By Lisa Keen
In a unanimous decision, the New Jersey Supreme Court ruled Feb. 21 that a public school can be held liable for anti-gay harassment between students.
The case, L.W. v. Toms River, was brought by a student who had been harassed and assaulted by students who perceived him to be gay. Toms River Regional Schools did enforce discipline against students who assaulted L.W., but the discipline was less than that administered for being late to school, noted the court.
The American Civil Liberties Union of New Jersey called the decision a "major victory for student rights."
"Bullying can be enormously destructive to students, emotionally and psychologically," said Deborah Jacobs, executive director of the ACLU-NJ. "This decision requires schools to take necessary steps to ensure that students are protected from bias-based harassment, and makes clear that schools must address the entire school environment instead of merely viewing specific incidents of bullying as isolated events."
While "isolated schoolyard insults or classroom taunts are not necessarily actionable," wrote Chief Justice James Zazzali, the state's law prohibiting discrimination based on sexual orientation does apply to actions that are "sufficiently severe or pervasive enough to create an intimidating, hostile or offensive school environment."
The state law, coupled with previous rulings on the scope of the law, wrote Zazzali, requires that a school district be held liable for "student-on-student sexual orientation harassment that creates a hostile education environment when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment."
Schools do not have to eliminate all peer harassment, held the court, but they are required to implement "effective preventative and remedial measures to curb severe or pervasive discriminatory mistreatment."
Importantly, however, the court also noted that there can be considerable variables in determining whether a school's actions can be reasonably considered effective. In the L.W. v. Toms River case, the state supreme court sent the case back to a state civil rights agency to
L.W. was first harassed as "gay" and "a fag" in the fourth grade, and at an age when he was too young to know what the taunting meant. In later years, the school made his harassers write letters of apology to him, but the harassment continued and escalated. During one incident in middle school, about a dozen students surrounded L.W., hitting him in the back of the head and taunting him. School officials took no disciplinary action. Another group attack took place less than a month later, in the boy's locker room, and again, school officials took no action.
When L.W. sought the help of a guidance counselor, the counselor advised L.W. to "toughen up" and "turn the other cheek."
When three boys grabbed at L.W.'s crotch and simulated having sex with him in the school cafeteria, a school official told the attackers that their behavior was "inappropriate" and warned that they would be "dealt with more severely" should it happen again.
The New Jersey Supreme Court ruling relied on the existence of the state's "Law Against Discrimination" and its inclusion of sexual orientation discrimination. New Jersey is one of 16 states and the District of Columbia with such prohibitions. According to the Gay, Lesbian, and Straight Educators Association (GLESN), New Jersey is also one of only 10 states with "safe school" laws prohibiting sexual orientation harassment in schools. (The other nine include California, Connecticut, Maine, Massachusetts, Minnesota, Vermont, Washington, Wisconsin and, as of February 23, Iowa.
In one of the first and most famous of school harassment cases, a school district in Wisconsin agreed to pay a $900,000 settlement to a student who had been repeatedly harassed and assaulted by other students because they perceived him to be gay. School officials there suggested Jamie Nabozny stop being open about his homosexuality and rebuffed his complaints about the attacks, saying "boys will be boys." Nabozny, like L.W. in the New Jersey case, eventually left his original school district to avoid the constant attacks. The Wisconsin school agreed to the settlement after a three-judge panel for the U.S. Court of Appeals for the 7th Circuit ruled that the U.S. Constitution's guarantee of equal protection requires schools to protect students from harassment.
