On this date in 2007, the Supreme Court of New Jersey decided L.W. v. Toms River Regional Bd. of Educ., 189 N.J. 381 (2007). That case held that the broad language of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (“LAD”), permits a cause of action “against a school district for student-on-student affectional or sexual orientation harassment.” The Court’s unanimous opinion, written by Chief Justice Zazzali, provoked much outcry from certain quarters, with predictions that the Court had opened the floodgates to litigation over every schoolyard name-calling dispute and that the Court’s ruling would bankrupt school districts. Needless to say, such hysteria was unwarranted at the time and has not proven true since.
The Court applied the plain language of the LAD, including its definition section that makes “any … primary and secondary school, … high school, … or any educational institution under the supervision of the State Board of Education, or the Commission of Education of the State of New Jersey,” a “place of public accommodation” at which discrimination based on race, color, affectional or sexual orientation, or other bases listed in the LAD is prohibited. Chief Justice Zazzali expressly rejected the notion that “isolated schoolyard insults or classroom taunts are actionable. Rather, in the educational context, to state a claim under the LAD, an aggrieved student must allege discriminatory conduct that would not have occurred ‘but for’ the student’s protected characteristic, 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.” The Court borrowed the relevant standards from one of its leading cases on gender discrimination in the workplace (also covered by the LAD), Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993).
Chief Justice Zazzali also emphasized that the cause of action being recognized did not create strict liability. “[A] district is not compelled to purge its schools of all peer harassment to avoid liability.” Rather, school districts need only “implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment.” Only where a hostile educational environment is created and the school district “knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment” can there be liability. The Court recognized that this analysis implicates many factors, including the context of the alleged conduct, and that “a reasonable response to name-calling among grade-schoolers may be inadequate to address violence among teenagers.” Some cases could be decided based on “common sense,” while in others, expert testimony would be required.
School attendance is mandatory. The nature of the school environment is as important as the nature of a work environment, or more so, especially given the age of schoolchildren and their enhanced susceptibility, as compared with adults, to wrongful discrimination. The Court rightly recognized that the plain language of the LAD protects children in school just as it protects women and minorities in the workplace. At the same time, the Court carefully “accommodate[d] the competing interests present in this appeal”– those of victimized children and those of school districts in attempting to maintain a proper school environment and avoid unwarranted claims.