Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 1 of 45

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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9 GAY-STRAIGHT ALLIANCE NETWORK )

and GEORGE LOOMIS,

)

10

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Plaintiffs,

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11

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v.

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12

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VISALIA UNIFIED SCHOOL DISTRICT, )

13 by and through its Board of

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Education; CARLYN LAMBERT,

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14 Superintendent; LINDA GONZALES, )

for.mer Superintendent; BOB

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15 CESENA, Principal; GIG STEVENS, )

Assistant Principal, JUAN

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16 GARCIA; and Does 1-25,

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inclusive,

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17

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Defendants.

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CIV F 00-6616 OWW LJO
MEMORANDUM OPINION AND ORDER RE: DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; INDEFINITE STATEMENT; MOTION TO STRIKE; PARTIAL SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES

19

20

21

I. INTRODUCTION

22

Defendants' move to dismiss Plaintiffs First Amended

23 complaint for failure to state a claim, indefinite statement, to

24 strike portions of the complaint and for summary adjudication of

25 issues. See Doc. 10. Jurisdiction is invoked under 28 U.S.C. §§

26 1331 and 1343. See Doc. 8, ,19. Supplemental jurisdiction is

27 invoked under 28 U.S.C. § 1367(a). See id. Oral argument was

28 held March 19. 2001.

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1

II. BACKGROUND

2

A. Gay-Straight Alliance Network

3

1. Purpose and Membership

4

Plaintiff, GAY-STRAIGHT ALLIANCE NETWORK ("GSA Network"), is

5 a youth-led, non-profit organization made up of gay, lesbian,

6 bisexual, transgender and heterosexual students, as well as

7 supportive adults, who are dedicated to eliminating homophobia

,7. 8 and intolerance in schools. See Doc. 8,

The GSA Network is

9 headquartered in San Francisco and has an office in Fresno,

10 California. See id. GSA Network's Fresno office monitors

11 homophobia and intolerance in Central Valley schools, including

12 schools within the Defendant, VISALIA UNIFIED SCHOOL DISTRICT

13 ("VUSD"). See id. The GSA Network has devoted significant

14 monetary and staffing resources to addressing the problems of

15 discrimination, harassment, and homophobia in VUSD schools

16 through its Fresno office. See id., '10.

17

The GSA Network primarily fights homophobia and intolerance

18 in schools by empowering gay, lesbian, bisexual, transgender and

19 heterosexual members in high schools to form and maintain local,

,8. 20 school-based, student-run clubs called IGSAs". See id.,

The

21 GSA Network also encourages members to form community-based GSAs

22 made up of students and supportive community members. See id.

23 One-hundred fifty (150) GSA clubs in Northern California and the

24 Central Valley are presently registered with the GSA Network.

25 See id. The GSA Network connects these school- and community-

26 based GSAs to each other and to community resources in order to:

27 foster safe environments for student members; educate student

28 members and the school community about homophobia, gender

2

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 3 of 45

1 identity, and sexual orientation issues; and fight intolerance,

2 discrimination, harassment, and violence in schools. See id.

3

Members of the GSA Network in Fresno and Visalia have formed

4 a community-based GSA club in the Fresno area. See id., ,10.

5 It's members include current and prospective students at Golden
6 West High School and other schools within the VUSD. See id., 19.

7 Some of these students are interested in forming a school-based

8 GSA at Golden West or other high schools within the VUSD. See

9 id. These students have not done so, however, because of the

10 alleged homophobic environment within the VUSD and possible

11 retaliatory harassment. See id., '65. Heterosexual youth and

12 adults, including parents of children who attend or plan to

13 attend VUSD, also belong to the GSA Network. See id., '9.

14

2. Hostile Environment

15

It is alleged that openly gay students are subject to severe

16 verbal and physical harassment and suffer physical and emotional

17 damage from Defendants' allegedly hostile environment. See id.,

18 ,64. Heterosexual students are deprived of an environment that

19 is free from hostility directed toward students who are gay or

20 lesbian or who are perceived to be gay or lesbian. See id., '66.

21

Harassment and discrimination is alleged to be a fact of

22 life for gay or lesbian students, or those perceived as gay or

23 lesbian, attending schools within the VUSD, including Golden West

24 High School. See id., '22. These students have been repeatedly

25 called "faggotR , "queer", and other anti-gay epithets on campus

26 and in the classrooms, sometimes in the presence of teachers.

27 See id., ,,22, 27. One gay student allegedly confronted his

28 teacher after class about students making loud, derogatory, anti-

3

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1 gay comments in class. See id., '23. The teacher told the

2 student that he did not hear the comments and refused to do

3 anything about them. See id.

4

Gay or lesbian students, or those perceived as gay or

5 lesbian, have been spit upon by other students on the campus of

6 Golden West. See id., '27. For.mer Golden West students,

7 perceived to be gay, have had food, pencils, erasers, and

8 textbooks and other objects thrown at them. See id. One gay

9 student was almost hit by a car driven by another student who was

10 actively trying to run him down. See id. One student directed a

11 death threat to a gay student at Golden West. See id. Golden

12 West students have also allegedly spray-painted the word "Fag" on

13 a pickup truck of another student. See id.

14

One gay student at Golden West was attacked on campus by

15 students yelling "fag", "queer" and other derogatory ter.ms. See

16 id., '28. When the student fought back, Golden West

17 administrators broke up the fight and led the gay student away in

18 handcuffs. See id. That student did not return to Golden West.

19 See id.

20

Students are allegedly afraid to associate themselves with

21 any openly gay students on campus for fear of being verbally and

22 physically assaulted. See id., ,29. Students who are gay or

23 lesbian experience chronic psychological injury from the

24 harassment at school each day. See id. One gay student suffers

25 from insomnia and lies awake each night reviewing the harassment

26 he suffered during the day and worrying about what might happen

27 tomorrow. See id. Students skip classes in order to avoid

28 harassment. See id. As a result, their grades suffer, they fail

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1 classes, and they contemplate dropping out of school. See id.

2

Some gay students fear asking the administration for help

3 for fear of retaliation. See id., 141. Other gay or lesbian

4 students have complained repeatedly to Golden West teachers and

5 administrators about the hostile climate on campus, but to no

6 avail. See id. Parents have also attempted to intervene;

7 however, the VUSD has not acted. See id., ,42.

8

3. Teacher and Administrator Involvement

9

Teachers and administrators have allegedly participated in,

10 and perpetuated the taunting and harassment of gay or lesbian

11 students. See id., ,31. One teacher has made anti-gay comments

12 in class; Plaintiffs believe that other such incidents may have

13 occurred with other teachers. See id. Administrators have

14 allegedly mocked or ignored students who have requested relief

15 from the anti-gay harassment. See id. One Golden West office

16 worker allegedly posts anti-gay comments on a bulletin board in

17 the school office. See id.

18

VUSD allegedly does not fund, sponsor, endorse, or promote

19 any organization, support group, or program that provides support

20 to student victims of anti-gay harassment. See id., ,35. No gay

21 student group or school-based organization comprised of gay and

22 straight members exists within the VUSD. See id.

23

VUSD allegedly has a policy designed to deter gay or lesbian

24 students from being open about their sexual orientation and

25 freely associating with one another. See id., ,36. VUSD also

26 allegedly has no policy to ensure that its schools are safe for

27 gay or lesbian students, or those perceived as gay or lesbian.

28 See id., '37. VUSD's current policy is allegedly inadequate in

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1 preventing students from taunting, harassing, and assaulting

2 other gay or lesbian students, or those perceived as gay or

3 lesbian. See id.

4

VUSD teachers, counselors, and administrators are allegedly

5 not trained in how to assist student victims of anti-gay

6 harassment. See id., '38. VUSD's alleged practice has been to

7 ignore any harassment and refuse to make any attempts to stop

8 students and teachers from perpetrating any further acts of

9 harassment. See id.

10

4. Independent Study Program

11

VUSD administrators and counselors allegedly force victims

12 of anti-gay harassment into independent study programs, adult

13 schools, or other alternative educational programs in order to

14 isolate these students from their peers. See id., ,46. Other

15 times, administrators and counselors encourage, convince, or

16 allow gay or lesbian students, or those perceived as gay or

17 lesbian, to leave school altogether. See id. Once these

18 students have been effectively transferred from their classrooms

19 into alternative education programs, they lose their ability to

20 participate in extracurricular activities, receive an inadequate

21 education, and limit their college opportunities. See id., ,64.

22

Under the independent study programs (IIISPII), students study

23 independently, and meet with a teacher for a one-hour class once

24 a week. See id., ,47. The ISP is a non-college preparatory

25 academic track designed for students with extremely difficult

26 home lives, seriously disabilities, substance abuse problems, or

27 dire financial needs. See id. ISP students are ineligible for

28 participation in extracurricular activities. See id. The ISP is

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1 not educationally equivalent to classroom education at Golden

2 West; it was not designed to, and does not, address any of the

3 needs of anti-gay harassment victims. See id.

4

Some gay and lesbian students have sought entrance to the

5 ISP to avoid harassment by peers and teachers at Golden West.

6 See id., ,48. These students have been deliberately encouraged

7 to do so by school officials. See id. The students are

8 sometimes promised by counselors that the ISP will help end their

9 harassment. See id. One former guidance counselor advised a gay

10 student to get a job so that she could place him in an ISP to

11 "get him out" of Golden West. See id.

12

B. George Loomis

13

Plaintiff, GEORGE LOOMIS, was enrolled in schools within the

14 VUSD, including Golden West High School, until sometime around

15 January 2000. See id., '13.

16

Defendant, VISALIA UNIFIED SCHOOL DISTRICT ("VUSD"), is a

17 public school district that controls and operates Golden West

18 High School and other public schools in the Visalia area. See

19 id., ,14. Defendants, LINDA GONZALES, former VUSD Superintendent

20 of Schools; CARLYN LAMBERT, Acting VUSD Superintendent of

21 Schools; BOB CESENA, Principal of Golden West High School; GIG

22 STEVENS, Assistant Principal of Golden West High School; and JUAN

23 GARCIA, teacher at Gold West High School, are individuals who

24 worked during the relevant time period as employees for the VUSD.

25 See id., ,15.

26

Mr. Loomis allegedly endured pervasive harassment while he

27 was at Golden West from 1996 to about January 2000. See id.,

28 ,24. Once students at Golden West suspected that Mr. Loomis was

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1 gay, they began taunting and harassing him. See id. In the

2 spring semester of Mr. Loomis' junior year (1998-99), some of his

3 classmates in Advance Placement (RAP") Biology class called him

4 "faggot" and "queerR in front of the entire class. See id. Mr.

5 Loomis' teacher would often laugh along with the students who

6 were harassing Mr. Loomis and not reprimand these students. See

7 id.

8

Students in Mr. Loomis' choir class would also taunt Mr.

9 Loomis with yells of "fag", "queer", "homo" and "joto" (Spanish

10 for "homo"). See id., '25. One male student taunted Mr. Loomis

11 by rubbing Plaintiff's leg in a sexually suggestive manner,

12 embarrassing Mr. Loomis with this unwanted touching. See id.

13 Students in Mr. Loomis' choir class would also threaten and

14 harass other students by calling them "fag" or "faggot". See

15 id., '25. Mr. Loomis' choir teacher observed these activities

16 and took no action. See id.

17

Mr. Loomis was harassed by students in his student

18 leadership class. See id., '26. One student accused Mr. Loomis

19 of having an affair with the male teacher of the class who was

20 perceived by many students to be gay. See id.

21

Teachers and classes of students openly discussed their

22 views that Mr. Loomis was gay during a science and English class

23 in spring of 1999. See id., ,32. Mr. Loomis had not revealed to

24 anyone at Golden West that he was gay, much less to these

25 particular teachers from whom Mr. Loomis had not taken a class.

26 See id.

27

1. Comment by Mr. JUAN GARCIA

28

In October 1999, Defendant, JUAN GARCIA, Mr. Loomis' Spanish

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1 II teacher noticed the ear ring Mr. Loomis was wearing. See id .•

2 '33. Mr. Garcia stated to the class: "There are only two types

3 of guys who wear ear rings - pirates and faggots - and there

4 isn't any water around here." See id. The entire class laughed

5 at Mr. Garcia's remarks; Mr. Loomis was shocked. angry. and

6 upset. See id. Mr. Loomis was also upset and embarrassed when

7 Mr. Garcia repeated the comment in English to make sure that

8 everyone could understand it. See id. Students increasingly

9 harassed Mr. Loomis after this incident. calling Mr. Loomis

10 "pirate". "fag" and "faggot". See id.

11

In October 1999. Mr. Loomis went to the principal of Golden

12 West. Defendant. ROBERT CESENA. and told him what Mr. Garcia

13 said. See id .• 143. Mr. Cesena told Mr. Loomis that it was

14 "inappropriate" for Mr. Loomis to "go over Mr. Garcia's head".

15 that he should talk to Mr. Garcia. and that he would take no

16 further action. See id.

17

Mr. Loomis took Mr. Cesena's suggestion and went to Mr.

18 Garcia and asked him not to make further anti-gay comments in

19 class. See id .• 144. Mr. Garcia responded by laughing at Mr.

20 Loomis. See id. The following week. Mr. Garcia repeatedly

21 called Mr. Loomis a "pirate" and repeated the same comment Mr.

22 Loomis asked Mr. Garcia not to repeat ("There are only two types

23 of guys who wear ear rings .... "). See id.

24

In October 1999. after Mr. Garcia repeatedly aired his

25 "pirates and faggots" remark at Golden West. Mr. Loomis went to

26 the school psychologist at Golden West. and spoke with her about

27 how the harassment was making him feel. See id .• 149. Mr.

28 Loomis informed her that the harassment was negatively affecting

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1 his ability to learn and function at Golden West. See id. The

2 Golden West psychologist suggested that things might be better

3 for Mr. Loomis if he removed himself from full-time attendance at

4 Golden West to attend the Independent Study Program ("ISP"). See

5 id.

6

2. Switching to the Independent Study Program

7

Officials at Golden West did not mention that switching to

8 ISP would have a harmful adverse impact on Mr. Loomis'

9 extracurricular activities, his decision to attend college, and

10 his future overall. See id., '50. The school psychologist told

11 Mr. Loomis that she was planning on meeting with Assistant

12 Principal, Defendant, GIG STEVENS, later that day, and that she

13 would suggest to Mr. Stevens that the school transfer Mr. Loomis

14 to ISP. See id. The psychologist told Mr. Loomis that although

15 she recommended ISP, school officials would not protect him from

16 being tormented even then. See id.

17

Mr. Loomis later met with his guidance counselor, Ms. Cuca

18 Atherton, to discuss whether ISP was a good idea for him. See

19 id., '51. Ms. Atherton explained to Mr. Loomis that she had

20 already discussed the ISP program with Mr. Loomis' psychologist,

21 and that she also thought it was in Mr. Loomis' best interests to

22 enroll in the ISP. See id. She explained that, although most

23 ISP students were required to demonstrate to the school

24 administration that they had a financial need to work at least

25 forty (40) hours a week and demonstrate proof of employment, the

26 school "wouldn't worry about this requirement" in Mr. Loomis'

27 case. See id. Instead, without any reference to the financial

28 status of Mr. Loomis or his family, Ms. Atherton told Mr. Loomis

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1 to go home and have his guardian sign a form declaring that his

2 family had a "financial need" for him to enroll in the ISP. See

3 id.

