L.W. v. Toms River Regional Schools Board of Education, No. 05-111 (N.J. Feb. 21, 2007)
In a unanimous decision, the New Jersey Supreme Court has ruled that a school district was liable under New Jersey’s Law Against Discrimination (LAD) for student-on-student sexual harassment based on sexual orientation. L.W., who attended school in the Toms River Regional School District, suffered repeated physical assaults and verbal slurs over his perceived sexual orientation. His parents brought an administrative action against the school district, alleging peer sexual harassment. 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 the Title IX standard under which the district would not be liable unless the school officials had been deliberately indifferent to the harassment. Here, the school officials had responded immediately and appropriately to each incident that came to their attention. In overruling the ALJ, the state's Director of the Division of Civil Rights' (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 Superior Court of New Jersey, Appellate Division, upheld the DDCR’s ruling. 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 workplace sexual harassment.
The New Jersey Supreme Court addressed two questions: 1) whether a school district can be held liable under LAD for student-on-student harassment based on perceived sexual orientation; and 2) if so, what standard of liability governs such a cause of action. After reviewing the text of the statute, it concluded, based on LAD’s plain language and broad remedial goal, and the "prevalent nature of peer sexual harassment in our schools," 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 a school’s "accommodations, advantages, facilities or privileges." The court cautioned that isolated insults or taunts would not be actionable. It emphasized that for a claim of peer harassment based on sexual orientation to be valid, 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, and that the school district failed to reasonably address such conduct."
Turning to the standard of liability issue, the supreme court rejected the "Title IX deliberate indifference standard because we conclude that the Lehmann standard should apply in the workplace and in the school setting. We find no need to impose a separate standard because the discrimination is in a school." It pointed out that Title IX is substantially narrower than LAD with regard to three issues. First, Title IX only prohibits sex discrimination, while LAD covers a more expansive list, including sexual orientation. Second, Title IX prohibits only recipients of federal educational funds from discriminating against students based on sex. Third, although courts have found an implied private right of action under Title IX, the LAD expressly empowers aggrieved persons to file private causes of action seeking a full range of legal and equitable remedies. It also noted that because Title IX’s deliberate indifference standard was more burdensome than the LAD standard, it would be unfair, as a matter of state law, to place a more onerous burden on aggrieved students than on aggrieved employees under LAD. However, the supreme court modified the LAD workplace standard as applied to 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 educational environment when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment." It emphasized that it was not imposing a strict liability standard requiring school districts to purge its schools of all peer harassment to avoid liability, but rather was requiring "school districts to implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment."
The court then provided some guidance to lower courts when applying the modified LAD standard. It noted in particular that schools are unlike the adult workplace in the sense that students regularly interact in a manner that would be unacceptable among adults. "It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender- specific conduct that is upsetting to the students subjected to it," said the court. "Factfinders, therefore, must determine the reasonableness of a school district’s response to peer harassment in light of the totality of the circumstances, that is, the ‘constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a single recitation of the words used or the physical acts performed.’"
L.W. v. Toms River Regional Schools Board of Education, No. 05-111 (N.J. Feb. 21, 2007)
[Full opinion]
[Editor’s Note: For background on the lawsuit, including links to the appellate division, DDCR, and ALJ rulings, see the link below.]
[NSBA School Law pages on L.W. v. Toms River Regional Schools Board of Education]