|TRENTON – Division on Civil Rights Director Craig T. Sashihara has ordered the Toms River Regional Board of Education to pay a former student more than $68,000 for pain and suffering, plus interest, after concluding that the school district failed to take reasonable actions to stop persistent bullying of the student based on his perceived sexual orientation more than a decade ago.
Ruling in what is widely regarded as the state’s seminal school bullying case, Director Sashihara affirmed a prior decision by an Administrative Law Judge that the Toms River district’s counseling-based handling of students who subjected L.W. to verbal harassment, physical assault and what the Supreme Court described as repeated “molestation” was ineffective and failed to protect him.
“The law does not require school districts to shelter their students from every single instance of peer harassment. It merely asks each school district to take reasonable measures to protect those under its watch. In the case of L.W., that was not done,” Director Sashihara wrote in a Final Decision issued earlier this week.
The L.W. case originated in March 1999 when L.W. filed a formal complaint with the Division on Civil Rights alleging that the Toms River regional district had failed to respond effectively when students repeatedly bullied him because of his perceived homosexuality.
The Division investigated, and in July 2000, issued a Finding of Probable Cause against the school district. In July 2004, the Division found Toms River schools liable for failing to properly address the harassment, but the district appealed.
In 2005 the Appellate Division upheld the Division’s conclusion, and found that, despite evidence that Toms River schools had not ignored the harassment of L.W., it had failed to effectively respond to the problem. However, the school district successfully petitioned the Supreme Court to review the matter, and to determine whether the school district could be held liable in such a circumstance.
The Supreme Court subsequently ruled that a school district may be held responsible for failing to take action “reasonably calculated to end the harassment” of a student.
“Students in the classroom are entitled to no less protection from unlawful discrimination and harassment than their adult counterparts in the workplace,” noted the Supreme Court opinion, which was written by Chief Justice James R. Zazzali.
However, the Court remanded the case for further proceedings on the question of what would have constituted “reasonable action” by the Toms River district given the “totality of the circumstances” at the time. Director Sashihara’s decision earlier this week resolves that lingering question.
In an Order accompanying his decision, the Director found that the Toms River regional district must pay L.W. $50,000 plus interest accrued from September 9, 2004. That interest amounts to $18,116.98.
In addition, Sashihara ruled that the school district must pay the State a $10,000 statutory penalty. Under Sashihara’s Order, the school district also will be required to pay the State’s counsel fees plus interest accrued since September 2004, but those fees have not yet been fully calculated.
Testimony and documentation introduced during hearings on the L.W. case over the years showed that taunts directed at L.W. based on his perceived sexual orientation began when he was in fourth grade. Throughout junior high and high school, L.W. was verbally harassed and mocked, and on numerous occasions physically assaulted.
In one incident cited by the Supreme Court, a student grabbed L.W.’s “private area” in front of other students and engaged in sexually suggestive movements against L.W.’s body while taunting him by asking repeatedly “Do you like it like this?” On another occasion, L.W. was punched in the face and threatened with stabbing if he reported the attack. On another occasion, outside a convenience store in downtown Toms River, L.W. was shoved to the ground, threatened with a beating and then covered with dirt by a fellow student at Toms River South High School. He withdrew from attending school in Toms River the next day.