Safety and Support at School
By Brian Chase, Senior Staff Attorney
Published 09/25/08
Joey Ramelli and Megan Donovan relied on California law to protect them when they were harassed and threatened at Poway High School by bullies, but school officials let them down. After years of harassment and abuse, both Joey and Megan left Poway High to finish their studies at home. Lambda Legal currently represents Joey and Megan in the appeal of a jury verdict in their favor, finding that school officials were liable to Joey and Megan under both California and federal law. Donovan v. Poway Unified School District, Case No. D047199 (Cal. App. 4 Dist.)
When Joey complained about being harassed in the locker room, administrators did nothing to help Joey other than to offer to let him change in the gym coaches' office. Joey, understandably, declined to change in a room full of clothed adults.
Joey was relentlessly harassed in the hallways of Poway High School. Joey's testimony regarding the harassment was corroborated by the testimony of other witnesses, including teachers and students. The harassment included physical assaults. The administration, however, did little to nothing to quell the hostile environment.
Megan testified that she heard antigay slurs on a daily basis in the school and that the harassment was pervasive throughout campus. She was confronted by a student who called her a "dyke" and threatened to assault her. When she reported the incident to a school duty supervisor, the official did nothing to investigate. Megan was regularly harassed in her woodshop class and reported the harassment to her teacher, but the teacher took no steps to curb the harassment. Megan reported the harassment in woodshop to Assistant Principal Ed Giles, but he did nothing to follow up or investigate.
When Megan told Mr. Giles that she is a lesbian, he responded by telling his student "God created Adam and Eve" and "that's not the way God intended it to be." Regardless of Mr. Giles' personal religious beliefs, it is wholly inappropriate for a school administrator to express such sentiments to a newly open lesbian student undergoing a very difficult time in her life. Megan reported the incident to Tracy Barker-Ball, who ran the school's wellness center. When Ms. Barker–Ball asked Mr. Giles about the incident he confirmed that he made antigay comments to Megan and told her that she was just "confused" about her sexual orientation.
Antigay students at Poway went as far as to organize a "Straight Pride Day" in 2003 to mock their gay and lesbian classmates. On that day Joey, Megan and their friends were sitting on the quad quite close to Principal Scott Fisher when other students began harassing them. The Principal's response was to tell the gay and lesbian students to leave the quad. Segregating the victims of harassment is not a solution to harassment and does nothing to ease an atmosphere of bias and bullying, but as with the "solution" to Joey's locker room harassment, Poway officials' first, and apparently only, proposed solution to a toxic campus environment was to shuffle the gay students around and hope to keep them away from the bullies.
Ultimately, Megan was confronted by a student named Brianna on "Straight Pride Day." Brianna started a physical altercation with Megan. Despite the fact that Brianna was the aggressor, both girls were given three–day suspensions after a cursory investigation.
Finally, after Joey and Megan had complained of antigay harassment regularly, Megan and Joey's mothers met with Principal Fisher. During the meeting Mr. Fisher did not appear to take the complaints seriously and, instead, tried to imply that Joey and Megan were exaggerating. Joey's mother testified that Mr. Giles actually told her that Joey should stop complaining to him.
Mr. Giles and Mr. Fisher claimed that they did not have enough information about specific acts of harassment to take action. The jury rejected their excuses, and with good reason. Neither Mr. Fisher nor Mr. Guiles even tried to investigate incidents of harassment and bullying. They did not interview students who might have witnessed anti–LGBT harassment. They did not instruct school officials to keep an eye on "hotspots" where harassment was likely to occur.
The trial lasted nearly six weeks and the transcript is 4000 pages long, but a small sampling of the evidence presented is sufficient to demonstrate that school officials failed to adequately protect students in their care. Based on all the testimony and other evidence, 10 jurors handed down a verdict in favor of Megan and nine jurors found in favor of Joey. The jurors found that the defendants were liable under both state law and federal law.
