Government Liability Update

Public Entity Immunity to Punitive Damages Applies Broadly, and Bars Enhanced Damages under Code of Civil Procedure Section 340.1

In Los Angeles Unified School District v. Superior Court (Jane Doe), published June 1, 2023, the California Supreme Court affirmed a lower appellate court case reversing denial of a motion to strike a damages claim.  An alleged victim of sexual abuse by an employee of the school at which she was a student sued the defendant school district alleging negligence and failure to report suspected child abuse.  She sought an award of up to treble damages from the district under Code of Civil Procedure section 340.1(b)(1), as amended in 2019.  The district moved to strike from the complaint allegations of a cover-up and the request for treble damages, under Government Code section 818, which bars punitive and exemplary damages from being awarded against public entities.  The trial court denied the motion, and concluded that section 340.1(b)(1)'s treble damages provision was intended to be compensatory, not punitive.  The court of appeal granted the district's writ petition reversing the trial court's decision.  The appellate court determined that the treble damages were primarily punitive and thus barred by section 818.  The California Supreme Court granted review of the ruling.  While review was pending, other court of appeal agreed that enhanced damages under section 340.1(b)(1) are not recoverable against public entities.

The Supreme Court unanimously agreed with the appellate court's conclusion.  Government Code section 818 provides, “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”  While the statute clearly shields public entities from punitive damages, also referred to as exemplary damages, its language establishes that its prohibition can extend to more than just what are conventionally referred to as punitive damages.  It applies to other damages imposed primarily for the sake of example and by way of punishing the defendant.  It therefore also applies to other kinds of damages when they function, in essence, as awards of punitive or exemplary damages.  This comports with the purpose of the statute, which codifies the common law rule exempting public entities from punitive damages because such damages impoverish the public treasury without serving any admonitory function.  Based on past case law, considerations relevant to determining whether a particular award is barred under section 818 may include whether the damages involved go beyond those necessary to fully compensate the plaintiff; whether a damages remedy functions to offset some otherwise applicable restriction on compensatory
damages; whether there is an element of discretion by the fact finder in the award of damages; and whether in the normal course actual damages are likely to be difficult to establish or quantify.  The ultimate question remains whether the damages function in essence as a form of punitive or exemplary damages.  The court noted previous decisions it had made reading section 818 narrowly, as only applying to damages that are "simply and solely" punitive:  People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30; San Francisco Civil Service Assn. v. Superior Court (1976) 16 Cal.3d 46; and Kizer v. County of San Mateo (1991) 53 Cal.3d 139.  The court overruled those decisions insofar as they articulated the "simply and solely" or "simply or solely" punitive standard.  The court then concluded that the enhanced damages that section 340.1(b)(1) authorizes amount to punitive damages for purposes of section 818.  Section 340.1(b)(1) provides that, in an action seeking damages suffered due to childhood sexual assault, “a person who is
sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.”  The court interpreted "unless otherwise prohibited by another law" as referring to Government Code section 818.  Section 340.1(b)(1) authorizes treble damages only upon proof of morally offensive behavior on behalf of the defendant.  The decision to increase the award lies entirely with the fact finder.  If the fact finder decides to increase the damages award, the amount by which it does so, although capped at treble damages, is not fixed.  The awards require the existence of actual injury, but may go substantially beyond the amounts necessary to fully compensate plaintiffs for the injuries they have suffered.  The court did not find any nonpunitive characteristic or function that sufficiently distinguishes the enhanced damages from punitive damages.  The court further noted that the language of section 340.1(b)(1).

