On this date in 2007, a unanimous Supreme Court of New Jersey decided L.W. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381 (2007). The opinion, written by Chief Justice Zazzali, established that there is a cause of action under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:4-1 et seq., against a school district for student-on-student affectational or sexual orientation harassment.
The Court, however, scrupulously limited the reach of its ruling. “[I]solated schoolyard insults or classroom taunts” were not made actionable. Instead, building on the Court’s seminal decision in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1983), L.W. required that a plaintiff allege “discriminatory conduct that would not have occurred ‘but for’ the student’s protected characteristic, that a reasonable student of the same age, maturity level, and protected characteristic would consider sufficiently severe or pervasive enough to create an intimidating, hostile, or offensive school environment, and that the school district failed to reasonably address such conduct.” Chief Justice Zazzalil’s opinion painstakingly analyzed both the LAD and federal Title IX law, and carefully explained why the Court did not find Title IX analysis persuasive.
At the time of this decision, there was great hue and cry in some quarters that the Court had flung open the doors to unlimited liability by school districts for misdeeds of one student against another. That criticism did not take into account the Court’s express language, or the fact that all seven Justices, from the most conservative to the most liberal, joined in Chief Justice Zazzali’s opinion.
The case certainly did not open any floodgates of litigation. As of today, according to WestlawNext, L.W. has been cited in just 28 cases in the four years since its issuance, and a number of those citations had nothing to do with the main thrust of L.W. Apparently, most school districts have taken to heart the lessons of L.W. We can all be glad if, as a result of L.W., school districts are doing their job in preventing or ending the kind of egregious mistreatment that was the subject of that case.