Consolidated with:

Plaintiff, Civil Action No.: 12-cv-7 132

V.

OPINION

THE BOARD OF EDUCATION FOR THE

CLIFTON SCHOOL DISTRICT, MEMBERS

OF THE BOARD OF EDUCATION FOR:

THE CLIFTON SCHOOL DISTRICT, in their:

official capacity, CLIFTON HIGH SCHOOL,

& JIMMIE WARREN, in his official capacity,

Defendants.

CECCHI, District Judge.

This matter comes before the Court upon (1) the Motion to Dismiss Counts One through

Five of Plaintiff Dawn Colombo’s (“Plaintiff’) Complaint by Defendant Jimmie Warren(“Warren”),’ and (2) the Motion to Dismiss Plaintiffs Complaint by The Board of Education for

the Clifton School District, the Members ofthe Board ofEducation for the Clifton School District,and Clifton High School (collectively, the “Board Defendants”).2 The Motions are decided without

oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.3 For the reasons setforth below, Defendants’ Motions to Dismiss are granted in part and denied in part.

‘ECF No. 53.

2 ECF No. 54.

The Court considers any new arguments not presented by the parties to be waived. See

Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir.

1991) (“It is well established that failure to raise an issue in the district court constitutes a waiver

ofthe argument.”).
suspended from Clifton High School. ¶ 13. Plaintiff contacted Warren to discuss her son’s

disciplinary problems, and eventually met with him. ¶15. Following their initial meeting,

Plaintiff alleges that Warren engaged in a “continuing pattern of extremely inappropriate,

unwelcome, harassing, and sexually suggestive communications,” including “unwanted,

inappropriate sexual touchings.” ¶ 17. Plaintiff alleges the harassment took place during

meetings where Plaintiffsought to discuss her son’s academic performance and behavior. Compl.

¶ 18. Warren is alleged to have deliberately changed some of Plaintiff’s son’s grades, and told

Plaintiff he would protect her son from disciplinary charges in the hopes that Plaintiff would

acquiesce to his sexual advances. 14. ¶ 23-24.

Plaintiff alleges that, on several occasions, Warren exposed his penis to her. Compi. ¶ Z6.

Additionally, Warren once snuck behind Plaintiff while she waited in his office, “put his hands

under Plaintiffs breasts, and fondled them.” Id. ¶ 32. On or about June 2010, Plaintiff alleges shetold Warren she intended to report his unwanted advances and touchings to the police. j4. ¶ 34.

Warren told Plaintiff her son would not receive any further protection if she reported him. Id.

Additionally, Plaintiff alleges Warren gave her a $1,000 purse and “directed Plaintiffto keep their

‘secret’ between them.” Id. ¶ 35. Four months later, in September 2010, Plaintiff’s son was

suspended for a period of2l days, and Plaintiff contacted Warren to discuss her son’s disciplinary

4ECFNo. 1.

2
Plaintiff refused to have sex with Warren, who retaliated by refusing to lift her son’s 21 day

suspension early. ¶ 42. Plaintiff alleges that members of the Board of Education and other

administrators and employees ofthe District were aware ofWarren’s misconduct. Id. at 25.

Additionally, Plaintiff alleges that Warren’s behavior has led to harassment of her minor

daughter, N.C. Compl. ¶ 44. Plaintiff claims N.C. has been the subject of name-calling and threatsof physical harm by other students while attending Clifton High School. j She alleges that the

Defendants have taken no action to address her daughter’s social and academic needs. Id.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure I 2(b)(6), a complaint may be dismissed for failure

to state a claim upon which relief can be granted. To survive dismissal, a complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”

Ashcrofl v. Igbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In determining the

sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the

complaint as true and draw all reasonable inferences in favor ofthe non-moving party. See Phillips

v. Cnty. of Allegheny, 515 f.3d 224, 234 (3d Cir. 2008). Additionally, in evaluating a plaintiffs

claims, generally “a court looks only to the facts alleged in the complaint and its attachmentswithout reference to other parts of the record.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20F.3d 1250, 1261 (3d Cir. 1994). However, the “[f]actual allegations must be enough to raise a right

