As an initial matter, it should be noted there is no specific legal claim for bullying per se.  Even though New Jersey has enacted an Anti-Bullying Bill of Rights Act, the law states that no civil legal liability is created by the statute.  Rather, claims for conduct considered harassment, intimidation or bullying (“HIB”) may be pursued under New Jersey’s Law Against Discrimination (“LAD”) and other anti-discriminatory laws.[1] 

 The seminal bullying case in New Jersey is L.W. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381 (2007).  There, a student was subjected to almost daily harassment, which escalated to physical aggression and molestation because of his perceived sexual orientation.  The Supreme Court of New Jersey found that the LAD recognized a cause of action against a school district for student-on-student affectional or sexual orientation harassment.  The Court found that the district could be held liable where it “knew or should have known of the harassment but failed to take actions reasonably calculated to end the mistreatment and offensive conduct.”

 Under the Toms River standard, a person suing for HIB violations must demonstrate that the school district failed to take reasonable corrective actions where it knew or should have known of bias-based harassing which created a “hostile educational environment.”  The reasonableness of a district’s response will depend on a number of factors, including, but not limited to: the students’ ages and maturity levels; school culture; the frequency and duration of bullying; severity; history of bullying within the district; and the effectiveness and swiftness of the district’s reaction.  An expert opinion may be required to demonstrate the unreasonableness of the district’s response. 

 Ultimately, an administrative law judge found that the Toms River school district’s response to the harassment of L.W. was unreasonable where: the district didn’t consider alternatives to its “first time, counseling” approach; there was incongruity in punishments for being one minute late (three disciplinary points and detention) versus merely counselling for bullying; and the fact that numerous children felt free to continually harass L.W.  See Final Decision & Order.

 Applying the Toms River standard, a New Jersey federal Court recently found that administrators’ utterance of homophobic slurs to a homosexual student adequately alleged a hostile school environment sufficient to sustain an LAD claim.  See J.G. v. Hackettstown Pub. Sch. Dist., No. 18 Civ. 2365 (D.N.J. Aug. 8, 2018).  That is contrasted with an earlier decision of the Court finding that a student failed to demonstrate an LAD claim where being from the southern United States was not a protected characteristic and a few incidents of name calling did not amount to “severe and pervasive” discrimination.  See Thomas v. East Orange Bd. of Educ.¸ 998 F. Supp. 2d 338 (D.N.J. 2014).  

 As with most legal claims, the strength of an LAD claim for bullying will depend on the facts and circumstances.

ATTORNEY ADVERTISING.  This document is provided by P. Taylor Legal, PLLC for information purposes only and is not intended and should not be construed as legal advice.

[1] Claims arising out of bullying are not limited to unlawful discrimination actions and may proceed under a number of different theories of liability, including, but not limited to, emotional distress and negligence. 

Philip Taylor