(NAME-MCE) Court Upholds Award Against School for Allowing Harassment of Gays

[Bill Howe]

Metropolitan News-Enterprise <http://www.metnews.com/> - Los Angeles

 Tuesday, October 14, 2008

*Court Upholds Award Against School for Allowing Harassment of Gays*

**

By SHERRI M. OKAMOTO, Staff Writer

The Fourth District Court of Appeal Friday upheld a six-figure damage award
against a public school district for failing to adequately respond to the
harassment of two gay students by their peers.

Div. One ruled that monetary damages were available for Joseph Ramelli and
Megan Donovan for their private enforcement of Education Code Sec. 220,
which prohibits the discrimination against any person in any program or
activity conducted by an educational institution that receives state
financial assistance based on that person's disability, gender, nationality,
race or ethnicity, religion, sexual orientation.

Ramelli and Donovan enrolled as freshmen at Poway High School in 2000, where
they claimed they regularly endured harassment including death threats,
being spit on, physical violence, vandalism to personal property; and* *being
called anti-gay epithets over the next three years because they were gay or
perceived to be gay.

The two students logged records of the harassment they had experienced and
complained to the school principal, Scott Fisher. They also reported the
harassment to other administrators and teachers, but the harassment
allegedly continued to escalate.

Fisher later admitted that he never attempted to follow-up with the students
to discuss their logs and that there was no investigation of their
complaints.

Ramelli and Donovan filed suit against the Poway Unified School District for
violation of Sec. 220, and against Fisher and various officials for civil
rights violations.

San Diego Superior Court Judge Steven R. Denton instructed the jury on Sec.
220 using elements of liability from the Fair Employment and Housing
Act—which imposes liability against an employer who knows or should have
known of harassment and failed to take immediate and appropriate corrective
action.

The jury found both Ramelli and Donovan were subject to sexual orientation
harassment by their peers, and that Fisher had violated the plaintiffs'
right to equal protection.

Ten out of 12 jurors* *also found the district liable to each plaintiff
under Sec. 220 for failing to take immediate and appropriate corrective
action in response to such harassment, and awarded Ramelli and Donovan
damages of $175,000 and $125,000, respectively.

Writing for the appellate court, Justice Gilbert Nares explained that Sec.
262.3—which provides for enforcement of the state's anti-discrimination
laws—recognized the availability of "civil law remedies" in private
enforcement actions, and that the plain meaning of "civil law remedies"
included monetary damages.

Nares reasoned that such a construction was consistent with the remedies
available under Title IX of the Education Amendments, Pub.L. No. 92-318,
which the Legislature had relied on in shaping California's
anti-discrimination laws.

Because Sec. 220 was based on Title IX and was silent as to the elements
that a plaintiff would have to prove to state a discrimination claim, Nares
concluded Title IX's elements governed claims under Sec. 220.

Both Sec. 220 and Title IX condition their prohibitions on discrimination on
the receipt of public funding, broadly proscribe discrimination in
education, set forth procedures for administrative enforcement, and were
designed to prevent recipients of state funding from using such funds in a
discriminatory manner, he wrote.

Based on Title IX's requirements, Nares concluded that a plaintiff must
demonstrate "severe, pervasive and offensive" harassment, which effectively
deprived plaintiff of equal access to educational benefits and opportunities
and that school district acted with "deliberate indifference" despite having
"actual knowledge" of the ongoing harassment.

He explained that the trial court had erred by applying the elements of
liability from the FEHA because the FEHA imposes liability against an
employer for the wrongful acts of a third party based on the doctrine of
respondeat superior or constructive notice, and nothing in the Sec. 220 or
its legislative history suggested that the Legislature intended to impose
liability for damages under Sec. 220 based on principles of agency.

But Nares reasoned the instructional error was harmless because the jury's
findings in connection with Fisher supported holding the district liable
under Sec 220 for its own wrongdoing based on its insufficient response to
the harassment.

The jurist concluded that the trial court had not abused its discretion in
denying the district's motion for a new trial based on a juror's alleged
pre-existing bias where juror had disclosed that she was a teacher, knew one
of the witnesses, and her sons had attended Poway High School during voir
dire and the district did not chose to question the juror further on her
answers.

Nares also declined to reconsider the plaintiff's $421,357 award of attorney
fees and upheld the trial court's use of a 0.25 lodestar multiplier in light
of the trial court's finding that plaintiffs' attorney fees were in the "low
rage" of reasonable.

Presiding Justice Judith McConnell and Justice Patricia D. Benke joined
Nares in his opinion.

The case is *Donovan v. Poway Unified School District*, 08 S.O.S. 5675.