Case Summary

4779 A private action may be maintained against a school district for violation of Education Code section 220, which prohibits any educational institution that receives state funds from engaging in various forms of discrimination including that based on sexual orientation; the elements of such an action are severe, pervasive, and offensive harassment that effectively deprived plaintiff of the right of equal access to educational benefits and opportunities, coupled with the district's deliberate indifference in the face of actual knowledge of the harassment; knowledge and conduct of officials who are appropriate persons to act on the district's behalf are directly chargeable to the district, so its liability does not depend on principles of respondeat superior; a jury instruction permitting the imposition of liability under the Education Code section in the face of constructive, rather than actual, knowledge was incorrect; since the jury also found the district liable under 42 USC 1983, which does impose liability in the face of constructive knowledge, the erroneous instruction on the California Education Code section was harmless; a plaintiff who was successful in an action under both the California Education Code section and federal section 1983 may be awarded attorney fees.

DONOVAN v POWAY USD (Peer Harassment) 167 CA4 567 [See: EdC 220; 20 USC 1681 etseq; 42 USC 1983; GovC 12900 etseq; CCP 1021.5; Gebser v Lago Vista 524 US 274; Kamen v Lindly 94 CA4 197, T/AT 1/02]