Poway loses Donovan decision; 70-page decision
written by federal judge
Gay Students Win $300,000 For School’s
"Deliberate Indifference" to Harassment
Leonard Link
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 4th 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.
October 12, 2008
Donovan et al. v. Poway Unified School District et al.
Case Number D047199
APPELLANT'S OPENING BRIEF. 06/19/2006
Defendant-appellant-x/respondent: Poway Unified School District
Defendant-appellant-x/respondent: Fisher, Scott
Attorney: George Edson Murphy
Attorney: Jeffrey A. Morris
Respondents and Cross-Appellants Donavan and Rameli
Plaintiff-respondent-x/appellant: Donovan, Megan
Attorney: F. Brian Chase
Attorney: Hayley Gorenberg
Attorney: Paula S. Rosenstein
Attorney: Rosenstein, Paula S./RB/X-AOB
Party: Donovan, Megan / AOB
written by federal judge
Gay Students Win $300,000 For School’s
"Deliberate Indifference" to Harassment
Leonard Link
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 4th 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.
October 12, 2008
Donovan et al. v. Poway Unified School District et al.
Case Number D047199
APPELLANT'S OPENING BRIEF. 06/19/2006
Defendant-appellant-x/respondent: Poway Unified School District
Defendant-appellant-x/respondent: Fisher, Scott
Attorney: George Edson Murphy
Attorney: Jeffrey A. Morris
Respondents and Cross-Appellants Donavan and Rameli
Plaintiff-respondent-x/appellant: Donovan, Megan
Attorney: F. Brian Chase
Attorney: Hayley Gorenberg
Attorney: Paula S. Rosenstein
Attorney: Rosenstein, Paula S./RB/X-AOB
Party: Donovan, Megan / AOB
San Diego
Education Report
Education Report
Why This Website
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park Elem
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park Elem
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Students suspended for
changing grades at
Rancho Bernardo HS in Poway
BUT student sued by Guajome
Park Academy for reporting
that teachers changed grades!
(link: blog post)
changing grades at
Rancho Bernardo HS in Poway
BUT student sued by Guajome
Park Academy for reporting
that teachers changed grades!
(link: blog post)
| 4th Appellate District Division 1 02/13/2008 Donovan et al. v. Poway Unified School District et al. Case Number D047199 09/26/2005 Notice of appeal lodged/received...by Poway Unified School District... 10/12/2005 Notice to reporter to prepare transcript. Connie Ullery - 4/19,20,21,25,26,27,28/05; 5/2,3,4,5,9,10,11,12, 16,17,23,24,25,26/05; 8/18/05; 9/1/05; Linda Burke - 1/14/05 10/18/2005 ...cross-appeal filed on October 13, 2005, by Donovan et al. ...10/18/2005 Default notice sent-appellant notified per rule 1(c). 11/02/2005 Order waiving filing fee filed in superior court on November 2, 2005, by Donovan as to cross-appeal... by Ramelli as to cross-appeal. 12/07/2005 Association of attorneys filed for: Atty Murphy for Appellants... 01/27/2006 Stipulation of extension of time filed to: Attorney: Morris, Jeffrey / to 3/27/06 for AOB (60 days) Party: Poway Unified School District... 03/23/2006 Granted - extension of time. Attorney: Morris, Jeffrey /to April 26, 2006 for AOB (30 days) Party: Poway Unified School District 04/14/2006 Granted - extension of time. Attorney: Morris, Jeffrey /to May 26, for AOB (30 days) Party: Poway Unified School District 06/15/2006 Application filed. To file oversize brief 06/19/2006 Order on motion filed. Appellant and cross-respondent's application to file their opening brief in excess of 14,000 words is granted. Appellant's opening brief is deemed filed this date. 06/19/2006 APPELLANT'S OPENING BRIEF. Attorney: Morris, Jeffrey / Due 45 days after filing of the record. Party: Poway Unified School District / 07/11/2006 Change of address filed for: Jeffrey A. Morris (Old address) Stutz, Artiano, Shinoff & Holtz 401 West "A" Street, 15th Floor San Diego CA 92101 7906 07/11/2006 application to appear pro hac vice for respondent's and cross-appellant's 7/26/06 07/13/2006 Association of attorneys filed for: Atty Chase for Respondents/X-Appellants 07/19/2006 Stipulation of extension of time filed to: Attorney: Rosenstein, Paula S./ to October 2, 2006 for RB (60 days). Party: Donovan, Megan 07/31/2006 Pro hac vice granted. The application of Respondents Megan Donavan and Joseph Ramelli that attorney Hayley Gorenberg of Lambda Legal Defense & Education Fund, Inc., to be allowed to appear pro hac vice is granted. 09/29/2006 Granted - extension of time. Attorney: Rosenstein, Paula S./to October 31, 2006 for RB (29 days) Party: Donovan, Megan 11/22/2006 Application filed. Application to file combined respondents' brief and cross-appellants' opening brief in excess to rule 14 word limits. 11/22/2006 Order filed. Respondents' and cross-appellants' "Application to File Combined Respondents' Brief and Cross-Appellants' Opening Brief in Excess to Rule 14 Word Limits" is GRANTED. The combined respondents' and cross-appellants' opening brief is deemed filed this date. 11/22/2006 RESPONDENT'S BRIEF. Attorney: Rosenstein, Paula S./RB/X-AOB due 45 days after filing of Party: Donovan, Megan / AOB 12/28/2006 Stipulation of extension of time filed to: Attorney: Morris, Jeffrey / to 3/9/07 for ARB/XRB (60 days) Party: Fisher, Scott 01/17/2007 Substitution of attorneys filed for: appellants and cross-repondents substitute atty. George Murphy of Murphy, Campbell, Guthrie & Alliston in place and instead of George Murphy of Farmer, Murphy, Smith & Alliston (firm changed name). 