Gay-bashing ruling
holds N.J. schools to rules of workplace
By Robert Schwangerger, Star-Ledger from the Web, July 31, 2004
Newark, NJ, July 30 -- In a ruling that gives students attending New Jersey schools greater protection against bias than their peers nationwide, the state Division on Civil Rights has awarded $50,000 to a boy who was slapped, punched and repeatedly taunted by classmates who perceived him as homosexual.
The Toms River Regional School District, which must pay the award, also was fined $10,000 and ordered to pay $10,000 to the student's mother and to toughen its policies against gay-bashing.
State Civil Rights Director J. Frank Vespa-Papaleo, overruling an administrative law judge's decision, concluded the district's efforts to stop the bullying were "extremely limited" and allowed a "hostile school environment" to develop.
It was the first New Jersey case to determine how much school administrators must do to protect students from discrimination by other students.
Vespa-Papaleo's ruling holds school officials to the same tough standards that employers must enforce in the workplace.
"While there is merit to the observation that the immaturity of children may increase the likelihood that school students will be exposed to hurtful behavior, it is also important to recognize that schools are responsible for teaching children what types of behavior are and are not acceptable," Vespa-Papaleo wrote.
Thomas Monahan, the lawyer for the district, said it "absolutely" will bring the case to the Appellate Division of Superior Court.
Monahan said the district does not tolerate anti-gay bias and suspended several of the offending students.
"We strongly believe the school district acted appropriately, effectively and promptly for this young man," he said.
The ruling, which identified the student by his initials, said he had been taunted with homosexual slurs at least nine times in the seventh grade and on one occasion was subjected to a "simulated sex act."
It quoted his mother as saying she did not know whether her son was gay but she would love him in any case and would not allow him to "suffer constant sexual harassment" at school.
Monahan said the bullying stopped because of intervention by school officials and the student went through the eighth grade without being harassed.
But according to the ruling, when he got to Toms River High School South in September 2000, he was beaten up twice and quickly left for another school.
Both attackers were immediately suspended even though the assaults took place off school grounds, Monahan said.
He added that after the student transferred, the district paid the student's tuition at a performing arts school in another county.
Monahan argued school administrators cannot be expected to enforce the same kind of decorum on a middle-school playground that a manager can in a commercial office.
"You can't fire a student," Monahan said.
In 1999, the U.S. Supreme Court adopted that same logic in ruling that, under federal law, school administrators can be sued only if they turn a blind eye to student-on-student harassment.
Applying that standard, Administrative Law Judge John Schuster III found the district was blameless.
Vespa-Papaleo overturned that ruling, saying it understated the seriousness of the harassment and applied the wrong law.
Using the standards New Jersey courts have developed to eradicate bias in the workplace, Vespa-Papaleo said, a school is liable for student-on-student bullying if its employees "knew or should have known of the harassment and failed to take effective measures to stop it."
He added that since students must attend school, they need more protection against harassment than do workers, who can find another job.
Vespa-Papaleo ordered the district to reprint its student handbooks, which already ban sex harassment, to explicitly ban bullying on the basis of sexual orientation.
It also must train all staffers and middle- and high-school students in those policies annually for at least the next six years.
Laura Pople, president of the N.J. Gay and Lesbian Coalition, called it "a good ruling" that reinforces New Jersey's position as a leader in fighting bias in schools.
Last month, the Gay, Lesbian and Straight Education Network ranked New Jersey first in the nation for its legal protections for students outside the sexual mainstream.
It gave 42 states failing grades.
In June, Vespa-Papaleo ruled it is unlawful discrimination for restaurants and bars to offer reduced-priced drinks to women in "Ladies' Night" promotions.
That ruling provoked criticism and the Assembly passed a bill that would overturn it.
The state Senate has not acted on the measure.
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