ALM Properties, Inc.
Page printed from: The Recorder
Select 'Print' in your browser menu to print this document.
Donovan v. Poway Unifed School District
2008-10-13 12:00:00 AMC.A. 4th
The Fourth Appellate District affirmed a judgment. The court held that a public school student may seek money damages against a school district for its failure to protect the student from sexual orientation harassment by the student’s peers.
Megan Donovan and Joseph Ramelli were students at Poway High School (PHS). Each of them 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 anti-gay epithets.
Their repeated complaints to PHS principal Scott Fisher, PHS assistant principal Ed Giles, Poway Unified School District superintendent Donald Phillips, and many other administrators and teachers were unavailing. Both students ultimately completed their senior year at PHS through an independent study program offered by the district.
Donovan and Ramelli sued the district for violation of Educ. Code §220, which prohibits discrimination based on sexual orientation, among other things, 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.”
The students alleged the district did not have an adequate or effective formal or informal policy to ensure that PHS was safe for students who were gay or lesbian or who were perceived as gay or lesbian. They alleged that when the students complained to the individual defendants, the defendants were deliberately indifferent to the students’ safety and that none of them took any meaningful action to stop the harassment and discrimination,
The students further alleged the district’s actions, failures to act, and/or deliberate indifference towards the harassment and discrimination they suffered were carried out because of their actual or perceived sexual orientation. As a result of these intentional acts and the acts of deliberate indifference, they alleged, they were deprived of the equal rights and opportunities in a public educational institution as guaranteed under state law. The students also alleged causes of action against Phillips, Fisher and Giles.
The case was tried to a jury. The jury returned a verdict finding: (1) the district violated §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 argued the trial court erroneously instructed the jury in connection with the §220 claim by applying negligence principles derived from the California Fair Employment and Housing Act (FEHA), instead of the more stringent elements of liability derived from title IX of the Education Amendments of 1972. The defendants also there was no substantial evidence to support the jury’s verdict against them.
In their cross-appeal, the students argued the trial court abused its discretion by refusing to award them attorney fees under Code Civ. Proc. §1021.5, despite obtaining an award of attorney fees under title 42 U.S.C. §1988(b), using a multiplier to increase the award in excess of the lodestar figure.
The court of appeal affirmed, holding the students satisfied all elements needed to prevail on a claim for damages under §220.
The court explained that, in order to prevail on a claim under §220 for peer sexual orientation harassment, a plaintiff must show: (1) he or she suffered “severe, pervasive and offensive” harassment, which effectively deprived 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. The students here satisfied each of these elements.
Further, the court held, money damages for violation of §220 are available in a private enforcement action under §262.3(b).
Section 262.3(b) recognizes the availability of “civil law remedies, including, but not limited to, injunctions, restraining orders, or other remedies” in a private enforcement action. Giving the words “civil law remedies” their plain and common sense meaning shows the Legislature intended money damages to be available in a private enforcement action under §262.3.
The court opined that interpreting “civil law remedies” as providing for only injunctive relief would render portions of §262.3(d) superfluous, and would thus violate the maxim of statutory construction that courts should avoid any construction which would render a word surplusage. Specifically, subdivision (d) provides for a 60-day “cooling off period” before civil remedies may be pursued by private enforcement. This moratorium does not apply, however, when injunctive relief is sought.
Interpreting the words “civil law remedies” to include money damages also ensures that state law is consistent with the remedies available under Title IX, on which §220 was based.
The court held further that although the trial court erred by applying the elements of liability from FEHA and not Title IX, that error was harmless. As the district conceded, the elements of liability in connection with the students’ equal protection claims against Fisher were the same elements that would apply in a Title IX action for money damages, which also govern a private suit for damages under §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. Thus, the jury’s findings in connection with Fisher also supported holding the district liable under §220 for its own wrongdoing based on its legally insufficient response to the harassment, and not based on principles of respondeat superior and/or constructive notice. Because the record contained substantial evidence to support the jury’s findings, the judgment had to be affirmed.
The court held finally that the trial court did not abuse its discretion when it awarded the students attorney fees under 42 U.S.C. §1988(b), and not under Code Civ. Proc. §1021.5. The trial court also did not abuse its discretion in setting the amount of the fee award.