California Court Says Title IX Standards Apply to State Law Claims for Peer Harassment (but the Plaintiffs Win Anyway)

Section 220 of California's Education Code provides that students shall not be discriminated against on the basis of a number of protected categories, including disability, gender, nationality, race or ethnicity, religion, and sexual orientation. However, it is not clear on the face of this broadly worded statute when a school district violates this provision by failing to protect a student from harassment by his or her peers. That issue was the subject of a recent decision by the California Appeals Court, in a case stemming from the harassment two students were subjected to by their peers at Poway High School on the basis of their sexual orientation.

The plaintiffs argued that they should be able to recover money damages under Section 220 on a theory of respondeat superior, that is, that the school district is vicariously liable for the misconduct of its employees. In this case, that misconduct is various teachers' failures to address numerous reports by the plaintiffs that they were subjected to, among other things, "death threats; being spit on; physical violence and threats of physical violence; vandalism to personal property; and being subject to anti-gay epithets." However, the court disagreed that the respondeat superior standard should apply to claims under Section 220. It cited evidence that the California Legislature intended instead to incorporate the standards of liability for peer harassment that apply to Title IX cases, namely, that the district had actual knowledge of severe and pervasive harassment, and in the face of that knowledge, acted with deliberate indifference. This is a tougher standard for plaintiffs to satisfy.

Therefore, the court concluded, the trial court technically erred when it instructed the jury to decide the case using the respondeat superior standard. But it deemed that error harmless, because the jury also made specific findings to support a conclusion that the district was liable even under the tougher Title IX standard -- namely, that appropriate school officials had actual knowledge of the harassment that was going on and failed to respond. The jury also characterized the harassment as "severe and pervasive." Moreover, deemed the court, these findings were supported by substantial evidence presented at the trial.

The court thus sustained the jury award of $175,000 and $125,000 to the two plaintiffs, as well as attorneys fees of over $400,000.

Decision is: Donovan v. Poway Unified School Dist.,2008 WL 4531580 (Cal. App. 4 Dist. October 10, 2008).