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Preventing Student Harassment Based on Perceived
Sexual Orientation
by Rocky L. Peterson, Esq. and Dana M. Lane, Esq.
New Jersey’s Law Against Discrimination, referred to as the LAD, is commonly known to apply in employment discrimination
cases because employees regularly invoke its protections when making discrimination claims against their employers.
A typical LAD claim is based on an employer’s allowance or creation of a hostile work environment or a discriminatory
employment practice or policy. However, the LAD was drafted in broad terms with the far reaching goal of eradicating
discrimination in all possible contexts. For this reason, the New Jersey Supreme Court took a liberal view of the LAD in
a recent case and ruled that public school districts can be held liable under the LAD for not adequately addressing
particular forms of bullying and harassment taking place between students in New Jersey public schools.
The Court Case Prompting This Ruling
A student who attended the Toms River public schools for many years, referred to as L.W., was repeatedly harassed by other
students based upon his perceived sexual orientation. After years of harassment, L.W.’s mother sought assistance through
the legal process. The case now known as L.W. v. Toms River Regional Schools Board of Education was decided by our Supreme
Court which concluded that public school districts can in fact be held liable under the LAD for peer sexual harassment.
The Supreme Court focused on the District’s knowledge of the harassment and failure to take reasonable action to remedy the
situation.
Peer Sexual Harassment Defined
The New Jersey Supreme Court emphasized that isolated insults or taunts between students on school grounds do not provide a
reasonable basis for this type of lawsuit. However, peer sexual harassment may become legally actionable against a school
district when those incidents of harassment rise to the level of denying a student the school’s “accommodations, advantages,
facilities or privileges,” and the district knew or should have known of the harassment but failed to take actions calculated
to end the conduct.
L.W. had been repeatedly harassed by other students based upon his perceived sexual orientation. The situation escalated
from name calling in the fourth grade to physical altercations throughout his middle school and high school years. L.W. was
subjected to ongoing fear and humiliation and was often absent from school after significant acts of harassment occurred.
The Court found that L.W. had endured peer sexual harassment such that he had been denied his school’s accommodations,
advantages, facilities and/or privileges and that he could rightfully sue the Toms River School District.
The Interplay of Anti-Discrimination and Disciplinary Policies
The Court explained that because schools are unique environments, peer sexual harassment cases must be analyzed on a
case-by-case basis. This means that for every set of facts pertaining to a peer sexual harassment or discrimination case,
the Court will evaluate the reasonableness of the school district’s response in light of the surrounding facts and
circumstances.
Toms River had a non-discrimination policy in effect and a handbook describing rules and policies was provided to students
and parents, although discrimination based upon sexual orientation was not specifically included in the handbook’s
anti-discrimination policy. The Court noted that the District could have drafted the policy more specifically and employed
more widespread communication in an effort to enforce the policy.
The Court then reviewed the District’s disciplinary policies and procedures. Toms River utilized a “progressive discipline”
policy for peer discrimination and harassment, sanctioning students with more severe consequences as they committed more
offenses. However, students were subjected to a more rigorous disciplinary scheme for being late for class than for
harassing other students.
What New Jersey School Districts Should Do Now
New Jersey public school districts are well advised to review their anti-discrimination and student discipline policies and
procedures in an effort to ensure that effective preventative and remedial measures are being properly communicated and
implemented. Specifically, the district must provide for support of the victim and make corrective actions for any
documented harassment. Notice of the policy must be made throughout the district and annual training for staff and annual
discussions with the student body must occur. The community must be included in the provision of remedial programs and/or
services. Finally, school staff is required to report violations of the policy. Implementing these requirements will
assure the community and the student population that the prevention of harassment based on perceived sexual orientation
is part of an effective district-wide anti-harassment policy.
Rocky L. Peterson is a partner of Hill Wallack LLP and
partner-in-charge of the firm's School Law and Municipal Law Practice Groups and a member of its Litigation Division.
He concentrates his practice in general litigation, municipal law, school law and labor and employment issues.
Dana M. Lane is an associate of Hill Wallack LLP where she is a member of the Litigation Division and
Administrative Law/Government Procurement Practice Group. Ms. Lane concentrates her practice in administrative law, regulatory compliance and
corporate litigation including public procurement, employment and government litigation.
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