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Landmark case in GLBT students’ rights
Published Thursday, 16-Jun-2005 in issue 912
BEYOND THE BRIEFS: sex, politics and law
by Robert DeKoven
In a landmark case that will send a loud message throughout the state, a San Diego Superior Court jury awarded two former Poway High School students a total of $300,000 after finding that school administrators failed to protect them from students who harassed them because they are homosexual.
Joseph Ramelli and Megan Donovan, both 19, sued the Poway Unified School District because gay bashers ostracized and verbally harassed them and school officials failed to use “immediate corrective measures.”
As we’ve reported here, during the five-week trial, Ramelli said students called him names, vandalized his car, shoved him in hallways, threw food and spit at him over a period of several years, beginning in his freshman year.
Donovan, who played for the junior varsity softball team, said she was ostracized by teammates when they learned she was a lesbian, with one player saying she would no longer play on the team.
Poway Superintendent Donald Phillips, Principal Scott Fisher and Assistant Principal Ed Giles testified that they took steps to investigate the complaints and tried to resolve the situation.
For example, officials provided Ramelli with a special class schedule so he could feel safe at school, and offered him a student peer counselor to escort him on campus.
In their lawsuit, Ramelli and Donovan said the on-campus environment was such that they decided to participate in a home-schooling program their senior year. Both graduated last year and now attend Palomar College.
The case is significant because the students’ attorneys, Paula Rosenstein and Bridget J. Wilson, convinced Superior Court Judge Steven Denton that the school district was obligated to take “immediate and reasonable corrective measures” to combat the acts of abuse. The jury found that school officials had not.
It wasn’t that the school officials didn’t do anything. Under federal law, for example, school officials don’t necessarily have to do what seems reasonable. Rather, federal law only requires that school officials show that that they didn’t show “deliberate indifference.” Doing just about anything, such as offering an escort, could survive this test.
But California law requires more, and it should. The federal standard is absurd. School officials are only liable when their passivity makes them akin to “aiders and abettors” to the abuse.
“… California law requires more, and it should. The federal standard is absurd.”
California correctly requires that school officials take all reasonable steps to prevent students from suffering abuse at school. For example, upon hearing of complaints that Ramelli and Donovan had been spit on and called names, Poway High Principal Scott Fisher testified that, aside from above, all he tried to do was find the students responsible.
Here’s what I (and now other school counsel will) advise principals to do:
Contact law enforcement and the district attorney to report a “hate crime.” Spitting on someone is a battery under California law. It becomes a hate crime when the motive for the assault is the victim’s sexual orientation.
Contact Child Protective Services to report “child abuse.” When a teen physically or emotionally abuses another teen, it’s called “child abuse,” and as a “mandated reporter,” you must report it or face criminal charges.
With the support now of law enforcement, you find the perpetrators and witnesses.
Following due process, you suspend or expel the perpetrators.
You have your district counsel seek restitution from the parents of the perpetrators, because under California law, they are strictly liable for their children’s acts at school.
You have a diversity training program for students and staff, wherein you make clear what is abuse and what happens when students harass other students and staff.
Poway will probably appeal the case, largely on the grounds that Fisher didn’t have to act “reasonably.” So long as he didn’t act indifferently, he’s off the hook.
But that’s not going to fly with the appellate courts, not when, as I’ve pointed out, by law Principal Fisher was legally obligated to report these acts as hate crimes and child abuse. That’s not about acting “reasonably,” that’s about following the law.
The sad irony in this case is that Poway High School is one of the most progressive schools in the state. Gay and lesbian teachers and students connected with Poway lavish praise on Fisher. I’ve applauded him and the Poway attorneys for taking a stand against gay harassment “under the guise of religious freedom” (e.g., Chase Harper T-shirt case).
But the reality is that, despite the empathy from Fisher, school officials today must treat gay abuse exactly the same way they would treat race abuse.
Robert DeKoven is a professor at California Western School of Law
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