Harassment

Education Code section 201 states in pertinent part:

1. All pupils have the right to participate fully in the educational process, free from discrimination and harassment.
2. California's public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
3. Harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by the California Constitution and the United States Constitution.
4. There is an urgent need to prevent and respond to acts of hate violence and bias-related incidents that are occurring at an increasing rate in California's public schools.
5. [¶] ... [¶]
6. It is the intent of the Legislature that each public school undertake educational activities to counter discriminatory incidents on school grounds and, within constitutional bounds, to minimize and eliminate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.

(Hector F. v. El Centro Elementary Sch. Dist. (2014) 227 Cal.App.4th 331, 337-38 citing Ed. Code, Sec. 201.)

Implementation of Section 201

“As a means of implementing the right of students to be free of discrimination and harassment set forth in Education Code section 201, Education Code section 32281 subdivision (a) provides that each school district is responsible for the development of comprehensive school safety plans for each of its schools. Education Code section 32282, subdivision (a)(2)(E) provides that, among other matters, each comprehensive school safety plan shall include a discrimination and harassment policy consistent with the prohibition against discrimination contained in [Education Code section 201].” Education Code section 32282, subdivision (f) further provides that: “As comprehensive school safety plans are reviewed and updated, the Legislature encourages all plans, to the extent that resources are available, to include policies and procedures aimed at the prevention of bullying.” (Hector F. v. El Centro Elementary Sch. Dist. (2014) 227 Cal.App.4th 331, 338.)

Administrative Remedies Requirement

In Collins v. Thurmond (2019) 41 Cal.App.5th 879 the court held that a taxpayer discrimination lawsuit brought under Education Code Sections 201 and 220 had to be dismissed because the plaintiffs did not exhaust their administrative remedies under the UCP. The court stated:

“A taxpayer suit is designed to facilitate the resolution of legal issues that may not otherwise be justiciable due to standing issues. Thus, where the Legislature has provided an administrative remedy, a taxpayer action cannot be used in lieu of that remedy....The question raised in this case is whether the Uniform Complaint Procedure administrative remedy is available to those suffering from discriminatory practices at the local level and is a process that must be completed prior to bringing a taxpayer laws. [...] We conclude that it is.

“The Uniform Complaint Procedures (UCP) set forth administrative procedures for resolving grievances ‘regarding an alleged violation by a local agency of federal or state law or regulations governing educational programs, including allegations of unlawful discrimination . . . .’ (Cal. Code Regs., tit. 5, Sec. 4610(a).) The regulations apply to ‘the filing of complaints which allege unlawful discrimination . . . against any protected group as identified under Education Code section 200 and 220 . . . in any program or activity conducted by a local agency, which is funded directly by, or that receives or benefits from any state financial assistance.’ (Id., subd. (c).) The referenced complaints are typically filed with the local agency, which then has 60 days to conduct and complete an investigation. (See Id., Sec. 4631(a), (e).) The resulting conclusion can be appealed to CDE, which must again complete its review in 60 days. (Id., Secs. 4632, 4633.) The regulations do not appear to restrict who may file complaints and appellants have pointed to no reason why the taxpayer plaintiff could not have filed an administrative complaint in the first instance.

“These proceedings are specifically designed to administratively resolve allegations of discrimination under Education Code section 200, as well as similar complaints. (See Ed. Code, Sec. 221.1.) They would thus appear to bar any taxpayer action alleging discrimination in the first instance.”

Student Harassment and Hate Crime Definitions

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.”

Sexual Orientation Harassment

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.)