LW v. TOMS RIVER REGIONAL SCHOOLS AND HANNAH ARENDT'S THEORY OF JUDGMENT

436 Pages·2016·1.7 MB·English

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

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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

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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.

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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.

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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

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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

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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

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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

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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

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