4

That same day, Mr. Stevens called Mr. Loomis into his office

5 and advised Mr. Loomis that he had spoken with Mr. Loomis'

6 guidance counselor and psychologist, and that they all agreed

7 that Mr. Loomis should enroll in the ISP. See id., '52.

8 Although Mr. Loomis' guardian, Ms. Donna Wothe, was worried how

9 the program might look to university admissions officers, Mr.

10 Loomis and his guardian officially signed the papers enrolling

11 him in the ISP sometime in mid-October 1999. See id., ,53.

12

VUSD officials knew that Mr. Loomis was heavily involved in

13 extracurricular activities at Golden West and that Mr. Loomis

14 intended to pursue higher education. See id., ,54. While Mr.

15 Loomis was at Golden West, he was a member of the Gifted and

16 Talented Education program (GATE) and aspired to attend the

17 University of California at Berkeley to study pre-medicine and

18 eventually go to medical school. See id. Mr. Loomis was also a

19 member of the track and cross-country teams, sang in the school

20 choir, and was one of a select group of students who were chosen

21 to enroll in an exclusive student leadership class based on the

22 recommendation of one of his teachers. See id.

23

In Mr. Loomis' junior year, he was chosen to be a student

24 representative on the VUSD Board of Education. See id. Mr.

25 Loomis' guidance counselor, Ms. Atherton told Plaintiff that he

26 could continue to serve as a student representative while

27 attending ISP. See id., '55. When Mr. Loomis attempted to

28 attend a VUSD Board of Education meeting, he found that he had

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1 been replaced by another student. See id. Mr. Loomis was then

2 told that ISP students could not serve on the Board. See id.

3 Mr. Loomis was also unable to participate in extracurricular

4 programs which he was led to believe he could still participate

5 in. See id., ,56. Mr. Loomis planned to interview with

6 recruiters from the University of California at Berkeley, but

7 they refused to talk to him after learning he was in ISP. See

8 id.

9

3. Ms. Sarah Karam Sproles; Mr. GIG STEVENS

10

In November 1999, Plaintiff was working at his part-time job

11 in a camera store. See id., '39. Ms. Sarah Karam Sproles, a

12 Golden West school counselor entered the store with a friend.

13 See id. While in the store, Ms. Sproles turned to her friend and

14 said, "That boy is a faggot." See id. It is unclear whether Mr.

15 Loomis heard the remark directly or was told about Ms. Sproles'

16 alleged remark. Mr. Loomis was stunned, outraged and hurt. See

17 id. When Mr. Loomis later confronted Ms. Sproles at her office

18 at Golden West, Ms. Sproles initially denied making the statement

19 at all. See id. She later admitted making the statement;

20 however, she claimed that she was talking about another Golden

21 West student, whom she was counseling. See id. That student

22 also happened to be in the camera store at the same time as Mr.

23 Loomis. See id.

24

While Mr. Loomis was confronting Ms. Sproles, the Assistant

25 Principal, Defendant, GIG STEVENS, walked into Ms. Sproles'

26 office. See id., '59. For no apparent reason, Ms. Sproles

27 stated, "This is George Loomis and he is gay." See id. Mr.

28 Stevens stated mockingly to Mr. Loomis in a high-pitched

12

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1 effeminate voice, "Well, George, why didn't you say that. Why

2 didn't you say, -My name is George and I am gay?'· See id. Mr.

3 Loomis felt humiliated. See id.

4

Mr. Loomis told Mr. Stevens and Ms. Sproles that he did not

5 feel safe attending Golden West High School, and asked Mr.

6 Stevens whether he would make some effort to ease the harassment

7 that Mr. Loomis was receiving from other students while he

8 attended his ISP class. See id. Each week, many students called

9 him "fagW and "faggot" and at least on one occasion spit on him.

10 See id., ,58. Mr. Stevens refused to help, and told Mr. Loomis

11 that if he did not feel safe then he should give up high school

12 altogether and attend adult school. See id. Mr. Stevens then

13 waved Mr. Loomis' ISP papers in his face and told Mr. Loomis that

14 he was in breach of his ISP contract because he had missed two

15 days of ISP class. See id.

16

Mr. Loomis told Mr. Stevens that he would not come onto the

17 Golden West campus unless he was assured that he would be safe

18 from teacher and student harassment. See id., ,60. Mr. Stevens

19 told Mr. Loomis that he could not promise him that the school

20 would be safe for him. See id. Mr. Loomis stopped attending

21 Golden West altogether. See id., ,61. To the best of Mr.

22 Loomis' knowledge, no credit was given for his ISP work. See id.

23

4. Ms. LINDA GONZALES

24

Between October and December 1999, Mr. Loomis tried to

25 contact, then-VUSD Superintendent, Defendant, LINDA GONZALES, to

26 discuss the constant harassment Mr. Loomis was receiving. See

27 id., '45. Ms. Gonzales did not return any of Mr. Loomis' phone

28 calls. See id. In December 1999, Mr. Loomis went to Ms.

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1 Gonzales' office but was informed she was not in that afternoon.

2 See id. Mr. Loomis related to Ms. Gonzales' assistant the

3 conditions of harassment he was facing at Golden West. See id.

4 Ms. Gonzales' assistant promised to pass these notes to Ms.

5 Gonzales. See id. Mr. Loomis did not receive a response from

6 Ms. Gonzales. See id.

7

5. Further Injuries and Illness

8

By January 2000, Mr. Loomis was suffering chronic stress-

9 related illnesses and was diagnosed as hypo-glycemic. See id.,

10 ,62. Mr. Loomis lost both his jobs in January 2000 because he

11 was missing work as a result of stress-related events at Golden

12 West. See id.

13

When the Fresno Bee published an article about Mr. Loomis

14 and his harassment at Golden West, teachers photocopied the

15 article and distributed it to students in class. See id., ,41.

16 One teacher made a remark to a class to the effect that ·Well, we

17 can't talk about religion, but we can talk about this faggot

18 boy." See id. Throughout the spring 2000 semester, other

19 teachers revealed private facts about Mr. Loomis' life in trying

20 to explain why he might be "troubled". See id.

21

C. Plaintiff's First Amended Complaint

22

PlaintiffS assert eight (8) claims. See Doc. 1. Plaintiffs

23 first six federal claims are brought under 42 U.S.C. § 1983. See

24 id. Plaintiff, GSA NETWORK, asserts Equal Protection [First

25 Claim], Procedural Due Process [Third Claim], and Substantive Due

26 Process [Fifth Claim] violations of the Fourteenth Amendment by

27 Defendants, VUSD, by and through its Board of Education, and

28 Carlyn Lambert, Bob Cesena, an Gig Stevens in their official

14

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1 capacities. See id.

2

Plaintiff, GEORGE LOOMIS, asserts Equal Protection [Second

3 Claim]; Procedural Due Process [Fourth Claim]; and Substantive

4 Due Process [Sixth Claim] violations of the Fourteenth Amendment

5 against Defendants, Linda Gonzales, Bob Cesena, Gig Stevens, and

6 Juan Garcia in their individual capacities. See id.

7

Mr. Loomis asserts state law violations of the California

8 Education Code [Seventh Claim] against Defendants VUSD, Linda

9 Gonzales, Bob Cesena, Gig Stevens and Juan Garcia in their

10 individual capacities. See id. Mr. Loomis asserts violation of

11 the Unruh Civil Rights Act [Eighth Claim] by Defendants Linda

12 Gonzales, Bob Cesena, Gig Stevens and Juan Garcia in their

13 individual capacities. See id.

14

Plaintiffs pray for a declaratory relief stating that GSA

15 Network's rights are being violated; an injunctive relief

16 ordering Defendants to halt their allegedly unconstitutional and

17 unlawful acts; an award of compensatory damages and punitive

18 damages to Mr. Loomis; attorneys fees and costs. See id.

19 Plaintiffs demand a jury trial. See id.

20

21

III. LEGAL STANDARD

22

A. Motion to Dismiss for Failure to State a Claim

23

A motion to dismiss for failure to state a claim under

24 Federal Rule of Civil Procedure 12 (b) (6) is disfavored and rarely

25 granted: A dismissal for failure to state a claim is appropriate

26 only where it appears, beyond a doubt, that the plaintiff can

27 prove no set of facts that would entitle it to relief. Morley v.

28 Walker, 175 F.3d 756, 759 (9th Cir. 1999); see also Conley v.

15

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1 Gibson, 355 U.S. 41, 45-46 (1957). All allegations of material

2 fact in the complaint are taken as true and construed in the

3 light most favorable to [the] plaintiff. See Enesco Corp. v.

4 Price/Costco Inc., 146 F.3d 1083, 1085 (9th Cir. 1998).

5

A district court is not entirely limited to considering

6 facts in the complaint. Facts subject to judicial notice may be

7 considered on a motion to dismiss. See Mullis v. United States

8 Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). For

9 example, matters of public record may be considered, including

10 pleadings, orders, and other papers filed with the court or

11 records of administrative bodies. See Shaw v. Hahn, 56 F.3d

12 1128, 1129 n.l (9th Cir. 1995). Conclusions of law, conclusory

13 allegations, unreasonable inferences, or unwarranted deductions

14 of fact in a complaint need not be accepted. See Western Mining

15 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Documents

16 attached to the complaint are part of the complaint and may be

17 considered on a motion to dismiss. See Durning v. First Boston

18 Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); see also Branch v.

19 Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) ([A] document is not

20 'outside' the complaint if the complaint specifically refers to

21 the document and if its authenticity is not questioned.).

22

B. Motion to Dismiss for Indefinite Statement

23

Federal Rule of Civil Procedure 12(e) provides:

24

If a pleading to which a responsive pleading is

permitted is so vague or ambiguous that a party cannot

25

reasonably be required to frame a responsive pleading,

the party may move for a more definite statement before

26

interposing a responsive pleading. The motion shall

point out the defects complained of and the details

27

desired. If the motion is granted and the order of the

court is not obeyed within 10 days after notice of the

28

order or within such other time as the court may fix,

16

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1

the court may strike the pleading to which the motion

was directed or make such order as it deems just.

2

3

A Rule 12(e) motion is proper only if the complaint is so

4 indefinite that the defendant cannot ascertain the nature of the

5 claim being asserted. See Famolare, Inc. v. Edison Bros. Stores,

6 Inc., 525 F.Supp. 940, 949 (E.D. Cal. 1981). The Court must deny

7 the motion if the complaint is specific enough to apprise

8 defendant of the substance of the claim being asserted. See

9 Bureerong v. Uyawas, 922 F.Supp. 1450, 1461 (C.D. Cal. 1996).

10 The Court should also deny the motion if the detail sought by a

11 motion for more definite statement is obtainable through

12 discovery. See Beery v. Hitachi Home Electronics (America),

13 Inc., 157 F.R.D. 477, 480 (C.D. Cal. 1993).

14

C. Motion to Strike

15

A court "may order stricken from any pleading any

16 insufficient defense or any redundant, immaterial, impertinent or

17 scandalous matter." Fed. R. Civ. P. 12(f). A motion to strike

18 under Rule 12(£) should be denied unless it can be shown that no

19 evidence in support of the allegation would be admissible, or

20 those issues could have no possible bearing on the issues in the

21 litigation. See Pease & Curren Refining v. Spectrolab, 744

22 F.Supp. 945, 947 (C.D. Cal. 1990), abrogated on other grounds by

23 Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015 (9th Cir.

24 1993); LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820,

25 830 (N.D. Cal. 1992). A motion to strike is limited to

26 pleadings. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885

27 (9th Cir. 1983).

28

17

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 18 of 45

1

IV. ANALYSIS

2

A. Judicial Notice

3

"A judicially noticed fact must be one not subject to

4 reasonable dispute in that it is either (1) generally known

5 within the territorial jurisdiction of the trial court or (2)

6 capable of accurate and ready determination by resort to sources

7 whose accuracy cannot reasonably be questioned." Fed. R. Evid.

8 201(b). "A court shall take judicial notice if requested by a

9 party and supplied with the necessary information." Fed. R.

10 Evid.201(d). Often judicially noticed facts consist of matters

11 of public record, such as prior court proceedings, see, e.g.,

12 Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988)

13 or administrative materials, see, e.g., Barron v. Reich, 13 F.3d

14 1370, 1377 (9th Cir. 1994).

15

In this case, Defendants request judicial notice of

16 certified copies of official records showing the registration of

17 the VISALIA UNIFIED SCHOOL DISTRICT with the Roster of Public

18 Agencies. See Doc. 14. These records are maintained by the

19 Tulare County Recorder's office and the California Secretary of

20 State. See id. Copies of these documents have been supplied as

21 Exhibits nAn and nB". See Doc. 12, Ex. "AW; Doc. 16, Ex. "B".

22

Exhibit A contains a filed and stamped copy of the State of

23 California, Roster of Public Agencies Filing, showing the

24 Visalia Unified School District is registered pursuant to

25 California Government Code Section 53051. See Doc. 12, Ex. "An.

26 The copy has been filed and certified by the Tulare County C1erk-

27 Recorder on December 18, 1998 and most recently on February 1,

28 2001. See id.

18

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 19 of 45

1

Exhibit B contains three copies of documents from the State

2 of California, showing the Visalia Unified School District is

3 registered with the Roster of Public Agencies. See Doc. 12, Ex.

4 B. Each of the three documents have been filed and certified by

5 the Office of the Secretary of State of the State of California

6 on December 17, 1998; December 21, 1999; and December 22, 2000.

7 See id.

8

Defendants have requested judicial notice and supplied the

9 necessary documents. Defendants' request for judicial notice of

10 certified copies of official records maintained by the Tulare

11 County Recorder's office and the California Secretary of State

12 showing the registration of the VISALIA UNIFIED SCHOOL DISTRICT

13 with the Roster of Public Agencies, is GRANTED.

14

B. GSA Network Standing

15

The doctrine of standing "requires careful judicial

16 examination of a complaint's allegations to ascertain whether the

17 particular plaintiff is entitled to an adjudication of the

18 particular claims asserted." Allen v. Wright, 468 U.S. 737, 752,

19 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). "In essence the

20 question of standing is whether the litigant is entitled to have

21 the court decide the merits of the dispute or of particular

22 issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197,

23 2204, 45 L.Ed.2d 343 (1975).

24

"[W]hether an association has standing to invoke

the court's remedial powers on behalf of its members

25

depends in substantial measure on the nature of the

relief sought. If in a proper case the association

26

seeks a declaration, injunction, or some other form of

prospective relief, it can reasonably be supposed that

27

the remedy, if granted, will inure to the benefit of

those members of the association actually injured.

28

Indeed, in all cases in which we have expressly

19

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 20 of 45

1

recognized standing in associations to represent their

members, the relief sought has been of this kind."

2

Hunt v. Washington State Apple Advertising Comm'n, 432 U.S.

3
333, 343 (1977) (quoting Warth, 422 U.S. at 515). An association

4

has standing to bring an action when:

5 W(a) its members would otherwise have standing to

6

sue in their own right; (b) the interests it seeks to

protect are germane to the organization's purpose; and

7

(c) neither the claim asserted nor the relief requested

requires the participation of individual members in the

8

lawsuit. w

9

Hunt, 432 U.S. at 343; International Union, United Auto.,

10 Aerospace & Agricultural Implement Workers v. Brock, 477 U.S.

11 274,282 (1986). The first two Hunt criteria satisfy Article

12 Ill's "case or controversy" requirement, while the third is

13 merely prudential, promoting only administrative convenience and

14 efficiency. See Ecological Rights Foundation v. Pacific Lumber

15 Company, 230 F.3d 1141,1147 fn.6 (9th Cir. 2000). Courts have

16 generally found the second prong, or germaneness test, to be

17 undemanding. See Presidio Golf Club v. National Park Service,

18 155 F.3d 1153, 1159 (1998); Humane Soc'y of the United States v.

