Running head: L.W. v. TOMS RIVER REGIONAL SCHOOLS AND HANNAH ARENDT’S THEORY OF JUDGMENT: “AN INABILITY TO THINK?” L.W. v. TOMS RIVER REGIONAL SCHOOLS AND HANNAH ARENDT’S THEORY OF JUDGMENT: “AN INABILITY TO THINK?” Timothy A. Harrison By A dissertation submitted to the Graduate School of Education Rutgers, The State University of New Jersey in partial fulfillment of the requirements for the degree Doctor of Education Graduate Program in Education Administration and Supervision written under the direction of ______________________________________ Catherine A. Lugg, Ph.D., Chair ____________________________________ James M. Giarelli, Ph.D., Committee ____________________________________ Carol F. Karpinski, Ed.D, Committee New Brunswick, New Jersey May, 2016 L.W. v. Toms River Schools and Hannah Arendt © 2016 Timothy A. Harrison ALL RIGHTS RESERVED i L.W. v. Toms River Schools and Hannah Arendt ABSTRACT L.W. v. Toms River Regional Schools and Hannah Arendt’s Theory of Judgment: “An Inability to Think?” While the New Jersey State Legislature created the nation’s first state anti-discrimination law in 1945, the protections that the statute affords the state’s citizens has evolved over the years. The Law Against Discrimination was written with the explicit intent to protect the civil rights of New Jersey’s citizens. The protections against discrimination that the statute provides are expansive and cover virtually any protected characteristic imaginable, including “affectional or sexual orientation.” In a landmark anti-discrimination case, Lehmann v. Toys R Us, Inc., the New Jersey Supreme Court established legal standards by which an employer could be held liable for discrimination under the LAD by creating a hostile work environment. However, the Court had not established these same LAD protections for student-on-student harassment based on sexual orientation. School leaders face many challenges daily, not the least of which is harassment, intimidation and bullying. The victims of these incidents are from various protected classes, including those students who are, or who are perceived to be queer. Often, school leaders simply are not equipped to practice good judgment when dealing with these issues and make poor decisions. Often, the poor judgment and the resulting decisions have dire legal consequences to school districts. I have conducted a study that not only chronicles the events that led to the establishment of LAD protections for students who are victims of bias-based peer harassment, but I’ve also analyzed the thinking, judging and acting of the various adults involved in this case. The following research questions guided this study: 1) What was the chain of events in the Louis ii L.W. v. Toms River Schools and Hannah Arendt White case that ultimately led to the establishment of LAD protections for students who are victims of bias-based peer harassment? 2) To what extent do the decisions and actions of lawmakers, school administrators, jurists and the Director of the Division on Civil Rights embody the characteristics of Arendtian judgment? I pursued these research questions using a historical legal case study. My specific issue of judging, deciding and acting within an Arendtian theoretical framework, is bounded within a contemporary political history of the Toms River School District. I have conducted a study chronicling the fourteen-year legal saga of a former student in Toms River Regional Schools who was harassed and bullied from the time he was in fourth grade until his freshman year of high school. The data collection leaned heavily on primary sources such as federal and state statute, administrative code, rules of court, administrative rulings and copious amounts of case law. Using traits of Arendt’s theory, I analyzed the endeavors of each major individual in the case. The traits that emerged included common sense, invisibles, action, meaningfulness, liberation and freedom, discussion and debate, particulars and universals, thinking for the prevention of evil, moral judgment and reflective judgment. I found that all of the players in this saga possessed some Arendtian traits of thinking and judging, but the legislators, Director, appellate court judges and Supreme Court justices exhibited the greatest number of these traits. In other words, these individuals practiced “good judgment”. Although these findings are not generalizable, they are meaningful and have implications for researchers, policy makers and practitioners. iii L.W. v. Toms River Schools and Hannah Arendt Acknowledgements