holding an agency action that violates express or implied legislative or regulatory policies is evidence of arbitrary and capricious conduct
How later courts described this case
- holding an agency action that violates express or implied legislative or regulatory policies is evidence of arbitrary and capricious conduct
Written by the judges who cited it.
The opinion
ALLEY, J.A.D.
(dissenting in part).
I am unable to join fully in the views of my colleagues as expressed so ably in Judge Yannotti’s opinion. My divergence is limited to so much of the majority decision as affirmed an award of damages and counsel fees to L.W., and I dissent to that extent.
Certainly, I join my colleagues in recognizing that harassment of a public school student based on his or her sexual orientation is forbidden by the LAD, and also that vigorous steps are warranted to accomplish its eradication. Similarly, bullying of students also should be rooted out. Nor do I mean to minimize the anguish and fear that the complained-of incidents of harassment and bullying must have inflicted on L.W. and his mother.
As the majority ventures, it may be that the remedial measures taken by the school in this case ultimately were not as effective as *502 we would have preferred. But the real question is whether there was a “hostile school environment,” and this involves considerations that may not have been given their full due.
Thus, incidents of discrimination against L.W. took place, not in a vacuum, but in the context of actions by the school and its responsible officials that on balance were supportive of L.W., aimed at making his school environment congenial, and designed to punish those who engaged in the harassment. When the efforts of the school staff and administration are reckoned, they dispel, at least to a substantial extent, the portrayal of the entire school environment as hostile. The incidents that led to the disciplining of offending students were occasional, not pervasive, and hostility did not characterize the conduct or attitude of the school.
Indeed, when evaluating the conduct of the school and its officials, it is helpful to recognize how different the situation here was from the facts that obtained in Frugis v. Bracigliano, 177 N.J. 250, 268 , 827 A.2d 1040 (2003), cited by the majority. In Frugis , the facts were dominated by incidents of recurring abuse of students by a principal, often right in his school office and in rather conspicuous circumstances. Although the principles enunciated in Frugis are indeed valuable, the dramatic difference between the circumstances here and those in Frugis limits the usefulness of the comparison.
The Director’s determinations with respect to the reasonableness or unreasonableness of the remedial actions of the school and its staff cannot be sustained on the present record. The Director’s determinations necessarily assume that those actions were unreasonable. But in the absence of proofs regarding how problems of this nature are addressed, including with respect to the nature of the discipline imposed on students who have discriminated, by at least some of the hundreds of other schools in the State, there is no basis for comparing this District with others, and thus no real standard of judging the reasonableness of what was done here. The same can be said for the lack of any meaningful information in this record as to how the District’s *503 actions compared to what may or may not have been required at the time by the Commissioner of Education. To judge the District and its staff in the absence of such proofs, which must have been readily obtainable by the Director, is in essence arbitrary. The Director cannot reliably know that the type of incidents that occurred here were reasonably stoppable by the school without proof that they were stoppable by other similarly situated schools.
I would reverse the Director’s award to L.W. of damages and counsel fees and dissent from our affirmance of that award.