Government Liability Update

Subjective Deliberate Indifference Standard Applies to Fourteenth Amendment Claim against School Employee Who Fails to Protect Student from Injury

In Herrera v. Los Angeles Unified School District, published December 1, 2021, the 9th Circuit Court of Appeals affirmed summary judgment granted to the defendant district, a school aide, and other defendants in a 42 U.S.C. section 1983 suit.  During a tenth-grade party at a park, a student told the defendant aide that he was going to the park's swimming pool.  Three lifeguards monitored the pool.  The aide watched the student from a designated observation area.  The aide allegedly knew that the student had asthma and could not swim.  The aide saw the student exit the shallow end of the pool and enter the locker room area.  The aide left the observation area to wait for the student to exit the locker room.  Instead of changing, the student returned to the pool.  Five minutes later, the aide searched for the student and found lifeguards attempting to resuscitate the student, who had drowned.  The student's parents brought suit.

The court of appeals analyzed whether the aide had violated the student's Fourteenth Amendment rights by affirmatively placing the student in danger by acting with deliberate indifference to a known or obvious danger.  Deliberate indifference generally requires that the defendant subjectively recognize the unreasonable risk and actually intend to expose the plaintiff to that risk without regard to the consequences to the plaintiff--to know that something is going to happen but ignore the risk and expose the plaintiff to it.  The 9th Circuit departed from that standard when holding a pretrial detainee can state a due process violation for a government official's failure to act under an objective deliberate indifference standard.  That objective standard has also been applied in excessive force and detention cases.  But the panel here held that, based on precedent, the subjective deliberate indifference standard applied to this failiure-to-protect case, which did not involve a pretrial detainee or excessive force.  Under that standard, considering that the aide protected the student's privacy and independence by not following him into the locker room, and that the pool was guarded by three lifeguards, a reasonable jury could not conclude that the aide acted with deliberate indifference.

School District Administrators Have Duty to Act Reasonably to Protect Students from Molestation Regardless of Actual Knowledge of Molestation, but Cannot Be Held Liable under Mandatory Reporter Statute absent Actual Knowledge

In Doe v. Lawndale Elementary School District, published November 30, 2021, the Second District Court of Appeal, Division 7 reversed in part and affirmed in part summary judgment granted to the defendant district.  A music instructor groomed and then sexually assaulted the plaintiff, then 13, by engaging in a sexual relationship with her.  The plaintiff did not provide any evidence that district administrators had actual knowledge of the instructor's activities toward the plaintiff, or that he had previously engaged in sexual misconduct with minors or had a propensity to do so. But several students provided evidence that the behavior of the two indicated that they were having a relationship.  The trial court granted summary judgment on the plaintiff's negligence cause of action.   It concluded that the district did not have a duty to protect the plaintiff from sexual abuse unless it knew the instructor had previously engaged in sexual misconduct or had a propensity to do so, and because the instructor's outward conduct toward the plaintiff was "ambiguous."  The trial court further ruled that the plaintiff could not recover on her cause of action for breach of the mandatory duty to report suspected abuse under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code section 11164, because none of the district's employees knew or reasonably suspected the sexual assault occurred.

The appellate court ruled that the trial court's analysis of the duty issue regarding the negligence cause of action was erroneous.  The law established that the district's administrators were in a special relationship with the district's students that imposed a duty of care to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse.  The duty includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including a teacher's sexual assault.  The district was vicariously liable for its employees' negligence.  Once a court determines a defendant owes a duty to a plaintiff, the questions of breach and causation are usually questions for the jury.  The exception is where the Rowland v. Christian policy factors establish that a category of cases should be exempted from the general rule of duty.  The appellate court applied the Rowland factors, and determined that molestation cases where the district administrators lack actual knowledge of an employee's sexual abuse or propensity should not be excluded from the general duty to take reasonable measures to protect students from molestation.  The court disagreed with language in multiple cases that might be interpreted otherwise, pointing out that several predated the 2019 California Supreme Court case of Brown v. USA Taekwondo which established the analysis to apply when determining the existence of a duty of care.  The court reversed summary adjudication as to the negligence claim.

But the court also determined, as a matter of first impression that the CANRA cause of action, based on interpretation of the statutory scheme, required that a plaintiff prove it was objectively reasonable for a mandated reporter to suspect abuse based on the facts the reporter actually knew, rather than facts the reporter reasonably could have discovered.  The court therefore affirmed summary adjudication of the CANRA cause of action.

