Donovan v. Poway Unified School District (167 Cal. App. 4th 567, 2008)

Opinion

NARES, J.

SUMMARY AND HOLDING

Section 220 of the California Education Code prohibits discrimination based on a number of protected characteristics, including sexual orientation, in any program or activity conducted by an educational institution “that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid.” In this case, we are called on to determine (1) the elements of a claim under section 220 brought by students against a publicly funded school district for its response to peer sexual orientation harassment suffered by the students while on campus, and (2) whether money damages are available in a private enforcement action under section 262.3, subdivision (b).

We conclude that to prevail on a claim under section 220 for peer sexual orientation harassment, a plaintiff must show (1) he or she suffered “severe, pervasive and offensive” harassment that effectively deprived the plaintiff of the right of equal access to educational benefits and opportunities; (2) the school district had “actual knowledge” of that harassment; and (3) the school district acted with “deliberate indifference” in the face of such knowledge. We further conclude that from the words of section 262.3, subdivision (b), as well as from other markers of legislative intent, money damages are available in a private enforcement action under section 220. Therefore, for reasons we shall explain, we affirm the judgment for plaintiffs.

Plaintiffs Joseph Ramelli and Megan Donovan started as freshmen in 2000 at Poway High School (PHS). Each endured “severe, pervasive and offensive” peer sexual orientation harassment while attending PHS. This harassment, which peaked during their junior year, included, for example, death threats; being spit on; physical violence and threats of physical violence; vandalism to personal property; and being subject to antigay epithets such as “fag,” “faggot,” “fudge packer,” “dyke” and “fucking dyke.” Both students completed their senior year at PHS through an independent study program offered by the Poway Unified School District (District).

Before filing a lawsuit, plaintiffs and their parents met with defendant Scott Fisher, the PHS principal. Plaintiffs each gave Fisher a log chronicling the harassment they had experienced and/or witnessed during their junior year at PHS. Plaintiffs also complained to defendant Donald Phillips, the superintendent of the District, and to defendant Ed Giles, an assistant principal at PHS, among many other administrators and teachers, about the peer sexual orientation harassment they were enduring at PHS.

The District claims it adequately responded to the harassment experienced by plaintiffs, that plaintiffs provided insufficient information for the District to determine which students on campus were responsible for the harassment, and that plaintiffs rejected various options suggested by the District in response to the harassment. Plaintiffs claim the District’s response to the peer sexual orientation harassment was legally insufficient and that despite their complaints they continued to experience severe peer harassment when on campus. Plaintiffs thus sued, alleging both state and federal causes of action.

After a six-week trial, the jury returned a verdict finding (1) the District violated section 220, (2) Fisher and Giles violated Ramelli’s rights under the equal protection clause of the United States Constitution, (3) Fisher alone violated Donovan’s rights under the equal protection clause of the United States Constitution, and (4) Phillips was not liable. The jury awarded Ramelli and Donovan damages of $175,000 and $125,000, respectively. By stipulation of the parties, the court entered judgment against the District, Fisher, and Giles in favor of Ramelli, and against the District and Fisher in favor of Donovan.

On appeal the District argues the trial court erroneously instructed the jury in connection with the section 220 claim by applying negligence principles derived from the California Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA), instead of the more stringent elements of liability derived from title DC of the Education Amendments of 1972 (Pub.L. No. 92-318 (June 23, 1972) 86 Stat. 235) (Title IX). Defendants further argue there is no substantial evidence to support the jury’s verdict against them.

In their cross-appeal, plaintiffs argue the trial court abused its discretion by refusing to award them attorney fees under Code of Civil Procedure section 1021.5, despite their obtaining an award of attorney fees under title 42 United States Code section 1988(b), using a multiplier to increase the award in excess of the lodestar figure.

After the case was fully briefed, we ordered the parties to lodge the legislative history of myriad bills enacting or amending provisions of California’s antidiscrimination in education law. Based on this legislative history, and the language of the enforcement provisions within that law, in particular sections 262.3 and 262.4, we requested supplemental briefing from the parties regarding whether money damages were available in a private enforcement action under section 220.

We conclude the Legislature intended Title DC’s elements to govern an action under section 220. We further conclude the Legislature intended money damages to be available in a private enforcement action. Although the trial court erred by applying the elements of liability from FEHA and not Title DC when it instructed the jury under section 220, we conclude that error is harmless. As the District notes, the elements of liability in connection with plaintiffs’ equal protection claims against Fisher are the same elements that apply in a Title DC action for money damages, which we hold also govern a private suit for damages under section 220.

As the PHS principal, Fisher was an “appropriate person” to act on behalf of the District to “address the alleged discrimination and to institute corrective measures” to end the discrimination. (Gebser v. Lago Vista Independent School Dist. (1998) 524 U.S. 274, 290-291 [141 L.Ed.2d 277, 118 S.Ct. 1989] (Gebser).) Thus, the jury’s findings in connection with Fisher also support holding the District liable under section 220 for its own wrongdoing based on its legally insufficient response to the harassment, and not, as we shall discuss, based on principles of respondeat superior and/or constructive notice. Because we conclude the record contains substantial evidence to support the jury’s findings, we affirm the judgment against defendants.