I am forever grateful for the faith and guidance of my advisor and committee members, as well as the support and encouragement from my family and friends. I would most especially like to thank my dissertation advisor, Dr. Catherine A. Lugg, for her expert guidance and support, and for introducing me to Hannah Arendt and planting the seed from which this dissertation grew. Dr. Lugg was just as often therapist as she was advisor, and for that I am forever grateful. She always believed in me and never doubted that I could complete this project, despite my persistent self-doubt. I also would like to thank my committee members, Dr. James M. Giarelli and Dr. Carol F. Karpinski for agreeing to serve on my committee, their valuable feedback and their belief in the worthiness of my topic. I would also like to acknowledge the unending support, patience and encouragement of my wife, Cindy Harrison. She never doubted for a moment that I would successfully complete this dissertation and always seemed to remind me of her faith in me just when I needed it most. I literally could not have accomplished this feat without Cindy by my side. I am also grateful for my daughter Isabel and son Ethan for always being there for me when I needed reminding what is most important in life. I am so lucky to have the three of you in my life. Finally, I dedicate this project to my parents, Frederick Millard Harrison and Maxie Harrison, who passed away during the writing of this dissertation. Though neither ever completed college, they both taught me the value of education and the importance of working hard in order to achieve one’s goals. I am saddened that they cannot share in this accomplishment, but I know they are very proud of me. iv L.W. v. Toms River Schools and Hannah Arendt TABLE OF CONTENTS CHAPTER ONE: SETTING THE STAGE……………………………………………….1 Introduction………………………………………………………………………..1 Research Question………………………………………………………………....3 Conceptual Framework…………………………………………………………….5 Hannah Arendt on Education……………………………………………………...7 Hannah Arendt on Judgment…………………………………………………….12 Judgment as Thinking……………………………………………………………14 Universality, Generalities and Particulars……………………………………….16 Moral Judgment………………………………………………………………….17 Reflective Judgment……………………………………………………………..20 Theory of Action and Judgment…………………………………………………23 Toms River Regional Schools: Profile and Brief History……………………….27 Summary of Literature Review………………………………………………….29 Methodology…………………………………………………………………….32 Data Collection………………………………………………………………….33 Limitations of Study…………………………………………………………….35 Chapter Summary……………………………………………………………….36 CHAPTER TWO: THE LAW AGAINST DISCRIMINATION AND ARENDT’S THEORY OF JUDGMENT………………………………………..38 The Law Against Discrimination……………………………………………….38 Arendt’s Theory of Judgment and the LAD……………………………………50 Common Sense…………………………………………………………50 Thinking and Judging…………………………………………………..51 Action…………………………………………………………………..52 Meaningfulness………………………………………………………....53 Liberation and Freedom………………………………………………...54 Presence of Others……………………………………………………....55 Discussion and Debate………………………………………………….55 v L.W. v. Toms River Schools and Hannah Arendt Work and Labor………………………………………………………...57 Particulars and Universals………………………………………………58 Thinking for the Prevention of Evil…………………………………….60 Moral Judgment………………………………………………………...62 Reflective Judgment……………………………………………………63 Chapter Summary………………………………………………………………68 CHAPTER THREE: THE LONG ROAD AHEAD LOUIS WHITE FIGHTS BACK………………………………………………………73 Introduction…………………………………………………………………….73 The Office of Administrative Law……………………………………………..73 ALJ’s Initial Decision…………………………………………………………..75 Procedural History……………………………………………………...76 Findings………………………………………………………………...77 Testimonial Review…………………………………………………….89 Schuster’s Legal Analysis………………………………………………92 Conclusion and Order…………………………………………………..97 The ALJ’s Initial Decision and Arendtian Judgment..........................................98 Common Sense…………………………………………………………98 Invisibles: Things that are absent………………………………………99 Action…………………………………………………………………100 Meaningfulness……………………………………………………......101 Liberation and Freedom……………………………………………….102 Presence of Others…………………………………………………......103 Discussion and Debate………………………………………………...103 Speech and Natality…………………………………………………...104 Work and Labor……………………………………………………….104 Particulars and Universals……………………………………………..107 Thinking for the Prevention of Evil…………………………………...110 Moral Judgment……………………………………………………….111 Reflective Judgment………………………………………………......112 Judgment and