19 Hodel, 840 F.2d 45, 58 (D.C.Cir. 1988).

20

w-For purposes of ruling on a motion to dismiss for want of

21 standing, both the trial and reviewing court must accept as true

22 all material allegations of the complaint, and must construe the

23 complaint if favor of the complaining party.'" See Desert

24 Citizens Against Pollution, 231 F.3d at 1178 (quoting Graham v.

25 Federal Emergency Management Agency, 149 F.3d 997, 1001 (9th Cir.

26 1998) (quoting Warth, 422 U.S. at 501).

27

1. Immediate or Threatened Iniury

28

To meet Hunt's first prong, the w-association must allege

20

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 21 of 45

1 that its members, or anyone of them, are suffering immediate or

2 threatened injury as a result of the challenged action of the

3 sort that would make out a justiciable case had the members
4 themselves brought suit.'" Hunt, 432 u.s. at 342 (quoting Warth,

5 422 U.S. at 511). Individual members would have standing in

6 their own right under Article III if they have suffered an

7 "injury in fact" that is concrete and particularized, actual and

8 imminent, the injury is fairly traceable to the challenged action

9 of the defendant; and it is likely, as opposed to merely

10 speculative, that the injury will be redressed by a favorable

11 decision. See Ecological Rights Foundation, 230 F.3d at 1147,
12 citing Lujan .v Defenders of Wildlife, 504 u.s. 555, 560 (1992).

13 A mere "abstract concern", Simon v. Eastern Kentucky Welfare
14 Rights Organization, 426 u.s. 26, 40 (1976), or "special

15 interest" in a public issue, Sierra Club v. Morton, 405 U.S. 727,

16 739 (1972), is legally insufficient to confer standing.

17

a. Injury in Fact

18

GSA Network asserts that it has members who are current and

19 prospective students at Golden West High School and other high

20 schools within the VUSD. GSA Network asserts that its members

21 have been spit on, threatened, their property damaged, attacked,

22 harassed by students and teachers and administrators, and

23 actively encouraged to transfer from the normal high school

24 curriculum, in effect denying them a free public education. GSA

25 Network alleges that its members have repeatedly complained to

26 VUSD teachers, administrators, and counselors about how the

27 homophobic environment at Golden West and other VUSD schools was

28 interfering with their learning experience and safety. VUSD

21

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 22 of 45

1 administrators and teachers are alleged to have deliberately

2 ignored these students' pleas for help, or actively sought the

3 transfer of such students to an ISP or adult alternative program.

4 GSA alleges it has spent money and used staff to try to combat

5 discrimination and harassment of its members in VUSD schools.

6 , 10.

7

The harms sought to be redressed by GSA Network on behalf of

8 its members to redress deprivation of education rights are

9 currently suffered by GSA members and will continue to be

10 suffered by GSA Network members absent relief. Accepting as true

11 these allegations, GSA Network alleges injury in fact that

12 is "immediate or threatened" injury to itself and its members

13 sufficient to confer associational standing. Defendants' motion

14 to dismiss for failure to state a claim for lack of standing as

15 to the GSA Network is DENIED.

16

Defendants' caselaw

17

Defendants' reliance on United Public Workers v. Mitchell,

18 330 U.S. 75 (1947), for the proposition that GSA Network must

19 suffer some harm before asserting the rights of its members is

20 misplaced. The "injury in fact" requirement for associational

21 standing is "immediate or threatened injury". See Hunt, 432 U.S.

22 at 342; Warth, 422 U.S. at 511.

23

Defendant's reliance on Hunt and Alaska Wildlife Alliance v.

24 Jensen, 108 F.3d 1065, 1068 (9th Cir. 1977), is similarly

25 misplaced. Contrary to Defendants' assertions, Plaintiffs need

26 not allege that a statute is unconstitutional as a prerequisite

27 to standing. See Desert Citizens Against Pollution, 231 F.3d at

28 1177 (plaintiff need not allege non-compliance with statute or

22

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 23 of 45

1 regulation). "Applying this type of categorical rule runs

2 counter to precedent recognizing that standing -is a highly case-

3 specific endeavor, turning on the precise allegations of the

4 parties seeking relief." Id., quoting National Wildlife Fed'n v.

5 Hodel, 839 F.2d 694, 703-04 (D.C.Cir. 1988). "Standing is based

6 upon the nature of the injury alleged and whether a favorable

7 decision would redress the injury." Id.

a

Warth also does not support Defendants' assertion that GSA

9 Network's members have not suffered a cognizable injury in fact.

10 Defendants' rely on Warth for essentially two propositions: (1)

11 "when the asserted harm is a -generalized grievance' shared in

12 substantially equal measure by all or a large class of citizens,

13 that harm alone normally does not warrant the exercise of

14 jurisdiction", and (2) a "plaintiff must generally assert his own

15 legal rights and interests, and cannot rest his claim to relief

16 on the legal rights or interests of third parties." Warth, 422

17 U.S. at 499.

18

In Warth, the petitioner association sought to represent the

19 interests of taxpayers or persons of low or moderate income. See

20 id., at 512. The Supreme Court found petitioners' grievances too

21 general in nature to allow the organization to have standing. See

22 id., at 515-516.

23

Here, the verbal harassment, physical threats, humiliation

24 by peers and teachers are allegedly suffered only by gay or

25 lesbian students, and those perceived to be gay or lesbian.

26 These alleged harms do not affect all or a large'class of

27 citizens, but rather a small, but cognizable minority. The harm

28 suffered of being called a "fag", "faggot", "homo", or similar

23

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 24 of 45

1 opprobriations is not a "-generalized grievance' shared in

2 substantially equal measure by all or a large class of citizens",

3 but a particular harm suffered by gay or lesbian students, or

4 those perceived to be gay or lesbian.

5

Defendants' argument that GSA Network has attached its

6 claims to co-Plaintiff, George Loomis's, is also misplaced. The

7 alleged harms suffered by GSA Network members include one gay

8 student being nearly hit by a car driven by another student

9 trying to run him down. See Doc. 8, '27. Another student

10 allegedly directed a death threat to a gay student member at

11 Golden West. See id. Golden West students allegedly spray-

12 painted the work nFag" on a pickup truck of another student. See

13 id. These students are allegedly called "faggot", nqueern, and

14 other anti-gay epithets repeatedly in the presence of teachers.

15 See id., '22. Administrators allegedly mock or ignore students

16 requesting relief from anti-gay harassment. See id., '31. One

17 school office worker at Golden West allegedly posts anti-gay

18 comments on a school-office bulletin board. See id. Gay and

19 lesbian students are encouraged to transfer out of Golden West

20 into ISP programs. See id., '48. GSA Network has allegedly

21 spent money trying to address these issues and devote staff time

22 to working with alleged victims. These alleged harms suffered to

23 its members and to the Network are separate and distinct from

24 those harms asserted by Mr. Loomis. GSA Network has not

25 attempted to assert the legal rights of Mr. Loomis.

26

"In all cases in which the Supreme Court denied standing

27 because the injury was too speculative there was either little

28 indication in the record that the plaintiffs had firm intentions

24

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 25 of 45

1 to take action that would trigger the [challenged action], or

2 little indication in the record that, even if plaintiffs did take

3 such action, they would be subjected to the [challenged action]."

4 Associated General Contractors of California, Inc. v. Coalition

5 For Economic Equity, 950 F.2d 1401, 1407 (9th Cir. 1991)

6 (discouragement from participating in city-mandated bidding

7 process for government contract combined with firm intentions to

8 participate in bidding process satisfies "immediate and

9 threatened" harm for associational standing requirement); cf.

10 City of Los Angeles v. Lyons, 461 U.S. 95, 101-05, 103 S.Ct.

11 1660, 1664-67, 75 L.Ed.2d 675 (1983) (plaintiff previously

12 subjected to police stranglehold lacked standing to seek

13 injunctive relief absent showing he was likely to be exposed to

14 future police brutality); O'Shea v. Littleton, 414 U.S. 488, 497,

15 94 S.Ct. 669, 676-77, 38 L.Ed.2d 674 (1974) (plaintiffs

16 challenging alleged discriminatory bail setting, jury selection,

17 and sentencing lacked standing to seek injunction because no

18 showing that they were likely to be arrested and subjected to the

19 challenged practices); Golden v. Zwickler, 394 U.S. 103, 108-09,

20 89 S.Ct. 956, 959-60, 22 L.Ed.2d 113 (1969) (plaintiff lacked

21 standing where previously convicted for distributing anonymous

22 handbills in past election campaign, plaintiff was "most

23 unlikely" to be subjected to statute in future lacked standing to

24 seek declaratory relief for future campaigns).

25

Here, the GSA Network alleges its members wish to form a GSA

26 club on the Golden West campus but are afraid to do so for fear

27 of retaliation, humiliation, and further harassment from peers,

28 teachers, administrators and counselors. See Doc. 8, '65. The

25

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 26 of 45

1 allegations of discrimination and harassment are that the conduct

2 and hostile environment is continuing. Such allegations,

3 construed most favorably to the complainant, establish the active

4 intent to form a GSA Network club on the Golden West campus or

5 other VUSD campuses, and the immediate threat of harm to all

6 students who would join and participate in such a club. Evidence

7 may prove otherwise, however, on this motion the assertions are

8 taken as true.

9

b. Redressability

10

In determining standing for an association, a federal

11 plaintiff must show only that a favorable decision is likely to

12 redress his injury, not that a favorable decision will inevitably

13 redress his injury. See Desert Citizens Against Pollution, 231

14 F.3d at 1178.

15

In this case, GSA Network seeks declaratory relief claiming

16 that the Defendants' acts ·violate the Fourteenth Amendment to

17 the Constitution of the United States, California Education Code

18 Sections 200 et. seq., and Civil Code Section 51 et seq"; and

19 that such rights must be respected and protected. See Doc. 8,

20 35:14-18. GSA Network also asks for an injunction ordering

21 Defendants to take action and to develop policies to alleviate

22 the allegedly hostile and intolerant environment in public

23 schools within the VUSD. See id., 35:19-22. GSA Network asks

24 for injunctive relief to stop Defendants alleged coercion of

25 students; harassment on the basis of their sexual orientation;

26 their diversion into alternative educational programs and ISPs;

27 requiring defendants to implement mandatory training programs for

28 VUSD faculty and staff on issues relating to diversity,

26

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 27 of 45

1 homophobia, and means of intervention; creating policies for

2 teachers and administrators for dealing with students who have

3 been harassed or discriminated against on the basis of actual or

4 perceived sexual orientation; and conducting assemblies in VUSD

5 high schools for all students, teachers, and administrators on

6 diversity, homophobia and tolerance. See id., 35:23-36:17.

7

A declaratory judgment or preliminary injunction in GSA

8 Network's favor could likely alleviate the alleged harassment and

9 discrimination against gay and lesbian students, as well as those

10 perceived to be gay or lesbian. Gay and lesbian students would

11 be more likely to attend class full time; teachers and

12 administrators would be more responsive to illegal harassment and

13 discrimination against gay or lesbian students. A decision in

14 GSA Network's favor is likely to redress the alleged injuries

15 suffered by it and its members.

16

Plaintiff, GSA network has shown that "'its members, or any

17 one of them, are suffering immediate or threatened injury as a

18 result of the challenged action of the sort that would make out a

19 justiciable case had the members themselves brought suit.'"

20

2. Organization's Purpose

21

GSA Network alleges its purpose as "a youth-led nonprofit

22 organization made up of gay, lesbian, bisexual, transgender and

23 heterosexual students and supportive adults who are dedicated to

24 eliminating homophobia and intolerance in schools." See Doc. 8,
25 17. "GSA Network primarily fights homophobia and intolerance in

26 schools by empowering gay, lesbian, bisexual, transgender and

27 heterosexual members in high schools to form and maintain local,

28 school-based, student-run clubs, called 'GSAs,' in high schools

27

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 28 of 45

1 throughout California." See id., ,8. The staff in the regional

2 offices of GSA network connect these school- and community based

3 GSAs to each other and to community resources in order to foster

4 safe environments for student members; educate the student

5 members and the school community about homophobia, gender

6 identity, and sexual orientation issues; and fight intolerance,

7 discrimination, harassment, and violence in schools." See id.

8

GSA Network's purpose is to end intolerance, discrimination,

9 harassment, and violence in schools, directed at gay and lesbian

10 students, and those perceived to be gay or lesbian. See id.,

11 "7-8. The interests GSA Network seeks to protect are the rights

12 of its members, other gay and lesbian students, and those

13 perceived to be gay or lesbian, within the VUSD. See id. In

14 addition, the GSA Network seeks to protect those students'

15 safety, and to end the taunts, humiliation and discrimination by

16 students, teachers, counselors and administrators within the

17 VUSD. See id. The interests the GSA Network seeks to protect

18 are germane to the organization's purpose of fighting

19 intolerance, homophobia, and discrimination against gay and

20 lesbians in schools.

21

3. Individual Member Participation

22

The participation of individual members is not required when

23 the claims proffered and relief requested do not demand

24 individualized proof on the part of an association's members.

25 See Associated General Contractors of California, Inc., 950 F.2d

26 at 1408; cf. United Union of Roofers v. Insurance Corp. of

27 America, 919 F.2d 1398, 1400 (9th Cir. 1990) (denying standing

28 because individual Union members will have to participate at the

28

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 29 of 45

1 proof of damages stage) with Alaska Fish & wildlife Fed'n v.

2 Dunkle, 829 F.2d 933, 938 (9th Cir. 1987) (allowing standing

3 because the organization sought declaratory and prospective

4 relief rather than money damages; thus, its members need not

5 participate directly in the litigation). Lack of actual or

6 potential conflict among an association's members is not required

7 to satisfy Hunt's third prong. See Coalition For Economic

8 Equity, 950 F.2d at 1408-1409.

9

In this case, GSA Network has asked only for declaratory and

10 injunctive relief, no prayer for compensatory or punitive damages

11 is asserted. See Doc. 8, 35:14-36:17. No money damages are

12 requested by GSA Network; its members need not participate

13 directly in the litigation. See Alaska Fish & Wildlife Fed'n,

14 829 F.2d at 938. GSA Network satisfies Hunt's third prong.

15

4. GSA Network Direct Standing

16

Direct standing is shown where the defendants' practices

17 have "perceptibly impaired" the organizational plaintiff's

18 ability to provide the services it was formed to provide. See

19 Havens Realty Corporation v. Coleman, 455 U.S. 363, 378-379

20 (1982) (petitioners' alleged practices found to perceptibly

21 impair plaintiff's ability to provide counseling and referral

22 services for low- and moderate-income home seekers, with the

23 consequent drain on the organization's resources); El Rescate

24 Legal Servs., Inc. v. Executive Office of Immigration Review, 959

25 F.2d 742, 748 (9th Cir. 1992) (standing found where defendant's

26 alleged policies frustrate plaintiff's declared goals and require

27 the organization to expend resources in representing members they

28 otherwise would spend in other ways).