Finally, we conclude the trial court did not abuse its discretion when it awarded plaintiffs attorney fees under title 42 United States Code section 1988(b), and not under Code of Civil Procedure section 1021.5.

FACTUAL AND PROCEDURAL BACKGROUND

A. Standard of Review

When findings of fact are challenged on appeal, we are bound by the substantial evidence rule, which requires us to review the entire record to determine whether substantial evidence supports the appealed judgment. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [80 Cal.Rptr.2d 378].) In so doing, we “view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 [190 Cal.Rptr. 355, 660 P.2d 813].) If the record demonstrates substantial evidence in support of the judgment, we must affirm even if there is substantial contrary evidence. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874 [197 Cal.Rptr. 925] (Bowers).)

B. Factual Summary

1. Joseph Ramelli

In Ramelli’s freshman and sophomore years, students frequently made antigay remarks directly to him or in his presence, using names such as “fag,” “faggot,” “queer,” “homo” and “fudge packer.” Ramelli heard these words used in the “halls, the quad, the classrooms, just about anywhere you go” on campus. He was offended by these slurs and they made him feel insecure at school. Toward the end of his freshman year, students threatened Ramelli in physical education class while he was changing his clothes because he was gay or was perceived to be gay.

In the beginning of his sophomore year, Ramelli witnessed a student, Joseph S., whom he had met while attending Gay-Straight Alliance meetings on campus during his freshman year, being badly beaten on campus by another PHS student, presumably because he was gay. This student had previously spoken to Ramelli and others about the antigay peer harassment he was experiencing at PHS.

-Ramelli described his junior year as “hell” because of the antigay peer harassment to which he was subjected at PHS. Because he felt the harassment “coming directly” at him “on a more continuous basis,” Ramelli was scared at school. The harassment occurred “almost every single day,” both inside and outside the classroom. Ramelli told several teachers and administrators, including Fisher and Giles, about the antigay harassment, but it did not stop.

In addition to the antigay language directed at him or witnessed by him “on a more continuous basis,” during his junior year, Ramelli was shoved into the lockers while being told, “Watch out, you fucking faggot.” The harassment also included being purposely tripped in the hall while called an antigay name; having his car vandalized while parked at PHS; finding a note left on his car in the PHS parking lot that read, “Keep your eyes to yourself, you fucking faggot,” and “[f]aggots need to die. You fucking queer, watch your back!”; finding another note that had been slipped through a crack in his car window while it was parked at PHS, which read, “Fucking faggot, you think that window was an accident? I’m going to kick your fucking ass, faggot”; having two notes affixed to his back during school identifying him as being gay; having water thrown on him to make it look like he had urinated on himself; having food thrown at him while he walked on campus; and being spit on because he was a participant in a campus event called the “Day of Silence,” which sought to call people’s attention to the violence experienced by gay and lesbian students. Because of the ongoing harassment, Ramelli began to keep a log of incidents he witnessed or experienced on the PHS campus.

As a result of such harassment, Ramelli “cut” classes at school. He also became anxious and depressed, in light of the “name-calling” and “pushing and . . . shoving” from other students; he no longer enjoyed school. Ramelli saw no reason to “put [himself] through [the harassment] every day.” Nonetheless, Ramelli intended to return to PHS for his senior year until he got sick and missed the first few weeks of school. He then enrolled in a home-study program offered by the District called “New Directions” to complete his senior year. He graduated from PHS in 2004.

2. Megan Donovan

Donovan and Ramelli had been friends since the sixth grade. Donovan witnessed PHS students use antigay language almost daily when at school. Initially she was not the target of such language. However, when she began to date a female classmate towards the end of her sophomore year, “about once a week” she experienced antigay harassment from her peers when on campus. Donovan also claimed she did not make the PHS girls’ varsity softball team because of her sexual orientation.

This harassment involved name calling and threats of physical violence. At an informal student event known as “Straight Pride Day” in Donovan’s junior year, a female student circled Donovan, Ramelli and their group of friends and yelled, “Fucking fags, fuck you guys, stupid d[y]ke, stupid d[y]ke,” and “Megan [Donovan] is a fucking d[y]ke.”

Like Ramelli, Donovan kept a log during her junior year of the antigay peer harassment she experienced on campus. Donovan also enrolled in the New Directions program to complete her senior year of high school. She did so because PHS administrators did little to curtail the peer antigay harassment she experienced when at school. Donovan also graduated from PHS in 2004.

C. Procedural Summary

Plaintiffs originally brought their section 220 claim against the District, Phillips, Fisher and Giles (collectively defendants). The court granted without leave to amend a motion for partial judgment on the pleadings, ruling that section 220 does not apply to individual employee defendants. Plaintiffs’ amended complaint named only the District as a defendant in their section 220 cause of action.

