "zero-tolerance" policy. Students and parents were provided a handbook of rules and policies stating that the District does not discriminate on the basis of numerous characteristics; however, it did not specifically enumerate affectional or sexual orientation. The District did not reinforce its discrimination policy with assemblies, letters to parents, or other widespread communication.

The District employed "progressive discipline" when addressing peer discrimination and harassment. First-time offenders were counseled by school officials; a second transgression earned disciplinary "points;" and a third offense could result in discipline. By way of comparison, if a student was more than one-minute late for class, the student received three "points" and a detention. Overall, progressive discipline was student-specific, based on the offender's prior record, not the victim's identity of history.

On entering High School South, the epithets resurfaced. The abuse culminated in two physical attacks, prompting L.W. to withdraw from the District to attend another school at the District's expense.

L.W. described his time as a student in the District as "very upsetting." Prior to the harassment, family members described L.W. as a happy child who had become depressed, fearful and withdrawn since his mistreatment.

L.W.'s mother filed a complaint against the District with the Division of Civil Rights on her son's and her own behalf, claiming that L.W. was repeatedly subjected to harassment by his peers due to his perceived sexual orientation. The complaint alleged that the District's failure to take corrective action violated the LAD. The matter was referred to the Office of Administrative Law (OAL) and a three-day hearing was held. The Administrative Law Judge (ALJ) concluded that a cause of action against a school district for student-on-student sexual harassment was not cognizable under the LAD. The ALJ opined that L.W.'s claim should be governed by Title IX standards. Title IX prohibits sexual discrimination in any federally-funded educational program, permitting liability "only where the funding recipient acts with deliberate indifference to known acts of harassment."

The Director of the Division of Civil Rights reviewed and rejected the ALJ's dismissal of the complaint, finding that the LAD recognized hostile environment claims against a school district. The Director adopted standards similar to those established in Lehmann, and concluded that a school district will be liable for such harassment where the school administrator or his agents knew or should have known of the harassment and failed to take effective measures to stop it. The Director determined that, based on those principles, L.W. was entitled to recovery. The Director also ordered the District to revamp its policies and procedures regarding the prevention of peer sexual harassment. L.W. was awarded $50,000 in emotional distress damages, and his mother was awarded $10,000. The District was assessed a penalty of $10,000 and was required to pay L.W.'s attorney fees.

On appeal, the Appellate Division affirmed in part and reversed in part, remanding the matter for further proceedings in conformity with its opinion. The panel found that an affectional or sexual orientation peer harassment claim against a school district can be brought under the LAD if the harassment rises to the level of a denial of the "advantages, facilities or privileges" of a public school. The panel further held that principles similar to those used to determine hostile work environment harassment under Lehmann govern student-on-student harassment allegations. The Appellate Division affirmed the $50,000 award but reversed the $10,000 awarded to L.W.'s mother, finding that she was not an aggrieved person under the LAD. The Appellate Division also reversed the Director's order requiring adoption of remedial measures and remanded for reconsideration, finding that the record did not demonstrate a district-wide problem supporting district-wide remediation. One judge dissented from the majority's finding that the District failed to take effective remedial measures.

The District's appeal of the ineffective remedial measures finding is before the Supreme Court as of right, based on the dissent in the Appellate Division. The Supreme Court granted the District's petition for certification concerning whether the LAD provides a cause of action for peer harassment and, if so, what standard of liability applies. Seven child advocacy and civil rights organizations filed a joint friend of the Court brief.

HELD: The New Jersey Law Against Discrimination recognizes a cause of action against a school district for student-on-student affectional or sexual orientation harassment. A school district is liable for such harassment when the school district knew or should have known of the harassment but failed to take actions reasonably calculated to end the mistreatment and offensive conduct.

1. The overarching goal of the LAD is to eradicate the "cancer of discrimination." This Court has liberally construed the LAD to further the Legislature's broad remedial objectives. (Pp. 17-18)

2. Because of the LAD's plain language, its broad remedial goal, and the prevalent nature of peer sexual harassment, the Court concludes that the LAD permits a cause of action against a school district for student-on-student harassment based on an individual's perceived sexual orientation if the school district's failure to reasonably address that harassment has the effect of denying that student any of the school's "accommodations, advantages, facilities or privileges." A conclusion to the contrary would not square with the LAD's prohibition of discrimination in other settings, including the workplace. In addition, this holding furthers the Legislature's goal or eradicating invidious discrimination faced by students in our public schools. Isolated schoolyard insults or classroom taunts are not necessarily actionable. Rather, the aggrieved student must allege discriminatory conduct that would not have occurred "but for" the student's protected characteristic, that a reasonable student of the same age, maturity level, and protected characteristic would consider sufficiently severe or pervasive enough to create an intimidating, hostile, or offensive school environment that the school district failed to reasonably address. (Pp. 18-22)

3. The Court will depart from federal precedent if a rigid application of its standards is inappropriate under the circumstances. The Court rejects the Title IX deliberate indifference standard because the Lehmann standard should apply in the workplace and in the school setting. There is no need to impose a separate standard because the discrimination is in a school. Additionally, there are substantial differences in scope between the LAD and Title IX and Title IX standard is more burdensome than the LAD test. It would be unfair to impose a more onerous burden on aggrieved students than on aggrieved employees. (Pp. 22-27)

