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State workplace anti-bias law applied to school case

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TRENTON, N.J.—In applying a state workplace anti-discrimination law to a school district facing a lawsuit from a student subjected to anti-gay harassment by his peers, the New Jersey Supreme Court has shown plaintiffs nationwide an easier way to hold school districts liable, legal experts say.

By not forcing the plaintiff to seek damages under a federal education anti-discrimination statute, the court has given him a lighter burden of proof to establish liability against his former school.

Ronald Stephens, executive director of the National School Safety Center of Westlake Village, Calif., said he has never heard of a student suing a school under a state workplace anti-discrimination law. The Center was established by presidential directive in 1984 to focus on preventing school crime and violence.

Because the decision may give plaintiffs in other states another route to recover damages from schools, it "should be taken seriously" by all schools, regardless of whether they have programs designed to prevent discrimination, he said.

The case, L.W. vs. Toms River Regional Schools Board of Education, drew numerous amicus briefs from education and gay civil rights advocacy groups. The lawsuit was filed by a former student who suffered years of verbal and physical abuse from classmates who believed the boy is gay. The harassment began in elementary school and continued into the plaintiff's first year of high school, when he transferred out of the district, court records state.

The boy's schools in Toms River, N.J., responded to the harassment by what court papers describe as progressive discipline that was subject to the offender's prior record. Only the victim's junior high school had an anti-discrimination policy, but it did not address the kind of harassment he suffered and was not communicated effectively, according to court papers.

The former student and his mother sued the school district under New Jersey's workplace anti-discrimination statute, the Law Against Discrimination.

Toms River school district attorney Thomas E. Monahan of Gilmore & Monahan P.A. in Toms River said that state courts previously interpreted the 1945 law as a protective measure for gays and lesbians seeking teaching posts.

A state administrative law judge ruled that the statute did not apply to student-on-student harassment. However, the director of the state's Civil Rights Division overturned the ruling, awarded the boy and his mother $70,000 in damages and ordered the school district to adopt remedial measures.

A split state appellate court in 2005 largely upheld the director's decision, but it reduced the award to $50,000, payable only to the former student.

In its 7-0 ruling, the New Jersey Supreme Court on Feb. 21 affirmed the appellate court's ruling that the law holds schools accountable for student-on-student sexual harassment.

The high court, however, noted that schools could not be expected to prevent all student harassment and "modified" the liability standard for schools under the state anti-discrimination statute.

In a 1993 case, the court had ruled that an employer is liable under the statute if it "had actual knowledge of the harassment and did not promptly and effectively act to stop it."

In its Toms River decision, the court ruled that a school district could be held liable if it "knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment."

The court explained that its standard conforms to the anti-discrimination act's goal of eradicating discrimination, "comports with the liberal construction mandated for this remedial statute" and furthers the Legislature's objectives in other statutes designed to eliminate harassment in schools.

For New Jersey schools, the ruling means plaintiffs now face a lighter burden of proof than if they had taken the more typical route of filing a federal discrimination suit under Title IX of the Education Amendments of 1972. The U.S. Supreme Court ruled in 1999 that Title IX plaintiffs must show that schools acted with "deliberate indifference" to known discriminatory acts against them.

New Jersey's high court said imposing that "more onerous" burden of proof on students would be unfair, because workers who file similar claims under the state's anti-discrimination law face a lighter burden of proof.

In directing the state's Division of Civil Rights to send the case back to an administrative law judge, the New Jersey Supreme Court-- citing a 1998 U.S. Supreme Court ruling--said the reasonableness of the school district's response to student peer harassment should be reviewed in light of the "constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a single recitation of the words used or the physical acts performed."

Despite the modified liability standard, the decision rightfully holds school districts to the same liability standard that employers face, said James Michael, a New Jersey deputy attorney general.

The New Jersey Attorney General's office represented the student.

Mr. Monahan, the school district's attorney, said he was pleased that the court modified the liability standard after deciding to hold schools liable under the state law.

While the decision could point to a new avenue of litigation against school boards in other states, "I don't think this ruling really changes much" because many schools have programs to discourage harassment, said Lisa Soronen, a staff attorney with the National School Boards Assn. in Alexandria, Va.

In addition, many courts elsewhere would view the New Jersey ruling as "going out on a limb," she said.

School district representatives--including East Brunswick, N.J., and San Francisco--agreed that the ruling likely will not have much impact on schools because of their programs.

In California, for example, school districts long have felt vulnerable to similar litigation under various state statutes, said John G. Chino, area senior vp with Arthur J. Gallagher Risk Management Services Insurance Brokers of California Inc. in Aliso Viejo.

But Mr. Stephens of the National School Safety Center still advised schools to re-evaluate their programs in light of the decision.

Child psychologist Steven Dranoff, president of D&D Industrial Consulting Inc. of Clifton, N.J., agrees. He asserts that schools' typical anti-bullying programs are flawed and ineffective, and that some co-called "zero-tolerance" programs even can lead to increased school violence.

L.W. vs. Toms River Regional Schools Board of Education, N.J. Supreme Court, Feb. 21, 2007; No. A-111.