An Ocean County school district will have to pay out of pocket for failing to protect a student from years of bullying based on his sexual orientation.
The Division on Civil Rights assessed the damages, penalties and costs on Monday in a case that earlier led to a seminal ruling that school districts may be liable for permitting a hostile educational environment created by bias-based peer harassment.
The case, L.W. v. Toms River Regional Schools Bd. of Ed., is also credited with driving enactment of New Jersey’s Anti-Bullying Bill of Rights Act of 2011, which requires all instances of bullying to be reported to the state and sets strict deadlines for compliance.
Division on Civil Rights Director Craig Sashihara adopted Chief Administrative Law Judge Laura Sanders’ Sept. 29 finding that the Toms River district knew or should have known of the harassment but failed to take reasonable action to remedy it.
Sashihara ordered the district to pay the former student $50,000 in damages for pain and humiliation, $18,269 in interest, $28,175 in counsel fees and $10,242 in interest on counsel fees. It also must pay a $10,000 penalty to the state, as prescribed by the LAD.
L.W. was a Toms River student who complained to authorities in grammar, middle and high school that his peers abused him for years with anti-gay comments like "homo" and "faggot" and occasionally assaulted him — treatment so bad that he felt compelled to miss classes and avoid school buses and after-school activities.
He also was subject to physical threats, and once while he was standing in line for lunch another student grabbed his genitals and "humped" him.
His mother regularly reported the mistreatment. In some cases, the bullies were punished, but in one instance, a guidance counselor told L.W. to "toughen up" and "turn the other cheek."
Administrators tried to deal with the problem with lectures, detentions and an occasional suspension to tormentors without effecting an end to the problem until the ninth grade, when L.W. transferred to an out-of-town school.
L.W. filed a formal complaint in 1999 with the Division on Civil Rights, which issued a finding of probable cause the next year. In 2004, the division found the district liable for failing to properly address the harassment.
The case worked its way up to the state Supreme Court, which held in 2007 that the standard for peer-to-peer harassment at school is the same as for workplace harassment under Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993).
Under that standard, a school is liable if it has actual knowledge of the harassment and does not promptly and effectively act to stop it.
The Toms River school board argued that the correct standard the one in Title IX of 1972 amendments to federal education law. Under court interpretations of Title IX, a complainant must show that the harassment was severe, pervasive and objectively offensive and that the school district was deliberately indifferent to the harassment.
With a Title IX standard, districts could win on summary judgment if they had a policy and attempted to enforce it, even if it wasn’t successful.
The justices instructed lower courts and administrative fact-finders to weigh the reasonableness of a school district’s response to peer harassment in light of the totality of circumstances
The L.W. case was sent back to an ALJ to supplement the record on whether the district’s response to L.W.’s complaints was reasonable.
Toms River presented expert testimony from former Education Commissioner Vito Gagliardi Sr., who said the district "took effective and reasonable measures to prevent the continued harassment of L.W. by other students."
The Attorney General’s Office presented expert testimony from Robert Campbell of Rowan University, an authority on school administration, who said Toms River’s actions "fell short of a reasonable response."
Sanders concurred with Campbell, citing the number of harassment incidents in this case, and said that "the fact that child after child felt free to harass L.W. was an indication that the District’s policy was ineffective."
The district took exception to Sanders’ findings, arguing that after it took responsive action in 1999, the number and severity of the incidents of harassment declined.
But Sashihara was not persuaded, noting that the bullying resumed when L.W. began ninth grade, culminating in two physical assaults.
Thomas Monahan of Gilmore & Monahan in Toms River, who represented the school district, says the Board of Education will consider whether to appeal Sashihara’s decision.
Monahan says the decisions by Sashihara and Sanders seem to contradict evidence on the record, that L.W. and his mother told school administrators they were pleased with the attention given to the harassment issue.
"What bothers me is, I know these principals and supervisors pay close attention to this case and it has affected them that someone said they didn’t do their job," says Monahan. •