Childhood Sexual Assault Cases Litigated to Judgment Based on Claim Timeliness Were Not Revived by AB 218

In M.D. Doe, et al., v. Marysville Joint Unified School District, ordered published March 27, 2023, the Third District Court of Appeal affirmed the dismissal of the plaintiffs' lawsuit after demurrer.  In 2002, the plaintiffs sued the district and an employee, alleging their school counselor sexually abused them.  in that lawsuit, the trial court entered judgment for the district after finding that the plaintiffs had failed to timely present a claim to the district.  The appellate court affirmed, and the California Supreme Court denied review.  In 2019, the Legislature passed Assembly Bill 218, amending Code of Civil Procedure section 340.1 to extend the statute of limitations for victims bringing childhood claims of sexual assault that had not been "litigated to finality."  The plaintiffs then filed this lawsuit, predicated on the same facts as the 2002 suit.  The trial court sustained the district's demurrer, without leave to amend, based on res judicata.  On appeal, the plaintiffs argued that because their first action was dismissed based on timeliness, res judicata did not apply because their previous claims were not "litigated to finality" on the merits,  and may therefore be revived; and that dismissing the claims violated equal protection.

The appellate court rejected the plaintiffs' interpretation of section 340.1's "litigated to finality" argument.  The plain language of section 340.1 does not support the interpretation.  Under the statute's language, the statute only revives claims that have not already reached final adjudication.  The plaintiffs' claims were litigated to completion:  summary judgment, affirmed on appeal, with the Supreme Court denying review.  The prior version of section 340.1 stated that the revival provision of section 340.1 does not apply to claims litigated to finality on the merits.  The Legislature had good reason to remove that language:  reopening a case litigated to finality would be unconstitutional.  Under separation of powers, the power to conclusively resolve cases by rendering dispositive judgments rests with the judiciary alone.  The Legislature therefore may not reverse final judgments.  AB 218 therefore negates the plaintiffs' interpretation, as the Legislature expressly removed language permitting plaintiffs to reopen cases disposed of on nonmerit-based grounds.  The Legislature intended that all claims litigated to finality, regardless of the basis for adjudication, may not be revived under section 340.1.  Further, plaintiffs' argument that their action was dismissed as untimely under the statute of limitations is inaccurate.  Instead, the courts found the plaintiffs failed to timely present a claim under Government Code section 911.2.  The timeliness requirements are similar, but different.  The court further rejected the argument that treating those who litigated their claims to finality differently from those who did not violated Equal Protection.  The Legislature had a rational basis for differentiating between the two groups:  separation of powers.

Plaintiff Need Not Exhaust Remedies under the IDEA to Obtain Money Damages under the ADA

In Perez v. Sturgis Public Schools, published March 21, 2023, the U.S. Supreme Court unanimously reversed a lower court decision dismissing a suit under the Americans with Disabilities Act.  The plaintiff, a deaf student, alleged that his school district deprived him of a Free and Appropriate Public Education by providing him with inadequate sign language interpreters, with the result that he was unable to graduate from high school with his class.  He and his family filed a complaint with the state department of education, alleging that the school had failed its duties under the Individuals with Disabilities Education Act (IDEA) and other laws.  Before an administrative hearing was held, the district and family entered into a settlement under which the district agreed to provide him the forward-looking equitable relief he sought.  The plaintiff then sued the district under the ADA, seeking compensatory damages.  The district court and circuit court held that the suit was barred under 20 U.S.C. section 1415(l), part of IDEA.  This statute provide that nothing in IDEA shall be construed to restrict individuals from seeking "remedies" under the ADA or other federal laws protecting rights of children with disabilities, except that before filing an action under one of those laws, seeking "relief" that is also available under the IDEA, the procedures under section 1415 for administrative remedies shall be exhausted.  The courts have split on whether this provision requires exhaustion of administrative remedies under IDEA when seeking damages (which are not available under IDEA).

The Supreme Court held that under the statutory language, "relief" and "remedies" have the same meaning.  Therefore, IDEA's administrative remedies must be exhausted only when seeking remedies (such as forward-looking equitable relief) that is available under IDEA.  Because backward-looking compensatory damages are not available under IDEA, plaintiffs do not need to exhaust IDEA's administrative remedies before suing under other federal statutes for such damages.

