School Liable for Bullying

by Andrew M. Moskowitz, Esq.

Districts can face LAD claims for peer harassment 

The Appellate Division recently held that the Law Against Discrimination (LAD) provides a cause of action against a school district for peer harassment of a student based on the latter's sexual orientation. L.W. v. Toms River Reg'l Schs. Bd. of Educ., 381 N.J. Super. 465, 485 (App. Div. 2005). In addition, the Court determined that the standard set forth in Lehmann v. Toys "R" Us, 132 N.J. 587 (1993), which addresses harassment in the workplace, should be applied in determining the school district's liability. L.W., 381 N.J. Super. at 487.

In so holding, the Appellate Division rejected the school district's argument that peer harassment claims should be reviewed under the standards set forth in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). Under the Davis holding, which addressed liability under Title IX for unlawful peer harassment, a plaintiff must demonstrate that the district "acted with deliberate indifference to known acts of harassment," and that these acts "'effectively bar[red] the victim's access to an educational opportunity or benefit.'" L.W., 381 N.J. Super. at 488 (quoting Davis, 526 U.S. at 633). In contrast, Lehman utilizes a negligence standard and imposes liability where harassment is severe or pervasive and has created "'an intimidating, hostile, or offensive'" environment. L.W., 381 N.J. Super. at 486 (quoting Lehman, 132 N.J. at 603).

In L.W., the minor complainant had filed a complaint with the Division on Civil Rights alleging that his fellow students had harassed him due to his perceived sexual orientation. L.W., 381 N.J. Super. at 475. After a finding of probable cause, the matter was referred to an administrative law judge. The ALJ determined that the deliberate indifference standard set forth in Davis was applicable, and that L.W.'s claim "failed under this test..." Id. at 481-82. However, the director reversed and held that the Lehmann standard applied. The director further held that the district had not taken sufficient measures to combat the harassment to which L.W. was subject. Id. at 482. Accordingly, it awarded L.W. "emotional distress damages" in the amount of $50,000, and also awarded L.W.'s mother $10,000. Id. at 484. The director further required that the district implement several remedial measures and granted the complainants' application for attorney's fees. Id. The school district appealed this determination.

Much of the opinion in L.W. focused on the torrent of abuse heaped upon the minor plaintiff during his tenure as a student in the Toms River school system. L.W., 381 N.J. Super. at 475-81. As summarized by the Appellate Division, "L.W. was subjected

to a series of incidents of harassment by his fellow students in which he was taunted and physically assaulted on the basis of the perception that he was a homosexual." L.W., 381 N.J. Super. at 490. Accordingly, the court agreed with the director that "a reasonable person in L.W.'s protected class would believe that the school environment was hostile and threatening." Id.

The court also agreed with the director's finding that the district did not take sufficient measures to remediate the harassment. These measures consisted of a reactive policy of progressive discipline in which students who called L.W. "faggot", "homo", "butt boy," etc. (and, in some cases, physically assaulted him) were initially "counseled"; then subject to disciplinary measures such as detention; and then suspended. L.W., 381 N.J. Super. at 475-81. The court agreed that this approach "unreasonably left L.W. exposed to continued bias-based harassment by his fellow students." L.W., 381 N.J. Super. at 493.

However, the Appellate Division did not agree that the director's imposition of certain remedial measures was appropriate. The director had ordered the district to revise its policies and regulations; to establish written procedures for addressing complaints of peer harassment based on sexual orientation; to provide training concerning how to handle discrimination and harassment complaints based on sexual orientation; to disseminate "the district's anti-discrimination policies to all parents, students, teachers and the public"; and "to implement a 'bullying prevention training program.'" L.W., 381 N.J. Super. at 484, 495-96.

Although the court agreed that, under certain circumstances, such equitable remedies could be imposed, it held that the Commissioner of Education's adoption of regulations requiring all districts to provide its students with equal access to school facilities obviated the need for these measures. Id. at 487, 496-98; see also N.J.A.C. 6A:7-1.4 (a)(1)-(2) (mandating that each district board of education "adopt and implement written educational equity policies..."); N.J.A.C. 6A:7-1.6 (a) (requiring that school personnel be trained to identify and resolve problems arising "from prejudice on the basis of...sexual

orientation..."); N.J.A.C. 6A:7-1.7(a) (requiring each district to "provide equal and bias-free access for all students to all school facilities, courses, [etc.]...regardless of...sexual orientation..."). In addition, the court held that, in directing the district to implement a "bullying prevention training program," the director had exceeded its authority, and that the authority to mandate compliance with the "anti-bullying" statutes, N.J.S.A. 18A:37-15 and N.J.S.A. 18A:37-17, rested with the Commissioner of Education.

With one member of the panel dissenting, the court affirmed the award of $50,000 to L.W. and the award of counsel fees. L.W., 381 N.J. Super. at 499- 500; id. at 501-03 (Alley, J, dissenting). However, the court reversed the director's award of $10,000 to L.W.'s mother, L.G. The court noted that per quod damages were not available under the LAD and that, because L.G. was not an "aggrieved person" as defined by N.J.S.A. 10:5-13, she could not recover damages for her emotional distress. L.W., 381 N.J. Super. at 501.

This article is reprinted with permission from the APRIL 3, 2006 issue of the New Jersey Law Journal. ©2006 ALM Properties, Inc.  Further duplicaiton without permission is prohibited. All rights reserved.

Moskowitz is a partner with the law firm of Deutsch Atkins of Hackensack.