3
The burden of proof for showing that no claim has been stated is on the moving party.

Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc,, 926F.2d 1406, 1409 (3d Cir. 1991)). During a court’s threshold review, “[t]he issue is not whether a

plaintiffwill ultimately prevail but whether the claimant is entitled to offer evidence to support the

claims.” In re Rockefeller Ctr. Props., Inc., 311 f.3d 198, 215 (3d Cir. 2002). In general, the

Federal Rules of Civil Procedure should be construed liberally so as to encourage ruling on themerits instead oftechnicalities: “This liberality is expressed throughout the Federal Rules of CivilProcedure and is enshrined in a long and distinguished history. . . . An inadvertent mistake in

pleading will not be held against the pleader if another party has not been misled by the mistake

or otherwise prejudiced.” Lundy v. Adamar of New Jersey, 34 F.3d 1173, 1186 (3d Cir. 1994).

Further, courts will not dismiss for failure to state a claim merely because the complaint miscategorizes legal theories or does not point to an appropriate statute or law to raise a claim forrelief. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 909 n. 10 (1990).

III. DISCUSSION

This Court exercises jurisdiction over Plaintiffs Federal claims pursuant to 28 U.S.C. §

1331. Additionally, the Court exercises jurisdiction over Plaintiffs State law claims pursuant to

28 U.S.C. § 1367. Plaintiffs Complaint asserts six counts against Defendants. Compi. at 16-31.Plaintiffs claims include: (1) an equal protection claim under the Federal and New Jersey

Constitutions; (2) Federal and State First and Fourteenth Amendment violations of Plaintiffs

4
of 1972; and (6) violations of the New Jersey Law Against Discrimination. (Compi. at 16-31).

Defendants raise various arguments in support of their Motions to dismiss each count in

the Complaint. The Court will address each argument in turn.

A. The Board Defendants’ Liability Under Section 1983

The Board Defendants argue that § 1983 liability cannot be imposed under a theory of

respondeat superior, and that Plaintiff has failed to state a claim that Warren’s actions implement

or execute a municipal “policy or custom.” Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658, 713 (1978); (Board Defs. Br. Supp. at 24-27). The Court agrees with Defendants.

A municipal government may not be sued under Section 1983 for an injury inflicted solely

by its employee. Monell, 432 U.S. at 694. To state a § 1983 claim, a plaintiff must “demonstrate

that the municipality itself, through the implementation of a municipal policy or custom, cause[d]

a constitutional violation.” Foster v. Twp. of Hillside, 780 F. Supp. at 1046. A municipality’s

failure to act may constitute a policy where the municipality has knowledge of the need to act,

and the failure to act “rises to the level of ‘deliberate indifference’ which causes a constitutional

injury.” Bair v. City of At!. City, 100 F. Supp. 2d 262, 268 (D.N.J. 2000) (citing City of Canton

v. Harris, 489 U.S. 378 (1989)). The necessary involvement may be shown through allegations

of personal direction or “actual knowledge and acquiescence.” Andrews v. City of Philadelphia,

895 F.2d 1469, 1478 (3d Cir. 1990). The existence of actual knowledge or acquiescence must be

pled with specificity. j.

5
allegations to support a claim based on deliberate indifference. Plaintiff alleges that she threatened

to report Warren to the police on June 28, 2010. (Compi. ¶ 34.) However, she does not allegethat she ever reported Warren’s conduct to any ofthe Board Defendants between 2008 and 2010.Plaintiffs allegations that the Board Defendants “were aware of Warren’s activities and took no

action,” (Compi. ¶ 25), amount to “naked assertions devoid of further factual enhancement.”