Plaintiffs’ complaint also asserted causes of action under title 42 United States Code section 1983 against the District, Phillips, Fisher and Giles, alleging violations of plaintiffs’ rights to procedural and substantive due process and equal protection under the United States Constitution. Plaintiffs also asserted a claim against the District, Phillips, Fisher and Giles for violation of the Unruh Civil Rights Act, Civil Code sections 51 and 52.

With respect to their section 220 claim, plaintiffs alleged the District did not have an “adequate or effective formal or informal policy to ensure that [PHS] was safe for students who, like [plaintiffs], are gay or lesbian or who are perceived as gay or lesbian,” and thus when plaintiffs complained to the individual defendants, they “were deliberately indifferent to [plaintiffs’] safety and none of them took any meaningful action to stop the harassment and discrimination they were suffering.” Plaintiffs further alleged defendants’ “actions, failures to act, and/or deliberate indifference towards the harassment and discrimination [plaintiffs] suffered were carried out because of their actual or perceived sexual orientation. Through these intentional acts and the acts of deliberate indifference, [plaintiffs] were deprived of the equal rights and opportunities in a public educational institution as guaranteed under the California Education Code Sections 200, 220, 233.5 and 262.4.” Although plaintiffs sought injunctive and monetary relief in their causes of action brought under title 42 United States Code section 1983, they sought only money damages in their section 220 claim.

At the close of plaintiffs’ evidence, the court granted defendants’ motion for nonsuit as to plaintiffs’ Unruh Civil Rights Act claims, their due process claims against the individual defendants, and their claims for punitive damages. Plaintiffs conceded the District was immune from liability on their claims under title 42 United States Code section 1983. The court, however, denied nonsuit as to plaintiffs’ equal protection claims against the individual defendants, and plaintiffs’ claim against the District for violation of section 220.

Before the jury was instructed, plaintiffs filed with the court a “Memorandum of Law Regarding Jury Instruction for Education Code [section] 220 Violation.” Plaintiffs asked the court to analogize to FEHA when adopting the standards of liability for a violation of section 220. In so doing, however, plaintiffs confusingly asserted the “deliberate indifference” standard should apply, although plaintiffs disagreed regarding what level of response was required to avoid liability under that test. Plaintiffs also rejected the “severe, pervasive and offensive” and “actual notice” requirements of Title IX and constitutional claims in favor of FEHA’s more lenient negligence standards.

Specifically, plaintiffs asserted deliberate indifference exists if a “school administrator failed to take immediate and appropriate corrective action in response to harassment it knew or should have known about.” Plaintiffs created their definition of deliberate indifference by relying on Government Code section 12940, subdivision (j)(l), which holds an employer or its agents liable for failing to take “immediate and appropriate” corrective action in response to harassment between coworkers that the employer knew or should have known about. In contrast, the District argued the definition of deliberate indifference is firmly established under federal law, and is defined as a response that is “clearly unreasonable in light of all the known circumstances.”

Outside the presence of the jury, the court observed plaintiffs were proposing jury instructions with two different standards for deliberate indifference: one standard for purposes of their constitutional claims, where federal law is well established, and the other standard for purposes of section 220, based on a FEHA model. The court ruled a FEHA negligence standard of liability, applicable to workplace harassment claims between coworkers, applied to section 220, and omitted the term “deliberate indifference” from the section 220 jury instruction. The court noted the duty of a public school to take affirmative steps to combat discrimination, as set forth in section 201, subdivision (b), was inconsistent with the deliberate indifference standard used by federal courts in cases involving Title IX and/or constitutional claims.

As relevant here, the court instructed the jury as follows:

Instruction No. 3: “All pupils have the right to participate fully in the educational process, free from discrimination and harassment. California’s public schools have an affirmative obligation to combat racism, sexism and other forms of bias, and a responsibility to provide equal educational opportunity.”

Education Code Section 220—Nature of Action: “Plaintiffs Megan Donovan and Joseph Ramelli claim that Poway Unified School District discriminated against them because of their sexual orientation in violation of Education Code section 220. That section states, in part: ‘No person shall be subjected to discrimination on the basis of sex, ... or any actual or perceived [sexual orientation] in any program or activity conducted by an educational institution. . . .’ ”

Special Instruction No. 2—Education Code Section 220 Harassment: “Plaintiffs have to prove by a preponderance of the evidence all of the following elements: [][] (1) Plaintiffs Joseph Ramelli and/or Megan Donovan were subjected to harassment because of their sexual orientation by the intentional conduct of Poway Unified School District’s employees and/or students in District’s programs or activities; [f] (2) This alleged conduct was sufficiently severe or pervasive to a reasonable person of the same sexual orientation or sex that it effectively deprived Plaintiffs of equal access to the educational opportunities or benefits provided by Defendant Poway Unified School District; [f] (3) Defendant Poway Unified School District through its administrative and[/]or supervisorial employees knew or should have known of the alleged harassment described above; and [][] (4) Defendant Poway Unified School District failed to take immediate and appropriate corrective action; and [