Article

State's top court decides Toms River gay-bias case

Thursday, February 22, 2007 • BY RICK HEPP • Star-Ledger Staff

Much like employees in a workplace, students have the right to attend school without being subjected to repeated taunts from other children, the state Supreme Court said yesterday in a ruling that makes school districts responsible for stopping bias-based harassment.

The sweeping decision came in a case brought by a Toms River Regional School District student who complained he was slapped, punched and repeatedly taunted from the time he was in fourth grade by classmates who perceived him as gay.

The former student, now 21, was referred to in legal papers only by his initials, but following the decision agreed to be interviewed and identified. Louis White said he was overcome with tears when he learned of the ruling.

"It wasn't right for me to go through that," White said. "I just felt like things needed to change at my school and it has branched out from there to include other schools statewide. This whole journey has made me stronger, so it was definitely worth it in the end."

The unanimous decision, based on New Jersey's Law Against Discrimination, gives pupils in the state greater protection from "student-on-student" harassment than their peers nationwide. It said a school district may be found liable if it knew about a "hostile educational environment" and failed to take reasonable action to end it.

"Students in the classroom are entitled to no less protection from unlawful discrimination and harassment than their adult counterparts in the workplace," Chief Justice James Zazzali wrote in the opinion.

"We do not suggest, however, that isolated schoolyard insults or classroom taunts" would be enough to spark a legal case, the decision said.

In White's case, the harassment began in fourth grade and became an almost daily occurrence in fifth and sixth grades, the decision said. Initially, the boy did not understand the teasing and asked his aunt: "What does 'gay' mean?"

White said yesterday it wasn't until his teens that he knew he was gay, and he is proud of his identity. He is currently taking a year off from studying fine arts at Rutgers University.

Over the years, school administrators warned the harassers to stop and disciplined the worst offenders, but the school district did not reinforce an anti-discrimination policy through assemblies, letters to parents or other widespread communication, according to court records.

The harassment let up in eighth grade, but he was beaten up twice when he entered Toms River High School South in September 2000. He then transferred to another school at the district's expense.

White's mother filed a discrimination complaint, and state Civil Rights Director J. Frank Vespa-Papaleo ordered the district to pay the student $50,000 for his emotional suffering. The Appellate Division upheld the order in a 2-1 decision that rejected the school district's arguments that the tough standards applied in the workplace are unrealistic in the classroom.

While the Supreme Court backed Vespa-Papaleo's decision, it sent the case back to the Office of Administrative Law to determine whether the school district's response was reasonable under the new guidelines.

While drawing comparisons to "hostile work environment" lawsuits, the justices recognized "schools are different from workplaces."

"A school cannot be expected to shelter students from all instances of peer harassment," Zazzali wrote. "Nevertheless, reasonable measures are required to protect our youth, a duty that schools are more than capable of performing."

Civil rights organizations hailed the opinion as a major victory.

"This ensures that students are protected from bias-based bullying, whether on the basis of sexual orientation, race, religion, gender or any other protected category under the law," said Ed Barocas, the legal director of the American Civil Liberties Union in New Jersey, one of seven child advocacy and civil rights organizations that filed a joint friend-of-the-court brief.

The Attorney General's Office, which represented the student in the case, applauded the decision. Spokesman Lee Moore said it "recognizes the promise of the New Jersey Law Against Discrimination" to eradicate the "cancer of discrimination."

Attorney Thomas Monahan, who represented the Toms River Regional Schools Board of Education, said the district is pleased the decision established a separate standard for schools.

"The Appellate Division was applying the workplace standards to the school," Monahan said. "We absolutely opposed that because schools are entirely different than the workplace. We can't fire students. They are ours."

Mike Yaple, spokesman of the New Jersey School Boards Association, said the opinion will force school districts statewide to review policies and actions to make sure they comply with the state's anti-discrimination law.

At the same time, he said, the districts will be awaiting the ruling on whether the Toms River School District's response in White's case was reasonable because "this decision really did not give schools guidance."

"If the commissioner of Civil Rights finds that the school district is liable, then school boards across the state will be looking very closely to find out what this district did wrong and what it did right," Yaple said.

Schools held liable for bullying of students

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