L.W. v. Toms River Regional Schools Board of Education, No. 7884-03 (N.J. Super., App. Div. Dec. 7, 2005)
The Superior Court of New Jersey, Appellate Division, has upheld the state's Director of the Division of Civil Rights' (DDCR) ruling that a school district was liable for peer sexual harassment based on sexual orientation under New Jersey's Law Against Discrimination (LAD). The court agreed with the DDCR that the standard for determining whether there was unlawful sex discrimination under LAD where it involves student-on-student sexual harassment based on sexual orientation is the standard applied to sexual harassment in the workplace place rather than the standard applied in federal Title IX sexual harassment claims. L.W., who attended school in the Toms River Regional School District, suffered repeated physical assaults and verbal slurs over his perceived sexual preference. His parents brought an administrative action against the school district, alleging peer sexual harassment based on L.W.'s perceived sexual orientation. An administrative law judge (ALJ) found that he lacked authority to create a cause of action for peer harassment under LAD. Even if the cause of action was valid, the ALJ concluded, the appropriate liability standard would be that of Title IX enunciated by the Supreme Court in
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). The district would not be liable under this standard, since school officials had not been deliberately indifferent to the harassment and, in fact, had responded immediately and appropriately to each incident that came to their attention. In overruling the ALJ, the DDCR instead imposed liability standards similar to those that apply to employers in the workplace, holding that Toms River school officials had allowed a "hostile school environment" to develop. As a result he ruled in favor of the student, awarding $50,000. The appellate court rejected both the school district's argument that the LAD did not create a cause of action for peer sexual harassment based on sexual orientation and its argument that the correct liability standard is the standard applied to Title IX actions. After reviewing the LAD's statutory language, the court determined that the "plain language of the LAD … establishes that it is unlawful for a person to deny an individual the 'advantages, facilities or privileges' of a public accommodation on the basis of an individual's 'affectional or sexual orientation.'" It also found that "a public school is declared to be a place of public accommodation." As a result, the appellate court concluded "a claim against a school district may be brought under the LAD for peer harassment that is based on an individual's 'affectional or sexual orientation' if the harassment rises to the level of a denial of the 'advantages, facilities or privileges' of a public school." Relying on the New Jersey Supreme Court's ruling in
Lehmann v. Toy's 'R' Us, Inc., 626 A.2d 445 (N.J. 1993), the court concluded that the appropriate standard for determining peer sexual harassment is the one applied to workplace harassment. While acknowledging that the school environment is unlike the adult workplace in the sense that children interact in a manner often unacceptable among adults, the appellate court, pointed to several reasons for applying the workplace standard in
Lehaman rather than the federal Title IX standard. First, the appellate court stated that it was not convinced that the state legislature intended to impose the more burdensome Title IX standards on students and, thus, provide them with less protection from unlawful discrimination than that available to adults in the workplace under
Lehaman. Second, it found "no justification for imposing a higher hurdle for claims by students who are subject to bias-based harassment in school than that which is imposed for individuals who experience such harassment in the workplace." Third, the court noted that the rigorous standards imposed under Title IX were the result of the fact that it was a funding measure enacted by the U.S. Congress pursuant to its constitutional spending power and the fact that Title IX did not expressly provide a cause of action for damages for unlawful discrimination. According to the court, these considerations are not relevant to the LAD because it "provides a full range of legal and equitable remedies for unlawful discrimination, not only in the workplace but also in respect to a public accommodation." Lastly, the appellate court concluded "the
Lehmann standards more effectively advance the fundamental purpose the LAD, which is "nothing less than the eradication of the cancer of Discrimination." Applying the
Lehmann standards, it found that the repeated incidents of verbal taunting and physical assaults,
e.g. L.W. being called "'gay,' 'homo,' and 'faggot' and having his genitals grabbed while a student engaged in a simulated sexual act," were sufficient to demonstrated he was subjected to severe and pervasive harassment. The court, therefore, concluded that a reasonable person belonging to L.W.'s protected class,
i.e., perceived as being gay, would believe the school environment was hostile and threatening. Addressing the remedies awarded by the DDCR, the court upheld the award of $50,000 in compensatory damages to L.W. on the ground that there was sufficient evidence to support the DDCR's finding that L.W. had suffered "humiliation, embarrassment and indignity" as a result of being harassed at school. However, it agreed with the school district that there was no basis in law for awarding $10,000 for emotional distress to L.W.'s mother because under the LAD she was not a member of the protected class,
i.e., student harassed based on sexual orientation or perceived sexual orientation. The court also found that while the student/parent handbooks were deficient because they failed to include an explicit prohibition of discrimination and harassment based on sexual orientation, the deficiency could not serve as a sufficient basis for imposing damages on the school district. It agreed with the DDCR's finding that the school district's remedial measures were ineffective. However, it concluded that the remedial measures ordered by the DDCR were not warranted in light of the fact that the state had enacted comprehensive regulations dealing with discrimination and harassment. Lastly, the appellate court found that the DDCR lacked the authority to order the school district to comply with the state's anti-bullying statutes because the legislature had vested that authority in the state's commissioner of education.
L.W. v. Toms River Regional Schools Board of Education, No. 7884-03 (N.J. Super., App. Div. Dec. 7, 2005)
[Link to full opinion][
Editor's Note: For background information on the DDCR's and the ALJ's rulings, access the link below.]
[NSBA School Law pages on DDCR ruling]