Government Liability Update

Failure to Adopt Recommendations in Department of Education "Dear Colleague" Letters Is Not Actionable Failure to Accommodate

In Csutoras v. Paradise High School, published September 7, 2021, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant school and district in a lawsuit seeking money damages under Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973.  The plaintiff high school student requested and was granted accommodations under a section 504 plan concerning his schoolwork.  A male classmate assaulted the plaintiff at a football game while he was talking to a girl.  The assailant's motivation was jealousy over the girl.  It was not motivated in any way by the plaintiff's disability.  The school had no prior knowledge of harassment or bullying involving the plaintiff.  The plaintiff alleged that the school violated the ADA and Rehabilitation Act by failing to satisfy various Dear Colleague letters issued by the Department of Education.  The district court concluded that the Dear Colleague letters were not binding.

The 9th Circuit agreed.  While the letters set out a four-factor test for determining whether the Department may seek enforcement against a claimed violation of the ADA and Rehabilitation Act where a student is bullied based on a disability, the bullying is sufficiently serious to create a hostile environment, school officials knew or should have known of the bullying, and the school does not respond appropriately, the letters themselves limit the test to administrative enforcement actions and suits for injunctive relief.  Precedent creates a much higher bar for plaintiffs seeking damages under the ADA and Rehabilitation Act:  They must prove that the defendant intended to discriminate on the basis of the disability, or was deliberately indifferent to the disability.  The letters also disclaim any binding authority, and explicitly state that they do not apply to private suits for money damages.

Student's Profane Social Media Post Complaining about School Protected by First Amendment

In Mahoney Area School District v. B.L., published June 23, 2021, the U.S. Supreme Court, ruling 8-1, affirmed a circuit court decision that the defendant school district's discipline of the plaintiff violated the First Amendment.  The plaintiff was denied a position on her high school's varsity cheerleading squad and the right fielder position on a private softball team.  While off-campus, the plaintiff posted on Snapchat (a social media app that allows users to post photos to friends that disappear after a set period) a photo with her and a friend posing with middle fingers extended.  The caption read:  "F__ school f___ softball f___ cheer f___ everything."  She also posted a blank image with a caption complaining about the cheerleading situation.  A friend took a picture of the post and shared it with other members of the cheerleading squad.  The photos eventually came to the attention of cheerleading coaches.  The coaches and the principal concluded that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules.  The coaches suspended the plaintiff from the junior varsity cheerleading squad for the upcoming year.  The plaintiff sued the district, contending that the discipline violated her First Amendment rights.  The district court found in the plaintiff's favor, and the circuit court affirmed.

The Supreme Court majority ruled that the conduct was protected by the First Amendment.  Past Supreme Court cases have outlined the protection for student speech on campus.  The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates off-campus speech.  The court declined to set forth a broad First Amendment rule stating what counts as "off campus" speech, or whether or how First Amendment standards must give way off campus to a school's special need to prevent substantial disruption of learning-related activities or protection of the school community.  But three features of off-campus speech often distinguish schools' efforts to regulate that speech from on-campus speech:  the school will rarely stand in loco parentis in relation to off-campus speech; regulation of off-campus and on-campus speech would mean regulation 24 hours a day (so schools must meet a heavy burden when regulating off-campus religious or political speech); and the school has an interest in protecting a student's unpopular expression, especially off-campus, so that future generations understand the "marketplace of ideas."  These features of off-campus speech diminish the leeway the First Amendment grants to schools in light of their special characteristics.  Here, the plaintiff's speech did not involve features that would put it outside First Amendment protections.  The posts did not amount to fighting words, and while crude, they were not obscene.  If an adult spoke such words, she would receive strong First Amendment protection.  The student posted off-campus, during non-school hours, did not identify the school, and did not target any member of the school committee.  The means of posting diminished the school's interests in regulation. There was no record that the posts had the sort of substantial disruption of school activity, or threatened harm  rights of others, that might justify the school's actions.

Justice Thomas dissented.  He opined that precedent supported the coaches' actions in disciplining off-campus speech.

