After a nearly 14-year legal dispute, on February 25, 2013, the New Jersey Division of Civil Rights (DCR) found that the Toms River Regional Board of Education (School District) “failed to take reasonable actions to remedy a hostile school environment” in which a student was bulled based on perceived sexual orientation. The School District was ordered to pay the student more than $68,000 for pain and humiliation, plus a $10,000 statutory penalty and $38,000 in counsel fees. L.W., et al. v. Toms River Regional Schools Board of Education, DCR Docket No. PQ07IE-02596 (NJ DCR Order Feb. 25 2013).

Background

The plaintiff alleged that the School District failed to respond appropriately to students’ bullying over his perceived homosexuality. The student alleged that he was subject to verbal harassment almost every day from the fourth grade until high school. In addition to verbal taunts, the student was slapped in the face and hit on the head. It is alleged that the school guidance counselor urged the student to “toughen up and turn the other cheek.” The school assistant principal allegedly spoke to some of the “attackers, told them that their conduct was ‘inappropriate,’” but the students were allowed to return to class without any further punishment for the attacks. Eventually, the plaintiff withdrew from school.

The DCR did not prosecute this matter under New Jersey’s Anti-Bullying Bill of Rights Act (C.18A:37-13 et seq.), which took effect in 2011, but rather under New Jersey’s Law Against Discrimination (LAD) (NJSA 10:5-1 to 49). The DCR in July 2000 issued a finding of probable cause under the LAD against the School District, and in 2004 the DCR found the School District liable for failing to properly address the harassment. The violation was affirmed by the New Jersey Appellate Division in 2005, which found that while the School District did not ignore the harassment of the student, the School District failed to effectively respond to the problem. The New Jersey Supreme Court in 2007 ruled that the School District may be held responsible for bias-based peer harassment that creates a hostile educational environment, and remanded the matter to the DCR to give the parties the opportunity to supplement the record.

Decision

In its February 25, 2013, decision, the DCR affirmed the prior determination that the School District “failed to take reasonable measure[s] to end the harassment.” In reaching this conclusion, the DCR evaluated (1) the nature and extent of the harassment, (2) the totality of circumstances surrounding the School District’s responses and (3) whether the School District’s remedial actions as a whole were reasonably calculated to end the harassment. The recent decision noted that “under the circumstances, the District’s overall responses to years of bullying – which included constant taunts, physical assaults, molestation, and ultimately led to the child’s withdrawal from school – were not [reasonably] calculated to end the misconduct.” The decision concluded that the law does not require school districts to “shelter their students from every single instance of peer harassment. It does, however, require each school district to take reasonable measures to protect those under its watch.”

Comment

The decision is one of the first cases where a New Jersey school district has been held liable for failure to adequately respond to school bullying. As a lesson for other school districts, the decision outlines the factors that a trier of fact will consider when scrutinizing a school district’s response to bullying. As incidents of bullying have become a growing public concern, this decision should serve as an example of the potential consequences for failing to remedy the problem.