Women's Rights Employment Law Blog

"A contrary conclusion would be incongruous with the LAD's prohibition of discrimination in other settings, including the workplace because the right of a student to achieve an education free from sexual harassment is certainly as important as the rights of an employee in the work setting," the court said.

The school board had argued unsuccessfully that the correct standard was the one in Title IX of 1972 amendments to federal education law. Under court interpretations of Title IX, a complainant must show that the harassment was severe, pervasive and objectively offensive and that the school district was deliberately indifferent to the harassment.

With a Title IX standard, districts like Toms River could win on summary judgment if they had a policy and attempted to enforce it, even if it wasn't successful.

Under the Lehmann standard now applied, liability is appropriate if the school has actual knowledge of the harassment and does not promptly and effectively act to stop it.

The justices instructed lower courts and administrative fact-finders determining liability to weigh the reasonableness of a school district's response to peer harassment in light of the totality of circumstances.

For example, a response to name calling by grade-schoolers might be different than a response to harassment by 12th graders, the court suggested.

The court advised districts to examine the state Department of Education's model policy to root out harassment and bullying, and said fact finders in harassment cases should look at a school's compliance with such policies.

"Only a fact-sensitive, case-by-case analysis will suffice to determine whether a school district's conduct was reasonable in its efforts to end the harassment," the court said.

The court's imposition of a "reasonableness" test provided a victory for the Toms River School Board. While the Appellate Division had upheld the Civil Rights Division's findings and most of the fine, the Supreme Court remanded the matter to the Office of Administrative Law for an inquiry into whether the Toms River schools' efforts to end the harassment were reasonable at the time of the incidents, which occurred more than six years ago.

That's a burden the school can meet, according to the district's lawyer, Thomas Monahan of Gilmore & Monahan in Toms River.

He says that the school will be able to show that the remedies met the standards schools used in 2000 to prevent student-on-student harassment.

Monahan says the decision tells school districts, "you have to have policies in place."

"It's not every comment, it's not every situation that's actionable," he says. "But if your school isn't doing what it's supposed to be doing for kids, you are going to be sued and you are going to be liable."

John Geppert Jr., who chairs the state Bar's School Law committee, says the decision provides good guidance to schools on preventing and dealing with sexual harassment.

"I think the court's reference to a reasonable standard is appropriate," says Geppert, of Schwartz Simon Edelstein Celso & Kessler in Florham Park, N.J.

Another lawyer who represents many school districts, Vito Gagliardi Jr. of Porzio, Bromberg & Newman in Morristown, N.J., says he is not surprised by the court's decision to eschew the federal standard, given the strong policy against harassment and bullying in New Jersey jurisprudence.

"The difficulty for school districts with this decision is that the court is understandably insistent on using a fact-sensitive, case-by-case analysis of all the circumstances alleged by the student," Gagliardi says.

"Given how common teasing and harassing behavior is in schools this means that school districts are either going to have to settle these cases or they are going to have to try them to conclusion because resolving them on motion is gong to be very difficult given the fact-sensitive analysis the court now requires," he says.

"It's not the standard that's troublesome and it's probably the standard we want in an enlightened society," Gagliardi says. "It's just that the cases aren't gong to be resolvable by motion and its going to be difficult for districts."

Alan Schorr of Cherry Hill, N.J., president of the state chapter of the National Employment Lawyer's Association, "this is very much an upgrade in protection from what Title IX provides under federal law and New Jersey continues to lead the way in protecting its citizens both in the workplace and now in schools."

"It's the restatement of the law in a school setting," he says.

"You can't just have a policy and expect the policy to protect everyone," he says. "The policy has to be flexible enough to take into consideration the needs of the student" and other factors.

"They will not be able to be dismissed on summary judgment," he says. "I think it's a fair standard and consistent with Lehmann and it's a good standard."

He says the problem for schools is that failure to correct a problem like L.W.'s could result in a finding that the policies were "per se ineffective."

In Toms River's case, for example, the opinion suggests the school did a lot but it could have done more to stop the harassment, he says. "It just didn't stop. He was tormented and bullied and the slaps on the wrist didn't get the job done," he says. "A trier of fact could say it wasn't effective, and therefore wasn't reasonable."

Leland Moore, a spokesman for the state attorney general's office, which championed the Civil Rights Division's position, says, "we are happy with the unanimous decision of the New Jersey Supreme Court in protecting the rights of students in our schools who are victims of unlawful peer harassment and bullying."

"We applaud the court for issuing a decision that recognizes the promise of the New Jersey Law Against Discrimination to eradicate the 'cancer of discrimination,'" he says.

Lawrence Lustberg, who argued for amici curiae, the American Civil Liberties Union and seven gay and liberal education groups, says, "The court has continued its tradition of broadly construing the Law Against Discrimination, in fact, using the LAD in contexts in which other states have never used their analogous laws."

He says the decision, even with the remand, supports the position of social scientists and experts that Toms River's attempted remedy -- trying to get progressively tougher with the harassers -- isn't adequate.

What's needed are school assemblies on the problem and other broader approaches the Supreme Court wisely discussed in the opinion, says Lustberg, of Gibbons Del Deo in Newark, N.J.

He says a finding of strict liability wasn't crucial because "justice is better achieved by consideration of all the circumstances."

"I trust the Division on Civil Rights and the courts to do justice in this and other cases," he says.