324 F.3d 1130 (9th Cir. 2003), 02-15128, Flores v. Morgan Hill Unified School Dist.

Docket Nº:02-15128
Citation:324 F.3d 1130
Party Name:Flores v. Morgan Hill Unified School Dist.
Case Date:April 08, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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324 F.3d 1130 (9th Cir. 2003)

Alana FLORES; F. F., a minor, by and through guardian ad litem; J.D., a minor, by and through guardian ad litem; C.L., a minor, by and through guardian ad litem; M.L., a minor, by and through guardian ad litem; V.P., a minor, by and through guardian ad litem; P.P., Plaintiffs-Appellees,


MORGAN HILL UNIFIED SCHOOL DISTRICT; Carolyn McKennan, Superintendent; Bob Davis, Principal; Delia Schizzano, Assistant Superintendent; Maxine Bartschi, Assistant Principal; Rick Gaston; Larry Carr, President; Susan Martimo Choi; Del Foster; Rick Herder; Don Schaefer; and Frank Nucci, Defendants-Appellants,


Megan Avevedo; Cheryl Washington, Defendants.

No. 02-15128.

United States Court of Appeals, Ninth Circuit

April 8, 2003

Argued and Submitted Dec. 11, 2002.

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[Copyrighted Material Omitted]

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Mark E. Davis and Marc J. Cardinal, Needham, Davis, Kirwan & Young, LLP, San Jose, CA, for the defendants-appellants.

James Emery and Jill K. Ginstling, Keker & Van Nest, LLP, San Francisco, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Californi_ûï²ames Ware, District Judge, Presiding. D.C. No. CV-98-20358-JW(PVT).

Before: SCHROEDER, Chief Judge, PAEZ and TALLMAN, Circuit Judges.

SCHROEDER, Chief Judge:

Plaintiffs are former students in the Morgan Hill Unified School District who have sued the school district, administrators, and school board members under 42 U.S.C. § 1983. Plaintiffs claim that the defendants' response or lack of response to complaints of student-to-student anti-homosexual harassment denied them equal protection. Defendants moved for summary judgment on the ground of qualified immunity. The district court denied summary judgment.

When the defendants first appealed the denial to this court, we remanded the case for reconsideration in light of the Supreme Court's intervening decision in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). See Flores v. Morgan Hill Unified Sch. Dist., 18 Fed.Appx. 646, 648 (9th Cir. 2001). The district court then performed an analysis pursuant to Saucier and again denied defendants' motion for summary judgment.

Defendants appeal again. They contend that they are entitled to immunity from suit because the plaintiffs have not shown that the defendants acted with the improper motive required to establish a constitutional violation. Defendants also argue that at the time of the alleged harassment, the law was not clearly established that the students were entitled, under the Equal Protection Clause of the Fourteenth Amendment, to protection from peer sexual orientation harassment. We affirm because we find sufficient evidence for a jury to infer that defendants acted with deliberate indifference. We also hold that the law was clearly established and that the evidence would support a finding that the administrators' actions were unreasonable.


The plaintiffs allege that during their time as students in public schools within the Morgan Hill Unified School District ("the District"), they suffered anti-gay harassment by their classmates. The alleged harassment took place between 1991 and 1998. All of the plaintiffs were, or were perceived by other students to be, lesbian, gay, or bisexual.

The plaintiffs recount incidents in which the named defendants and their agents, subordinates, and employees allegedly responded to the plaintiffs' complaints in a discriminatory fashion. Flores and the other plaintiffs allege that teachers and administrators failed to stop name-calling and anti-gay remarks, and that the administrators responded with inadequate disciplinary action to physical abuse.

The following is a sampling of incidents that the plaintiffs have described in affidavits

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or depositions. On several occasions, plaintiff Alana Flores found pornography and notes to the effect of "Die, dyke bitch" inside her locker. Similar messages were scrawled on the outside of her locker. When Flores showed one note to an assistant principal, defendant Delia Schizzano, and asked to be reassigned to a new locker, Schizzano allegedly replied, "Yes, sure, sure, later. You need to go back to class. Don't bring me this trash any more. This is disgusting." During the conversation, the assistant principal allegedly asked Flores, "Are you gay?" When Flores answered, "No, no. I'm not gay," she was asked, "Why are you crying, then?" Flores alleges that she continued to receive notes and pornography in her locker, and continued to bring these materials to Schizzano's attention, but that school officials took no action.

