Gay Students Win $300,000 For School’s "Deliberate Indifference" to Harassment

Lambda Legal successfully defended a $300,000 verdict awarded by a San Diego, California, Superior Court jury to two former students from Poway High School who suffered severe anti-gay harassment that school officials failed to redress. A unanimous three-judge panel of California’s 4^th District Court of Appeal found that the evidence introduced at trial was sufficient to support the jury’s verdict, and that an erroneous jury instruction by the trial judge did not require setting the verdict aside.  Donovan v. Poway Unified School District, 2008 Westlaw 4531580 (October 10, 2008).

Plaintiffs Megan Donovan and Joseph Ramelli encountered such frequent and severe harassment while attending the school during the period 2000-2003, going beyond vicious name-calling to threats of violence, assaults, and property damage, that the school district did not even try to argue that the harassment they suffered was not severe and pervasive. Indeed, the problem was so severe, and the failure of school officials to act was so discouraging, that both plaintiffs enrolled in a special program that allowed them to complete their senior years through home study rather than have to face the harassment for an additional year. The district contended that it should be relieved of liability because its response did not constitute "deliberate indifference" to the harassment.

The court found plenty of evidence to support the jury’s conclusion that the officials were deliberately indifferent. There was evidence that both plaintiffs had brought the problem to the attention of the principal, Scott Fisher, and the assistant principal, Ed Giles, many times, that they had submitted formal written complaints, but that the usual procedures of investigation and imposing sanctions on offending students was apparently not followed. Things got no better after they complained, not even temporarily.

The dispute on appeal went to the appropriate standard to be applied in construing a California statute that prohibits sexual orientation discrimination in schools that receive state funding, and whether individual students can sue for damages when they suffer sexual orientation discrimination in the form of harassment by fellow students. The plaintiffs had argued at trial that the standard to be applied should be drawn by analogy from the Fair Employment and Housing Code, which also bans sexual orientation discrimination, but the defendants argued that the school should not be held liable unless the "deliberate indifference" standard – a constitutional standard – was met. The trial judge agreed with the plaintiffs, and charged the jury using the FEHC standard on the statutory claim. However, the trial judge used the "deliberate indifference" standard to charge on the constitutional equal protection claim. The jury found for the plaintiffs on both claims.

The appeals court agreed with the defendants on the state law standard, but that was a pyrrhic victory for them, because the jury also found that the school officials had violated the students’ constitutional equal protection rights through their deliberate indifference to the harassment. Thus, the court found, even though it agreed with the defendants that the "deliberate indifference" standard was the correct one for the state law claim, the jury’s finding on the constitutional claim established that the standard had also been met for the statutory claim. In order to subject the school district to liability under the statutory claim, the court had to make the additional finding that the principal and assistant principal were "appropriate officials" to deal with such situations, whose actions should be legally binding on the school district. The court concluded that the disciplinary authority and responsibility of those officials were sufficient to meet this requirement.

The plaintiffs had also named the superintendent of schools as a defendant, but he had been dismissed from the case, as the trial court quickly determined that he played no individual role in responding to student harassment complaints.

On broader questions of liability, the court looked to Title IX of the federal Secondary Education Amendments Act, which prohibits sex discrimination by schools that receive federal funding. Federal courts have concluded that students can bring sexual harassment claims under this statute, but it has not yet been established that sexual orientation harassment claims would also be covered by the federal statute. The state law has similar language to describe the obligation of schools to prevent discrimination, but it also includes sexual orientation as a specific category. The California court decided to apply principles developed under Title IX to establish standards of proof and liability under the state law, noting that the California law contained several categories of discrimination not covered by the federal law, but sought to achieve similar aims.

As to the right to sue for damages, the court looked to federal Title IX again, and found that federal courts had found an implied right to sue for damages, even though a literal reading of the statute might indicate that the failure of a school district to prevent discrimination would subject it only to the possibility of losing federal funding. The court was persuaded by federal decisions that had concluded that limiting the remedy to possible loss of funding would not be an effective way to achieve the statutory purpose.

There was also a dispute on appeal about the attorney fees awarded to the plaintiffs, which amounted to more than $400,000, an amount greater than the actual damages they were awarded. The court reviewed the time records of Lambda’s attorneys working on the case and concluded that they worked out to an hourly rate on the low side of reasonable and were appropriately documented. In addition, due to the complexities of the case, the trial judge had applied a small "multiplier" to the hourly rate, which the appeals court also found to be appropriate within the discretion given to the courts to compensate plaintiff attorneys in civil rights cases.

Lambda Legal Staff Attorney Brian Chase, based in the organization’s Western Regional Office in Los Angeles, is the organization’s lead attorney on the case. Lambda Legal’s Deputy Legal Director Hayley Gorenberg and co-counsel Paula S. Rosenstein and Bridget J. Wilson of the law firm Rosenstein, Wilson & Dean, P. L. C. in San Diego, join him on the case.