29

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 30 of 45

1

Here, GSA Network's purpose is to end intolerance,

2 discrimination, harassment, and violence in schools, directed at

3 member gay and lesbian students, and those perceived to be gay or

4 lesbian. See id., "7-8. Those goals are directly frustrated by

5 Defendants' alleged policies of transferring gay or lesbian

6 students, and ignoring complaints regarding the safety,

7 harassment, and discrimination against gay and lesbian students,

8 and those perceived to be gay or lesbian. The GSA Network has

9 allegedly devoted significant monetary and staffing resources to

10 address the problems of alleged discrimination, harassment, and

11 homophobia in VUSD schools through its Fresno office. See id.,

12 '10. GSA Network has suffered an injury in fact sufficient to

13 confer direct standing; it has committed resources to advance

14 goals which are thwarted by the alleged policies of the VUSD.

15

Defendants argue that before GSA Network can have direct

16 standing, it must first form a club on a VUSD campus. See Doc.

17 24, 8:6-8. Defendants' proposed requirement is unsupported by

18 the case law; Plaintiff's need only show that defendant's alleged

19 polices frustrate the goals of the organization seeking standing.

20 See Havens Realty Corporation, 455 U.S. at 378-379; El Rescate

21 Legal Servs., Inc., 959 F.2d at 748. Defendants' motion to

22 dismiss Plaintiff, GAY-STRAIGHT ALLIANCE NETWORK, for lack of

23 direct standing, is DENIED.

24

C. State Law Claims: California Tort Claims Act

25

Defendants allege that Plaintiff Loomis' seventh and eighth

26 causes of action should be "stricken and/or summarily adjudicated

27 in favor of defendants" because Loomis did not present a

28

30

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 31 of 45

1 government tort claim prior to filing his lawsuit. See Doc. 11

2 at 10.

3

Under the California Tort Claims Act (Cal. Gov't Code §§ 900

4 et seq.), no suit for money or damages may be brought against a

5 pubic entity until a written claim has been presented to the

6 public entity, and either has been acted upon or is deemed to

7 have been rejected. See Alliance Financial v. City and County of

8 San Francisco, 64 Cal.App.4th 635, 641 (1998) citing Cal. Gov't 9 Code §§ 905, 945.4. "[TJhe purpose of the claims statutes -is to 10 provide the public entity sufficient information to enable it to 11 adequately investigate claims and to settle them, if appropriate, 12 wi thout the expense of litigation. " Phillips v. Desert Hospi tal 13 District, 49 Cal.3d 699, 705 (1989). "The act should not be 14 applied to snare the unwary where its purpose has been satisfied, 15 consequently courts employ a test of substantial rather than

16 strict compliance in evaluating whether a plaintiff has met the

17 demands of the claims act." 1 Elias v. San Bernardino County

18 Flood Control District, 68 Cal.App.3d 70, 74 (1977) (internal

19

20

1 Note to OWW: Earlier cases, including Elias, held that one

21

of the functions of the claims act was to apprise the governmental body of "imminent" legal action so that it

22

could investigate and evaluate the claim and, where appropriate, avoid litigation by settling meritorious

23

claims." See Elias, 68 Cal.App.3d at 74. Defendants could

assert that, because the January 11, 2000 letter indicated

24

that Plaintiff would be filing a "Government Code Claim

prior to filing a lawsuit," Defendants were not apprised

25

that legal action was imminent. See Doc. 20, Ex. "A". 6

Alliance Financial, interpreting the California Supreme

26

Court's decision in Phillips, held that it is unnecessary to

notify the public entity that a lawsuit is "imminent,"

27

provided the communication notifies the public entity that a

claim has accrued, and that the claimant intends to enforce

28

it. See Alliance Financial, 64 Cal.App.4th at 647.

31

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 32 of 45

1 citations omitted), see also Phillips, 49 Ca1.3d at 705; Alliance 2 Financial, 64 Ca1.App.4th at 641.

3

If a document does not substantially comply with

4 section 910 but nonetheless "discloses the existence of a 'claim'

5 which, if not satisfactorily resolved, will result in a lawsuit

6 against the entity,· such document constitutes a ·claim as

7 presented" or "defective claim" triggering the notice and defense

8 waiver provisions of the Act, sections 910.8, 911, 911.3. See

9 Phillips v. Desert Hospital District, 49 Cal.3d 699, 707-09

10 (1989). "While falling short of placing an affirmative duty on

11 public entities to obtain the information deemed necessary to

12 investigate incidents and to determine whether settlement is

13 appropriate," the notice and defense waiver provisions "furnish a

14 strong incentive to do so by sanctioning a public entity that

15 fails to ask the claimant for such information." See id. at

16 711. "Thus if a public entity receives a document that alerts it

17 to the existence of a claim and the possibility of a lawsuit but

18 fails to comply substantially with sections 910 and 910.2, the

19 purposes of the act are best served by requiring the public

20 entity to notify the claimant of the nature of the claim's

21 insufficiencies or lack of timeliness or else waive, by operation

22 of sections 911 and 911.3, its defenses based on those

23 deficiencies.

24

1. Substantial Compliance with Claims Act

25

Under Government Code section 910, a claim must show (1) the

26 "name and post office address of claimant," (2) the address to

27 which notices are to be sent, (3) the "date, place and other

28 circumstances of the occurrence or transaction which gave rise to

32

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 33 of 45

1 the claim asserted," (4) a general description of the

2 indebtedness, obligation, injury, damage or loss incurred," (5)

3 the "name or names of the public employee or employees causing

4 the injury, damage or loss," and (6) the amount claimed if it

5 totals less than $10,000; if the amount claimed exceeds ten

6 thousand dollars ($10,000), no dollar amount shall be included in

7 the claim. "However, it shall indicate whether the claim would

8 be a limited civil case." Cal. Gov't. Code § 910.

9

"When a public entity receives a document which contains the

10 information required by section 910 and is signed by the claimant

11 or [his] agent as required by section 910.2, the public entity

12 has been presented with a "claim" under the act, and must act

13 within 45 days or the claim is deemed to have been denied.

14 (§912.4) Once a claim is denied or deemed to have been denied,

15 the claimant may then proceed to file a lawsuit." Phillips, 49

16 Cal.3d at 707.

17

All six Section 910 claim requirements are addressed in a

18 January 11, 2000 letter entitled "Notification of Discrimination

19 of Student George S. Loomis," mailed to Robert Cesena, the

20 Principal of Golden West High School with a copy to Linda

21 Gonzalez, Superintendent, Visalia Unified School District. See

22 Doc. 20, Ex. "A". (1) The letter identifies Plaintiff George

23 Loomis as senior year student previously enrolled at Visalia

24 Unified's Golden West High School. It also provides the address

25 of his attorney. A statement of the address of claimant's

26 counsel substantially complies with the requirement that

27 claimant's address be given. See Cameron v. City of Gilroy, 104

28 Cal.App.2d 76 (1951). (2) The letter requests any response be

33

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 34 of 45

1 directed to the attorney's office. (3) The letter identifies

2 several circumstances giving rise to Loomis' claim including a

3 September, 1999 incident in which Loomis' Spanish II teacher, Mr.

4 Garcia, told the following "joke," allegedly directed at Loomis,:

5 "There are 2 kinds of guys who wear earrings. Pirates and

6 faggots, and there is no water around here." A second incident

7 described in the notification letter concerned the remark, "He's

8 a faggot." allegedly made by Ms. Sarah Kharmam, Golden West High

9 School Counselor, and overheard at Loomis' place of employment in

10 November, 1999. (4) The letter provides a general description

11 of injury as a "lost right to attend regular classes, falling

12 behind in his class work and his college career has been

13 potentially disrupted." It describes the alleged indebtedness or

14 damage as "medical, counseling, and legal fees necessitated by

15 the actions of District employees." (5) Mr. Garcia, Ms. Kharam,

16 and Mr. Stephens, Golden West's Vice Principal, were identified

17 as public employees causing injury to Mr. Loomis. (6)

18 Plaintiff indicates that the amount of the claim exceeds $10,000.

19 See Doc. 18 at 17. Thus, no dollar amount needed to be included

20 in the claim. See Cal. Gov't. Code § 910(f).

21

While the letter does not expressly state whether the claim

22 "would be a limited civil case," it does provide sufficient

23 information to indicate that it will not be. California Code of

24 Civil Procedure (C.C.P.) § 580(b) provides that a permanent

25 injunction is a type of "relief that may not be granted in a

26 limited civil case." See Cal. Code Civ. Proc. §580. Loomis'

27 claim letter demanded reinstatement to a suitable independent

28 study program to allow completion of high school graduation

34

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 35 of 45

1 requirements. If granted, this relief would be in the form of a

2 permanent injunction. See Doc. 20, Ex. "AR at 3. Plaintiff's 3 letter provided sufficient information to establish that 4 Plaintiff's claim would not qualify as a limited civil case. See

5 Ridge v. Boulder Creek High Sch. Dist., 60 Cal.App.2d 453

6 (1943) (claimant substantially complied where sufficient

7 information was supplied to ascertain required information with

8 modest effort.)

9

The January 11, 2001 letter provides all of the information

10 required under section 910, Plaintiff has substantially complied 11 with the claims requirement of the California Tort Claims Act.

12

Defendants do not dispute that the contents of the letter

13 substantially complied with the requirements of Section 910.

14 Rather, they argue alternatively that (a) because the Plaintiff 15 did not intend the letter to be a "claim," no tort claim was

16 filed; (b) Plaintiff failed to affirmatively allege compliance

17 with the claims presentation requirement; and (c) Plaintiff

18 failed to allege facts showing the applicability of a recognized

19 exception or excuse for non-compliance. See Doc. 11 at 9.

20

a. Plaintiff's Government Tort Claim

21

Defendants maintain that Plaintiff Loomis never filed a tort

22 claim. Defendants argue that the January 11, 2000 letter

23 threatening to file a government tort claim2 cannot constitute

24

25

2 Plaintiff's January 11 letter states: "Along with this

notification to you, my client has instructed me to initiate

26

the following additional steps: . . . Prepare and file a

Government Code Claim prior to filing a lawsuit."

27

Defendants argue the only possible interpretation of this

statement is that the present letter demand is not a

28

government tort claim.

35

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 36 of 45

1 substantial compliance with the claim presentment requirement 2 because "by his own admission" Plaintiff's former attorney did 3 not intend the letter to be a government tort claim. See Doc. 24

4 at 10. However, Plaintiff's subjective intent is irrelevant.

5 See Phillips, 49 Ca1.3d at 709-10.

6

In Phillips, Plaintiff's attorney sent a notice of intention

7 to commence an action based on a health care provider's alleged

8 professional negligence under C.C.P. § 364 to a public hospital.

9 The hospital argued that plaintiffs could never have intended

10 their 364 notice to function as a claim for purposes of the act

11 because, by plaintiffs' own admission, they were not aware of the

12 hospital's status as a public entity. See id. at 709. The

13 Supreme Court held:

14

Implementation of the purposes of the claim

presentation requirements - to require public entities

15

to manage and control claims and to encourage timely

investigation and settlement to avoid needless

16

litigation - depends not on a claimant's state of mind

but rather on the information imparted to the public

17

entity. Thus the relevant inquiry is not into

plaintiffs' subjective intent but whether their 364

18

notice disclosed to the hospital that they had a claim

against it which, if not satisfactorily resolved, would

19

result in their filing a lawsuit. See id. 3

20

Phillips was unconcerned with the possibility that an

21 "improperly captioned document could have an unintended legal

22

23 3 Because it did not state the amount sought in damages as

24

required by the applicable version of section 910,

Plaintiff's 364 notice did not substantially comply with

25

section 910. See Phillips, 49 Cal.3d at 708, n.7.

However, the hospital was required to treat Plaintiff's

26

defective claim as a "claim as presented" triggering the

notice and defense-waiver provisions of sections 910.8, 911

27

and 911.3 because the notice alerted the hospital to the

existence of a claim and the possibility of a lawsuit. See

28

id. at 711.

36

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 37 of 45

1 effect" stating, "it is settled that the caption or title of a

2 notice does not diminish its legal effect as a claim. See id.

3 710-711. The Supreme Court apparently reasoned that, as long as

4 the 364 notice apprised the hospital of the claim and possibility

5 of a lawsuit, the purposes of the claim requirement were

6 satisfied, and the hospital could not be prejudiced by

7 Plaintiff's failure to identify the notice as a government tort

8 claim. See id. The hospital was on notice of the claim, could

9 investigate, and respond, as contemplated by the policy of the

10 tort claims statute.

11

In Wheeler v. County of San Bernardino, the court similarly

12 held that if the "requisite information is in fact given, it is

13 not essential that it be given with the intention of complying

14 with the claims statute." Wheeler v. County of San Bernardino,

15 76 Cal.App.3d 841, 847 (1978). The plaintiff in Wheeler

16 petitioned the county for leave to file a late claim. See id.

17 at 845. Attached to the petition were a proposed claim, and

18 declarations attempting to justify failure to file the claim

19 within the statutory time frame. See id. Although the county

20 treated these documents as a petition to file a late claim,

21 rather than a claim, the Appeals Court found they were

22 "sufficient to put the county on notice of plaintiff's intentions

23 and contentions," and held that Wheeler satisfied the claim

24 presentation requirements. See id. at 847.

25

Under Phillips and Wheeler, Plaintiff's January 11, 2000

26 letter satisfies the claim presentment requirement of the Act.

27 The letter, entitled "Notification of Discrimination of Student

28 George S. Loomis," was not intended by Plaintiff's attorney to be

37

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 38 of 45

1 a "government tort claim." However, the letter alerted the

2 district to the existence of a claim and the possibility of a

3 lawsuit.

4

The District was well aware Mr. Loomis was presenting a

5 claim and its response to Plaintiffs allegations in its letter

6 dated January 26, 2000, demonstrate it denied (rejected) the

7 claim. See Doc. 12, Ex. "C". "[Alfter an investigation of the

8 issues involved," the District asserted that Ms. Karam's remarks

9 were not directed at Mr. Loomis. See id. The District confirmed

10 that Mr. Garcia made the statement reported in Plaintiff's

11 letter. See id. Based on its investigation, the District

12 characterized the complained of behavior as: "allegedly

13 whispering to a friend that another person might be gay and/or

14

telling a sexually offensive joke in a classroom setting. n

15 See id. The District determined it was not appropriate to settle

16 the claims, because by its "reading of the law," this conduct did

17 "not constitute an actionable tort." See id. The District

18 concluded that it would "not be offering to pay Mr. Loomis'

19 medical or counseling expenses, nor his legal fees." See id.

20 Exalting substance over form compels the conclusion that the

21 District treated the plaintiff's demand letter as a claim and

22 denied it. This benefitted defendant by shortening the

23 limitations period to file a complaint in court.

24

Plaintiff's January 11, 2000 letter satisfies the purpose of

25 the claims statute by providing the District with sufficient

26 information to investigate Loomis' claims, and determine whether

27 settlement was appropriate. See Phillips, 49 Cal.3d at 705.

28 The information provided in the letter substantially complied

38

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 39 of 45

1 with the requirements of section 910 to enable the District to

2 determine it would not settle Mr. Loomis' claims and to reject

3 any settlement of his demands. Plaintiff's intent in submitting

4 the letter is irrelevant. See id. at 709; Wheeler, 76 Cal.App.3d

5 at 847. Defendant's failure to "interpret" Plaintiff's letter as

6 a claim because it was not labeled a claim does not diminish its

7 effectiveness. The letter was "sufficient to put the [District]

8 on notice of plaintiff's intentions and contentions." Wheeler,

9 76 Cal.App.3d at 847. Plaintiff's Letter constitutes a "claim"

10 presented to Visalia Unified School District, which the District

11 rejected, for purposes of the California Tort Claims Act.