03/14/2007 Application to file amicus curiae brief filed by: ACLU in support of Respondents, X-Appellants Add to POS 03/21/2007 Respondent notified pursuant to rule 8.220(a)(2). 03/29/2007 Order filed. The application of American Civil Liberties Union of San Diego & Imperial Counties, American Civil Liberties Union of Northern California, & American Civil Liberties Union of Southern California to file an amicus curiae brief on behalf of respondents, cross-appellants filed on March 14, 2007, will be considered with the appeal. If the application is granted, the court will specify a time in which any party may file an answer. (Cal. Rules of Court, rule 8.220(c)(5).) 04/03/2007 APPELLANT'S REPLY BRIEF. Attorney: Morris, Jeffrey/ ARB/X-RB due 45 days after the filing of Party: Fisher, Scott / RB/X-AOB 3/9 04/03/2007 Application to file amicus curiae brief filed by: Education Legal Alliance of the California School Boards Association on behalf of appellants/x-respondents. Add requesting party to POS 04/03/2007 Motion filed. Motion for Judicial Notice filed by Education Legal Alliance. Oppo due 4/18 04/05/2007 Filed: Supplemental POS of appellants' reply brief and x-respondents' brief 04/09/2007 Exhibit request rule 8.224 by: Appellant Poway Unified School District Exhibit #'s 2,7,9, 12-16,18,19,24-27,37,39,42, 49,52,53,55,57,59,62,70,75,92,102,133, 145,297,300,315,317,318,324,328,331-333 04/10/2007 Received copy of document filed in trial court. Defendants' Poway Unified School District notice of designation of exhibits for transmission to reviewing court 04/11/2007 Exhibit request rule 8.224 by: Respondent Donovan Exhibit #'s 1,7,12-14,19,27 04/12/2007 Received: Amended Plaintiffs notice designating exhibits for transmission to court of appeal (Donovan) 04/19/2007 Order filed. The application of Education Legal Alliance of the California School Boards Association to file an amicus curiae brief on behalf of appellants/cross-respondents filed on April 3, 2007, will be considered with the appeal. If the application is granted, the court will specify a time in which any party may file an answer. (Cal. Rules of Court, rule 8.200(c)(5).) The companion request for judicial notice will be considered if the application to file an amicus curiae brief is granted. 05/07/2007 Change of contact information filed for: Alex M Cleghorn old address 1: 510 16th St 4FL new address 1: 39 Drumm Street old city: Oakland new city: San Francisco old zip: 94612 new zip: 94111 old phone: 510-835-8045 new phone: 415-621-2493 old fax: 510-835-8045 new fax: 415-255-8437 05/25/2007 Oral argument waiver notice sent. 6/4 05/25/2007 CASE FULLY BRIEFED. 06/01/2007 Request for oral argument filed by: aplt/x-respondent--15 min. (Fisher) Atty Nicholson faxed 06/04/2007 Request for oral argument filed by: respondent/x-aplt-15 min. (Atty Chase) faxed 06/15/2007 Stipulation filed to: Trial Exhibits for use on appeal 06/15/2007 ***EXHIBITS LODGED BY: ****** Appellant Poway Unified by stipulation 1 vol. 12/06/2007 Change of contact information filed for: George Edson Murphy old address 1: 3640 American River Dr #150 new address 1: 8801 Folsom Blvd., Ste. 230 old zip: 95864 new zip: 95826 916-484-3501 fax: 916-484-3511 email: www.MurphyCampbell.com 02/01/2008 The court requests the parties lodge within two weeks the legislative histories of the following statutes at issue in Donovan v. Poway Unified School District et al. (D047199): 1) Ed. Code ' 200 (Stats. 1982, c. 1117, p. 4037, ' 1. Amended by Stats. 1998, c. 914 (A.B. 499), ' 7; Stats. 1999, c. 587 (A.B. 537), ' 3; Stats. 2004, c. 700 (S.B. 1234), ' 2; Stats. 2007, c. 569 (S.B. 777), ' 1.5); 2) Ed. Code ' 201 (Formerly ' 43, added by Stats. 1994, c. 1198 (A.B. 2543), '2; renumbered and amended by Stats. 1998, c. 914 (A.B. 499), ' 5); 3) Ed. Code ' 220 (Stats. 1982, c. 1117 (A.B. 3133), p. 4038, ' 1. Amended by Stats. 1998, c. 914 (A.B. 499), ' 17; Stats. 1999, c. 587 (A.B. 537), ' 4; Stats. 2004, c. 700 (S.B. 1234), ' 3; Stats. 2007, c. 569 (S.B. 777), ' 11); 4) Ed. Code ' 262.3 (Stats. 1988, c. 1514, ' 5. Amended by Stats. 1990, c. 1372 (S.B. 1854), ' 9; Stats. 1992, c. 417 (A.B. 2359), ' 1; Stats. 1998, c. 914 (A.B. 499), ' 37); and 5) Ed. Code ' 262.4 (Stats. 1998, c. 914 (A.B. 499), ' 38). |
Poway loses Donovan case; court says it
should have protected students
should have protected students
Attorneys Daniel Shinoff and Jeffery Morris are unhappy with
Donovan decision (blog post)
Donovan decision (blog post)
District protected teachers who
changed grades
Guajome Park Academy--Vista
Unified School District
has the same law firm as PUSD:
Dan Shinoff/Jack Sleeth of Stutz
Artiano Shinoff & Holtz)
changed grades
Guajome Park Academy--Vista
Unified School District
has the same law firm as PUSD:
Dan Shinoff/Jack Sleeth of Stutz
Artiano Shinoff & Holtz)