The complaint alleges that during plaintiff FF's time at Martin Murphy Middle School, he was beaten by six other students who said, "Faggot, you don't belong here." He was hospitalized and treated for "severely bruised ribs." The incident was reported to Principal Don Schaefer and Assistant Principal Frank Nucci. Schaefer and Nucci punished only one of the six students involved in the incident, and FF was transferred to another school.

Plaintiffs CL and HA, two female students, allege that other students began making anti-gay comments and sexual gestures at them when they began dating during their senior year at Live Oak High School. On one occasion, a group of boys in the school parking lot shouted anti-gay slurs and threw a plastic cup at the girls. CL and HA reported the incident to defendant Assistant Principal Maxine Bartschi. Bartschi told the girls to report the incident to a campus police officer, and did not follow-up with them or conduct her own investigation of the incident.

JD alleges that she was subjected to name-calling and food throwing. She complained to a campus monitor, with no effect. One campus monitor would not take action to stop the harassment, even when it repeatedly occurred in her presence. On one occasion, that campus monitor initiated a rumor among the students that JD and another female student were having oral sex in the bathroom. JD alleges that she also complained to a teacher that her classmates in physical education class called her "dyke" and "queer," and made comments such as "Oh, I don't want [JD] to touch me. I don't want her to look at me. I don't want to be her [weight training] partner." According to JD, the teacher failed to take action against the harassers, and instead suggested that JD change clothes away from the locker room so that her classmates would not feel uncomfortable.

The plaintiffs brought suit under 42 U.S.C. § 1983, Title IX of the Education Amendments of 1972(20 U.S.C. §§ 1681-88), the California Constitution, and California statutes. This interlocutory appeal relates only to the plaintiffs' § 1983 claim that the defendants denied the plaintiffs' Fourteenth Amendment right to equal protection on the basis of their actual or perceived sexual orientation.

Defendants first moved for summary judgment on the merits of the equal protection claim. The district court granted summary judgment for the defendant school board members on the ground that there was insufficient evidence to create a genuine issue of fact regarding sexual orientation discrimination by the school board. The district court explicitly denied summary judgment in favor of defendant school administrators Bartschi, Davis, Gaston, and Schizzano, determining that there was sufficient evidence to create a triable issue of fact. Although the district

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court's order did not name defendant administrators Schaefer and Nucci, we assume that summary judgment on the ground of evidentiary insufficiency was denied for them as well. This is because they and the other remaining defendants then filed a motion for summary judgment on the ground of qualified immunity.

The district court originally denied qualified immunity because it concluded that the law was clearly established, which was the only issue the court could consider under the law in this circuit at that time. See Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1449 (9th Cir. 1995). The defendants appealed the denial of qualified immunity to this court. We vacated the district court's decision and remanded the case in an unpublished disposition. See Flores, 18 Fed.Appx. at 648. The Supreme Court's intervening decision in Saucier required the district court to determine first whether the facts established a constitutional violation before considering whether the law was clearly established.

On remand, the district court held that the plaintiffs presented evidence upon which a jury could find that the defendants failed to take action to stop the harassment and were motivated by the plaintiffs' actual or perceived sexual orientation. The district court also held that the right to be free from discrimination on the basis of sexual orientation was clearly established. Defendants filed this interlocutory appeal of the denial of qualified immunity. We affirm.


Our jurisdiction over this type of appeal is well-established. Under the collateral order doctrine, an interlocutory ruling of a district court is appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The denial of a claim of qualified immunity falls within this class of cases and is therefore an appealable "final decision" within the meaning of 28 U.S.C. § 1291. This is due in part to the fact that qualified immunity is an immunity from suit rather than a mere defense to liability, and immunity is effectively lost if a case is erroneously permitted to...

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