Statutory Treble Damages Provision for Cover-Up of Childhood Sexual Abuse Is Punitive Damages Award, Barred by Statutory Immunity

In Los Angeles Unified School District v. Superior Court (Doe), published May 21, 2021, the Second District Court of Appeal, Division 3 issued a writ directing a trial court to grant a motion to strike a treble damages prayer in a lawsuit.  The lawsuit alleged that the petitioner district covered up an employee's sexual abuse of a student, leading to the sexual abuse of the plaintiff student.  The suit alleged causes of action against the district for negligent hiring, supervision, and retention; breach of mandatory duty to report suspected child abuse; negligent failure to train, warn, or educate; and negligent supervision of a minor.  The plaintiff sought an award of economic and noneconomic damages against all defendants, and an award of treble damages under Code of Civil Procedure section 340.1 against the district.  The district moved to strike the treble damages prayer under Government Code section 818, which immunizes public entities from punitive and exemplary damages.  Relying on the legislative history of the amendment of section 340.1 that added the treble damages provision, the trial court denied the motion, ruling that the treble damages provision had a compensatory function.

The appellate court disagreed.  The Government Claims Act maintains souvereign immunity from punitive damages that are awarded to punish the defendant and to deter outrageous conduct in the future, while waiving immunity for normal tort damages awarded to compensate the plaintiff for injury suffered, restoring the plaintiff as nearly as possible to her former position.  Treble damages under section 340.1 are imposed to punish and deter cover-ups, not to compensate the plaintiff.  The legislative history-- including a statement attributed to the bill's author that the treble damages are needed "to compensate victims who never should have been victims" as well as an "effective deterrent" against cover ups--does not unambiguously demonstrate the Legislature in fact added the treble damages provision to the statute for that purpose.  While the fact that an entity covered up past abuse may add to a victim's emotional distress, that is an item of harm for which a jury can award compensatory damages.  By definition, the treble damages award is in addition to the plaintiff's actual damages.  The treble damages provision is plainly designed to punish those who cover up childhood sexual abuse and thereby to deter future cover-ups, rather than to compensate victims.  The provision is therefore primarily punitive under section 818.  Case law allowing mandatory civil penalties under section 818 is inapposite; those provisions lie outside the perimeters of a tort action and are fixed amounts.  The treble damages are awarded only in tort actions for injury, and are based on a jury's calculation of damages.  They are therefore punitive damages.

Because Permitting Football Coach's Onfield Prayers, under the Circumstances, Would Violate the Establishment Clause, School District Did Not Violate His Rights by Firing Him

In Kennedy v. Bremerton School District, published March 18, 2021, the 9th Circuit Court of Appeals affirmed a district court's grant of summary judgment to the defendant school district.  The plaintiff, assistant coach' to a district high school's varsity football team and head coach to its junior varsity team, had religious beliefs that required him to pray on the field immediately after the game.  Over time, students joined him; at least one felt compelled to participate to avoid having his playing time reduced.  The district informed the plaintiff of its policy concerning religious related activities, which required that school staff neither encourage nor discourage student prayer.  The plaintiff initially complied by giving secular motivational talks.  He then informed the district that he would resume praying on the fifty-yard line immediately after the conclusion of the game.  The plaintiff and his representatives appeared and announced on media what he would do.  At the game, the plaintiff prayed audibly, and a stampede of persons from the audience joined him.  The plaintiff then made numerous media appearances to spread the word of what had happened.  The district offered to allow the plaintiff to pray in a private location, or to pray on the field after the stands emptied.  The plaintiff maintained that he would continue.  The district placed the plaintiff on administrative leave. After they did so, members of the staff felt repercussions from the public because of the attention given to the plaintiff's acts.  At the end of his annual contact, the district recommended the plaintiff not be rehired.  The plaintiff alleged that his rights under the First Amendment and Title VII were violated.