Principal's Warning to Teacher Wearing MAGA Hat to Training Raises Triable Issue of Fact of First Amendment Retaliation

In Dodge v. Evergreen School Dist. #114, published December 29, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment for the defendants.  The plaintiff teacher wore a red Make America Great Again hat to mandatory teacher training, taking the hat off when he entered the school where the training was held.  The professor leading the training reported to the school's principal that she felt intimidated and traumatized by the hat.  The principal also learned that the hat upset a few teachers at the training.  She spoke with the school's HR officer to discuss what could be done.  They agreed the best option was to talk to the teacher directly.  She told the plaintiff that some people take the hat as a symbol of hatred and bigotry, and that while should could not ask him to stop wearing it, he should use "better judgment" in the future.  The next day, the plaintiff attended another teacher training at a school in the district.  He again wore the MAGA hat until he entered the building.  The principal again contacted the HR director.  They agreed the principal needed to set a "clear directive" that the plaintiff not have the hat in the training.  Later that day, the teacher went to a training at his school, and left his hat in his truck.  The principal again spoke with the plaintiff.  According to the plaintiff, the principal swore during the conversation, called the plaintiff a homophobe, a bigot, and hateful; used profanity; told him that she did not want him wearing the hat; and said, "[N]ext time I see you with that hat, you need to have your union rep.  Bring your rep because I'll have mine."  The principal denied using profanity in the conversation.  The plaintiff made an HR complaint about the principal.  After investigation, the district found that the principal did not violate district policy.  The HR officer informed the plaintiff that no further action would be taken on the complaint; but she granted the plaintiff's request for a transfer to another school.  The plaintiff appealed to the school board.  During a second investigation, the board gave the principal a choice of resigning as principal, accepting demotion, or facing disciplinary proceedings.  She resigned.  The plaintiff sued the district, the principal, and the HR officer for retaliation in violation of his First Amendment free speech rights.  The district court granted summary judgment on the grounds that the principal's and HR officer's actions were protected by qualified immunity, and that the plaintiff had failed to establish that the district had ratified any unconstitutional actions.

The 9th Circuit reversed summary judgment as to the principal.  The plaintiff stated a prima facie claim for first amendment retaliation:  wearing the hat (with the political message it conveyed) was protected speech on a matter of public concern; he acted as a private citizen (rather than as part of his job duties) in wearing the hat to a teacher training; and while the principal "badmouthing" the plaintiff was not an adverse employment action, her threat that he needed to have his union rep if he wore the hat again raised a genuine issue of material fact over whether he faced an adverse employment action--a threat to his employment--for his expression.  The court affirmed summary judgment for the HR officer, because it found no evidence the officer caused or set in motion a series of acts by others that she reasonably should know would cause constitutional injury.  Nor were any of her actions reasonably likely to deter him from engaging in protected speech.  The court then applied Pickering balancing to determine whether the principal established a legitimate administrative interest in preventing the plaintiff's speech that outweighed the plaintiff's First Amendment rights.  While some of the training attendees may have been outraged or offended by the plaintiff's political expression, there was no evidence of actual or tangible disruption to school operations, beyond the inherent controversy of political speech.  The appellate court next applied the second prong of qualified immunity analysis to the principal's acts:  whether she violated clearly-established law.  The court noted that because the Pickering analysis requires a fact-sensitive, context-specific balancing of competing interests, the law will rarely be sufficiently clearly established to preclude qualified immunity.  But Supreme Court and 9th Circuit case law clearly establish that disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail  expression of that viewpoint at a public school, particularly where the only disruption was the effect the speech had on those who disagree with it because they disagree with it.  This is therefore one of the rare Pickering cases where the violation of the First Amendment was clearly established.    Finally, the court agreed with the district court that there was no evidence the district ratified the principal's conduct.

