School Flunked on Its Efforts To
Stop Student-on-Student Harassment
May 9, 2007
By Charles Toutant
New Jersey Law Journal
A school district in Ocean County
will be the first testing ground for the Supreme Court doctrine
granting school students the same protection from a hostile
environment that applies in the workplace.
The state Division on Civil Rights
on Tuesday found probable cause that the Jackson School District
violated the Law Against Discrimination by not taking adequate
measures to prevent student-on-student harassment based on sexual
orientation and national origin.
If the case goes to trial, it could
serve as a lesson on how the state Supreme Court's ruling in L.W. v.
Toms River Regional Schools Board of Education, 189 N.J. 381 (2007),
will shake out. There the Court held, on similar facts, that school
districts could be held liable for permitting a hostile school
environment to persist.
The complainant is Daniel Jacobson,
a 2006 graduate of Jackson Memorial High School, who was born in
Honduras and identifies himself as bisexual. According to the
division's opinion, Jacobson complained to school officials,
beginning in January 2003, about name-calling, inappropriate
touching, assaults and harassing phone calls.
Once, during senior year, two
students called Jacobson "faggot" in the presence of a guidance
counselor, who took no action; later that year, four boys threatened
to kill him, the opinion says.
Those who perpetrated the
harassment usually faced no consequences, and following complaints
from Jacobson's parents, the school administration took no
corrective action except to separate him from the rest of the
student body during lunch, the opinion says.
Just as in the Toms River case, the
civil rights division called the actions taken to discipline the
troublemakers inadequate. In the earlier case, the division had
ordered the district to pay damages, though there has still been no
The parties in the Jackson cases
now have 45 days to air their differences before a mediator. If
mediation fails, an administrative law judge will hear the case and
Division on Civil Rights director J. Frank Vespa-Papaleo will decide
whether to adopt, modify or reject the ALJ ruling.
Vespa-Papaleo, when asked what sort
of remedy he would seek in the Jackson case, said, "The ultimate
goal of this case is to stop the unlawful harassment of students in
school by other students."
student-on-student harassment is a high priority for his agency
because of studies showing students who are harassed often stay home
from school, which results in poor educational outcomes.
The decision on whether a school
district worked hard enough to stem harassment is fact-specific. The
Court in the Toms River case said the factors to be considered
include the ages and maturity of the students involved, the
frequency of the conduct, the overall atmosphere of the school, and
consistency and speed of the school's responses to harassment.
The Jackson school district's
attorney, Stefani Schwartz, of Schwartz, Simon, Edelstein, Celso &
Kessler in Florham Park, said her client has a zero-tolerance policy
on student-on-student harassment and looks forward to an opportunity
to tell its story to an ALJ.
Other school lawyers hope cases
like this one will give guidance on what constitutes a reasonable
administrative response to student-on-student harassment. "The legal
statement of the standard is clear, but the practicalities have to
be fleshed out in case law," says David Carroll, of Parker McCay in
Lawrenceville. While school districts have concerned themselves with
bullying for years for educational reasons, the prospect of civil
damages raises interest, he says.
JONATHAN S. CORCHNOY
www.corchnoylaw.com Attorney at Law*+ Certified Senior Advisor
Licensed Insurance Producer (Life & Health)*+ 1515 Market Street,
Suite 1510 Philadelphia, PA 19102 Phone: (215) 266-7872 Fax: (856)
783-3330 *Pennsylvania +New Jersey