The California Legislature has broadened the antiharassment and antidiscrimination provisions of the California Education Code on numerous occasions, each time citing widespread in-school harassment as the reason such changes were necessary. It seems fair to conclude that the legislature did so to provide students in California with greater protection, but in their appeal, the lawyers for Poway Unified School District (the "District") argue that the California Education Code goes no further than the protections that would otherwise be available to students under Title IX (U.S.C. § 1681) and the federal Equal Protection Clause. A brief history of laws that have been invoked to protect LGBTQ students, including current California law, should demonstrate that the District is mistaken.
Students in California have been protected from discrimination on the basis of sex under state law since 1982. Assem. Bill No. 3133 (1981-1982 Reg. Sess). The law's author saw the early incarnation as a law that "parallels and complements Federal Title IX requirements and would extend those protections for equal opportunity on the basis of sex to all California schools."
The harassment and antidiscrimination protections provisions of the California Education Code have been broadened no fewer than eight times. Legislators pored over thousands of pages of material while crafting these laws, much of which documented an epidemic of violence and harassment impacting youth, and LGBTQ youth in particular.
There are very significant differences between the protections students enjoy under federal versus California law. First of all, neither Title IX nor the federal Equal Protection Clause expressly mentions "harassment." The protections federal law offers to protect students from peer-on-peer harassment and bullying were developed through judicial interpretations finding that unchecked harassment is a form of discrimination. see, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). In stark contrast, the California Education Code mentions the term "harassment" at least 15 times. Cal. Ed. Code § 200 et. seq. Despite these differences, the Poway School District continues to argue that school officials can only be held accountable for bullying and harassment if plaintiffs can prove that they acted with "deliberate indifference to known acts of harassment," the standard set under federal law by the U.S. Supreme Court in Davis.
Although California law directly confronts the issue of harassment, it does not provide an express standard of liability for school officials who fail to protect students. The Code does, however clearly indicate that its antiharassment provisions of the code should be read as consistent with a raft of other antidiscrimination laws, "except where this chapter may grant more protections." Cal. Educ. Code § 201 (emphasis added). In our briefs Lambda Legal argues that, through this language, the legislature expressed its intent that the antidiscrimination provisions protecting schoolchildren in California should be read in a way that provides the most robust protection offered by any of the other antidiscrimination laws listed in Section 201. Section 201 specifically references the Fair Employment and Housing Act as well as the Unruh Civil Rights Act, both of which provide liability where supervisory personnel know or should know about harassment and fail to take immediate and appropriate corrective action. If a court were to hold that the California Education Code provides for liability only after a finding of deliberate indifference, then the Education Code would be less protective than FEHA and Unruh, which contradicts the legislature's clearly stated intent that the protections offered to students be at least as protective as FEHA and Unruh, if not more so.
The District proposes an interpretation of the antidiscrimination provisions of the California Education Code that would render those provisions no more protective than federal law, robbing the state law of core significance and contravening the core principle of statutory interpretation that requires that statutes be read to have meaning and effect. (Select Base Materials, Inc. v. Board of Equalization (1959) 335 P.2d 672, 676). The California Supreme Court has clearly held that "[w]e do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous." (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22, citing People v. Craft (1986) 41 Cal.3d 554, 560, Gates v. Salmon (1868) 35 Cal. 576, 587). It makes little sense to suggest that the legislature specifically enacted antidiscrimination protections for students in California without the intent that those protections be given legal effect above and beyond the protections that were already in place. Accordingly, the District's suggestion that the California Education Code's protections merely parrot federal protections fails as a basic matter of statutory construction.
This is not an academic or legalistic dispute. The protections offered under the California Education Code are vitally important to protect students from harm and to ensure that LGBTQ youth can make it through school without feeling unsafe or threatened.
For students like Megan and Joey, it remains critically important that California's robust protections for LGBTQ students are not diluted in any way. The California Legislature has enacted broad antiharassment and anti-bullying laws. Lambda Legal is doing everything we can to make sure those laws are protected and enforced.