District Administrators………………………………………...115 vi L.W. v. Toms River Schools and Hannah Arendt Common Sense……………………………………………………......116 Invisibles: Things that are absent…………………………………......119 Action…………………………………………………………………119 Meaningfulness……………………………………………………….121 Liberation and Freedom………………………………………………122 Discussion and Debate………………………………………………..124 Work and Labor………………………………………………………125 Particulars and Universals…………………………………………….129 Thinking to Prevent Evil……………………………………………...131 Moral Judgment………………………………………………………133 Reflective Judgment……………………………………………….....134 Chapter Summary………………………………………………………….....136 CHAPTER FOUR: THE DIRECTOR INTERVENES……………………………...152 Introduction…………………………………………………………………..152 The Director’s Findings, Determination and Order…………………………..153 Exceptions and Replies of the Parties………………………………...153 The Director’s Factual Determinations…………………………….....157 The Legal Standards and Analysis…………………………………....165 Remedies……………………………………………………………...189 The Director and Arendt’s Theory of Judgment……………………………...199 Common Sense………………………………………………………..199 Invisibles: Things that are absent……………………………………..201 Action…………………………………………………………………202 Meaningfulness………………………………………………………..203 Liberation and Freedom…………………………………………….....204 Presence of Others……………………………………………………..205 Discussion and Debate………………………………………………...206 Speech and Natality…………………………………………………...206 Work and Labor…………………………………………………….....207 Particulars and Universals…………………………………………......210 Thinking for the Prevention of Evil…………………………………...212 vii L.W. v. Toms River Schools and Hannah Arendt Moral Judgment……………………………………………………….215 Reflective Judgment………………………………………………......217 Chapter Summary…………………………………………………… .219 CHAPTER FIVE: THE CASE GOES TO THE NEW JERSEY STATE COURTS FOR FINAL RESOLUTION……………………………………233 Introduction………………………………………………………………….233 The Opinion of the Superior Court………………………………………......234 Creating a Precedent…………………………………………………234 Title IX and the LAD………………………………………………..237 Review of Equitable Relief and Damages…………………………...239 Hostile School Environment………………………………………....239 Liability……………………………………………………………....241 Equitable Remedies………………………………………………......246 Compensatory Damages……………………………………………...249 The Superior Court and Arendt’s Theory of Judgment……………………....252 Common Sense…………………………………………………….....253 Invisibles: Things that are absent………………………………….....255 Action………………………………………………………………...256 Meaningfulness……………………………………………………….257 Liberation and Freedom………………………………………………258 Presence of Others……………………………………………………259 Discussion and Debate…………………………………………….....260 Natality…………………………………………………………….....261 Work and Labor……………………………………………………....261 Particulars and Universals…………………………………………….264 Thinking for the Prevention of Evil………………………………......267 Moral Judgment………………………………………………………269 Reflective Judgment………………………………………………….271 Toms River Appeals to the New Jersey Supreme Court…………………......274 Oral Arguments Before the Court……………………………………………275 Toms River’s Oral Argument………………………………………...275 viii L.W. v. Toms River Schools and Hannah Arendt Oral Argument on Behalf of the Whites……………………………...283 The New Jersey Supreme Court’s Opinion………………………………......289 Legal Analysis………………………………………………………..290 A Cause of Action Under the LAD………………………………….291 Standard of Liability………………………………………………....294 Assessing Reasonableness…………………………………………..299 The Court Remands the Case……………………………………….301 Arendt’s Theory of Judgment and the Supreme Court……………………..303 Common Sense……………………………………………………..303 Invisibles: Things that are absent…………………………………..306 Action………………………………………………………………307 Disruptive Action…………………………………………………..308 Meaningfulness…………………………………………………….309 Liberation and Freedom……………………………………………310 Presence of Others………………………………………………….311 Discussion and Debate……………………………………………..312 Natality……………………………………………………………..313 Work and Labor…………………………………………………….314 Particulars and Universals…………………………………………..317 Thinking for the Prevention of Evil………………………………...320 Moral Judgment…………………………………………………….322 Reflective Judgment………………………………………………..325 Chapter Summary…………………………………………………………..328 CHAPTE SIX: CONCLUSIONS………………………………………………….346 Louis Finally Obtains Resolution…………………………………………..346 Revisiting the Research Questions………………………………………....348 The Writings of Hannah Arendt……………………………………………349 The Law Against Discrimination…………………………………………...352 The ALJ’s Initial Decision………………………………………………….357 The Administrators and Arendtian Judgment……………………………....366 The Director and Arendtian Judgment……………………………………...372 ix