School District Did Not Violate Students' Free Speech Rights under First Amendment or California Law by Disciplining Them for Off-Campus Social Media Posts Targeting Fellow Students

In Chen v. Albany Unified School District, published December 27, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant school district and associated defendants.  A high school student created a private Instagram account to share memes, images, and comments with his close friends.  He allowed 13 people to follow his account.  He used the account to make cruelly insulting posts about various students in his school, including racist posts, including posts joking about lynching and slavery.  Another student made racist comments in the group, and “liked” offensive posts.  When one of the account’s followers showed posts in the group to students who had been depicted in a post with nooses, knowledge of the group’s contents spread throughout the school, causing great emotional upset and disruption.  Two of the account’s followers were physically assaulted.  The district voted to expel the group creator and the follower who posted racist comments.  Those students filed suits against the school district defendants under 42 U.S.C. section 1983, alleging violation of free speech rights under the First Amendment and California law, as well as violation of procedural due process.  The district court related those cases.  It granted summary judgment for the defendants, reasoning that the district defendants could properly regulate the students’ off-campus speech.

The court of appeals agreed.  The First Amendment’s protection of public school children’s speech is more limited than that of adult speech.  The speech of students in a school setting may be restricted if either it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities; or it collides with the rights of other students to be secure and to be let alone.  Even outside the school setting, the First Amendment rights of minors are not co-extensive with adults’.  That is especially true in connection with school activities.  Students do not have a First Amendment right to target specific classmates with vulgar or abusive language.  Without limiting any political viewpoint or other protected content, schools may insist on civil discourse in the school context.  Here, the First Amendment would not prevent a school from punishing the sort of speech at issue if it had occurred under the school’s supervision.  The content threatens the targeted students’ sense of physical, emotional, and psychological security.  The threat of disruption of school activities is equally obvious (and demonstrated here).  The central question is whether the off-campus nature of the speech places it outside of the school’s authority to regulate or discipline.  Although schools may regulate some off-campus student speech, their authority is diminished as opposed to on-campus speech.  The 9th Circuit has devised a three-factor test for determining whether off-campus speech bears a sufficient nexus to the school to allow school district regulation:  (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school.  Under these standards, the group’s creator’s speech bore a sufficient nexus to the school to warrant disciplinary action by the school.  The student’s subjective intention to keep the account private is not controlling; the court must consider whether it was reasonably foreseeable that the speech would reach and impact the school.  Given the ease with which electronic communications may be copied or shown to others, it was foreseeable that the posts would ultimately reach the targeted students.  Once the privacy of the account was breached, the degree and likelihood of harm to the school from the speech was significant.  Because the speech caused serious or severe bullying or harassment targeting specific individuals, the school’s regulatory interests remained significant, and strongly implicated the school’s authority and responsibility to act in loco parentis in protecting students from maltreatment by classmates.  A failure to respond to the harassment might have exposed it to potential liability for failure to respond adequately to a racially hostile environment.  Because the student never contended that he was espousing a particular political ideology,  his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow.  Although the other student’s involvement in the account was substantially more limited, his contribution properly subjected him to school discipline as well.  The court rejected the students’ arguments that the school violated their rights under the California Constitution and Education Code sections 48950 and 48907.  California’s free speech rights for students under those provisions do no extend further than their First Amendment rights.  The creator student’s claim of violation of procedural due process fails, because the student pursued an administrative writ under California law on that point and lost.  Claim preclusive bars him from relitigating that issue in the federal lawsuit.  His argument that a member of the administrative body was biased against him is governed by the same procedural due process standards under federal law as under state law.

Student Adequately Pleaded First Amendment Claims by Alleging School District Barred Her from Wearing Religious Decorations on Graduation Cap but Allowing Others to Wear Secular Decorations on Caps

In Waln v. Dysart School District, published December 9, 2022, a divided panel of the 9th Circuit Court of Appeals reversed an order dismissing at the pleading stage a 42 U.S.C. section 1983 lawsuit against a school district.  The district's dress-code policy for graduation declared that students may not decorate their gown or cap.  The plaintiff student, a Native American, had an eagle plume blessed in a religious ceremony.  Her religious beliefs included the custom of wearing eagle feathers in times of great honor. They cannot be covered by or worn underneath a cap.  The plaintiff's father and religious leader asked school administrators and the district superintendent for a religious accommodation for plaintiff.  They declined.  The plaintiff went to her graduation wearing her decorated cap.  School officials did not let her inside the venue.  But the same day, at the same venue, other high school students from the district were allegedly allowed to participate in the graduation ceremony wearing caps with secular decorations (such as a breast cancer awareness sticker) on their caps.  The plaintiff sued for violation of the First Amendment's Free Exercise Clause and Free Speech Clause.  The district court granted a FRCP 12(b)(6) motion dismissing the complaint.