12

Defendants were afforded additional time to submit legal

13 authorities following oral argument. They did not do so.

14

b. Affirmative Allegation of Compliance with Claims

15

Presentation Requirement

16

Defendants maintain that Plaintiffs do not affirmatively

17 allege compliance with the claims-presentation requirement or

18 facts showing the applicability of a recognized exception or

19 excuse for noncompliance. See Doc. 11 at 9. citing C.A.

20 Magistretti Co. v. Merced Irrig. Dist., 27 Cal.App.3d 270 (1972).

21

The First Amended Complaint states ·Plaintiff, George Loomis

22 provided notice of his claims to VUSD in January, 2000." See

23 Doc. 8 at 5. This notice refers to the January 11 letter which

24 fulfilled the Tort Claims Act's claim requirements. Because

25 Plaintiffs alleged provision of notice, and the notice

26 constituted a claim under the Act, Plaintiffs affirmatively

27 alleged compliance with the claims-presentation requirements.

28 III

39

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 40 of 45

1

c. Exemption or Excuse for Non-compliance

2

Plaintiffs also allege, in the alternative, exemption from

3 the claims requirements because Defendants failed to comply

4 substantially with Sections 946.4 and 53051 of the California

5 Government Code. See Doc. 8 at 5, Doc. 18 at 19. Under section

6 946.4, failure to present a timely claim to a public agency is

7 not a bar to an action if the agency failed to make a timely

8 filing of the information statement required by section 53051.

9 See Cal. Gov't. Code §§ 946.4, 53051.

10

Judicial notice is taken that Visalia Unified has filed

11 information statements with both the County of Tulare and State

12 of California. See Doc. 12, Ex. "A"; Doc. 14, Ex. WBW.

13 Plaintiff's maintain that there were changes in the composition

14 of the Board and Superintendent that were not reflected in these

15 statements at the time of Plaintiff's claim or 70 days

16 thereafter. They further maintain that summary judgment is

17 inappropriate because Plaintiffs have not been afforded an

18 opportunity to conduct discovery as to the District's substantial

19 compliance with this registration requirement.

20

It is unnecessary to resolve this issue. Because Plaintiff

21 Loomis substantially complied with the claims presentation

22 requirement, Plaintiff need not establish an exemption therefrom.

23 Defendants' motion to dismiss for failure to state a claim,

24 Plaintiff, GEORGE LOOMIS', Seventh and Eighth causes of action is

25 DENIED. Defendants' motion to strike and summarily adjudicate

26 Plaintiff, GEORGE LOOMIS', Seventh and Eighth causes of action is

27 DENIED.

28 III

40

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 41 of 45

1

D. Punitive Damages

2

Under Section 1983, punitive damages are proper "either

3 when a defendant's conduct was driven by evil motive or intent,

4 or when it involved a reckless or callous indifference to the

5 constitutional rights of others." Davis v. Mason County, 927

6 F.2d 1473, 1485 (9th Cir. 1991) (citing Smith v. Wade, 461 U.S.

7 30, 56 (1982). For state civil rights claims, the standard for

8 punitive damages is the same for claims brought under Section

9 1983. See Smith, 461 U.S. at 48-49. A public entity cannot be

10 sued under Section 1983 as a matter of law for punitive damages.

11 See City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981);

12 Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 523 (9th Cir.

13 1999).

14

1. VISALIA UNIFIED SCHOOL DISTRICT

15

Defendant, VUSD, is a public entity. See id., '14. VUSD

16 cannot be sued for punitive damages under Section 1983.

17 Plaintiffs' prayer for punitive damages against Defendant,

18 VISALIA UNIFIED SCHOOL DISTRICT, under Section 1983 is STRICKEN.

19

Mr. Loomis' Seventh state law claim is also against the VUSD

20 for violation of California Education Code sections 200, 220,

21 233.5, and 262.4. See id., 32:10-12. The "Enforcement"

22 provision states in relevant part:

23

"Persons who have filed a complaint, pursuant to

this chapter, with an educational institution shall be

24

advised by the educational institution that civil law

remedies, including, but not limited to, injunctions,

25

restraining orders, or other remedies or orders may

also be available to complainants."

26

27

Cal. Edu. Code §262.3(b). Because the enforcement provision

28 does not limit the type of remedies allowed to a complainant,

41

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 42 of 45

1 Defendants' motion to dismiss Plaintiff, GEORGE LOOMIS', prayer

2 for punitive damages against Defendant, VISALIA UNIFIED SCHOOL

3 DISTRICT, for Mr. Loomis' Seventh state law claim is DENIED.

4

2. LINDA GONZALES

5

Here, Plaintiff alleges that between October and December

6 1999, Mr. Loomis attempted to contact, then-VUSD Superintendent,

7 Defendant, LINDA GONZALES, to discuss the constant harassment Mr.

8 Loomis was receiving. See Doc. 8, '45. Ms. Gonzales did not

9 return any of Mr. Loomis' phone calls. See id. In December

10 1999, Mr. Loomis went to Ms. Gonzales' office but was informed

11 she was not in that afternoon. See id. Mr. Loomis related to

12 Ms. Gonzales' assistant the conditions of harassment he was

13 facing at Golden West. See id. Ms. Gonzales' assistant promised

14 to pass these notes to Ms. Gonzales. See id. Mr. Loomis has not

15 received a response from Ms. Gonzales. See id. Ms. Gonzales is

16 sued under Section 1983 and the Unruh Civil Rights Act. See Doc.

17 8, 35:13-36:25.

18

It appears unclear whether defendant's conduct was driven by

19 evil motive or intent, or involved a reckless or callous

20 indifference to Plaintiff's constitutional rights. Defendants'

21 motion to strike Plaintiff, GEORGE LOOMIS', prayer for punitive

22 damages against Defendant, LINDA GONZALES, DENIED.

23

Plaintiffs' claim for punitive damages against defendant,

24 Gonzales, is sufficiently specific to give her notice of the

25 basis for which punitive damages are sought; i.e., reckless

26 disregard of state required duties resulting in violation of

27 plaintiff's constitutional rights or malice in ignoring

28

42

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 43 of 45

1 plaintiff's efforts to seek her intervention in redressing his

2 claims.

3

Plaintiffs' punitive damage claim is not immaterial,

4 impertinent, or irrelevant to the claims alleged, Defendants'

5 motion to strike Plaintiffs' punitive damage claim against

6 Defendant, LINDA GONZALES, is DENIED.

7

8

V. CONCLUSION

9

For the reasons stated above:

10

1. Defendants' request for judicial notice of certified

11 copies of official records maintained by the Tulare County

12 Recorder's office and the California Secretary of State showing

13 the registration of the VISALIA UNIFIED SCHOOL DISTRICT with the

14 Roster of Public Agencies, is GRANTED.

15

2. GSA Network has made a sufficient showing for

16 associational standing; Defendants' motion to dismiss for failure

17 to state a claim is DENIED.

18

3. Defendants' motion to dismiss Plaintiff, GAY-STRAIGHT

19 ALLIANCE NETWORK, for lack of direct standing, is DENIED.

20

4. Defendants' motion to dismiss for failure to state a

21 claim, Plaintiff, GEORGE LOOMIS', Seventh and Eighth state law

22 claims is DENIED.

23

5. Defendants' motion to strike and summarily adjudicate

24 Plaintiff, GEORGE LOOMIS', Seventh and Eighth state law claims is

25 DENIED.

26

6. GSA Network's prayer for punitive damages against

27 Defendant, VISALIA UNIFIED SCHOOL DISTRICT, under Section 1983 is

28 STRICKEN.

43

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 44 of 45

1

7. Defendants' motion to strike Plaintiff, GEORGE LOOMIS',

2 prayer for punitive damages against Defendant, LINDA GONZALES, is

3 DENIED.

4

8. Plaintiffs' claim for punitive damages against Ms.

5 Gonzalez is not so indefinite that the defendants cannot

6 ascertain the nature of the claim being asserted. Plaintiffs'

7 punitive damage claim is not immaterial, impertinent, or

8 irrelevant to the claims alleged. Defendants' motion to dismiss

9 Plaintiffs' punitive damage claim against Defendant, LINDA

10 GONZALES, is DENIED.

11

12 SO ORDERED.

13
14 DATED: March ~, 2001

15

Oliver

16

UNITED STATES

17

18

19

20

21

22

23

24

25

26

27

28

44

Case 1:00-cv-06616-OWW-LJO Document 27 Filed 03/28/01 Page 45losf 45 United States District Court for the
Eastern District of California March 29, 2001
* * CERTIFICATE OF SERVICE * *
1:00-cv-06616
Loomis v.
Visalia Unified Dist

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on March 29, 2001, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

George S Loomis 1228 E Elizabeth Fresno, CA 93728

OWW LJO

John Laurence Rozier Hurlbutt Clevenger Long Rauber and Nelson PO Box 1471 615 South Atwood Street Visalia, CA 93279

John Elliott Eichorst Howard Rice Nemerovski Canady Falk and Rabkin Three Embarcadero Center Suite 700 San Francisco, CA 94111

Jack L. Wagner, Clerk BY:

 
 Case 1:00-cv-06616-OWW-LJO Document 29 Filed 04/11/01 Page 1 of 3

1

2

3

lam APR 1/ A 1/: 41

4

c.<('lo~RTr/{·" US,.,O. f~S rCaURT

5 6

UNITED STATES DISTRICT B~OUR;"if;; CMI~

7

EASTERN DISTRICT OF CALIFORNIA

8

9 GAY-STRAIGHT ALLIANCE NETWORK )

and GEORGE LOOMIS

)

10

)

Plaintiffs,

)

11

)

v.

)

12

)

VISALIA UNIFIED SCHOOL DISTRICT, )

13 by and through its Board of

)

Education; CARLYN LAMBERT,

14 Superintendent; LINDA GONZALES,

former Superintendent; BOB

15 CESENA, Principal; GIG STEVENS,

Assistant Principal, JUAN

16 GARCIA; and Does 1-25,

inclusive,

17

Defendants.

18

CIV F 00-6616 OWW LJO
MEMORANDUM OPINION AND ORDER RE: ERRATA IN MEMORANDUM OPINION AND ORDER RE: DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; INDEFINITE STATEMENT; MOTION TO STRIKE; PARTIAL SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES

19

20

21

On March 28, 2001, the Court issued a Memorandum Opinion and

22 Order regarding Defendants' motion to dismiss. Page 42, lines 1

23 through 3 read:

24

Defendants' motion to dismiss Plaintiff, GEORGE

LOOMIS', prayer for punitive damages against Defendant,

25

VISALIA UNIFIED SCHOOL DISTRICT, for Mr. Loomis'

Seventh state law claim is DENIED.

26

This portion of the opinion is hereby corrected to read:

27

Pursuant to California Government Code section 818,

28

public entities such as Defendant, VISALIA UNIFIED

1

Case 1:00-cv-06616-OWW-LJO Document 29 Filed 04/11/01 Page 2 of 3

1

SCHOOL DISTRICT, are immune from exposure to punitive

damages from state law claims. Plaintiffs at oral

2

argument have expressed their intent not to seek

punitive damages from the VISALIA UNIFIED SCHOOL

3

DISTRICT. Defendants' motion to dismiss Plaintiff,

GEORGE LOOMIS', prayer for punitive damages against

4

Defendant, VISALIA UNIFIED SCHOOL DISTRICT, is GRANTED.

5

6 SO ORDERED.

7 DATED: April - - , 2001
8 9

Oliver UNITED STATES

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Case 1:00-cv-06616-OWW-LJO Document 29 Filed 04/11/01 Page 3homf 3 United States District Court for the
Eastern District of California April 12, 2001
* * CERTIFICATE OF SERVICE * *
1;00-cv-06616
Loomis v.
Visalia Unified Dist

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.

That on April 12, 2001, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

George S Loomis 1228 E Elizabeth Fresno, CA 93728

OWW LJO

John Laurence Rozier Hurlbutt Clevenger Long Rauber and Nelson PO Box 1471 615 South Atwood Street Visalia, CA 93279

John Elliott Eichorst Howard Rice Nemerovski Canady Falk and Rabkin Three Embarcadero Center Suite 700 San Francisco, CA 94111

Jack L. Wagner, Clerk

BY;~

t

er

 
 Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 1 of 19

1 2
3 4
5 6 7 8 9
10 11 12 13
HCWARD IOCE
~J'<I 14
WK
;;;&.,R.,A.J_«lN_ 15

JOHN EICHHORST (No. 139598) EDWARD B. MULLEN III (No. 194868) KATHLEEN S. MORRIS (No. 196672) KEVIN H. LEWIS (No. 197421) HOWARD, RICE, NEMEROVSKI, CANADY,
FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4065 Telephone: 415/434-1600 Facsimile: 415/217-5910
ANN BRICK (No. 65296) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 1663 Mission Street, Suite 460 San Francisco, California 94103 Telephone: 415/621-2493 Facsimile: 415/255-8437
Attorneys for Plaintiffs GAY-STRAIGHT ALLIANCE NETWORK and GEORGE LOOMIS

E·· D ~r::"1'01_= ... to
ml AUG I 5 P 2: 0 I
CLem" us O:ST COURT
EA~)TERij GIST. OF CALIF ;\T FII::'::':dO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

16 17 18 19 20 21 22 23 24 25 26 27
~.~ 28

GAY STRAIGHT ALLIANCE NETWORK and GEORGE LOOMIS,
Plaintiffs,
v.
VISALIA UNIFIED SCHOOL DISTRICT, by and through its Board of Education; CARLYN LAMBERT, Supermtendent; LINDA GONZALES, former Superintendent; BOB CESENA, Principal; GIG STEVENS, Assistant Principal, JUAN GARCIA; and Does 1-25, inclusive,
Defendants.

No. Civ. F-00-6616 OWWILJO
Action Filed: September 29, 2000
CONSENT DECREE AND ORDER; STIPULATION OF DISMISSAL

CONSENT DECREE AND ORDER

Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 2 of 19

1

On January 24, 2001, Plaintiff Gay-Straight Alliance Network ("GSA Network")

2 joined this action and, together with Plaintiff George Loomis, filed a First Amended

3 Complaint asserting federal equal protection and due process claims as well as statutory

4 claims under the California Education and Civil Codes.

5

Defendant Visalia Unified School District ("VUSD") denies the allegations in the First

6 Amended Complaint. The parties desire to avoid further costly and protracted litigation and

7 have voluntarily agreed, as indicated by the signatures below, to resolve Plaintiffs' claims

8 against Defendant without the necessity of a trial by entering into this Consent Order. After

9 reviewing the terms of this Consent Order, the Court concludes that the entry of this Consent

10 Order comports with federal law and is appropriate under all the circumstances.

11

Therefore, it is ORDERED, ADJUDGED and DECREED as follows:

12

I. Mandatory Staff Training Program

13 HO\'b\RD
RICE
~a 14 a\l.K &RiIIlKIN
, _ _ 15

A. Retention Of Intergroup Clearinghouse. Within thirty (30) calendar days from the date of entry of this Consent Order, VUSD will retain the Intergroup Clearinghouse to prepare and implement all aspects of the mandatory Fall semester 2002 staff training

16 programs for certain administrators, teachers and other staff within the VUSD ("Qualified

17 Staff' as defined in Paragraph I.B), as more fully described below.

18

B. Qualified Staff. This Mandatory Staff Training Program will be mandatory for all

19 certificated employees, administrators, and non-certificated staff who are responsible for

20 monitoring student behavior (collectively referred to in this Consent Order as "Qualified

21 Staff'). Notwithstanding the foregoing, Qualified Staff specifically does not include school

22 bus drivers.

