On February 21, 2007, the New Jersey Supreme Court issued its decision in the landmark bullying case, L.W. v. Toms River Regional Schools Board of Education. The Education Law Center appeared as a “friend of the court” in the case, together with other advocacy groups.

In L.W., the Supreme Court unanimously affirmed an appellate court ruling that school districts may be liable for damages and other relief under New Jersey’s Law Against Discrimination (LAD) for student-on-student harassment based on actual or perceived sexual orientation. To sustain a claim, the Court ruled that a student must allege discriminatory conduct 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.” In addition to affectional or sexual orientation, LAD prohibits discrimination on a number of protected characteristics, including race, religion, age, disability, and sex.

In adopting a standard for school district liability under LAD, the Court specifically rejected the “deliberate indifference” standard applied under federal anti-discrimination law, finding that students are entitled to as much protection from unlawful discrimination and harassment as are employees in the workplace. Thus, the Court held that school districts would be liable “when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment.” The Court established that the reasonableness of a school district’s response must be determined by a “fact-sensitive, case-by-case analysis” that considers all relevant circumstances, DOE regulations, model policies, and guidance, and, possibly, expert evidence. The Court emphasized that agencies and courts must consider the cumulative effect of all harassment and efforts to stop it, not merely view incidents in isolation.

“The Court has left no doubt that children in New Jersey are entitled to attend school in an environment free of discriminatory harassment and bullying,” said ELC Senior Attorney Elizabeth Athos. “The implications of this landmark ruling are tremendous, and, in its wake, school districts would be wise to take strong, decisive action when confronted with complaints of harassment.”

Prepared: March 5, 2007

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Sharon Krengel
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