The panel majority ruled that the district court had erred in dismissing the complaint.  To state a Free Exercise claim, a plaintiff must show that a government entity has burdened her sincere religious practice pursuant to a policy that is not neutral or generally applicable.  General applicability requires that the law be enforced evenhandedly.  The complaint alleges that the district's policy was not enforced evenhandedly, because other students were permitted to adorn their graduation caps with secular decorations, while the plaintiff was not permitted to adorn hers with a religious decoration.  It permitted secular conduct that contravened the legitimate government interests underlying the policy to the same degree that Plaintiff’s attire would have done.   The plaintiff therefore carried her burden, at the motion-to-dismiss stage, to show that the district's policy was enforced in a selective manner.  There is a First Amendment violation unless the district can satisfy strict scrutiny.  Similarly, the plaintiff stated a claim for violation of her free speech rights.  By wearing the feather at graduation, the plaintiff sought to convey a particular message of academic achievement and resilience.  Viewpoint-based restrictions on student speech are subject to strict scrutiny.  While the district's policy is on its face viewpoint neutral, it is still unconstitutional if not applied uniformly.  The complaint plausibly alleged that the district enforced its policy in a selective way.  The plaintiff therefore carried her burden to show that the district's selective enforcement constituted impermissible viewpoint or content discrimination.  This too shows a First Amendment violation unless the district can satisfy strict scrutiny.  The district had to show its restrictions on the plaintiff’s protected rights serve a compelling interest and are narrowly tailored to that end.  The district argued that it must comply with the Establishment Clause.  But as recent Supreme Court authority established, the clause does not compel the government to purge from the public 
sphere anything an objective observer could reasonably infer endorses or partakes of the religious.  The district therefore did not meet its burden at the pleading stage of showing that accommodating religious dress for an individual student would have any effect on other students’ rights.

A dissenting judge concurred in the majority's legal analysis, but opined that the facts alleged in the complaint, on information and belief, that the district had permitted the other students to wear secular decorations were insufficient to plausibly state a claim.

Individual School Districts May Not Require COVID-19 Vaccination

In Let Them Choose v. San Diego Unified School District, published November 22, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court judgment determining that the defendant school district's COVID-19 requirements were preempted by state law.  The district adopted a "Vaccination Roadmap" requiring students 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities.  Unvaccinated students in this group were involuntarily placed on independent study.  A nonprofit corporation and the parent of a 16-year-old student filed complaints challenging the Roadmap.  The cases were consolidated.  On a motion for judgment, the trial court ruled the district's COVID-19 immunization requirements preempted.

The appellate court agreed.  Health and Safety Code section 120335 provides that a school shall not unconditionally admit students who have not been vaccinated for 10 listed diseases.  It also requires vaccination for any other disease deemed appropriate by the State Department of Public Health, after taking into consideration the recommendations of several medical groups.  In 2015, the Legislature considered whether vaccination should be mandated on a school district by school district basis.  A bill analysis explained that a statewide standard was preferred.  Cal. Code Regs., tit. 17, section 6025 provides that a school shall unconditionally admit or allow continued attendance to any pupil who has provided documentation for each immunization for listed diseases.  The Roadmap is preempted by these provisions because it both contradicts state law (conflict preemption) and enters a field already occupied by state law (field preemption).  By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and other eligibility rules) are entitled to attend schools, and that districts are not allowed to add their own vaccine mandates.  The Department of Public Health interprets the statute the same way in regulation 6025.  The court deferred to this agency interpretation.  The regulation enters a field the state has fully occupied, because the Legislature has covered the matter fully and completely, defining the who, what, when, and where of compulsory student vaccination, leaving districts no discretion in the matter.  The court rejected the multiple arguments the district made otherwise.