23

C. Initial Staff Trainings.

24

1. The Intergroup Clearinghouse will prepare, implement, and conduct initial

25 staff trainings (hereinafter referred to as "Initial Staff Trainings") for Qualified Staff at all

26 VUSD schools (including elementary schools, middle schools, high schools, and

27 continuation schools), during the Fall 2002 semester. During the Fall 2003 semester and the

28 Fall 2004 semester, the VUSD will offer at least one Initial Staff Training, with the aid of

CONSENT DECREE
-1-

Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 3 of 19

I the Intergroup Clearinghouse (or another similarly-qualified trainer whom the parties

2 mutually agree upon), for any Qualified Staff whom the VUSD has hired since the previous

3 Initial Staff Training was conducted and for any Qualified Staff who have not yet been

4 trained because they did not attend prior Initial Staff Trainings.

5

2. Each Initial Staff Training will last three hours and will be focused

6 exclusively on issues pertaining to sexual orientation harassment and discrimination. The

7 VUSD will cooperate with the trainer in conducting reasonably limited preparatory activities

8 in advance of Initial Staff Trainings.

9

3. The requirements of this paragraph will only apply to any newly-hired

10 Qualified Staff who become employed with the VUSD after the completion of the three hour

11 Initial Staff Trainings for that academic year. If the VUSD, as part of the normal orientation

12 of newly-hired Qualified Staff, provides training as to any VUSD policies relating to

13 HOM\RD
IOCE
~<I 14 WK &RABI<IN
,_ _ 15

harassment, discrimination, or sexual harassment, the VUSD must include within that training an appropriate discussion and treatment of VUSD policies and prohibitions on harassment and discrimination on the basis of sexual orientation. The trainer who conducts

16 Initial Staff Trainings will not be required to conduct any of the instruction or training for

17 newly-hired Qualifed Staff described in this paragraph. Regardless of whether or not newly-

18 hired Qualified Staff receive information or training provided by the VUSD immediately

19 following their hire, the newly-hired Qualified Staff must attend Initial Staff Trainings in the

20 fall semester of the subsequent academic year.

21

4. While not a mandatory requirement of this Consent Order, the VUSD and

22 the trainer will encourage principals and other administrators to brief or otherwise discuss

23 the content of the Initial Staff Trainings with other VUSD staff who are not required to

24 attend the Initial Staff Trainings but who have contact with students (such as clerical and

25 support staff). The VUSD will not be required to document or report to Plaintiffs any efforts

26 that it undertakes pursuant to this paragraph.

27

D. Annual Staff Training Updates.

28

1. Beginning with the Fall 2003 semester and continuing for the duration of

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 4 of 19

1 the Consent Order, the VUSD will conduct annual staff trainings of approximately thirty

2 (30) minutes in length in the Fall semester of each year (hereinafter referred to as "Annual

3 Staff Training Updates") for each Qualified Staff member who has already received an

4 Initial Staff Training. The VUSD may integrate the Annual Staff Training Updates into

5 other training or inservice programs that it conducts in the Fall semester provided that

6 approximately thirty (30) minutes of time is spent training staff on preventing harassment

7 and discrimination on the basis of actual or perceived sexual orientation.

8

2. The VUSD shall use the Intergroup Clearinghouse (or another similarly

9 qualified trainer whom the parties mutually agree upon) as the trainer for designing and

10 implementing the Annual Staff Training Updates. While the VUSD will have flexibility in

11 determining whether to employ the Intergroup Clearinghouse or other trainer to conduct all

12 aspects of the Annual Staff Training Updates. at a minimum, the trainer must be physically

13 HCMlIRD
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present at all Annual Staff Training Updates in order to allow VUSD staff the opportunity to discuss and ask questions about (i) how they have handled incidents of harassment and discrimination reported by students during the previous year; and (ii) the development of

16 site-specific strategies for preventing such incidents.

17

E. Content O/The Mandatory Staff Training Program.

18

1. The goal of the Initial Staff Trainings and the Annual Staff Training

19 Updates is to increase safety, promote a safe learning environment, and prevent harassment

20 and discrimination on the basis of actual or perceived sexual orientation. The Intergroup

21 Clearinghouse and/or other trainer will have flexibility in designing and implementing the

22 Initial Staff Trainings; however, the Initial Staff Trainings should include most or all of the

23 following: (1) a discussion of terminology to be used in the training; (2) use of appropriate

24 audiovisual and written materials; (3) small-group discussions and exercises on how to

25 investigate, report, and remedy incidents of harassment and discrimination; (4) discussion of

26 VUSD policies and state and federal laws regarding sexual orientation harassment and

27 discrimination; (5) discussion of the legal obligations of VUSD employees; (6) discussion on

28 how to develop a school site plan for preventing harassment and discrimination; (7)

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 5 of 19

1 discussion of community resources to aid victims of harassment and discrimination; and (8)

2 time for questions and answers.

3

2. The trainer will have similar flexibility in assisting the VUSD with

4 designing and implementing the Annual Staff Training Updates. A mandatory component of

5 the Annual Staff Training Updates is allowing the staff to discuss and ask questions about (i)

6 how they have handled any incidents of harassment and discrimination reported by students

7 during the previous year; and (ii) the development of site-specific strategies for preventing

8 such incidents. In addition to this mandatory component, the Annual Staff Training Updates

9 should include many of the eight elements listed in Paragraph I.E. 1.

10

3. Prior to the first trainings, the VUSD Board of Education will be provided

11 with materials to be used and the content of the Initial Staff Trainings and the Annual Staff

12 Training Updates for its approval with the understanding that the Board will not

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unreasonably withhold its consent to materials and content that comport with the description above.
II. Mandatory Student Training Program

16

A. Scope O/The Mandatory Student Trainings In VUSD High Schools.

17

1. Beginning in the Fall 2002 semester and repeating each year thereafter for

18 the duration of the Consent Order, VUSD will provide one training session of approximately

19 fifty (50) minutes in length to all students in one grade level in all VUSD high schools and

20 continuation schools on the subject of preventing harassment and discrimination on the basis

21 of actual or perceived sexual orientation (hereinafter referred to as the "Mandatory Student

22 Trainings"). The Mandatory Student Trainings will be conducted in courses in which the

23 VUSD already addresses other forms of harassment and discrimination, or otherwise

24 addresses school safety issues.

25

2. These Mandatory Student Trainings shall be conducted in VUSD high

26 schools by students in a peer-to-peer format. The VUSD and GSA Network will attempt to

27 integrate the Mandatory Student Training Program into any already existing VUSD peer

28 education and counseling programs.

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I

3. For the 2002-2003 and 2003-2004 school years, the VUSD will contract

2 with GSA Network for designing and implementing the Mandatory Student Training

3 program in VUSD high schools, including training the peer trainers and preparing VUSD

4 teachers for integrating the Mandatory Student Training Program into its high school

5 curriculum for the 2004-2005 school year, The VUSD will pay GSA Network for services it

6 provides to the VUSD relating to the Mandatory Student Training Program up to a

7 maximum amount of $12,000. GSA Network shall bill VUSD for these services as they are

8 provided.

9

4. For the 2004-2005 school year, the VUSD shall implement the Mandatory

10 Student Training Program into its high school curriculum and shall not be obligated to pay

11 GSA Network for providing any services.

12

5. Notwithstanding Paragraphs II.A.2-II.AA above, if as part of implementing

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the peer-to-peer aspects of the Mandatory Student Trainings prior to the 2004-2005 school year, the VUSD and GSA Network both agree that it is more efficient to have teachers integrate some or all of the curriculum for the Mandatory Student Trainings into the already-

16 existing VUSD high school curriculum, GSA Network and the VUSD will cooperate and

17 agree upon a method for implementing teacher-conducted trainings as part of the Mandatory

18 Student Trainings. If GSA Network determines that such Mandatory Student Trainings have

19 been successfully integrated into the VUSD curriculum, the VUSD will be relieved of its

20 obligation to continue to retain GSA Network to provide student training-related services,

21 and such determination shall not be unreasonably withheld.

22

B. Scope O/The Mandatory Student Training Program In Middle Schools

23

1. Beginning in the Fall 2002 semester and continuing throughout the duration

24 of this Consent Order, the VUSD will provide an announcement about VUSD policies

25 prohibiting harassment and discrimination on the basis of actual or perceived sexual

26 orientation in fall student assemblies for middle schools students.

27

2. Beginning in the Fall 2002 semester and continuing throughout the duration

28 of this Consent Order, the VUSD will ensure that middle school students are taught, in the

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 7 of 19

1 appropriate middle school curriculum addressing harassment and discrimination, that

2 harassment and discrimination on the basis of actual or perceived sexual orientation is

3 prohibited.

4

C. Content of the Mandatory Student Trainings

5

1. The Mandatory Student Trainings will address topics related to harassment,

6 discrimination, and school safety, specifically focused on preventing harassment and

7 discrimination on the basis of actual or perceived sexual orientation. GSA Network will

8 provide the VUSD Board of Education, or any committee it may designate that regularly

9 reviews school safety or anti-discrimination matters, with materials to be used in the high

10 school student trainings for approval with the understanding that the VUSD will not

11 unreasonably withhold its consent to materials that comport with the general requirements

12 discussed in this Consent Order.

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2. Plaintiffs and Defendants stipulate to, and the Court hereby orders that Mandatory Student Trainings will cover topics related to harassment, discrimination, and school safety, and will not cover topics listed in Education Code Sections 51201.5, 51550,

16 51554 or 51820 requiring parental notification.

17

III. VUSD Policies

18

A. Revisions Of Policies And Handbooks. No later than the first day of the Fall 2002

19 semester and continuing throughout the duration of this Consent Order, VUSD policies and

20 student handbooks shall be revised if necessary so that they expressly state in a conspicuous

21 manner that harassment and discrimination based on sexual orientation and gender, which

22 includes perceptions of a person's identity, appearance or behavior, is expressly prohibited

23 under VUSD policies and state law. See Education Code Section 220 and Penal Code

24 Sections 422.6 and 422.76.

25

B. Description Of Complaint Resolution Procedures. No later than the first day of

26 the Fall 2002 semester and continuing throughout the duration of this Consent Order, VUSD

27 policies and student handbooks shall be revised if necessary so that they clearly explain the

28 complaint procedures for reporting harassment and discrimination based on sexual

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 8 of 19

1 orientation and gender; how investigations involving allegations of harassment and

2 discrimination are to be conducted by the VUSD; what VUSD resources are available for

3 victims of harassment and discrimination, including the existence of and the role of

4 Compliance Coordinators (see Section IV, infra); and what remedies or responses the VUSD

5 makes available for victims of harassment and discrimination.

6

IV. Compliance Coordinators

7

A. Selection Of Compliance Coordinators.

8

1. No later than thirty (30) days after the Initial Staff Trainings are conducted

9 for the Fall 2002 semester, the VUSD will select two administrators, faculty, or staff (one

10 male and one female) to serve as "Compliance Coordinators" for each VUSD middle school,

II high school, and continuation school. VUSD elementary schools shall only be required to

12 have one Compliance Coordinator, and the principal of each elementary school shall

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automatically be designated to serve in that capacity. The VUSD may call the Compliance Coordinators "school safety counselors" or another title of its choice. These Compliance Coordinators are individuals who are identified as resources for VUSD students who feel

16 that they may have suffered harassment or discrimination based on sexual orientation, and

17 who are available at each school for monitoring and recording allegations of harassment or

18 discrimination on the basis of actual or perceived sexual orientation.

19

2. As VUSD faculty and staff are trained at the Fall 2002 Initial Staff

20 Trainings pursuant to Paragraph I.e. of this Consent Order, the Trainers will seek volunteers

21 to serve as Compliance Coordinators for individual middle schools, high schools, and

22 continuation schools. If at the Fall 2002 Initial Staff Trainings two Compliance

23 Coordinators for an individual school are not selected, within thirty (30) days of the Initial

24 Staff Training. the principal of that school will select appropriate Compliance Coordinators

25 whom he or she reasonably believes will have sensitivity to lesbian and gay students.

26

3. At the Initial Staff Trainings, the Trainers shall inform the Compliance

27 Coordinators of their role as resources for students, and while the Compliance Coordinators

28 need not receive any supplementary training to prepare them for their role, the VUSD must

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 9 of 19

1 ensure that they are familiar with (i) how to investigate and remedy allegations of sexual

2 orientation harassment or discrimination, (ii) how to track, record, and report such incidents

3 or complaints, and (iii) how to advise or work with other staff concerning incidents of

4 harassment or discrimination.

5

4. Subsequent to the initial designation of Compliance Coordinators described

6 in Paragraphs IV.A.I and IV.A.2, each VUSD middle school, high school, and continuation

7 school shall have two Compliance Coordinators (one male and one female) throughout the

8 entire duration of the Consent Order. If any VUSD middle school, high school, and

9 continuation school does not have the required two Compliance Coordinators (whether

10 through staff attrition, resignation of Compliance Coordinators, or for other reasons), the

11 principal for that school must within thirty (30) calendar days select a new Compliance

12 Coordinator whom he or she reasonably believes will have sensitivity to lesbian and gay

13 HCl't.AAD
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students. While any newly chosen Compliance Coordinator need not receive any supplementary training other than the Initial Staff Trainings to prepare them for their role, VUSD principals must ensure that any new Compliance Coordinators are familiar with (i)

16 how to investigate and remedy allegations of sexual orientation harassment or

17 discrimination, (ii) how to track, record, and report such incidents or complaints, and (iii)

18 how to advise or work with other staff concerning incidents of harassment or discrimination.

19

B. Publicly Identifying Compliance Coordinators For Parents, Students, and VUSD

20 Employees.

21

1. By no later than the Fall 2003 semester, all parents, students, and VUSD

22 employees shall be informed of the existence, role, and identity of Compliance Coordinators

23 through student handbooks or other guides.

24

2. By no later than the first day of the Spring 2003 semester, the existence,

25 role, and identity of the two Compliance Coordinators shall be posted in at least one

26 prominent and accessible location in each high school, middle school, and continuation

27 school. In addition, by no later than the first day of the Spring 2003 semester, the VUSD

28 website and any websites for individual VUSD schools shall, at a minimum, describe the

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 10 of 19

1 existence and role of the Compliance Coordinators and shall instruct students and parents

2 that they should check with principals or other administrators at their school for the identity

3' of site-specific Compliance Coordinators.

