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Public school students harassed by classmates based on bias can sue for “hostile environment” discrimination, the New Jersey Division on Civil Rights has ruled in a precedent-setting case. Overturning an administrative law judge, Director J. Frank Vespa-Papaleo held that a student who endured years of anti-gay name-calling and physical abuse by fellow students has a claim under the Law Against Discrimination. The action is similar to the hostile-workplace claim the state Supreme Court sustained in Lehmann v. Toys ‘R’ Us Inc., 132 N.J. 587 (1993). From this point on, students subjected to harassment or bullying based on religion, race, disability, gender, national origin or sexual orientation can complain of hostile-environment cases in places of public accommodation, Vespa-Papaleo said in a letter accompanying his July 26 ruling in L.W. v. Toms River Regional Schools Board of Education, PQ07IE-025965. The administrative law judge turned down L.W.’s claim upon finding that the Court has rejected agency-based or vicarious liability under Title IX of the Education Amendments of 1972. But Vespa-Papaleo found the LAD a more appropriate remedy, having long been used to ensure that children have unfettered access to public education. The scope of liability under the LAD is significantly broader, “specifically prohibiting direct or indirect acts of discrimination of any owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation,” he wrote. L.W. claims that Toms River school officials were indifferent to his complaints of mistreatment during his intermediate school and high school years. In sixth and seventh grade, L.W. was frequently called names like “faggot” and “homo,” with the taunts sometimes escalating to physical altercations, he claims. In ninth grade, he was twice taunted with epithets and punched by other students off school grounds on his lunch break and on the way home, he says. L.W. and his mother found the harassment significant enough that at one point he missed class for a month while she looked for another school for him to attend. He transferred to another school after the ninth-grade incidents. The district responded that it took appropriate action against the perpetrators of each incident of harassment, ranging from lectures to suspensions from school. The district employed a policy of progressive discipline in which first offenses received milder punishments than subsequent ones, its lawyer argued. Vespa-Papaleo concluded, however, that the district failed to address the broader pattern of abuse. “Even if Respondent’s disciplinary actions were appropriate for each individual offender, they did not address Respondent’s responsibility to provide L.W. with an education that was not permeated by bias-based hostility,” he wrote. The school district was ordered to pay $50,000 to L.W. and $10,000 to his mother to compensate for their pain and humiliation and a $10,000 statutory penalty to the state. The district also was ordered to establish a program to prevent bullying based on sexual orientation. The administrative law judge had given short shrift to the LAD claim. In his April 26 ruling, John Schuster III said no New Jersey courts have recognized a cause of action for hostile environment in a public school setting and he said he did not have the authority to create one. Schuster further held that L.W. had not met the conditions for a Title IX claim based on student-on-student harassment, namely, that the school shows deliberate indifference, that the student is denied access to an educational benefit and that the harassment occurs in circumstances under the school’s control. Vespa-Papaleo took a different tack. He found that bias-based student-on-student harassment violates the LAD where it is severe enough to make a reasonable student of the protected class find the school environment hostile. School districts are liable for such harassment when administrators knew or should have known of the harassment and failed to take steps to stop it, he said. Vespa-Papaleo disputed Schuster’s conclusion that the school district warned students against anti-gay harassment. The admonitions covered sexual harassment but did not mention sexual orientation. FAULTS WORKPLACE ANALOGY The attorney for the Toms River district, Thomas Monahan, faults Vespa-Papaleo for equating a middle school to a workplace. “You can’t fire a student,” says Monahan, of Gilmore & Monahan in Toms River, who is asking the Appellate Division to hear the case. That appeal will come just as the Appellate Division mulls another hostile-environment action against a school district, K.P. v. Corsey, A-2917-03T2, brought by a student who claims to have been sexually assaulted by a track coach. The K.P. case began with Title IX and LAD claims against the Deptford Township Board of Education. Both were dismissed, but the Third U.S. Circuit Court of Appeals last fall reinstated the LAD claim and ordered that it be remanded to state court. Superior Court Judge Martin Herman in Gloucester County dismissed the case, finding the claim barred by the Board of Education’s effective sexual harassment policy. The appellate case has been briefed but no date has been set for argument. Although there is no precedent in New Jersey, other courts have granted relief to students in harassment suits even in states where sexual orientation is not a protected class. In Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), the Seventh Circuit found the public school district in Ashland, Wis., violated Fourteenth Amendment equal protection rights by its administrators’ failure to act on a pattern of severe beatings and harassment inflicted on a homosexual student. The school district then settled for $900,000, says the plaintiff’s lawyer, David Buckel, senior staff attorney for the Lambda Legal Defense and Education Fund. Buckel says that since Nabozny, a growing number of anti-gay harassment suits have been brought against school districts in all 50 states. “The bottom line of this is if the child is a citizen of the country, then the U.S. Constitution provides protection. But hats off to Jersey for having the LAD,” he says. Deputy Attorney General James Michael, who represented L.W. and his mother, L.G., says his case did not rely on Nabozny because the Division of Civil Rights generally brings complaints under the LAD. “I think the way the LAD is written, it provides broad protection, so there’s no need to resort to the U.S. Constitution,” says Michael. Vespa-Papaleo was out of town last week and unavailable for comment. School districts already face a duty to act when they observe a pattern of student-on-student abuse, notwithstanding the ruling in L.W., says education lawyer David Rubin, who cited the requirements of the 2002 anti-bullying law, N.J.S.A. 18A:37-14 et seq., for schools to take steps to prevent victimization. The L.W. ruling “is not what I would consider a 180-degree change in the law. I consider it an extension of a trend that was already going. From the standpoint of liability, perhaps it will increase visibility of these issues, although it was, frankly, pretty high to begin with,” says Rubin, a Metuchen, N.J. solo. But Rubin says the ruling leaves unanswered just how far districts must go to counsel tolerance of gays and at what grade level. “The issue of dealing with younger children’s sexuality to begin with has always been a topic of debate among educators,” he says. “How to deal with it in terms of sexual orientation is even more complicated.”

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