Constructive Notice That Employee Is Sexually Abusing Students Is Sufficient for Negligence and CANRA Causes of Action against School District, but Not for Title IX and Education Code Section 220 Claims

In Roe v. Hesperia Unified School District, ordered published November 4, 2022, the Fourth District Court of Appeal, Division 2 reversed dismissal of a case after a demurrer was sustained without leave to amend.  An elementary school custodian allegedly molested multiple six-year-old students.  The plaintiffs sued the school district, alleging negligence in supervising the students and the custodian; negligent hiring and retention; negligence per se; violation of Title IX; failure to perform mandatory duties under CANRA, the mandated reporter act; and sex discrimination in education in violation of Education Code section 220.  The trial court sustained the district’s demurrer to the complaint, on the ground that the complaint failed to allege that the district had actual knowledge of prior acts of abuse by the custodian, or that it had actual knowledge that the custodian was abusing the plaintiffs.

The appellate court held that the complaint adequately pled causes of action against the district.  The district may be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student.  The negligence standard is “knew or should have known.”  Therefore, actual knowledge that an employee is prone to harming students, or is actually harming students, is not necessary.  Constructive notice is sufficient.  Case law applying an actual knowledge requirement when imposing negligence liability for a third party’s sexual abuse of children deal with non-school settings.  The complaint adequately alleged facts that would show constructive knowledge.  The CANRA cause of action also does not require actual knowledge, because it imposes a duty on mandated reporters to make a report when the reporter “knows or reasonably suspects” a child has been the victim of child abuse.  Reasonable suspicion does not require certainty. A breach of CANRA can support a negligence per se cause of action.  It would be objectively reasonable for persons in the position of the school’s employees who saw the conduct alleged in the complaint to reasonably suspect that the custodian was sexually abusing the plaintiffs.  The trial court properly dismissed the causes of action under Title IX and Education Code section 220, however; those provisions impose liability for a teacher sexually harassing a student only when an official at the district with authority to impose corrective measures on the district’s behalf has actual notice of the misconduct and is deliberately indifferent to it.

Civil Code Section 51.9 Does Not Create Statutory Cause of Action against Public Entities for Sexual Harassment; Treble Damages Provision of CCP Section 340.1 Is Not Retroactive and Does Not Apply to School Districts

In K.M. v. Grossmont Union High School District, published October 25, 2022, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial.  The plaintiffs alleged their high school drama teacher sexually abused them.  The causes of action included one against the defendant district under Civil Code section 51.9.  The trial court sustained the district’s demurrer to this cause of action without leave to amend.  The case proceeded to trial against the district on negligence claims.  The jury awarded damages, and apportioned fault 60% to the teacher and 40% to the district.  The plaintiff appealed the ruling on section 51.9.  While the appeal was pending, Code of Civil Procedure section 340.1 was amended to add a provision for treble damages against parties that covered up childhood sexual abuse.  On appeal, the plaintiff contended that under this provision it was entitled to treble damages against the district.

The appellate court concluded that Code of Civil Procedure section 340.1’s treble damages provision is neither retroactive nor applicable to public school districts.  In addition to the treble damages provision, the amendment to section 340.1 in Assembly Bill 218 extended the statute of limitations for childhood sexual abuse and provided a three-year revival period.  The plaintiffs contended that all of AB 218’s provisions, including the new treble damages provision, apply retroactively.  The language of the treble damages provision is silent as to retroactivity, and applying the tests for when statutes are to be interpreted as retroactive, as well as review of the legislative history, supports the conclusion that the provision applies only prospectively.  The court also agreed with two prior appellate decisions (both currently under review by the California Supreme Court) that the treble damages provision is a punitive damages provision that is barred by Government Code section 818, which immunizes public entities from punitive damages.  The court analyzed the treble damages provision and concluded that the damages are punitive rather than compensatory.  The appellate court further upheld the trial court’s ruling that Civil Code section 51.9, together with Civil Code section 52, do not create a statutory cause of action against public entities.  Civil Code section 51.9 renders providers of business services liable for sexual harassment of customers.  The court applied the tests for statutes that create causes of action against public entities, and concluded that a public entity is not a “person” under section 51.9.  Although the statute mentions “teacher” as a type of business relationship to which the statute applies, both public and private entities can employ teachers.  Further, applying section 51.9 to school districts would affect their ability to function by diverting funds needed for education.  Section 52, which provides remedies for violation of section 51.9, does not create a stand-alone cause of action.  Finally, Government Code sections 815.2 and 820, which impose vicarious liability upon public entities for their employees’ violation of duties, do not support imposing section 51.9 or 52 liability upon school districts.