4

V. Systems For Reporting Incidents Of Harassment And Discrimination

5

A. Incident Reports.

6

1. For the duration of this Consent Order, the VUSD shall maintain a written

7 record (hereinafter referred to as an "Incident Report") of the following verbal or written

8 complaints made to VUSD agents and employees of harassment or discrimination of

9 students on the basis of actual or perceived sexual orientation: (1) each and every complaint

10 of physical harassment whether reported by a student complainant or person who witnessed

11 or learned of such harassment; (2) each and every complaint of verbal harassment or

12 discrimination reported by a student complainant; and (3) two or more incidents of verbal

Ho.=n 13
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harassment or discrimination reported by witnesses or persons who learned of such harassment secondhand.
2. Each Incident Report shall, at a minimum, include (1) the name of the

16 person making the allegation, and, if different, the name of the alleged victim; (2) the nature

17 of the allegation and the date of alleged incident; (3) the names of all persons alleged to have

18 committed violations; (4) the names of all persons who may have relevant information about

19 the incident; (5) the written statements of the complainant, the victim (if different from the

20 complainant), the alleged perpetrator, and any witnesses; (6) the outcome of the

21 investigation; (7) any action taken by the VUSD; and (8) attached copies of any documents

22 supplied to the VUSD or created during the investigation or complaint process. The Incident

23 Report shall be completed no later than fifteen (15) calendar days after the date upon which 24 the complaint is first made,

25

B. Computerized Reporting. For its convenience, the VUSD may use its District-

26 wide computer system for tracking some or all of the information in the Incident Reports

27 relating to incidents of harassment or discrimination and the VUSD' s response to them at

28 any or all school sites. VUSD will ensure that any computerized records are appropriately

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 11 of 19

I stored and maintained so that any information that is stored solely in electronic form may be

2 provided to Plaintiffs in the Annual Reports to Plaintiffs (see Section X, herein).

3

VI. Gay Straight Alliances And Other Clubs

4

A. High School Student Handbooks. Beginning no later than the Fall 2002 semester,

5 the student handbooks at each VUSD high school shall include a listing of the types of clubs

6 that the VUSD encourages students to join, and this list shall include a specific mention of a

7 gay-straight alliance or some generic reference to a gay and lesbian student group.

8

B. Faculty Advisors. Because faculty advisors are required for non-curricular clubs,

9 if a student at a VUSD school indicates an interest in forming a gay-straight alliance or other

10 gay or lesbian student group to a Compliance Coordinator or an administrator at a VUSD

II school during the duration of this Consent Order, the VUSD will attempt to make a faculty

12 advisor available for that club to the full extent that it would do so for any other club, and

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shall protect any faculty advisor who serves from suffering any adverse employment consequences as a result of his or her participation as a faculty advisor.
VII. Community Advisory Group

16

A. Role O/Visalia Unified Educational Forum. The Visalia Unified Educational

17 Forum, which currently is open to the community and serves as a public advisory body to

18 the VUSD, shall be charged with addressing and discussing issues pertaining to sexual

19 orientation discrimination and harassment, including issues of tolerance and diversity on a

20 broader scale. The Forum will begin discussing these issues within ninety (90) calendar

21 days of the entry of this Consent Order.

22

B. Subcommittee On Sexual Orientation Issues. Within ninety (90) days after the

23 entry of this Consent Order, the Visalia Unified Educational Forum will create a

24 subcommittee specifically charged with assessing the climate at VUSD schools with regard

25 to sexual orientation discrimination and harassment. including implementing this Consent 26 Order and implementing the goals of AB 537 (1999) (codified in Education Code Sections

27 200 et seq.). 28

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 12 of 19

I

VIII. Prohibitory Injunction

2

A. Throughout the duration of this Consent Order, VUSD, its agents, employees,

3 successors, and all persons in active concert or participation with it, are enjoined from:

4

1. Failing to respond promptly and appropriately in accordance with the

5 revised policies (referred to in Section III, supra) whenever VUSD receives complaints or

6 allegations of harassment or discrimination on the basis of actual or perceived sexual

7 orientation.

8

2. Engaging in, sanctioning, or allowing harassing conduct (whether on the

9 basis of actual or perceived sexual orientation) by failing to follow the revised policies

10 referred to in Section III, supra, including verbal conduct, that creates (or will certainly

II create) a hostile environment by substantially interfering with a student's educational

12 benefits, opportunities, or performance or that is threatening or seriously intimidating.

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3. Retaliating against, or taking any actions that have the impact of adversely affecting, any student or employee because that student or employee has made allegations or filed or participated in a complaint with the VUSD or any federal, state, local or non-

16 governmental entity concerning harassment or discrimination on the basis of actual or

17 perceived sexual orientation.

18

4. Coercing students who have complained of harassment or discrimination on

19 the basis of actual or perceived sexual orientation to enroll in alternative education or

20 independent study programs.. The mere fact that a student complains of harassment or

21 discrimination on the basis of actual or perceived sexual orientation does not justify that

22 student's placement into alternative education or independent study programs. Nothing in

23 this provision will prevent the VUSD from recommending its independent study program or

24 other alternative educational programs to students for reasons independent of their

25 harassment or discrimination complaints where the students otherwise meet the established

26 criteria for entrance into the alternative program. Nothing in this provision shall relieve the

27 VUSD of its obligation to respond promptly and appropriately in accordance with the

28 revised policies (referred to in Section III, supra), whenever the VUSD receives complaints

CONSENT DECREE AND ORDER
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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 13 of 19

1 or allegations of harassment or discrimination on the basis of actual or perceived sexual

2 orientation.

3

IX. Duration of Consent Order

4

A. This Consent Order is effective immediately upon its entry by the Court and shall

5 remain in effect until June 30, 2005, or sixty (60) calendar days after the last report under

6 Section X is received, whichever date is later. The Consent Order may be extended for an

7 additional two years (to June 30, 2007), by order of this Court upon Plaintiffs' motion, if at

8 any time from entry of the Consent Order through June 30, 2005, or sixty (60) calendar days

9 after the last report under Section X is received, whichever date is later, the VUSD is found

10 to be in contempt of Court or in substantial non-compliance with the terms of the Consent

II Order.

12

B. With the entry of this Consent Order, Plaintiffs and Defendants consent to and

13 HOM\RD
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this Court hereby orders that this action is dismissed with prejudice PROVIDED HOWEVER, THAT the Court shall retain jurisdiction over this action for the period specified in Paragraph IX.A above to ensure compliance with all provisions of this Consent

16 Order.

17

C. The parties agree that the time limits set forth throughout this Consent Order may

18 be expanded upon mutual consent of the parties.

19

X. Annual Reporting To Plaintiffs

20

A. On or before June 30, 2003, June 30, 2004, and June 30, 2005, the VUSD shall

21 deliver to counsel for Plaintiffs, at the address set forth below, a detailed report covering the

22 preceding reporting period containing information about the VUSD compliance efforts with

23 this Consent Order, including but not limited to:

24

1. Copies of the VUSD's policies and procedures for preventing, identifying,

25 reporting and responding to harassment and discrimination on the basis of actual or

26 perceived sexual orientation, including any revisions since the previous report (if the policies

27 are unchanged from a previous year, the VUSD can so certify in lieu of providing copies of

28 the policies);

CONSENT DECREE AND ORDER
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1

2. Copies of the specific language contained in student handbooks or any other

2 notices or materials sent to students, parents, or employees providing information about the

3 VUSD's policies and procedures for preventing, identifying, reporting and responding to

4 harassment and discrimination on the basis of actual or perceived sexual orientation, and a

5 narrative description of which documents contained these notices and when these notices

6 and materials were distributed;

7

3. A certification providing the following information concerning the

8 Mandatory Staff Training Program conducted during the preceding year: (1) the number of

9 VUSD staff members who attended the Mandatory Staff Training Program; (2) staff

10 members who were scheduled to attend Mandatory Staff Training Program but who failed to

11 attend; and (3) confirmation that the following persons attended the Mandatory Staff

12 Training Program: (a) all Compliance Coordinators; (b) all individual Defendants named in

13 HOW\RD
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this lawsuit employed by the VUSD; and (c) all teachers participating in the Mandatory Student Training Program.
4. Narrative description of the VUSD's activities in implementing Paragraph

16 II.B. of this Consent Order, and, if applicable, a narrative description of the VUSD's

17 activities in conducting Mandatory Student Trainings pursuant to Paragraph II.A.5. For the

18 June 30, 2005 annual report, the VUSD shall also provide (1) a confirmation that the VUSD

19 conducted the Mandatory Student Training Program in all high schools during the 2004-

20 2005 school year; (2) a narrative description of the VUSD's activities in implementing that

21 program; and (3) a copy of a curriculum outline for the program.

22

5. A list of Compliance Coordinators for the middle schools, high schools, and

23 continuation schools, by sex, job title and school;

24

6. Statistical information showing the number of Incident Reports, as

25 described in Section V above, and a summary of the VUSD's investigation and resolution of

26 these incidents. After receiving this statistical information, VUSD shall provide copies of

27 actual incident reports upon request from Plaintiffs' counsel.

28

7. Copies of the specific language inserted in VUSD high school student

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 15 of 19

I handbooks listing gay-straight alliances or other gay and lesbian groups as required by

2 Section VI, above; and

3

8. Narrative descriptions of activities undertaken by the Visalia Unified

4 Educational Forum, the Subcommittee on Sexual Orientation Issues, and/or any other group

5 affiliated with the VUSD relating to the prevention of harassment and discrimination based

6 on sexual orientation.

7

B. Within sixty (60) calendar days of receipt of any of the above reports, Plaintiffs

8 may request, in writing, clarifications of, or supplementation to, the report. In that event, the

9 VUSD shall provide such clarifications and/or permit the inspection and copying of

10 supplemental materials as the Plaintiffs may reasonably request.

II

XI. Extension of Time

12

The VUSD shall notify Plaintiffs at least thirty (30) days in advance if it reasonably

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calculates that it will not be able to comply with submission of a report or implementation of any portion of this Consent Order, specifying the reasons for anticipated non-compliance and the date by which it reasonably calculates compliance will be achieved. Plaintiffs may

16 respond to the VUSD within fifteen (15) calendar days if they believe that the VUSD's

17 proposed timetable is unreasonable and suggest an alternative date. The VUSD shall take

18 steps to avoid non-compliance; repeated non-compliance will be grounds for Plaintiffs or

19 Plaintiffs' attorneys to move the Court to extend the duration of the Consent Order for

20 substantial noncompliance.

21

XII. Miscellaneous

22

A. This Consent Order does not constitute, nor shall it be construed as, an admission

23 of any liability or wrongdoing by any party.

24

B. The provisions of this Consent Order will be governed by the laws of the State of

25 California.

26

C. Nothing in this Consent Order will be construed to limit, any party's right to

27 enforce this Consent Order (or any other documentation delivered pursuant to or in

28 connection with it) according to its terms. If any court of competent jurisdiction determines

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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 16 of 19

1 that any provision contained in this Consent Order, or any part thereof, cannot be enforced,

2 the parties agree that such determination shall not affect or invalidate the remainder of the

3 Consent Order.

4

D. This Consent Order shall inure to the benefit of and be binding upon the parties

5 hereto and their respective heirs, successors, and assigns.

6

E. The parties to this Consent Order shall endeavor In good faith to resolve

7 informally any differences regarding interpretation of, and compliance with, this Order

8 before bringing such matters to the Court for resolution. However, in the event that the

9 VUSD either fails to perform in a timely manner any act required by this Order or acts in

10 violation of any provision of this Order, Plaintiffs or Plaintiffs' attorneys may move the

11 Court to impose any remedy authorized by law or equity, including, but not limited to, an

12 order requiring performance or non-performance of certain acts. In the event that any legal

13 Hc:MI\RD
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action is necessary to enforce or interpret any provision of this Consent Order, the prevailing party in any such action shall recover its costs and reasonable attorneys' fees.
F. All documents or reports required to be submitted to Plaintiffs pursuant to this

16 Consent Order shall be addressed to: Ann Brick, ACLU Foundation of Northern California,

17 1663 Mission St., Suite 460, San Francisco, CA 94103.

18

19

SO O~iS +-i'lJ""IiI"i..,.>.>f.f,.. day of _A_-v_ _A-v_<<HHII::__SS_ __' _ _, 2002.

20
OLIVER W. WANGER

21

United States District Judge

22

23

24
25 26 27 28

CONSENT DECREE AND ORDER
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· . Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 17 of 19

1

By their signatures on this and the following pages, the undersigned parties agree to,

2 and request the entry of, this Consent Order:

3

4

Plaintiff George Loomis:

5

6

7

8

9

Plaintiff Gay-Straight Alliance Network:

10

11

GMr~~c

CAROLYN LAUB, Executive Director 12

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16
17
18
19
20
21
22
23
24
25 26
27
28

APPROVED AS TO FORM:
JOHN EICHHORST EDWARD B. MULLEN III KATHLEEN S. MORRIS KEVIN H. LEWIS HOWARD, RICE, NEMEROVSKI, CANADY, FALK & RABKIN A Professional Corporation
ANN BRICK AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
Counsel for Plaintiffs George Loomis and Gay Straight Alliance Network
.~~
BY: ANN BRICK

CONSENT DECREE AND ORDER
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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 18 of 19

1

VISALIA UNIFIED SCHOOL DISTRICT, by and through its Board of Education;

2

CARLYN LAMBERT, Superintendent; LINDA GONZALES, former Superintendent; BOB CESENA, Principal; GIG STEVENS, Assistant Principal;

3

JUAN G A; and Does 1-25, inclusive

4

5 President

6

VUSD Board of Education

7 8

~ryo1~a/

9

VUSD Board of Education

10

11

12

APPROVED AS TO FORM:

NELSON, ROZIER, & BETTENCOURT

Counsel for Defendants

16 17
WD 043002l1-1410501/9642941v9
18 19 20 21
22
23 24 25 26 27 28

CONSENT DECREE AND ORDER
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Case 1:00-cv-06616-OWW-LJO Document 44 Filed 08/15/02 Page 19 of 19 rcf
United States District Court for the
Eastern District of California August 16, 2002
* * CERTIFICATE OF SERVICE * *
1:00-cv-06616
Loomis v.
Visalia Unified Dist

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on August 16, 2002, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

George S Loomis 1228 E Elizabeth
Fresno, CA 93728

OWW LJO

John Laurence Rozier Nelson Rozier and Bettencourt 3924 West Caldwell Avenue Suite A Visalia, CA 93277

John Elliott Eichorst Howard Rice Nemerovski Canady Falk and Rabkin Three Embarcadero Center Suite 700 San Francisco, CA 94111

 
 1 JOHN EICHHORST (No. 139598) EDWARD B. MULLEN III (No. 194868)
2 KATHLEEN S. MORRIS (No. 196672) KEVIN H. LEWIS (No. 197421)
3 HOWARD, RICE, NEMEROVSKI, CANADY, FALK & RABKIN
4 A Professional Corporation Three Embarcadero Center, 7th Floor
5 San Francisco, California 94111-4065 Telephone: 415/434-1600
6 Facsimile: 415/217-5910

7 ROBERT KIM (No. 191111)

ANN BRICK (No. 65296)

8 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

9

CALIFORNIA, INC.

1663 Mission Street, Suite 460

10 San Francisco, CA 94103

Telephone: 415/621-2493

11 Facsimile: 415/255-8437

12 Attorneys for Plaintiffs GAY-STRAIGHT ALLIANCE NETWORK and
13 GEORGE LOOMIS

14 UNITED STATES DISTRICT COURT
15 EASTERN DISTRICT OF CALIFORNIA
16

17 GAY-STRAIGHT ALLIANCE NETWORK
18 and GEORGE LOOMIS,

19

Plaintiffs,

20

v.