The 9th Circuit first analyzed the plaintiff's free speech claim.  It determined, under the Pickering test, that he had spoken as a public employee, since his job involved communicating on the field.  Further, even if the plaintiff had spoken as a private citizen, the district's treatment of him differently from other members of the public was adequately justified.  An objective observer, familiar with the history of the plaintiff's on-field religious activity coupled with his efforts to generate publicity to gain approval of those activities, would view the district's allowance of that activity as stamped with the district's approval.  Because an objective observer would view that as an endorsement of the plaintiff's faith, the district's interest in avoiding an Establishment Clause violation justified its narrowly-tailored conduct in response, including offering the plaintiff an accommodation process the plaintiff declined to cooperate with.  As to the plaintiff's Title VII claims, the plaintiff failed to establish a prima facie claim of religious discrimination, because similarly-situated employees outside his protected class were not treated more favorably.  While the plaintiff established a prima facie claim for failure to accommodate religious beliefs, the district carried its burden of showing an attempt to accommodate the plaintiff.

Because School Districts Are Not Business Establishments, the Unruh Act Does Not Apply to Them

In Brennon B. v. Superior Court (West Contra Costa Unified School District), published November 13, 2020, the First District Court of Appeal, Division 1 denied a petition for a writ of mandate challenging an order sustaining the real party school district's demurrer to the petitioner's cause of action under the Unruh Act without leave to amend.  The petitioner, who suffers from autism, alleged he has been the victim of disability discrimination by the school, and that the school had violated the Unruh Act.  He contended that the school district was a "business establishment" under the Unruh Act.  He alternatively argued that even if a school district is not a business establishment, Civil Code section 51, subdivision (f) made any violation of the ADA a violation of the Unruh Act.

The appellate court rejected both arguments. The California Supreme Court has not addressed whether a government entity, and specifically a public school district, is a business establishment within the meaning of the Unruh Act.  The appellate court followed the analytical template the Supreme Court has employed in deciding whether a particular entity is a business establishment for purposes of the Act.  The court examined the historical background of the Act, and concluded nothing in that historical context (as a legislative reaction to the U.S. Supreme Court's Civil Rights cases, dealing with federal legislation imposing antidiscrimination protections on private enterprises) supported application to public entities.  In examining the Unruh Act's legislative history, the court noted that successive versions of the legislation reduced the statute's discussion of "schools," first limiting it to business and vocational training schools and then eliminating any mention of schools.  By the time the Unruh Act was enacted, Brown v. Board of Education had already held racial discrimination in public schools unconstitutional.  Nothing in the legislative history of the Act suggests that it was intended to reach discriminatory conduct by state agents, such as public schools.  Supreme Court precedent grappling with the meaning of the term "business establishment" in the Unruh Act confirm that the elements the Court viewed as determining an entity was a business establishment--overall function enhancing economic value; providing athletic facilitiesas a principal activity and reason for existence; providing a physical plant for patrons to use at their convenience; conducting commercial transactions as an integral part of overall operations;  providing the functional equivalent of a classic place of public accommodation or amusement; or providing the sale of a good--apply to school districts.  Other lower court decisions have examined various legislative activities by public entities and concluded they were not the acts of a "business establishment" for purposes of the Unruh Act.  Those California court decisions that have discussed the Act as applying to public entities have not analyzed the issue.  Federal district court cases have split on whether the Unruh Act applies to California public school districts.  The ones that conclude that it does do not properly analyze the issue.  The court addressed whether Education Code section 200 et. seq.'s statement that the statute shall be interpreted as consistent with the Unruh Act did not expand the Act to covering school districts.

The appellate court also analyzed the argument that under statutory language, any violation of the ADA is a violation of the Unruh Act.  It concluded that this language actually indicates that any violation of the ADA by a business establishment is a violation of the Unruh Act.  The amendment of the Act to address ADA violations consistently discusses disability discrimination by business establishments.  An interpretation of the Act to apply to any violation of the ADA would also run afoul of the California Supreme Court's holding that employment discrimination is not covered by the Unruh Act.

Parents May Not Attempt to Control School Curricula on Religion by Bringing Constitutional Challenges

In CAPEEM V. Torlakson, published September 3, 2020, the 9th Circuit Court of Appeals affirmed  judgment in favor of the State Board of Education and State Department of Education against a challenge brought by parents of Hindu children in California state schools.  The state defendants developed model curriculum outlines concerning the history of the world's first major religions.  The plaintiffs contended that the outlines carry a hostile and denigrating message about the origins of Hinduism when compared with similar provisions relating to other religions of the world.  They brought challenges to the outlines as violating their rights under Due Process, Equal Protection, and the Establishment and Free Exercise clauses of the First Amendment.  The district court dismissed all claims except an Establishment Clause claim, and then granted summary judgment on that claim.

