In student harassment case, N.J. court holds schools to high standard.

In a unanimous ruling, New Jersey's highest court has affirmed that schools have a duty to protect students from sexual-orientation harassment by other students, holding school districts to the same standard the state has used in employment discrimination cases. (L. W. v. Toms River Regl. Schs., 915 A.2d 535 (N.J. 2007).)

New Jersey Deputy Attorney General James Michael, who handled the case for the state's civil rights division, said the decision made "perfect sense."

"It never made any sense to me that you would hold the school's actions-and what its [equal employment opportunity] or affirmative action office does--to a different standard depending on if it was an adult staff member who complained about harassment [or] a minor student who had that same kind of complaint of harassment, with the latter requiring the office or school to do less," Michael said.

The plaintiff, identified as L.W. in court papers, was a fourth-grade student in the Toms River Regional school district when other students began taunting him based on their belief that he was gay. By ninth grade, the harassment by other students had escalated to include assaults and molestation, at which point L.W. began attending classes in another school district at the expense of the first district.

In 1999, L.W.'s mother filed a complaint with the New Jersey Division on Civil Rights under the state's Law Against Discrimination (LAD), which provides protection against discrimination in workplaces and places of public accommodation, including discrimination for "affectional or sexual orientation." She alleged that the school district had violated the LAD by failing to take corrective action in response to the harassment.

After an investigator for the agency found probable cause for her allegations, the agency held an administrative hearing. The administrative law judge concluded that federal Tide IX, not the state statute, covered the type of harassment alleged in the complaint. Under Tide IX, a school is liable only if it receives federal funds and "acts with deliberate indifference to known acts of harassment." The judge then concluded the school district did not act with deliberate indifference and dismissed the complaint.

J. Frank Vespa-Papaleo, director of the Division on Civil Rights, disagreed, saying that the LAD applied. He noted that, following a New Jersey Supreme Court decision in Lehmann v. Toys 'R' Us, Inc., an employment sexual-harassment case (626 A.2d 445 (N.J. 1993)), "a school district will be liable for such harassment where the school administration or its agents or employees knew or should have known of the harassment and failed to take effective measures to stop it." (L. W. v. Toms River Regl. Schs., No. PQ07IE-02596 (N.J. Div. Civ. Rights July 26, 2004) (available at www.nj.gov/lps/dcr/downloads/orders/LW-vToms_River.pdf).)

Finding that L.W.'s harassment was pervasive and the school district's response inadequate, Vespa-Papaleo ordered the district to incorporate into its policies an explicit prohibition of harassment based on actual or perceived sexual orientation, establish procedures for how to address complaints, and pay L.W. and his mother emotional distress damages.

The state's appellate division affirmed the agency's decision but reversed the damages award and remanded the order for the school to take remedial measures. The school district appealed on the issue of whether the LAD (in the supreme court's words) "provides a cause of action for peer harassment, and, if so, what the appropriate standard of liability is for such a claim."

Writing for the state supreme court, Chief Justice James Zazzali noted that the LAD permits a cause of action against a school district in cases of sexual orientation harassment by students "if the school district's failure to reasonably address that harassment has the effect of denying to [the targeted] student any of a school's 'accommodations, advantages, facilities or privileges.'"

Zazzali noted that the liability standard established in Lehmann for a hostile work environment under the LAD--that the employer is liable when it "has actual or constructive knowledge of the harassment and fails to take effective measures to end the discrimination"--should apply to school districts as well.

"The Title IX standard is more burdensome than the LAD test because, to recover, the aggrieved plaintiff must establish deliberate indifference by the defendant," the chief justice wrote. "However ... as a matter of state law, it would be unfair to apply a more onerous burden on aggrieved students than on aggrieved employees."

Although Zazzali noted that the decision did not create a strict liability standard, he set out specific guidelines by which fact-finders could assess the reasonableness of a school's response to peer harassment, including the students' ages, the school culture, the severity and extent of the conduct, and the swiftness and effectiveness of the school's actions against it.

The case was remanded for consideration of the school district's efforts to end the harassment.