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District Liability for Student-on-Student Harassment is Broadened by Division on Civil Rights

by Robert A. Muccilli, Esq.

In a controversial decision, the New Jersey Division on Civil Rights expanded school district exposure to liability for student-on-student harassment. L.W. v. Toms River Regional Schools Board of Education, (OAL Dkt. No.: CRT 8535-01).

The case involves a student who was called “faggot”, “gay”, and “homo”, and who was twice physically assaulted, including one instance of physical touching in the form of a simulated sex act. There were nine (9) incidents in less than four months. The school district meted out various forms of discipline to the offending students. The district’s handbook stated that the district was committed to maintaining an instructional environment free from harassment of any kind.

Nevertheless, the Division found the school district liable for harassment based on sexual orientation under the New Jersey Law Against Discrimination (“NJLAD”), and imposed a penalty and damages cumulating to $70,000.

Rather than apply the more forgiving “deliberate indifference/actual notice” standard of Title IX of the Civil Rights Act, the Division held that a school district will be liable for student-on-student harassment under the LAD if it knew or should have known of the harassment, and failed to take action reasonably calculated to stop it. In doing so, the Division put student discrimination claims on an equal footing with employment discrimination. It discounted the rationale that schools are unlike the adult workplace and that children may, because of immaturity, regularly interact in a manner that would be unacceptable among adults.

In addition to establishing a less rigorous liability standard, the Division faulted the school district for not taking preventative measures to stop the harassment after it had knowledge of a series of incidents against the student. The Division focused on the district’s failure to disseminate an anti-discrimination policy specifically precluding harassment based on sexual orientation and its failure to unequivocally put the entire student body on notice of the types of conduct that constitute anti-homosexual harassment.

While the decision is on appeal, school districts should consider reviewing their anti-discrimination policy and should closely monitor disputes between students which involve or may involve a claim of harassment to make sure that all reasonable steps are taken to address the situation.

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