Student Discrimination and Harassment – Hate Crime
Purpose and Scope of Statutory Provision
Education Code section 220 provides that “[n]o person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crime set forth in Section 422.55 of the Penal Code, including immigration status, 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.”
Elements for Cause of Action
To prevail on a claim under section 220 for peer sexual orientation harassment, a plaintiff must show:
- he or she suffered ‘severe, pervasive and offensive’ harassment, that effectively deprived plaintiff of the right of equal access to educational benefits and opportunities;
- the school district had ‘actual knowledge’ of that harassment; and
- the school district acted with ‘deliberate indifference’ in the face of such knowledge.
(Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 579 (“[w]e further conclude that from the words of section 262.3(b), as well as from other markers of legislative intent, money damages are available in a private enforcement action under section 220.”).)
Section 220 Connection with Title IX
“We conclude the Legislature intended Title IX'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 IX 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 IX action for money damages, which we hold also govern a private suit for damages under section 220.” (Donovan v. Poway Unified School Dist (2008) 167 Cal.App.4th 567, 581.)
State Funding Recipients
“[A] state funding recipient can be liable for peer sexual orientation harassment, even if a recipient does not itself engage in harassment directly, if its response was "clearly unreasonable in light of the known circumstances" (Davis v. Monroe County Bd. of Educ. (1999) 526 U.S. 629, 648), and "subjected" a person to "discrimination" for purposes of section 220 (§ 220).” (Donovan v. Poway Unified School Dist (2008) 167 Cal.App.4th 567, 589.)
Specifically, under Davis:
“[F]unding recipients with notice that they may be liable for their failure to respond to nonagents' discriminatory acts. The common law has also put schools on notice that they may be held responsible under state law for failing to protect students from third parties' tortious acts. Of course, the harasser's identity is not irrelevant. Deliberate indifference makes sense as a direct liability theory only where the recipient has the authority to take remedial action, and Title IX's language itself narrowly circumscribes the circumstances giving rise to damages liability under the statute. If a recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference "subject[s]" its students to harassment, i.e., at a minimum, causes students to undergo harassment or makes them liable or vulnerable to it. Moreover, because the harassment must occur "under" "the operations of" a recipient, 20 U.S.C. § 1681(a), 1687, the harassment must take place in a context subject to the school district's control.These factors combine to limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.”
(Davis v. Monroe County Bd. of Educ.(1999) 526 U.S. 629, 630.)
First Amended Complaint filed by Kohler, Alexis.
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Date
Oct 10, 2019
- Judge Barbara Kronlund
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County
San Joaquin County, CA
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Statement: Case Management Conference - Case Management Statement
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Date
Sep 16, 2019
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County
Santa Clara County, CA
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Statement: Case Management Conference - Case Management Statement
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Date
Jun 24, 2019
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County
Santa Clara County, CA
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PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED, COMPLAINT FILED B...
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Date
Feb 20, 2019
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County
San Francisco County, CA
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Complaint Unlimited Civil (over $25,000) filed by Kohler, Alexis.
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Date
Jan 03, 2019
- Judge Barbara Kronlund
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County
San Joaquin County, CA
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Notice of Lodgement of Federal Authorities in Opposition to Demurrer to ...
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Date
Dec 21, 2018
- Judge Roger Ross
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County
San Joaquin County, CA
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Reply to Opposition (to Def Demurrer to Plf Second Amended Complaint) fi...
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Date
Nov 15, 2018
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County
Sacramento County, CA
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Ex Parte Application - Notice Required - Application to continue trial o...
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Date
Sep 17, 2018
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County
Santa Clara County, CA
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Memorandum: Points and Authorities - HRG 10-15-2018 Memorandum of Points...
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Date
Sep 13, 2018
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County
Santa Clara County, CA
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Memorandum: Points and Authorities - HRG 9/13/18 Plaintiffs Memorandum o...
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Date
Aug 28, 2018
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County
Santa Clara County, CA
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Memorandum: Points and Authorities - (9/13/18) IN SUPPORT OF ITS MOTION ...
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Date
Jul 10, 2018
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County
Santa Clara County, CA
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Opposition to Petition for Relief from Claim Notice Requirement filed by...
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Date
Nov 04, 2015
- Judge Carter Holly
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County
San Joaquin County, CA
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Declaration of Loren Lunsford in support of petition for relief from cla...
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Date
Oct 21, 2015
- Judge Carter Holly
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County
San Joaquin County, CA
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Declaration - Other (Donald P Driscoll RE Legislative History Of Educati...
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Date
Jun 17, 2009
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County
Sacramento County, CA
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Opposition (to motion to strike) filed.
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Date
Apr 01, 2009
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County
Sacramento County, CA
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