Igbal, 556 U.S. at 678 (internal citations and quotations omitted). Accordingly, the Court findsthat Plaintiff has failed to state a claim that Warren acted pursuant to a “policy or custom”

implemented by the Board Defendants. Monell v. Dep’t of Soc. Servs. ofCity of New York, 436

U.S. 658, 694 (1978). Without such allegations of a policy or custom, the Board Defendants

cannot be liable for Warren’s actions under Section 1983. Id. The Court will dismiss Plaintiffs §

1983 claims against the Board Defendants in Counts One, Two and Four ofthe Complaint.

B. Equal Protection Claim Against Defendant Warren

Plaintiffbrings claims pursuant to 42 U.S.C § 1983, alleging that Warren violated her equal

protection rights under the Federal and New Jersey constitutions. (Compl. ¶J 46-55). Defendants

argue that Plaintiffhas failed to state an Equal Protection violation, because she does not challenge

the validity of any legislation or regulation. (Board Defs. Br. Supp.5 at 7-12). Plaintiff contends

that she has sufficiently alleged a pattern of sexual harassment motivated by a discriminatory

ECF No. 54-1.

6
classifications that ‘affect some groups of citizens differently than others.” Engquist v. Oregon

Dep’t ofAgr., 553 U.S. 591, 592 (2008) (citing McGowan v. Maryland, 366 U.S. 420, 425 (1961).

However, in the context of public employment, sexual harassment “can also amount to a

deprivation of the equal protection rights afforded under the Fourteenth Amendment.” Hargrave

v. Cnty. of At!., 262 F. Supp. 2d 393, 441 (D.N.J. 2003) (citing Davis v. Passman, 442 U.S. 228

(1979)). To establish liability for sexual discrimination against an individual defendant, a plaintiff

must show some affirmative conduct by that individual. Foster v. Twp. of Hillside, 780 F. Supp.

1026, 1045 (D.N.J.) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990),

affd sub nom. Foster v. Hillside Police Dep’t, 977 F.2d 567 (3d Cir. 1992)). Affirmative conduct

may be proven “through allegations of ... direct discrimination by the [individual].” Id.

Accordingly, sexual harassment by a public official may form the basis for an equal protection

claim in the employment context.

Here, however, Plaintiff was not the employee of Defendants, and Warren was not in a

supervisory position over her. Accordingly, Defendants urge, Plaintiff has failed to allege the

necessary element of action “under color of law” because Warren did not exercise any state

granted power over Plaintiff. (Board Defs. Br. Supp. at 23). Defendants argue that “Warren could

only have been acting in a private capacity when he pursued an inappropriate sexual relationship

6 ECF No. 67-1.

7
acting “under color of state law.” Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997).

The essence of the “color of law requirement is that the alleged offender ... abused a power or

position granted by the state.” Bonenberger, 132 F.3d at 24. “It is firmly established that a

defendant in a § 1983 suit acts under color of state law when he abuses the position given to him

by the State.” West v. Atkins, 487 U.S. 42, 49-50 (U.S. 1988). An official in a supervisory position

over a lesser-ranking employee “wields sufficient authority to satisfy the color of law

requirement.” Bonenberger, 132 F.3d at 25. Additionally, other circuit courts have extended

liability when public officials employ their government positions to exert influence and control

over non-employee plaintiffs. See Johnson v. Martin, 195 f.3d 1208, 1216 (10th Cir. 1999)

(recognizing that Whitney v. State ofN.M. “clearly established that a public official could be held

liable for violating the Equal Protection Clause of the Fourteenth Amendment by sexually

harassing a nonemployee.”); Whitney v. State of N.M., 113 F.3d 1170, 1174 (10th Cir. 1997)

(finding liability where defendant “could not have harassed [plaintiff] absent his authority as an

agent for the State.”); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 480 (9th Cir. 1991)

(upholding jury verdict that “concluded that defendant used his government position to exert

influence and physical control over [nonemployee] plaintiffs in order to sexually assault them”).

Here, the Court is guided by the aforementioned cases in finding that Plaintiff has

sufficiently alleged that Warren exercised power “possessed by virtue of state law and made

possible only because [he wasJ clothed with the authority of state law.” West v. Atkins, 487 U.S.

8
performance at the school where he served as Principal. (Compi. ¶ 14). Allegedly, Warren offered

to exercise his power as principal to protect Plaintiffs Sons from disciplinary action in exchange

for sexual favors. (Compl. ¶ 24). Like the defendant in Whitney v. State of N.M., Warren “could

not have harassed [Plaintiff] absent his authority as an agent for the State.” 113 F.3d 1170, 1175

(10th Cir. 1997). Accordingly, the Court denies Defendant Warren’s Motion to Dismiss Count Iof the Complaint against him.

C. First Ameudment Claims Against Defendant Warren

Plaintiff asserts violations of her First Amendment and analogous State constitutional

rights.7 Compi. ¶ 58. Specifically, she alleges that Defendant violated her right to freedom of

speech, freedom of association, and her right to petition for redress of grievances. Id. Defendantsargue Plaintiffs complaint does not allege sufficient facts to support these claims. For the

following reasons, the Court dismisses Plaintiffs First Amendment claims in Count Two of theComplaint.

1. Freedom of Speech

Plaintiffs free speech claim centers on Warren’s threat that he would stop protecting her

‘ The New Jersey Supreme Court follows the same standards developed by Federal courts

when resolving analogous State Constitutional claims. Matter of Plan for Orderly WithdrawalFrom New Jersey ofTwin City Fire Ins. Co., 248 N.J. Super. 616, 629, 591 A.2d 1005, 1012

(App. Div. 1991).

9
The Court finds that Plaintiff has not stated a claim for suspension of her protected speech.

Plaintiff has not alleged that as a result of Warren’s actions, she refrained from reporting him to

the police. Cf Tylicki v. Schwartz, 401 F. App’x 603, 604 (2d Cir. 2010). Plaintiffs allegationthat her speech was suppressed by Warren’s conduct is undermined by the fact that she ultimately

reported Warren to the police in the Fall of 2010. See Geagan v. City Univ. of New York, 2011

WL 3370395, at *12 (S.D.N.Y. July 14, 2011) (finding that Plaintiffs allegations that her speech

was chilled were belied by the fact that she continued to exercise her speech by filing complaints

following the alleged suppression). Plaintiff bases her claim solely on Warren’s behavior, and

alleges no other facts regarding her chilled speech. Accordingly, the Court finds that Plaintiff hasfailed to allege that Warren’s conduct had “a present and concrete effect” on her speech. Salvation

Army v. Dep’t of Cmty. Affairs of State of N.J., 919 F.2d 183, 193 (3d Cir. 1990) (citing Laird v.Tatum, 408 U.S. 1, 13—14 (1984)). Therefore, Plaintiff has failed to state a claim for free speech

violations. The Court dismisses Plaintiffs freedom ofspeech claims against all Defendants.

2. Freedom of Association

Plaintiff also asserts a First Amendment claim based on her “right to control [her] child’s

education.” P1. Br. Opp’n No. 1 at 34. Plaintiff alleges Warren’s sexual harassment interfered with

her ability to make decisions regarding her child’s education. Id. For the following reasons, the

8 ECF No. 74.

10
Sch. & Hosp., 707 F.2d 702, 709 (3d Cir. 1983). In that case, a mentally disabled minor was

transferred from a Hospital to a “community living arrangement” against his parents’ will. Id. at

703. The parents properly challenged the transfer, alleging it interfered with their ability to direct

their child’s education. Here, by contrast, Plaintiff fails to allege how Warren’s conduct

interfered with her ability to direct her child’s education. Unlike the child in Halderman, Plaintiffs

child was not moved to a different school or program. 707 F.2d at 703. Rather, Plaintiff alleges

only that Warren provided beneficial treatment for her son, and then discontinued that special

treatment. Compi. at 42. But Plaintiff bases her “freedom of association” claim on his sexual

harassment, not any decisions regarding her children. Accordingly, the Court finds that Halderman

is inapplicable here. The Court dismisses Plaintiffs freedom of association claim against all

Defendants.

3. Right to Petition and Freedom from Retaliation

The Court also finds that Plaintiff has failed to state a claim under the First Amendment

based on her right to petition. Plaintiff asserts a right to petition “retaliation” claim. P1. Br. Opp’n

No 1. At 32. To establish a retaliation claim in this context, a Plaintiff must allege “(1) that they

engaged in a protected activity, (2) that defendants’ retaliatory action was sufficient to deter a

person of ordinary firmness from exercising his or her rights, and (3) that there was a causal

connection between the protected activity and the retaliatory action.” R.K. v. Y.A.L.E. Sch., Inc.,

621 F. $upp. 2d 188, 196-97 (D.N.J. 2008) on reconsideration in part, No. CIV. 07-5918 (JBS),

11
Guamieri, 564 U.S. 379 (2011). Plaintiff alleges that she had several conversations with Warren.

Compi. ¶ 18. However, she did not file a lawsuit or other grievance until the present suit.

Additionally, Plaintiff fails to cite to any law that supports her contention that her right to petition

is implicated by meetings between parents and school employees. P1. Br. Opp’n No 1. At 32-33.

Accordingly, the Court finds that Plaintiff has failed to state a claim under the First Amendment

for violations of her right to petition. The Court dismisses Plaintiffs right to petition claims.

For the foregoing reasons, Count II ofthe Complaint is dismissed in its entirety.

D. Thorough and Efficient Clause Claim

Count Three ofthe Complaint asserts a claim under the “thorough and efficient” clause of

the New Jersey State Constitution. Compl. ¶ 68. Warren and the Board Defendants argue that the

Commissioner of the New Jersey Department of Education has jurisdiction to decide this claim,

and that Plaintiff has not exhausted her administrative remedies. Board Defs. Br. Supp. at 28-30;

Warren Br. Supp. at 12-13. Additionally, Defendants contend the clause is inapplicable here.

Warren Br. Supp.9 at 12. Plaintiff argues the Commissioner does not have exclusive jurisdiction

ofthis claim, that it is properly before this Court, and that she has properly stated a claim for relief

in the Complaint. P1. Br. Opp’n No. 1 at 4 1-42.

First, the Court finds that it may properly exercise jurisdiction over Plaintiffs State

Constitutional claim. The relevant New Jersey Statute provides that “[t]he commissioner shall have

ECF No. 53-2.

12
(App. Div. 1982). Additionally, cases involving “questions relating to academic courses of study

and curricula” are clearly within the Commissioner’s jurisdiction. Hinfey v. Matawan Regional

Bd. of Educ., 391 A.2d 899, 904 (N.J. 1978) (citing Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, 64

N.J. 17, 23 (N.J. 1973). In such cases, a plaintiffmust exhaust the administrative remedies before

bringing suit. Theodore, 183 N.J. at 412; See also N.J. Ct. R. 2:2-3(a). However, Plaintiff here

does not raise claims “under the school laws.” N.J. Stat. Ann. § 18A:6-9. Here, Plaintiff raises a

State Constitutional claim over which the courts have clear jurisdiction. King v. South Jersey

Nat. Bank, 66 N.J. 161, 177 (N.J. 1974) (citing Robinson v. Cahill, 62 N.J. 473, 492 (N.J. 1973)

(“The power ofthe Court to enforce rights recognized by the New Jersey Constitution, even in the

complete absence ofimplementing legislation, is clear.”). Accordingly, the Court finds that it has

jurisdiction over Plaintiffs State Constitutional claim.

Next, the Court finds that Plaintiffs Complaint fails to state a claim under the “thorough

and effective” clause ofthe New Jersey State Constitution. Compi. ¶J 66-76. Article VIII, Section

4, ¶ 1 ofthe New Jersey Constitution provides: “The Legislature shall provide for the maintenance

and support of a thorough and efficient system of free public schools for the instruction of all the

children in the State between the ages of five and eighteen years.” Historically, this clause has

been employed to challenge administrative and regulatory schemes affecting public schools. See

Abbott by Abbott v. Burke, 149 N.J. 145, 152 (1997) (challenging the funding of schools in poor

urban areas designated as “special needs districts”); Abbott by Abbott v. Burke, 119 N.J. 287,

13
funded exclusively by the State); Stubaus v. Whitman, 339 N.J. Super. 38, 44, 770 A.2d 1222,

1225 (App. Div. 2001) (challenge to the “school funding system that was established by N.J.S.A.18A:7f-1 to -36”); Parsippany-Troy Hills Educ. Ass’n v. Bd. of Educ. of Parsippany-Troy Hills

Twp., 188 N.J. Super. 161, 163-64 (App. Div. 1983) (considering whether State Board of

Education is required to offer driver’s education, including behind-the-wheel and classroom

components). Here, Plaintiff does not challenge any regulatory or funding scheme of the public

education system, and raises only allegations of sexual harassment. However, Plaintiff does not

point to any cases that support her claim for a “thorough and efficient” violation based on sexual

harassment. P1. Br. No. 1 at 41-42; P1 Br. No. 2’° at 5. The Court therefore finds that Plaintiff has

failed to allege sufficient facts to support a claim under the “thorough and efficient” clause of the

New Jersey State Constitution. Accordingly, the Court dismisses Count Three of Plaintiffs

Complaint.

E. Substantive Due Process Claim Against Defendant Warren

Plaintiff alleges that Defendants denied her the ability to access her child’s education in

violation of the fourteenth Amendment. P1. Br. No. 1 at 40. Warren argues that Plaintiff has notalleged sufficient facts to support a substantive due process claim under this theory. Warren Br.

Supp. at 13. Plaintiff argues that Warren’s sexual harassment infringed upon her right “to control

‘° ECF No. 68-1.

14
process claim, Plaintiff relies on Halderman for the proposition that parents have a substantive

right “to direct and control the upbringing and development of their minor children.” Halderman,

by Halderman v. Pennhurst State Sch. & Hosp., 707 F.2d 702, 709 (3d Cir. 1983). This “familial

integrity” right has been recognized in cases where parents object to school officials’ decisions

concerning the care, custody, or control of their children. Usually, these decisions have a

significant impact on the children’s lives. In Halderman, for example, the parents objected to the

school’s decision to transfer their disabled child from a hospital to a community living facility. Id.

at 703. There, the parents alleged their choice to place their child in a hospital was preempted by

the school officials. Id. Similarly, in Gruenke, the parents alleged that school officials forced their

minor child to take a pregnancy test in the presence of other students without first contacting them.

225 F.3d at 295. The Gruenke court found that the parent could state a “familial integrity” claim

because the school officials’ “failure to notify her while instead aiding and abetting the members

of the team and their mothers in making [plaintiffs daughter’s] pregnancy a subject of gossip in

the school community, violated her constitutional right to manage the upbringing of her child.”

Gruenke v. Seip, 225 F.3d 290, 306 (3d Cir. 2000).

The present case can be distinguished from Halderman and Gruenke. Plaintiff does not

specify which ofher decisions to manage her children were displaced. Compl. ¶J 16, 23. The Court

finds that Plaintiff has failed to allege sufficient facts regarding interference with her ability to

make decisions about the care, custody, or control of her children. Therefore, Plaintiff has failed

15
of 1972. Compi. ¶J 87-93. Defendants allege that Plaintiff has failed to state a claim because she

is not a student and therefore does not have standing to assert a personal claim under Title IX.

Warren Br. Supp. at 14; Board Defs. Br. Supp. at 3 1-32. Plaintiff argues the Third Circuit has notdecided whether parents have standing when they are the subject ofsexual harassment, and claim

she should be allowed to “develop this legal theory.” P1. Br. No. I at 43. For the following reasons,

the Court finds Plaintiff has failed to state a Title IX claim.

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. Title

IX has been used in cases involving a school employee’s sexual harassment of a student, and even

the sexual harassment of students by other students. $ç Davis Next Friend LaShonda D. v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 632 (1999); see also Franklin v. Gwinnett Cnty. Pub.

Sch., 503 U.S. 60, 63 (1992). Typically, parents, in their personal capacity, may not bring a claim

under Title IX when their children are sexually harassed by school officials. Rowinsky v. Bryan

Indep. Sch. Dist., 80 F.3d 1006, 1009 n. 4 (5th Cir. 1996) disapproved of on other grounds by

Davis, 526 U.S. 629 (1999). The Rowinsky court reasoned the parent lacked standing because she

failed to assert she was excluded from participating in, or denied the benefits of, any education

program. Id. Here, Plaintiff similarly has failed to assert she has been discriminated against as a

beneficiary of education benefits. Additionally, this Court is aware of— and Plaintiff has pointed

16
G. New Jersey Law Against Discrimination Claim

Count Six of the Complaint asserts a claim for violations of the New Jersey Law Against

Discrimination (“LAD”). Compi. ¶J 94-104. Defendants argue this Count should be dismissed

because the LAD is limited to instances of student-on-student harassment, and because Plaintiff

has not been “aggrieved” under the LAD. Board Defs. Br. Supp. at 32-3 7. Plaintiff argues that

LAD liability in this case would be consistent with the LAD statute and with New Jersey precedent.

P1. Br. No. 1 at 5. The Court finds that Plaintiff has alleged enough facts to support a LAD claim.

The LAD provides in relevant part:

All persons shall have the opportunity to ... obtain all the

accommodations, advantages, facilities, and privileges of any place

ofpublic accommodation ... without discrimination because ofrace,

creed, color, national origin, ancestry, age, marital status, affectionalor sexual orientation, familial status, disability, nationality, sex or

source of lawful income used for rental or mortgage payments....

This opportunity is recognized as and declared to be a civil right.

N.J.S.A. § 10:5-4

The LAD is to be broadly and liberally applied in order to increase its antidiscriminatory

impact. Doe v. Schwerzler, 200$ WL 406633$, at *4 (D.N.J. Aug. 27, 200$) (citing Ptaszynski v.

Uwaneme, 371 N.J. Super. 333 (App. Div. 2004)). The Supreme Court of New Jersey has held

that a school or school district may be liable under the LAD for student-on-student sexual

harassment. L.W. ex rel. L.G. v. Toms River Reg’l Sch. Bd. of Educ., l$9 N.J. 381, 402 (2007). In

L.W. the court extended liability for student-on-student harassment, but did not, as Defendants

17
another school’s swim coach). Guided by these cases, the Court finds that Plaintiff may proceed

with her claim under the LAD.

Defendants also argue that Plaintiff cannot state a claim under the LAD because she is not

an “aggrieved” party under the statute. Board Defs. Br. Supp. at 36. In support, they rely on L.W.’s

holding that the parent ofthe sexually harassed child was not “aggrieved” because she was not the

person “against whom the discrimination was directed.” L.W., 381 N.J. Super. at 500. That holding

is inapposite here, because Plaintiffhas alleged that she herself was the victim ofWarren’s sexual

harassment. Accordingly, even under L.W., Plaintiff would be considered the individual “against

whom the discrimination was directed,” i.e., the aggrieved person. Id. Accordingly, Defendants’

motion to dismiss Plaintiffs LAD claim is denied.

W. CONCLUSION

Based on the reasons set forth above, Defendants’ Motions to Dismiss Plaintiffs

Complaint are granted in part and denied in part. To the extent any of Plaintiffs claims are

dismissed hereunder, they will be dismissed without prejudice. Plaintiffmay replead the dismissed

claims within 30 days. An appropriate Order accompanies this opinion.

DATED: 0C 3, (

CLAIRE C. CECCHI, U.S.D.J.

18