CACI 3069 Harassment in Educational Institution (Ed. Code, § 220)

California Civil Jury Instructions CACI

3069 Harassment in Educational Institution (Ed. Code, § 220)

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by being subjected to harassment at school because of [his/her/nonbinary pronoun] [specify characteristic, e.g., sexual orientation] and that [name of defendant] is responsible for that harm. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] suffered harassment that was so severe, pervasive, and offensive that it effectively deprived [him/her/nonbinary pronoun] of the right of equal access to educational benefits and opportunities;

2.That [name of defendant] had actual knowledge of that harassment; and

3.That [name of defendant] acted with deliberate indifference in the face of that knowledge.

[Name of defendant] acted with deliberate indifference if [his/her/nonbinary pronoun/its] response to the harassment was clearly unreasonable in light of all the known circumstances.

Directions for Use

This instruction does not include language that elaborates on what does or does not constitute “deliberate indifference” beyond the broad standard of “clearly unreasonable in light of all the known circumstances.” In Donovan v. Poway Unified School Dist., the court noted that “deliberate indifference” will often be a fact-based question for which bright line rules are ill-suited. However, the court noted numerous examples from federal cases in which the standard was applied. The failure of school officials to undertake a timely investigation of a complaint of discrimination may amount to deliberate indifference. School officials also must take timely and reasonable measures to end known harassment. A response may be clearly unreasonable if a school official ignores a complaint of discrimination or if the initial measures chosen to respond to the harassment are ineffective. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 611 [84 Cal.Rptr.3d 285].) Any of these factors that are applicable to the facts of the case may be added at the end of the instruction.

Sources and Authority

Harassment in Educational Institution. Education Code section 201.

Discrimination in Educational Institutions. Education Code section 220.

Duty to Inform of Remedies. Education Code section 262.3(b).

“We conclude that 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 the 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. We further conclude that from the words of section 262.3, subdivision (b), as well as from other markers of legislative intent, money damages are available in a private enforcement action under section 220.” (Donovan, supra, 167 Cal.App.4th at p. 579.)

“Like Title IX, … enforcement of the Education Code’s antidiscrimination law rests on the assumption of ‘actual notice’ to the funding recipient. … [¶¶] We decline to adopt a liability standard for damages under section 220 based on principles of respondeat superior and/or constructive notice, particularly in light of the circumstances presented here when the claim of discrimination is not, for example, based on an official policy of the District, but is instead the result of peer sexual orientation harassment and the District’s response (or lack thereof) to such harassment. … [N]egligence principles should not apply to impose liability under a statutory scheme when administrative enforcement of that scheme contemplates actual notice to the funding recipient, with an opportunity to take corrective action before a private action may lie. By requiring actual notice, we ensure liability for money damages under section 220 is based on a funding recipient’s own misconduct, determined by its own deliberate indifference to known acts of harassment.” (Donovan, supra, 167 Cal.App.4th at pp. 604–605, original italics, internal citations omitted.)

“The decisions of federal courts interpreting Title IX provide a meaningful starting point to determine whether the response of defendants here amounted to deliberate indifference under section 220. Under federal law, deliberate indifference is a ‘ “very high standard.” ’ Actions that in hindsight are ‘unfortunate’ or even ‘imprudent’ will not suffice.” (Donovan, supra, 167 Cal.App.4th at p. 610, internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 869, 870
11 California Forms of Pleading and Practice, Ch. 112, Civil Rights: Government-Funded Programs and Activities, §§ 112.11, 112.16 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection, § 35A.32A (Matthew Bender)