To prevail on an Education Code Section 220 claim for peer sexual orientation harassment against the School District, the Plaintiff must apply the stricter Title IX elements, including actual knowledge of the harassment rather that the FEHA’s elements and negligence standard of “known or should have known.”
Plaintiffs (two students) brought a Section 201 harassment claim against the District seeking monetary damages. The trial court appliend the elements of a FEHA harassment claim as the same elements applicable to a Section 210 claim. Under FEHA, a Plaintiff would only have to prove that the District “knew or should have known” of the harassment and failed to take immediate and appropriate corrective measures to remedy the harassment. The Plaintiff’s prevailed against the District under these elements. The District appealed and argued that the more strict elements of Title IX should be applied under a Section 201 harassment claim. The Appellate Court agreed.
In order to prevail on a peer sexual orientation harassment claim under Section 201, the student must prove the elements of a Title IX discrimination claim; namely, (1) “severe, pervasive and offensive” harassment which deprives the student of the right to equal access to educational benefits and opportunities; (2) the school district had actual knowledge of the harassment” and (3) the district acted with deliberate indifference in the face of that knowledge.
By applying the elements of Title IX instead of the FEHA, the court assured that school districts are not responsible for the underlying student/peer misconduct, but rather only for its “own misconduct determined by its own deliberate indifference to known acts of harassment.”