Court
backs tough rules on student harassment
Jersey kids are afforded more
anti-bias protection
Thursday, December 08, 2005 • BY ROBERT SCHWANEBERG
• Star-Ledger Staff
School districts have the same obligation
to stop harassment of students as employers have to prevent
a hostile workplace, a state appeals court said yesterday in
a ruling that gives New Jersey students greater protection
than their peers nationwide.
The court ruled 2-1 that the Toms River
Regional School District must pay $50,000 to a former
student who was slapped, punched and repeatedly taunted by
classmates who thought he was gay.
The court unanimously rejected the
district's arguments that the tough standards applied in the
workplace are unrealistic in the classroom because students,
unlike employees, cannot be fired.
"We see no justification for imposing a
higher hurdle for claims by students who are subject to
bias-based harassment in school than that which is imposed
for individuals who experience such harassment in the
workplace," Appellate Division Judge Joseph Yannotti
wrote.
Yannotti and Appellate Division Judge
Ariel A. Rodriguez concluded that Toms River school
officials failed in their duties by allowing the former
student, identified only by the initials "L.W.," to be
"subjected to severe or pervasive harassment on the basis of
his perceived sexual orientation."
Although the district warned the
harassers to stop and disciplined the worst offenders, its
"failure to take effective remedial action allowed the
problem to grow and worsen," the judges said. They upheld
state Civil Rights Director J. Frank Vespa-Papaleo's order
that the district pay the student $50,000 for his emotional
suffering.
Appellate Division Judge Edwin Alley
dissented from that part of the ruling, finding that the
incidents of bullying "were occasional, not pervasive, and
hostility did not characterize the conduct or attitude of
the school."
The dissent gives the district an
automatic right to have the ruling reviewed by the New
Jersey Supreme Court. Toms River lawyer Thomas Monahan, who
represents the district, said it will appeal.
Vespa-Papaleo was "ecstatic" over the
ruling, one of the first in the nation to use
anti-discrimination law to establish such tough protections
against harassment in the classroom. The ruling is based on
New Jersey's Law Against Discrimination; the much weaker
standard under federal law allows students to sue only if
school administrators turn a blind eye to student-on-student
harassment.
"Hopefully this is the beginning of an
effort for every school district to reassess their practices
and policies and if they find any deficiencies, correct them
immediately," Vespa-Papaleo said.
Monahan said the ruling ignores the
differences between the workplace -- where employees are
expected to know the rules of conduct -- and schools, which
exist to teach children those rules.
"The same standards apply to a 7- or
8-year-old as to a 40-year-old manager? It's very
difficult," Monahan said. "The first time somebody who works
for IBM makes an offensive remark like that, they're
probably fired. We can't do that."
According to Yannotti's ruling, the
harassment of L.W. began when he was in the fourth grade,
when he was taunted weekly with derogatory names for
homosexuals. By seventh grade, he was being taunted "almost
on a daily basis," but the situation improved after two
students were suspended that April, the ruling said. It
added that L.W. did not complain of being harassed during
his entire eighth-grade year and at his graduation thanked
an assistant principal for helping him.
He had no sooner started High School
South in 2000 than he was beaten up twice, the ruling said.
He then transferred to another school.
Monahan said the district suspended the
attackers even though both of those assaults took place off
campus: once while L.W. was walking home and another time
when he was at a fast-food lunch spot.
If one student harasses another at the
mall on a Saturday night, "is that now a school
responsibility?" Monahan asked.
Yannotti criticized the district for
telling L.W.'s mother it could protect her son if he would
ride the bus to and from school and stay there for
lunch.
"The district's remedial measures should
have been designed to alter the behavior of the harassers,
not the person who was harassed," Yannotti wrote.
Deborah Jacobs, executive director of the
state chapter of the American Civil Liberties Union, said,
"Today's decision ensures children receive the same
protections in their schools that their parents receive in
the work place."
Robert Schwaneberg covers legal issues. He may be reached
at rschwaneberg@starledger.com or (609) 989-0324.
© 2005 The Star-Ledger. Used by NJ.com with
permission.
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