New Cause of Action: The Hostile Educational Environment
May 28, 2007
New Jersey Lawyer, May 28, 2007
In a recent seminal decision, L.W. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381 (2007), the New Jersey Supreme Court further expanded the rights of individuals under the New Jersey Law Against Discrimination (LAD) by recognizing a cause of action for hostile educational environment. In L.W., the court held, for the first time, that a school district may be liable for student-on-student harassment "if the school district's failure to reasonably address that harassment has the effect of denying to that student any of the school's 'accommodations, advantages, facilities or privileges.'" L.W. at 402 (citing N.J.S.A. 10:5-12(f)).
In L.W., the plaintiff, a student in the Toms River Regional Schools, was subjected to consistent harassment based on his perceived sexual orientation. The harassment started with homosexual epithets in the fourth grade and escalated to daily bullying and physical aggression in both middle school and high school.
Although there was a school-wide non-discrimination policy in effect during L.W.'s middle school years, the policy did not specifically include affectional or sexual orientation as a prohibited basis for discrimination. Moreover, while the policy was contained in a handbook that was provided to students and parents, the district did not reinforce this policy through assemblies, letters to parents or other communications. Furthermore, the listed disciplinary action for violations of the policy were less severe than infractions of other policies. By way of example, first-time offenders of the non-discrimination policy received mere counseling regarding their inappropriate conduct, while students who were a minute late to class received more serious discipline, including disciplinary points and detention for the first violation.
Beginning in seventh grade, L.W. and his mother began to report instances of harassment to school officials. Their efforts to end the harassment proved futile and the offending students typically only received counseling for their behavior. Although the harassment subsided slightly when L.W. was in eighth grade, it escalated when he entered high school where he was the victim of two physical assaults.
Following the second physical assault in his freshmen year, L.W. withdrew from his high school to attend school in another district. L.W.'s mother filed a complaint with the New Jersey Division on Civil Rights, alleging the district's failure to take corrective action violated the LAD. An administrative law judge dismissed L.W.'s complaint, concluding that an action for student-on-student harassment was not cognizable under the LAD. The director of the Division on Civil Rights thereafter rejected the ALJ's findings, finding there was a viable claim for hostile educational environment against a school district under the LAD and adopting standards similar to those established in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993). In addition to ordering equitable remedies requiring the district to take affirmative action to prevent peer harassment, the director awarded $50,000 in emotional distress damages to L.W. and $10,000 in emotional distress damages to his mother.
On appeal, the director's determination was affirmed in part and reversed in part. The Appellate Division upheld the portion of the director's determination that a student has a viable claim against a school district under the LAD for peer harassment and further upheld the director's finding that the principles enunciated in Lehmann should be employed in analyzing student-on-student harassment cases. Indeed, the Appellate Division only reversed the director's order insofar as it awarded $10,000 to L.W.'s mother because she was not an aggrieved person under the LAD.
Issues before the Supreme Court
The Supreme Court addressed three issues on appeal.
1. Is there is a cognizable cause of action under the LAD against a school district for student-on-student harassment;
2. If so, what is the appropriate standard for liability of such a cause of action, and
3. What are the appropriate standards to assess the reasonableness of a school districts attempts to stop peer harassment.
Cause of action exists
Citing the broad remedial goals of the LAD, its plain language and the prevalent nature of peer harassment, the court concluded there is a cause of action against a school district for student-on-student harassment.
Notwithstanding this holding, the court noted that isolated schoolyard insults and classroom taunts do not rise to the level of actionable misconduct. In order to state a claim for hostile educational environment, "an 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, and that the school district failed to reasonably address such conduct."
School district liability
In analyzing the appropriate standard to impose liability on a school district, the court held that in the school setting a modified Lehmann standard should be utilized; a school district may be found liable under the LAD for a hostile educational environment if "the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment." This standard does not compel school districts to eradicate all peer harassment to avoid liability. Instead, this standard requires that school districts implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment.
School district response
Finally, in evaluating the appropriate standard to be applied in determining whether a school district's response to peer harassment was reasonable, the court held that the factfinder must consider the totality of the circumstances. The court explained that the relevant factors to be considered in making this determination include, among other things:
- students' ages;
- school culture and atmosphere;
- frequency of conduct;
- extent and severity of conduct;
- whether violence was involved;
- history of harassment within the school district;
- effectiveness of the school district's response; and
- swiftness of the school district's reaction.
"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 the harassment."
In an effort to provide guidance to school districts, the court acknowledged the New Jersey Department of Education's (DOE) model policy, which was developed to provide school districts with guidance in addressing peer harassment. See N.J. Dept. of Educ., Model Policy and Guidance for Prohibiting Harassment, Intimidation and Bullying on School Property, at School Sponsored Functions and on School Buses (revised April 2007) (model policy) http://www.state.nj.us/education/parents/bully.htm.
In its decision, the Supreme Court specifically instructed factfinders to review the model policy, as well as the applicable DOE regulations, in order to assess the reasonableness of a school district's response to peer harassment.
In the aftermath of L.W., it is crucial for school districts to develop and implement comprehensive policies for prohibiting harassment. Moreover, by specifically referring to the model policy in its decision, the Supreme Court made clear that every school district must create and enforce a policy which includes, among other things, the following:
1. a statement defining and prohibiting harassment, intimidation or bullying of a student;
2. the consequences for violations of the policy;
3. procedures for reporting violations;
4. procedures for prompt investigation of reported violations that designates the person responsible for the investigation;
5. a range of possible responses to a violation of the policy;
6. a prohibition against retaliation against any person who reports a violation of the policy and the remedial action for a person who engages in retaliation; and
7. a statement of how the policy is to be publicized.
In sum, although the extension of the LAD to hostile educational environment cases furthers the broad remedial goals of the LAD, it is now clear school districts will be subject to liability for student-on-student harassment if they knew or should have known of the harassment and failed to take actions reasonably calculated to end the offensive conduct. This extension of the LAD requires school districts to take affirmative steps to create, publicize and implement comprehensive anti-harassment policies and to train faculty and staff within all schools of these policies. L.W. requires school districts to inform students that harassing and discriminatory behavior will not be tolerated - a lesson that will serve students well in their future working and professional relationships.
Catherine P. Wells, firstname.lastname@example.org, is a member of the employment law group; Margaret O'Rourke Wood, email@example.com, is an associate in the litigation department; and Elizabeth Mazza, firstname.lastname@example.org, is an associate in the litigation department at Wolff & Samson PC of West Orange. Wolff & Samson's phone number is (973) 325-1500.
This article appeared in the May 28, 2007, New Jersey Lawyer©, a publication of the New Jersey State Bar Association, and is reprinted here with permission.