New Jersey passed, a few years back, a comprehensive “anti-bullying” law which addresses, in broad fashion, incidents of “harassment, intimidation or abuse” in schools. The law required schools to hire and train professional “bullying” specialists, to maintain specific records (to be sent to the state periodically) regarding “HIB” incidents, and established other standards pertinent to both preventing and responding to incidents of bullying.
The law, however, did not create a “private right of action” that would allow a student to sue the school or the school district in the event that the school allegedly violated the law. Some laws do create “private rights of action” that allow an individual to sue for damages when the law has been violated. On the other hand, many more laws passed, while they certainly establish standards of conduct, don’t create a private right of action.
Here’s an example. Suppose you’re driving along the road and you stop for a light. Someone carelessly hits you from the rear, and gets a ticket – for which they’re later found guilty in municipal court – for driving carelessly. The fact that they drove carelessly – and were found guilty for it – may be used by you “evidentially” in a personal injury lawsuit you bring for the damages you sustained in the accident, but the fact that the person was found guilty of violating a traffic law does not by itself give you the right to sue them for violating that law. The violation of the law is simply evidence of the violation of an older, established personal injury “negligence” doctrine.
The same thing applies to the HIB “anti-bullying” law. It does not create a private right of action. Rather, if a school or school district is found to have violated any provision of the HIB law, that can be used as evidence in a traditional “negligence” personal injury suit, where the child argues that the school failed to respond properly to bullying (or failed to prevent it in the first place), causing the child injury.
Those aren’t easy suits to sustain. They’re often brought under the New Jersey Tort Claims Act, which contains specific protections that limit the ability to recover against public entities, even in situations like the very sympathetic case of a student suing over the school’s failure to protect him or her from bullying. Often, the student needs to prove permanent injury and a fairly high degree of wrongful conduct on the part of the school officials.
If you’re not dealing with a “vector” of traditional bigotry involved in the bullying, then that may be the only option you have (a tort suit). When, however, you’ve got sexual orientation and perceived disability issues, such as is the case in V. B. vs. Hunterdon Central School District, et al., then in my view, as a civil rights lawyer, the wrong approach was taken, resulting in a decision by a judge who applied the law correctly, but which decision is bad for the plaintiff.
It appears as if the suit was brought on behalf of a student who was being tormented for being perceived as disabled because he or she was overweight and who was tormented with homophobic taunts. This suit should have been brought under the New Jersey Law Against Discrimination (“LAD”), a comprehensive civil rights statute which prevents discrimination in places of public accommodation (like schools). A suit brought under the LAD is an advantage because you don’t have to prove permanent damages, and the protections inherent in the New Jersey Tort Claims Act do not apply. Moreover, the LAD specifically prohibits a responsible entity from attempting to “shift blame” from its own failure to prevent or respond to discrimination onto those who actually perpetrated the discrimination (other students).
For example, under the LAD, if an employer failed to stop employee A from discriminating against employee B, employee B doesn’t sue employee A; they sue the employer, because the employer is the one responsible for controlling the workplace. The same idea pertains to schools. When an LAD case is brought against a school district, the concept behind the lawsuit is that the school failed in its obligation to control the educational environment and properly prevent bullying or to discipline students who were bullying (discriminatorily). Had this suit been brought under the LAD, then Judge Ciccone would have been constrained to find that it was not proper for the school district to attempt to “sue” the students who perpetrated the bullying. Obviously, those students don’t have any assets. This is a cynical ploy by the school district to shift blame (and ultimate accountability) away from itself and onto essentially judgment proof students.
Yet in tort law, this is an entirely proper strategy and the judge was constrained to find that the strategy applied in a negligence “environment.” Had the suit been brought properly under the LAD, however, the judge would not have made this decision because the law prohibits this tactic.
This is an example of making sure that the right law fits the right facts. The LAD is a comprehensive civil rights statute that applies in places of public accommodation such as schools, and it is a powerful but narrow tool that ought to be used in the right circumstances. At our firm, this is a sharp weapon we know from experience how to wield in school environments, and we wield it with precision. It’s regrettable that the school district is going to be permitted to use a perfectly “legal” trick to distract a jury from its own culpable conduct.