Court To Decide If
School Bullying Triggers LAD
By Michael Booth, New
Jersey Law Journal, November 20, 2006
Employees can be fired for harassing
or discriminatory conduct against their peers, lest the employer be found to
abide a hostile workplace. But should a public school, which can't "fire"
its student, be held to the same standard?
It's a case of first impression for the New Jersey Supreme Court, which heard
arguments last Monday in L.W. v. Toms River Regional Schools Board of
Education, A-111-05.
School lawyers seek to overturn a $50,000 award to a student who faced
persistent harassment and beatings by other students, allegedly due to his
supposed sexual orientation. The harassment allegedly continued for five
years, despite repeated suspensions and warnings and lectures, until the boy's
mother, with financial help from the district, enrolled him in a private school.
The state Division on Civil Rights found the school had allowed a hostile
academic environment to fester, analogizing the situation to the hostile
workplace that the Court, in Lehmann v. Toys 'R' Us, 132 N.J. 587 (1993),
found to violate the Law Against Discrimination. The Appellate Division
agreed and upheld the damages to the boy, though it overturned an award of
$10,000 to his mother for emotional distress.
The school's lawyers argue that the hostile environment standard is unfair,
because unlike an employer, a school cannot "terminate" infracting parties.
"You can't fire a student." said Thomas Monahan, of Gilmore & Monahan in Toms
River. "It's almost impossible to expel a student in New Jersey."
He said the school system had done all it could by issuing suspensions, adopting
a "zero-tolerance" policy toward abusive behavior and educating students about
the evils of all forms of harassment.
When Monahan said the harassment was "mostly name-calling," he raised the
hackles of Justice Barry Albin. "You're not downplaying the force of
words, are you?" Albin asked. "In the adult world, weapons are words."
Monahan said he was not attempting to dismiss the name-calling as low-grade
harassment, but said there was very little physical abuse. He stated again
the district made repeated efforts to have the harassing and abusive students,
of which there were about 18, clean up their act.
"Your response was always actor-specific," Justice Jaynee LaVecchia pointed out,
asking Monahan what the district did to fulfill its responsibility to maintain a
safe learning environment.
"There were seminars, meetings with students where officials told them there was
to be no harassment," Monahan said.
Justice Roberto Rivera-Soto asked why the district should not be held to a
standard of strict liability for not taking more forceful action.
Monahan said that in many ways, the district's hands were tied. "The easy
thing to do would be to throw them out, but we can't do that," he said.
"The law protects juvenile offenders."
Deputy Attorney General James Michael, representing the Division on Civil
Rights, asserted that the district did very little to protect the plaintiffs
"There were no proactive measures, no plan in place," Michael said.
"What more could the school have done?" asked Rivera-Soto.
"They had reason to know that there were more than one or two bad apples,"
Michael said.
Rivera-Soto suggested that perhaps there was no hostile environment if "99
percent of the students behaved properly."
"I don't know I can say that," Michael replied, noting that there were more
students involved in the harassment, though L.W. was only able to identify 18.
Michael said the district should have been more active by lecturing students
about the effects of harassment and discrimination and by setting up a plan,
perhaps in the form of a handbook that spells out exactly what punishments
students might face for infractions.
"Reasonable action was not taken in this case," he said.
Lawrence Lustberg, representing eight anti-discrimination groups as amicus
curiae, said the district should have been more aggressive in teaching
students about the dangers of bullying. "This was an opportunity to
educate the entire student body," said Lustberg, of Newark's Gibbons, Del Deo,
Dolan, Griffinger & Vecchione.
"What if the student [victim] doesn't want that?" asked Rivera-Soto.
"That's what happened here."
"That's an aspect that is to be considered," said Lustberg.
"Are you saying that there are ways of educating students without identifying
any particular student?" asked Chief Justice James Zazzali.
"Yes," replied Lustberg. "This doesn't have to be done in an assembly."
PLEASE NOTE: New Jersey Supreme Court has now made available on its
website the archived webcast of the recent argument in the case of
L.W. v. Toms River Regional Schools Board of Education, Docket # A-111-05.
To observe the argument, simply go to
www.judiciary.state.nj.us/webcast/archive.htm
and look for the L.W. case.
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