The appellate court affirmed.  The Equal Protection claims fail because precedent bars attempts to control school curricula through Equal Protection challenges absent evidence of unlawful discriminatory intent.  The plaintiffs failed to articulate any discriminatory intent. Nor do their challenges to the adoption of the outlines show violation of Equal Protection because the drafters allegedly did not accept their proposed edits while accepting proposed edits from other religions.  Absent discriminatory intent, they cannot challenge the content of the curricula based on Equal Protection.  The court properly dismissed the Free Exercise challenge because the plaintiffs failed to articulate any burden on their exercise or practice of their religion.  They allege no penalty or coerced conduct.  The parents' Substantive Due Process rights to make decisions in their children's upbringing do not extend beyond the school door.  In regard to the Establishment Claim, the district court properly excluded the plaintiffs' expert declaration interpreting the outlines, because the issue was how a reasonable person, rather than an expert, would view them.  The court rejected the argument that the outlines established other religions by treating them better than Hinduism.  An objective reading of the material did not establish anything from the other religions as historically accurate, and did not denigrate Hinduism.

Statute Reviving Childhood Sexual Abuse Cases Barred by Claim Act Constitutional, but Does Not Apply to Parents' Claims

In E.D. Coats v. New Haven Unified School Dist., published March 12, 2020, the First District Court of Appeal, Division 2 reversed a judgment on the pleadings against a former student plaintiff, but affirmed the judgment against her foster mother's case.  From 2014-2015, when the student was 17, one of her teachers engaged in multiple acts of sexual intercourse with her.  In 2016, a year and a half after the intercourse was discovered and ceased, the student and foster mother sued the school district, principal, teacher, and others.  The student alleged causes of action for sexual abuse, negligence, breach of statutory duties in failing to adequately supervise teachers and protect students, and intentional and negligent infliction of emotional distress.  The foster mother sued for negligent and intentional infliction of emotional distress.  The plaintiffs contended that Government Code section 905, subdivision (m) exempted them from having to present a claim to the district under the Government Claims Act.  The district and principal argued that a district regulation adopted under Government Code section 935 (which permits public entities to enact claim requirements for actions that would otherwise be exempt from the claim requirements under Government Code section 905) required the student to present a claim; and that section 905(m) did not apply to the foster mother.  In 2018, while the appeal was pending, the Legislature amended section 935 by adding a subdivision providing any procedure authorized by the section does not apply to childhood sexual abuse claims, and stated it was declaratory of existing law.  Then in 2019, the Legislature amended Code of Civil Procedure section 340.1 (which sets forth the statute of limitations for childhood sexual abuse claims) to add a treble damages provision for cover-up of sexual assault of a minor; raised to 40 years of age the cutoff of a plaintiff's ability to sue third party defendants; and provided that any claim for damages that has not been litigated to finality and would otherwise be barred as of January 1, 2020 because "the applicable statute of limitations, claims presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020."  The same bill expanded section 905, subdivision (m).  The district argued that the revival portions of the new statute were unconstitutional.

The court of appeal ruled that the provisions were constitutional.  The constitutional prohibition on ex post facto laws applies to criminal statutes and statutes that are punitive.  The argument that the treble damages portion of amended section 340.1 failed, because there was no evidence of cover-up here.  Similarly, arguments that the scope of the revival of claims was unreasonable failed, because here the lawsuit was brought just a year and a half after the sexual abuse ended.  Because the statute would revive the student plaintiff's cause of action even if it had been barred by the claim statute, the trial court erred in granting judgment against her.

The court of appeal also ruled, however, that section 905, subdivision (m) applies only to direct victims of sexual abuse.  It does not apply to parents or others who suffer emotional distress as a result of the sexual abuse of a minor.  The trial court therefore properly granted judgment against the foster mother plaintiff.

