LW & LG v. Toms River

Regional Board of Education

By Director Frank Vespa-Papaleo, NJ Division on Civil Rights

I am pleased to announced that earlier today the NJ Superior Court, Appellate Division issued its decision in the case of LW & LG v. Toms River Regional Board of Education (A-7804-03T5), which reviewed the July 26, 2004 decision of the Director of the Division on Civil Rights which held Respondent school district responsible under the NJ Law Against Discrimination for severe or pervasive student-on-student harassment against a student perceived to be gay.  The Director's July 26, 2004 decision is available at http://www.njcivilrights.com/downloads/orders/LW-v-Toms_River.pdf.  The Appellate Division decision handed down this morning is available for free at the Judiciary website at http://www.judiciary.state.nj.us/opinions/a7084-03.pdf  I believe it was a very positive decision by the Appellate Division.

In its decision the Court reversed in part and remanded in part, but affirmed many of the important issues raised in the July 2004 Director's decision.  Highlights of the Court's decision are as follows:

1.      The Appellate Division found that peer harassment is a cognizable claim under the New Jersey Law Against Discrimination.

2.      The Court found that the Lehman standard applies and rejected the "deliberate indifference" standard under Title IX cases.  This means that where a hostile environment is created through the use of words or actions that are severe or pervasive, the school district must respond to stop the harassment.

3.      Applying the Lehman standard (which previously had only been applied in employment settings and not in cases involving places of public accommodations), a majority of the Court held that L.W. was subjected to unlawful harassment that was both severe and pervasive. 

4.      On issues of liability:

      * The Court disagreed with the Director's finding that the school district's mechanisms to prevent peer harassment based on sexual orientation were inadequate.   

   * The Court found that there was sufficient evidence to support the Director's finding that the school failed to take effective corrective action.  The Court held that the district's delay in ending the harassment was unreasonable.  Also, the Court found that there was sufficient evidence to support the finding that the district did not effectively respond to the 2 incidents that occurred when LW was in high school.

5   On issues of equitable remedies:

The Court was not convinced that the Director's remedial measures  were supported by the record, especially in light of independent, comprehensive requirements under the Department of Education regulations.  The Court reversed and remanded this issue.

6      * The Court reversed the portion of the Director's order requiring the school district to comply with anti-bullying statutes because the Legislature has conferred authority to enforce the anti-bullying statutes upon the Commissioner of Education.

With respect to compensatory damages: 

     * The Court affirmed the Director's award of $50,000 in compensatory damages to LW.  The Court noted that the award was not excessive and that the Director is not limited to awarding incidental monetary damages. 

     * The Court rejected the Director's $10,000 award to LG (LW's mother) on the ground that she is not an aggrieved person under the NJ Law Against Discrimination.

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