School District and Administrators Immune from Liability for Failure to Prevent Student Bullying Allegedly Causing Victim's Off-Campus Suicide

In Leroy v. Yarboi, ordered published November 16, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant district, its principal, and its assistant principal.  The plaintiffs' decedent, a high school student, suffered from Tourette's Syndrome, sensory integration disorder, and borderline Asperger's Syndrome.  He was in a virtual school program, and attended the high school physically during only two periods.  In one of his classes, several students bullied and harassed the decedent.  The decedent reported one student for harassing him and calling him names.  Both students signed a "no contact" contract agreeing not to have contact with each other.  The day after summer break began, decedent took his own life.  The decedent's parents alleged that the administrators had negligently failed to address and prevent student bullying of the decedent, which caused the decedent to commit suicide; and that the school was vicariously liable for their conduct.  The trial court granted summary judgment on the ground that the administrators did not breach their duties to the decedent, and on the ground that Education Code section 44808 immunized the district and administrators from negligence liability.

The appellate court affirmed the summary judgment on the ground of immunity.  Section 44808 immunizes school districts and their employees from liability for the conduct or safety of students when students are not on school property, unless the district or person has undertaken to provide transportation or a school-sponsored activity, or has otherwise specifically assumed responsibility or liability for off-campus activities.  There is an except for failure to exercise reasonable care under the circumstances.  The plaintiffs asserted that the district and administrators failed to exercise reasonable care under the circumstances.  They argued that the immunity did not cover negligent failure to protect a student from bullying on-campus that led to the student's off-campus suicide.  But the weight of authority holds that 44808 immunize districts and employees from liability for student safety outside school property unless the student was or should have been directly supervised during a specific undertaking.  The provision concerning reasonable care refers to failure to exercise reasonable care during one of the undertakings.  Because the decedent committed suicide off-campus during summer break in his home, while he was not and should not have been supervised by any district employee, and no one at the district had assumed responsibility for his well-being, the district and its administrators were immune from liability under section 44808.

Because the Treble Damages Award for Cover-up of Childhood Sexual Assault Is Primarily Punitive in Nature, Government Code section 818 Bars Treble Damages Awards against Public Entity Defendants

In X.M. V. Superior Court (Hesperia Unified School District), published September 16, 2021, the Fourth District Court of Appeal, Division 2 agreed with Los Angeles Unified School Dist. V. Superior Court (currently being reviewed by the California Supreme Court) and held that the treble-damages provision of Code of Civil Procedure section 340.1 for cover-up of childhood sexual abuse is barred by Government Code section 818, which immunizes public entities such as school districts from punitive damages.  Because by definition they are in addition to compensatory damages, treble damages are generally deemed punitive.  The exceptions are where the legislature intended the provision to be primarily compensatory, or where there is a complex situation that renders compensatory damages an incomplete compensatory remedy.  The court found that the announcements of legislative intent behind the treble damages provision could be read as making sure that victims of cover-up are fully compensated, or they might be read as intending the treble damages to be punitive.  Comparing the treble damages provision in section 340.1 to treble damages provisions that were found not to be primarily punitive, the court determined that the primary purpose of the treble damages provision is punitive.  It is therefore barred as against public entity defendants.

Under Evidence Code Sections 1106 and 783, "Sexual Conduct" include Sexual Abuse

In Doe v. Superior Court (Mountain View School District), published October 29, 2021, the Second District Court of Appeal, Division 2 denied a writ petition challenging a trial court's decision to allow the defendant school district to present evidence of a plaintiff student's past sexual abuse.  The plaintiff sued the school district for allegedly negligently supervising a fourth-grade teacher who molested the plaintiff in 2010 and 2011.  The district sought to introduce evidence that a family friend sexually abused the plaintiff in 2013.  The plaintiff moved in limine to exclude the evidence under Evidence Code sections 1106 and 352.  In civil actions alleging sexual misconduct, section 1106 bars evidence of specific instances of the plaintiff's sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  An exception to the bar is evidence admissible under Evidence Code section 783, which allows evidence of sexual misconduct by the plaintiff offered to attack the credibility of the plaintiff if the court (in a motion proceeding described by the statute) concludes the evidence is relevant and is not barred under Evidence Code section 352 (requiring evidence be more probative than prejudicial).  The district filed a motion for admission of the evidence under section 783.  The trial court ruled that neither section 1106 nor section 783 applied, because "sexual conduct" was limited to voluntary sexual misconduct.  The court then ruled the evidence was not barred by section 352.

The appellate court concluded that the trial court erred in interpreting sections 1106 and 783 to exclude involuntary sexual conduct.  Section 1106 was intended both to exclude evidence of a civil plaintiff's character trait for promiscuity, and to encourage civil complainants to bring lawsuits without fear of having the sexual aspects of their lives scrutinized.  The second, privacy-focused objective applies to both voluntary and involuntary sexual conduct.  Further, interpreting the statute not to apply to sexual abuse would lead to absurd results, such as allowing admission of evidence of all sexual conduct of a person under 18.  The weight of precedent in California and other states also interpreted "sexual conduct" to reach involuntary sexual conduct inflicted on a victim.  Although the trial court erred, the appellate court ruled that the error was not prejudicial, because the section 352 analysis the court conducted adhered to all but one aspect of the section 783 motion procedure.

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.