School District Plan Limiting Parent's Communications with Teachers Did Not Violate Parent's First Amendment Rights

In L.F. v. Lake Washington School District, published January 17, 2020, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 lawsuit based on the plaintiff parent's First Amendment rights.  The plaintiff allegedly engaged in a pattern of sending incessant e-mails to school staff accusing them of wrongdoing, making demands, and leveling insults, and also acted agressively and in an intimidating manne in face-to-face interactions concerning the district's decisions about his children, including the plaintiff's contention that his daughter would benefit from a plan under section 504 of the Rehabilitation Act.  The district imposed a communication plan, under which the parent's substantive communications with the district about his children's education would be limited to bi-weekly, in-person meetings with two administrators.  The e-mail communicating the plan advised the plaintiff against e-mail or other communications with any district employees outside the bi-weekly meetings, as the employees would not respond to them.  The plan did not apply in the event of an emergency, did not prevent him from pursuing administrative appeals, and did not bar him from attending school activities or accessing school records.  The plaintiff was told he could appeal the communication plan to state court.  He did not do so.  When the district determined the plaintiff had violated the plan, it changed the frequency of meetings to monthly.  The district court concluded that the communication plan did not violate the plaintiff's First Amendment rights.

The 9th Circuit agreed.  The plan did not restrict the plaintiff's speech, because the only penalty for violating the plan was that the district employees would not respond to him.  The plan therefore restricted the employees' speech, not the plaintiffs.  Even if the plan could be deemed a restriction on the plaintiff's speech, it was a reasonable one.  Under the circumstances, a parent's communication with the school about his children was a non-public forum.  The regulation was therefore subject to limited First Amendment review:  it needed only to be reasonable to comply with the First Amendment, so long as it was not an effort to suppress the speaker's activity based on disagreement with the speaker's message.  These restrictions were reasonable, and were based on the manner in which the plaintiff communicated with the district--not the content of his speech.  The plan was therefore a reasonable effort to manage a parent's relentless and unproductive communications with district staff.

School District Was Entitled to Private Attorney General Fees for Enforcing Charter School Statutes

In Sweetwater Union High School District v. Julian Union Elementary School District, ordered published June 28, 2019, the Fourth District Court of Appeal, Division 1, affirmed an award of fees to the plaintiff school district under Code of Civil Procedure section 1021.5.  The plaintiff district alleged that the defendant district authorized a defendant charter school operator to operate defendant charter schools in the plaintiff's territory.  The trial court ultimately denied the plaintiff's petition for a writ of mandate directing the defendant district to revoke the defendant operator's charter, concluding that doing so would cause disruption for students of the charter schools.  But the trial court declared that the operator's operation at two of the charter school locations would be in violation of the Education Code, and enjoined operation of both locations.  The court then granted the plaintiff district's motion for attorney fees.

The appellate court affirmed the award of fees.  The parties did not request a statement of decision concerning the fee award, and the court did not issue one.  The appellate court therefore inferred all findings necessary to support the award were made.  The appellate court ruled that the trial court could have found the plaintiff district to be a prevailing party.  Even though the district did not succeed on all of its claims, it succeeded in obtaining declaratory and injunctive relief.  It could also have ruled that enforcement of charter school law was enforcement of an important right affecting public interest, that the ruling provided a significant public benefit by advancing the public interest in lawful operation of charter schools and the legislature's oversight objectives expressed in the charter school law, that the lawsuit was necessary to enforce the law, and that the financial burden made the fee award appropriate.  It could also have found that the amount awarded (the entire amount requested) was justified by the evidence the plaintiff district submitted.

To Plead a Title IX Violation, a Plaintiff Must Plead Nonconclusory Facts Showing Gender Bias

In Austin v. University of Oregon, published June 4, 2019, the 9th Circuit affirmed dismissal of a Title IX and due process action brought by three male student athletes.  A female student accused the three of forcing her to engage in nonconsensual sexual acts.  The university subjected them to a disciplinary proceeding.  A university official found the students responsible for sexual misconduct.  It suspended them for four years, and declined to renew their scholarships.

The 9th Circuit ruled that the FRCP 8(a) analysis for pleadings, rather than the evidentiary McDonnell-Douglas shifting-burden analysis, applied at the pleading stage.  Under that analysis, the district court properly dismissed the complaint, because the students failed to allege nonconclusory facts to link the proceedings against them with gender bias.  Their due process claims failed because the facts alleged establish that the university gave them due process.