L.W. ex rel. L.G. v. Toms River Regional Schools Board of Education

(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).

L.W. v. Toms River Regional Schools Board of Education (A-111-05)

Argued November 13, 2006 — Decided February 21, 2007

ZAZZALI, J., writing for a unanimous Court.

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. $

Thomas E. Monahan Click for Enhanced Coverage Linking Searches argued the cause for appellant (Gilmore & Monahan, attorneys; Michael J. Gilmore, on the briefs).

James R. Michael, Deputy Attorney General, argued the cause for respondent New Jersey Division on Civil Rights (Stuart Rabner, Attorney General of New Jersey, attorney; Andrea M. Silkowitz Click for Enhanced Coverage Linking Searches, Assistant Attorney General, of counsel).

Lawrence S. Lustberg Click for Enhanced Coverage Linking Searches argued the cause for amici curiae, American Civil Liberties Union of New Jersey, Association for Children of New Jersey, Education Law Center, Gay Lesbian and Straight Education Network of Northern New Jersey, National Conference for Community and Justice (NJ), New Jersey Family Voices, Roxbury Parents for Exceptional Children, and Statewide Parents Advocacy Network of New Jersey (Gibbons, Del Deo, Dolan, Griffinger & Vecchione Click for Enhanced Coverage Linking Searches, attorneys; Emily B. Goldberg Click for Enhanced Coverage Linking Searches, on the letter in lieu of brief).

Chief Justice ZAZZALI delivered the opinion of the Court. Chief Justice ZAZZALI and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS.