COLOMBO v. THE BOARD OF EDUCATION FOR THE CLIFTON SCHOOL DISTRICT et al

Filing 89

OPINION. Signed by Judge Claire C. Cecchi on 10/31/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

DAWN COLOMBO,
Plaintiff,

Civil Action No.: 11 -cv-7$5
Consolidated with:
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 of the Board of Education 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 set
forth below, Defendants’ Motions to Dismiss are granted in part and denied in part.

‘ECF No. 53.
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
of the argument.”).
2

I.

BACKGROUND

This dispute arises out of the alleged pattern of sexual harassment directed at Plaintiff by
Defendant Jimmie Warren. Compl.4 ¶ 17. Warren was the Principal of Clifton High School, which
Plaintiff’s minor children attended. Id.
suspended from Clifton High School.

¶J

8-9. In the Fall of 2008, Plaintiffs son, B.C., was

¶

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 Plaintiff sought 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 she

told 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 Plaintiff to 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

infraction. Id.

¶ 36. According to Plaintiff, Warren ignored her for four days, then demanded that

they meet in a hotel.

Içj ¶J 37-38. Plaintiff was assured by Warren that her son’s suspension would

be lifted if they met, and she reluctantly agreed. Id. At the hotel, Plaintiff attempted to discuss her
son’s suspension, but to her dismay, Warren removed his pants and lay on the bed. Id.

¶

40.

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 of the District were aware of Warren’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 threats
of 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 of the 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 attachments
without reference to other parts of the record.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20
F.3d 1250, 1261 (3d Cir. 1994). However, the “[f]actual allegations must be enough to raise a right
3

to relief above the speculative level.” Twombly, 550 U.S. at 555. Furthermore, “[a] pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not
do.

Nor does a complaint suffice if it tenders naked assertions devoid of further factual

enhancement.” Iqbal, 556 U.S. at 67$ (internal citations and quotations omitted).
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,, 926
F.2d 1406, 1409 (3d Cir. 1991)). During a court’s threshold review, “[t]he issue is not whether a
plaintiff will 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 the
merits instead of technicalities: “This liberality is expressed throughout the Federal Rules of Civil
Procedure 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 for
relief. 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

freedom of speech, freedom of association, and right to petition; (3) violations of Article VIII,
Section 4, Para. 1 of the New Jersey State constitution, which provides for “thorough and efficient”
public education; (4) violations of Plaintiffs substantive due process rights under the Federal and
State Constitutions; (5) violations ofPlaintiffs rights under Title IX of the Education Amendments
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

The Court finds that Plaintiffs Complaint fails to state a Section 1983 claim against the
Board Defendants. The Complaint alleges a pattern of sexual harassment lasting from 2008 to
2010. (Compl.

¶J 13; 35). However, the Complaint is devoid of specific allegations that Plaintiff

informed anyone of Warren’s inappropriate conduct and similarly does not contain specific
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 allege

that she ever reported Warren’s conduct to any of the 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 finds
that 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. of City 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 of the Complaint.
B.

Equal Protection Claim Against Defendant Warren

Plaintiff brings 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 Plaintiff has 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

purpose based on her gender, which is sufficient to state an equal protection claim. P1. Br. Opp’n
No. 16 at 29.
First, the Court finds that a plaintiff may assert an equal protection claim based on sexual
harassment. Equal protection claims have “typically been concerned with governmental
classifications that ‘affect some groups of citizens differently than others.” Engquist v. Oregon
Dep’t of Agr., 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

with Plaintiff and engaged in sexual misconduct.” (Board Defs. Br. Supp. at 23). For the following
reasons, the Court finds that Plaintiff has alleged sufficient facts to state an equal protection claim
against Defendant Warren.
Section 1983 liability arises only when Constitutional rights are violated by defendants
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 of N.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

42, 49 (U.S. 1988). Plaintiff alleges that Warren engaged in a pattern of sexual harassment which
included inappropriate communications and touchings, all of which took place during meetings
where “Plaintiff sought to legitimately discuss her son’s academic performance.” (Compl.

¶

1$).

Significantly, these interactions began when Plaintiff contacted Warren to discuss her son’s
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 I
of 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. Defendants
argue 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 the
Complaint.
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 Withdrawal
From New Jersey of Twin City Fire Ins. Co., 248 N.J. Super. 616, 629, 591 A.2d 1005, 1012
(App. Div. 1991).
9

son if she reported him to the police. P1. Br. Opp’n No. 1 at 31. This threat allegedly restrained
Plaintiffs ability to report Warren. Id. Plaintiff argues Warren’s condu& was a “viewpoint
motivated restriction” of her protected speech. Id. Defendant argues there are no facts to suggest
Plaintiffs speech was actually suppressed. Warren Reply Br.8 at 5-6.
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 allegation
that 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 has
failed 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 of speech 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

Court finds that Plaintiff has failed to state a freedom of association claim.
Plaintiff relies on Halderman, which held a parent’s right to control the upbringing and
development of their children is subject to “governmental interference only when such interference
is supported by a significant government interest.” Halderman, by Halderman v. Pennhurst State
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

2009 WL 1066125 (D.N.J. Apr. 20, 2009) (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480
F.3d 259, 267 (3d Cir.2007). In the employment context, filing a lawsuit or grievance may
constitute a petition within the meaning of the Petition Clause. $çç San Filippo v. Bongiovanni,
30 F.3d 424, 441 (3d Cir. 1994) abrogated on other grounds by Borough of Duryea, Pa. v.
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 of the Complaint is dismissed in its entirety.
D.

Thorough and Efficient Clause Claim

Count Three of the 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
of this 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

jurisdiction to hear.
Ann.

§

.

.

all controversies and disputes arising under the school laws..

.“

N.J. Stat.

1 8A:6-9 (emphasis added). Therefore, where a plaintiff is aggrieved by an adverse

determination of a school board, the “Commissioner ‘has fimdamental and indispensable
jurisdiction over all disputes.” Theodore v. Dover Bd. of Educ., 183 N.J. Super. 407, 412-413
(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 plaintiff must 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 of the Court to enforce rights recognized by the New Jersey Constitution, even in the
complete absence of implementing 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 of the New Jersey State Constitution. Compi.

¶J 66-76. Article VIII, Section

4, ¶ 1 of the 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

294-95 (1990) (challenging constitutionality of the Public School Education Act of 1975);
Robinson v. Cahill, 62 N.J. 473 (N.J. 1973) (challenging the constitutionality of system of
financing the public schools of New Jersey); Millville Bd. of Educ. v. New Jersey Dep’t of Educ.,
367 N.J. Super. 417, 419 (App. Div. 2004) (considering whether preschool programs must be
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 not
alleged 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

the education and custody of her child.” P1. Br. No. 1 at 39-40. The Court disagrees with Plaintiff.
For the following reasons, the Court finds Plaintiff has failed to state a substantive due
process claim. “The right of parents to raise their children without undue state interference is well
established.” Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir. 2000). In support of her substantive due
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 of her 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

to state a Substantive Due Process claim. The Court dismisses Count Four of Plaintiffs Complaint
against Warren.
F.

Title IX Claim

Count Five of the Complaint alleges violations of Title IX of the Education Amendments
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 not
decided whether parents have standing when they are the subject of sexual 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
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to

—

no precedent extending the protections of Title DC to parents who are sexually harassed by

school employees. Accordingly, the Court finds that Plaintiff lacks standing to assert a Title IX
claim. Defendants’ Motions to Dismiss will be granted on this point, and Count Five of the
Complaint will be dismissed.
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
of public accommodation without discrimination because of race,
creed, color, national origin, ancestry, age, marital status, affectional
or 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

contend, limit liability only to those cases.

Indeed, other District Courts in this District have

rejected the argument that the LAD applies only to “student-on-student” harassment. See
Schwerzler, 2008 WL 4066338, at *4 (“the NJLAD’s broad remedial goal to prevent sexual
harassment in places of public accommodation appears to encompass” a claim by a student against
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 of the 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 Plaintiff has alleged that she herself was the victim of Warren’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. Plaintiff may replead the dismissed
claims within 30 days. An appropriate Order accompanies this opinion.

DATED:

0C

(

3,

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