College Professor Did Not Violate Clearly-Established Establishment Clause or Free Exercise Rights by Teaching Course Allegedly Critical of a Religion

In Sabra v. Maricopa County Community College District, published August 10, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit.  The defendant professor at the defendant community college district taught a course on world politics.  One module of that course was on Islamic terrorism.  The plaintiff student took the course. The student alleged that the course included material that denigrated Islam and was misleading.  The plaintiff was a Muslim.  The course included a multiple-choice quiz that allegedly required the student to choose answers that attacked the student's faith or else be graded downward.  An organization that advocates on behalf of American Muslims joined the student as a plaintiff.  The plaintiffs alleged that the Islamic Terrorism module violated the Establishment Clause of the 1st Amendment because its primary message is the disapproval of Islam, allegedly presenting a biased and one-sided portrayal of Islam as though it were presenting fact.  The lawsuit also alleged that the quiz violated the student's rights under the Free Exercise Clause of the 1st Amendment by allegedly requiring the student to disavow his religion by selecting the correct answer choice or be penalized by answering in accordance with his beliefs.  The lawsuit named the professor in his personal and official capacities and named the district under a theory of municipal liability.  The district court concluded that the organizational plaintiff lacked standing under a theory of organizational injury.  The court further determined that the complaint did not state violations of the student's 1st Amendment rights, and that the professor was entitled to qualified immunity.

The appellate court ruled that the organizational client had established standing, by alleging that the district's and professors' acts required it to divert its resources to create a campaign correcting the allegedly Islamophobic information in the course materials.  The panel majority concluded that the plaintiffs had abandoned their municipal liability claim on appeal, because the district raised the municipal liability argument in its answering brief and the plaintiffs failed to respond to it in their appellate reply brief.  Further, on the merits, the majority rejected the argument that because the professor taught the course for 24 years, the district had a longstanding practice and custom of teaching that disapproved Islam.  The complaint failed to allege facts that the challenged material was taught for a long period.  The allegation that the professor was a policymaker for the district because he was the chair of a department failed; under law, the district's board was the policymaking  body.  The complaint failed to plausibly allege a ratification theory of liability, because it did not plausibly allege that a policymaker had actual or constructive knowledge of the offending material and sanctioned its use in the classroom.  Because the plaintiffs abandoned the municipal liability claim on appeal, they were not entitled to a remand to allow them to amend their complaint.  Addressing the claims against the professor, the panel majority agreed with the district court that the professor was entitled to qualified immunity.  No case law established beyond debate that teaching material that allegedly denigrated a religion, or administering a quiz that required a student to make choices contrary to the student's beliefs, violated the Establishment or Free Exercise clauses.  Given that there were powerful arguments on both sides, the violations were not so "obvious" as to be clearly established without precedent.  The panel did not address the merits of the alleged violations.

A judge dissented, opining that the alleged conduct in giving the quiz violated the student's clearly-established Free Exercise rights.  The judge also disagreed with the appellate abandonment holding.  Another judge concurred with the majority, writing separately to respond to the dissenting judge's opinion regarding qualified immunity.  The concurring judge also opined that while 9th Circuit precedent compelled the decision on organizational standing, the 9th Circuit precedent was incorrect.