4. The LAD standard governing hostile work environment sexual harassment, as modified, comports best with the circumstances presented in this appeal. A contrary conclusion would be inapposite to the State's strong policy protecting students. In the school setting, the Lehmann standard requires that a school district may be found liable under the LAD for student-on-student sexual orientation harassment that creates a hostile education environment when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment. Because the Court does not create a strict-liability standard, the school district is not compelled to purge its schools of all peer harassment to avoid liability. Rather, schools are required to implement effective preventative and remedial measures to curb severe or pervasive discriminatory mistreatment. (Pp. 27-29)

5. The application of a modified Lehmann standard requires further guidance. Schools are different from workplaces; therefore, factfinders must determine the reasonableness of a school district's response to peer harassment in light of the totality of the circumstances. Only a fact-sensitive, case-by-case analysis will suffice to determine whether a school district's conduct was reasonable in its efforts to end harassment. Where applicable, the triers of fact should consult DOE regulations, model policies, and other guidance that the agency provides. Factfinders must consider the cumulative effect of all student harassment and all efforts of the school district to curtail the conduct. Finally, expert evidence may be required to establish the reasonableness of the district's response. (Pp. 30-33)

6. Having established a standard by which a school district may be held liable under the LAD for student-on-student harassment and having provided guidance to future factfinders, this matter must be remanded to the Director of the Division of Civil Rights with the further direction that this matter be referred to the OAL to permit supplementation of the record, if requested by either party. (Pp. 33-36)

Judgment of the Appellate Division is AFFIRMED as MODIFIED. The matter is REMANDED to the Director of the Division on Civil Rights, with the direction that the case be referred to the Office of Administrative Law for proceedings consistent with this opinion.

JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE ZAZZALI's opinion.

The opinion of the court was delivered by: Chief Justice Zazzali

Argued November 13, 2006

In this appeal, we must determine whether a school district may be held liable under the New Jersey Law Against Discrimination (LAD or Act), N.J.S.A. 10:5-1 to -49, when students harass another student because of his perceived sexual orientation and, if so, what standard of liability governs such a cause of action.

In the fourth grade, classmates began taunting plaintiff L.W. with homosexual epithets such as "gay," "homo," and "fag." The harassment increased in regularity and severity as L.W. advanced through school. In seventh grade, the bullying occurred daily and escalated to physical aggression and molestation. Within days of entering high school, the abuse culminated with a pair of physical attacks. Ultimately, L.W.'s unease prompted him to withdraw from his local high school and enroll elsewhere, at the expense of his school district.

Thereafter, on her son's behalf, L.W.'s mother filed a complaint under the LAD, alleging that the Toms River Regional Schools Board of Education (District) failed to take corrective action in response to the harassment L.W. endured because of his perceived sexual orientation. The Director of the Division on Civil Rights (Director) held that the District was liable for the student-on-student harassment that L.W. repeatedly endured. The Appellate Division affirmed the Director's decision.

Because the Act's broad statutory language is clear, we hold that the LAD recognizes a cause of action against a school district for student-on-student affectional or sexual orientation harassment. We also hold that a school district is liable for such harassment when the school district knew or should have known of the harassment but failed to take actions reasonably calculated to end the mistreatment and offensive conduct. Our conclusion furthers the legislative intent of eradicating the scourge of discrimination not only from society, but also from our schools, thus encouraging school districts to take proactive steps to protect the children in their charge.

I.

As a fourth-grader at South Toms River Elementary School, L.W. first heard the taunts -- "you're gay, you're a homo, you're a fag." Initially, L.W. did not understand the teasing and asked his aunt, "what does 'gay' mean? . . . [T]hat's what everyone says I am, so what does it mean?" In fifth and sixth grade, the frequency of the ridicule increased from once a month or once a week to almost daily. Only then did school officials learn of the problem. At one point during the fifth grade, L.W. became so upset that he refused to attend school. Following a complaint by his mother, L.W.'s classmates wrote apology letters. L.W. returned to school, but the problem continued.

Middle School

The harassment escalated in 1998 when L.W. enrolled at Intermediate West for seventh grade, a school with an enrollment of 1,400 students. "Almost every single day" classmates directed slurs at L.W. loudly in the halls "so everyone could hear." When asked about his day, L.W. would occasionally reply, "Nobody called me anything today. I had a good day." But, on entering the seventh grade, the maltreatment was no longer limited to verbal disparagement. In the fall, L.W. discovered a piece of construction paper attached to his locker that read, "You're a dancer, you're gay, you're a faggot, you don't belong in our school, get out." L.W. did not immediately report the incident to school officials.

The first reported incident occurred in late January. While in the school cafeteria, a group of ten to fifteen students surrounded L.W. One of those students, R.C., then struck L.W. on the back of the head and taunted him with "the usual" homosexual epithets. L.W. went to the office and called his mother. When she arrived to pick L.W. up, eighth-grade Assistant Principal Raymond McCusker informed her that he would report the incident to seventh-grade Assistant Principal Irene Benn. The next day, L.W. remained home from school, still upset from the previous day's events. His mother called Benn four times that day to determine what action was taken in response. Benn advised L.W.'s mother that McCusker had briefed her on the incident, but because "something had come up," she "did not have time to speak to the children involved." The following day, Benn informed L.W.'s mother that she had spoken with the main participants and determined that R.C., after being called ...


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