CACI No. 3069. Harassment in Educational Institution (Ed. Code, § 220)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3069.Harassment in Educational Institution (Ed. Code, § 220)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
being subjected to harassment at school because of [his/her/nonbinary
pronoun] [specify characteristic, e.g., sexual orientation] and that [name of
defendant] is responsible for that harm. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] suffered harassment that was so severe,
pervasive, and offensive that it effectively deprived
[him/her/nonbinary pronoun] of the right of equal access to
educational benefits and opportunities;
2. That [name of defendant] had actual knowledge of that
harassment; and
3. That [name of defendant] acted with deliberate indifference in the
face of that knowledge.
[Name of defendant] acted with deliberate indifference if
[his/her/nonbinary pronoun/its] response to the harassment was clearly
unreasonable in light of all the known circumstances.
New April 2009; Renumbered from CACI No. 3028 December 2012
Directions for Use
This instruction does not include language that elaborates on what does or does not
constitute “deliberate indifference” beyond the broad standard of “clearly
unreasonable in light of all the known circumstances.” In Donovan v. Poway Unified
School Dist., the court noted that “deliberate indifference” will often be a fact-based
question for which bright line rules are ill-suited. However, the court noted
numerous examples from federal cases in which the standard was applied. The
failure of school officials to undertake a timely investigation of a complaint of
discrimination may amount to deliberate indifference. School officials also must take
timely and reasonable measures to end known harassment. A response may be
clearly unreasonable if a school official ignores a complaint of discrimination or if
the initial measures chosen to respond to the harassment are ineffective. (Donovan v.
Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 611 [84 Cal.Rptr.3d 285].)
Any of these factors that are applicable to the facts of the case may be added at the
end of the instruction.
Sources and Authority
Harassment in Educational Institution. Education Code section 201.
Discrimination in Educational Institutions. Education Code section 220.
Duty to Inform of Remedies. Education Code section 262.3(b).
“We conclude that to prevail on a claim under section 220 for peer sexual
orientation harassment, a plaintiff must show (1) he or she suffered “severe,
pervasive and offensive” harassment that effectively deprived the plaintiff of the
right of equal access to educational benefits and opportunities; (2) the school
district had ‘actual knowledge’ of that harassment; and (3) the school district
acted with ‘deliberate indifference’ in the face of such knowledge. We further
conclude that from the words of section 262.3, subdivision (b), as well as from
other markers of legislative intent, money damages are available in a private
enforcement action under section 220.” (Donovan, supra, 167 Cal.App.4th at p.
“Like Title IX, . . . enforcement of the Education Code’s antidiscrimination law
rests on the assumption of ‘actual notice’ to the funding recipient. . . . [¶¶] We
decline to adopt a liability standard for damages under section 220 based on
principles of respondeat superior and/or constructive notice, particularly in light
of the circumstances presented here when the claim of discrimination is not, for
example, based on an official policy of the District, but is instead the result of
peer sexual orientation harassment and the District’s response (or lack thereof) to
such harassment. . . . [N]egligence principles should not apply to impose
liability under a statutory scheme when administrative enforcement of that
scheme contemplates actual notice to the funding recipient, with an opportunity
to take corrective action before a private action may lie. By requiring actual
notice, we ensure liability for money damages under section 220 is based on a
funding recipient’s own misconduct, determined by its own deliberate
indifference to known acts of harassment.” (Donovan, supra, 167 Cal.App.4th at
pp. 604-605, original italics, internal citations omitted.)
“The decisions of federal courts interpreting Title IX provide a meaningful
starting point to determine whether the response of defendants here amounted to
deliberate indifference under section 220. Under federal law, deliberate
indifference is a “very high standard.” Actions that in hindsight are
‘unfortunate’ or even ‘imprudent’ will not suffice.” (Donovan, supra, 167
Cal.App.4th at p. 610, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 869,
11 California Forms of Pleading and Practice, Ch. 112, Civil Rights: Government-
Funded Programs and Activities, §§ 112.11, 112.16 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.32A (Matthew Bender)

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