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:

1. he or she suffered ‘severe, pervasive and offensive’ harassment, that 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.

(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.)