No. Civ. F-00-6616 OWW/LJO
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR COMPENSATORY AND PUNITIVE DAMAGES

21 VISALIA UNIFIED SCHOOL DISTRICT, by and through its Board of Education;
22 CARLYN LAMBERT, Superintendent; LINDA GONZALES, former
23 Superintendent; BOB CESENA, Principal; GIG STEVENS, Assistant Principal; JUAN
24 GARCIA; and Does 1-25, inclusive,

DEMAND FOR JURY

25

Defendants.

26

27

28
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

1

INTRODUCTION

2

1. This is a civil rights action demanding declaratory and injunctive relief and

3 monetary damages from the Visalia Unified School District (“VUSD”) and its agents and

4 employees for depriving students who are gay or lesbian or who are perceived to be gay or

5 lesbian of a safe and equal educational environment in violation of their established

6 constitutional and statutory rights. By bringing this action, Plaintiffs Gay-Straight Alliance

7 Network (“GSA Network”) and George Loomis seek to eliminate the hostile and intolerant

8 climate within the VUSD through reforms to change the policies and practices within VUSD

9 schools and to compel VUSD officials to respond appropriately to complaints of harassment

10 by students who are gay or lesbian or who are perceived to be gay or lesbian. Plaintiff

11 George Loomis also seeks monetary damages for the discrimination he has suffered.

12

2. Students experience pervasive, severe, and unwelcome harassment and

13 discrimination at VUSD schools, including but not limited to Golden West High School

14 (“Golden West”), based on their actual or perceived sexual orientation. Students who are gay

15 or who are perceived to be gay are verbally harassed by their classmates, who refer to them in

16 the classrooms and the hallways as “faggots, ” “fags,” “queers,” and “homos.” Some students

17 are physically assaulted or intimidated by other students based on their sexual orientation, and

18 others are even taunted and harassed by school administrators and teachers.

19

3. What is worse, complaints by student victims to administrators and teachers

20 are met with deliberate indifference and institutionalized ostracism. When students who have

21 been harassed have sought assistance from administrators at VUSD, instead of taking steps to

22 ensure a safe and equal educational environment for all students, VUSD and its agents and/or

23 employees either ignore these complaints or encourage, convince, or allow these students to

24 leave full-time classroom instruction and transfer into independent study programs or other

25 alternative educational programs. Such programs are designed for students with severe

26 problems such as extremely limiting physical or other disabilities, substance abuse problems,

27 or for students who need to work full time to help support their families.

28

4. These alternative educational programs were not and are not designed as a

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-1-

1 depository for ordinary students who just happen to be gay or who are perceived as gay.

2 Defendants’ use of these alternative educational programs to isolate these students irreparably

3 harms them physically, mentally, and emotionally, and greatly limits their ability to pursue

4 higher education. Moreover, segregating students perceived to be gay in this manner enables

5 harassing students to continue tormenting other students and frees teachers and administrators

6 from any responsibility to change these dreadful conditions within the VUSD.

7

5. Even more shockingly, teachers and administrators at Golden West have not

8 only ignored and been deliberately indifferent to the concerns of victims of anti-gay

9 harassment, but in some cases have directly harassed students, referring to them as “faggot”

10 and mocking them, and have contributed to and exacerbated the hostile environment at

11 Golden West and other VUSD schools.

12

6. The harassment suffered by Plaintiff George Loomis while he attended

13 Golden West High School from 1998 until 2000 is a deplorable, yet typical, illustration of

14 this severe harassment and discrimination. George Loomis is not alone; in recent years many

15 other students who are gay or lesbian or who are perceived as gay or lesbian have been

16 harassed within VUSD schools.

17

PARTIES

18

7. Plaintiff Gay-Straight Alliance Network (“GSA Network”) is a youth-led

19 nonprofit organization made up of gay, lesbian, bisexual, transgender and heterosexual

20 students and supportive adults who are dedicated to eliminating homophobia and intolerance

21 in schools. GSA Network is a project of the Tides Center in San Francisco, a 501(c)3 non-

22 profit organization. GSA Network is headquartered in San Francisco and has an office in

23 Fresno, California through which it monitors homophobia and intolerance in schools

24 throughout the Central Valley, including the VUSD.

25

8. GSA Network primarily fights homophobia and intolerance in schools by

26 empowering gay, lesbian, bisexual, transgender and heterosexual members in high schools to

27 form and maintain local, school-based, student-run clubs, called “GSAs,” in high schools

28 throughout California. In order to foster its mission, GSA Network also encourages members
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-2-

1 in rural communities to form community-based GSAs made up of students and supportive

2 community members. At present, 150 GSA clubs in Northern California and the Central

3 Valley are registered with GSA Network. The staff in the regional offices of GSA Network

4 connect these school- and community-based GSAs to each other and to community resources

5 in order to foster safe environments for student members; educate the student members and

6 the school community about homophobia, gender identity, and sexual orientation issues; and

7 fight intolerance, discrimination, harassment, and violence in schools.

8

9. Plaintiff GSA Network has members who are current and prospective

9 students at Golden West High School and other schools within the VUSD. Some of these

10 students would like to form a school-based GSA at Golden West and/or another VUSD

11 campus, but have not done so due to the current environment of homophobia in the VUSD.

12 GSA Network’s members also include adults in the Visalia community, including parents of

13 children who attend or plan to attend VUSD schools, who have an interest in eliminating the

14 hostile environment that exists at the schools. As the organization’s name indicates, GSA

15 Network includes heterosexual youth and adult members who fervently believe that the entire

16 community, not just those who are gay or lesbian or who are perceived to be gay or lesbian,

17 are harmed by this discrimination, harassment, and hostility against students attending VUSD

18 schools.

19

10. Members of GSA Network in the Fresno and Visalia communities have

20 formed a community-based GSA club in the Fresno area as a first step in the fight against

21 intolerance in the Central Valley schools. The Fresno GSA has held meetings, and its youth

22 members have attended youth leadership training meetings sponsored by the San Francisco

23 headquarters of GSA Network. GSA Network has devoted significant monetary and staffing

24 resources to addressing the problems of discrimination, harassment, and homophobia in the

25 VUSD schools through its Fresno office.

26

11. Plaintiff GSA Network’s organizational purpose is to remedy the very

27 homophobic climate now present in VUSD schools. Surveys conducted in California schools

28 by GSA Network during the 1999-2000 school year show alarming data about anti-gay
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-3-

1 harassment at high schools. Fifty-three percent (53%) of students at public and private high

2 schools surveyed indicated that each day they hear homophobic comments at school. Sixty-

3 seven percent (67%) of students surveyed said that they frequently or occasionally make such

4 comments themselves.

5

12. These same surveys show that eighty-four percent (84%) of students

6 surveyed indicated that teachers or administrators never or rarely intervene when anti-gay

7 comments are made. And forty-eight percent (48%) of students surveyed said that they do

8 not think that their campus is safe for gay lesbian, bisexual, and transgender students. These

9 problems are particularly acute in the VUSD.

10

13. Plaintiff George Loomis was a student enrolled in schools within the VUSD,

11 including Golden West High School, until on or about January 2000.

12

14. Defendant Visalia Unified School District (“VUSD”) is a public school

13 district organized and operating under the laws of the State of California. VUSD controls and

14 operates Golden West High School and other public schools in the Visalia area. A portion of

15 the funding for each of these schools comes from the state and federal governments.

16

15. Defendants Linda Gonzales, former VUSD Superintendent of Schools;

17 Carlyn Lambert, Acting VUSD Superintendent of Schools; Bob Cesena, Principal, Golden

18 West High School; Gig Stevens, Assistant Principal, Golden West High School; and Juan

19 Garcia, Teacher, Golden West High School are or were, at all relevant times, individuals

20 working as employees, teachers, agents and/or administrators of the VUSD.

21

16. The VUSD by and through its Board of Education and the Defendants sued

22 individually in this lawsuit, were and are responsible for creating and maintaining an

23 educational environment that is free from discrimination and harassment. These Defendants

24 were and are also responsible for making policy and/or for implementing disciplinary, anti-

25 harassment, and anti-discrimination policies. Further, these Defendants were and are

26 responsible for enforcing and ensuring that their subordinates, agents, and employees were

27 and are enforcing such laws and policies by taking prompt remedial action in response to

28 incidents of inappropriate behavior, harassment and/or discrimination against students.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-4-

1

17. Plaintiffs allege upon information and belief that each of the Defendants,

2 including Defendants Does 1 through 25 inclusive, performed, participated in, aided and/or

3 abetted, or were deliberately indifferent to the acts averred herein, proximately caused the

4 damages averred below, and are liable to Plaintiffs for the damages and other relief sought

5 herein. The true names and official capacities of Defendants designated as Does 1 through

6 25, inclusive are unknown to Plaintiffs, who therefore sue these Defendants by such fictitious

7 names. Plaintiffs will seek leave of Court to amend their complaint to show the true names

8 and capacities of these Defendants when they have been ascertained.

9

18. Plaintiffs allege upon information and belief that at all relevant times, each

10 and every Defendant was the agent and employee of each and every other Defendant, was

11 acting within the scope of such agency or employment, and was acting with the consent,

12 permission and authorization of the remaining Defendants. All actions of each Defendant

13 were ratified and approved by every other Defendant. Plaintiffs further allege on information

14 and belief that all of the actions alleged in this First Amended Complaint were taken pursuant

15 to the customs, policies, and practices of the VUSD and that Defendants have been, are

16 presently and will be acting under the color and authority of the laws of the United States and

17 the state of California.

18

JURISDICTION

19

19. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. §§1331 and

20 1343 because the matters in controversy arise under the Constitution and laws of the United

21 States. Declaratory relief is authorized under 28 U.S.C. §§2201 and 2202. This Court has

22 supplemental jurisdiction to hear Plaintiffs’ state claims under 28 U.S.C. §1367(a).

23

20. Plaintiffs are exempt from the California Tort Claims Act because

24 Defendants have failed to comply substantially with Sections 946.4 and 53051 of the

25 California Government Code. Further, Plaintiff George Loomis provided notice of his claims

26 to VUSD in January 2000.

27

VENUE

28

21. Venue is proper in this Court under 28 U.S.C. §§1391(b) and 1392 because

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

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1 the events which give rise to Plaintiffs’ claims took place within the Eastern District of

2 California in Visalia, California.

3 FACTS COMMON TO ALL CLAIMS
4

5

I.

STUDENTS AT VUSD SCHOOLS ARE PERSISTENTLY HARASSED ON THE BASIS OF THEIR ACTUAL OR PERCEIVED SEXUAL ORIENTATION.

6

A. Students Are Being Verbally Harassed And Physically Assaulted And Intimidated

7

By Other Students At VUSD Schools.

8

22. Harassment and discrimination is a fact of life for students who are gay or

9 lesbian or who are perceived as gay or lesbian attending schools within the VUSD, including

10 but not limited to Golden West High School. Students have been taunted and harassed by

11 students, teachers, and administrators at VUSD for being gay or lesbian or for being

12 perceived as gay or lesbian. These students have been repeatedly called “faggot,” “queer,”

13 and other derogatory terms on campus and in the classrooms, sometimes in the presence of

14 teachers. In some instances, this harassment is so severe that students are forced to quit

15 attending their classes because of the constant abuse.

16

23. Plaintiffs are informed and believe that a number of teachers at Golden West

17 have listened to students openly make derogatory comments about gays and lesbians without

18 making any attempts to stop them. When one gay student confronted his teacher after class

19 about students who made loud, derogatory, anti-gay comments in class, the teacher merely

20 told the student that he did not even hear the comments—despite the fact that it was obvious

21 that he did—and refused to do anything about them.

22

24. Plaintiff George Loomis (“George”) endured this pervasive harassment while

23 he was at Golden West from 1996 to on or about January 2000. Once students at Golden

24 West began to suspect that George might be gay, they began to taunt and harass him. In the

25 spring semester of George’s junior year (1998-99), some of his classmates in A.P. biology

26 class taunted George by calling him “faggot” and “queer” in front of the entire class. Instead

27 of reprimanding these students for these inappropriate comments, George’s teacher would

28 often laugh along with the students who were harassing George.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-6-

1

25. George Loomis also was taunted by Golden West students in his choir class.

2 Students would yell “fag,” “queer,” “homo” and “joto” (which is Spanish for “homo”) at him.

3 One male student taunted George and rubbed his leg in a sexually suggestive manner. This

4 unwanted touching and harassment embarrassed George greatly and made him extremely

5 uncomfortable. These same students also threatened and harassed other students by calling

6 them “fag” or “faggot.” George’s choir teacher, who observed these activities, failed to take

7 any action to stop or prevent this behavior.

8

26. George Loomis was also harassed by students in his student leadership class.

9 One student accused George of having an affair with the male teacher of the class who was

10 perceived by many students to be gay.

11

27. This harassment that students who are gay or lesbian or perceived as gay or

12 lesbian suffer is not limited to verbal harassment, but has often escalated to physical assault

13 and intimidation both on and off campus. Students who are gay or lesbian or who are

14 perceived as gay or lesbian have been spit upon by other students on the campus of Golden

15 West while these same students hurl anti-gay epithets at them. Plaintiffs are informed and

16 believe that former students who were perceived to be gay have had food, pencils, erasers,

17 and textbooks and other objects thrown at them. While in the parking lot at Golden West,

18 one gay student was almost hit by a car driven by another student who was actively trying to

19 run him down. As another example, Plaintiffs are informed and believe that a student

20 directed a death threat to a gay student at Golden West. On or about November 2000,

21 Plaintiffs are informed and believe that students at Golden West spray painted “Fag” on a

22 pickup truck driven by another student.

23

28. Plaintiffs are informed and believe that one gay student at Golden West was

24 attacked on campus by students yelling “fag,” “queer,” and other derogatory terms. When

25 this gay student fought back, administrators at Golden West broke up the fight and led the

26 gay student away in handcuffs. This gay student was never again seen on the Golden West

27 campus.

28

29. Because of the hostile climate within the VUSD, students are afraid to even

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-7-

1 associate themselves with any openly gay students on campus for fear of being verbally and

2 physically assaulted. Students who are gay or lesbian experience chronic psychological

3 injury from the conditions they must endure at school each day. They suffer from extremely

4 low self-esteem as a result of their feelings of alienation, isolation, and fear. Their friends

5 stop speaking to them and begin to taunt and harass them. Often, they suffer from bouts of

6 severe depression, withdraw from their friends and family, turn to drugs and alcohol in an

7 attempt to escape, and may even contemplate or attempt suicide. One gay student stated that

8 he suffers from insomnia while he lies awake at night reviewing the harassment he suffered

9 during the day and worrying about what might happen tomorrow. Students skip classes in

10 order to avoid the harassment. Often, their grades suffer, they fail classes, and they

11 contemplate dropping out of school altogether.

12 B. Students Are Being Harassed By Their Own Teachers And Administrators.
13

14

30. This hostile climate for students who are gay or lesbian or who are perceived

15 as gay or lesbian is perpetuated by the teachers and administrators at schools within the

16 VUSD, including but not limited to Golden West.

17

31. Plaintiffs are informed and believe that teachers and administrators have

18 participated in the taunting and harassment of gay or lesbian students. At least one teacher

19 has made anti-gay comments in class. Administrators have mocked or ignored students who

20 have come to them pleading for relief from the anti-gay harassment. Plaintiffs are informed

21 and believe that one school office worker at Golden West even posts anti-gay comments on a

22 bulletin board in the school office.

23

32. Plaintiffs are informed and believe that teachers and classes of students

24 openly discussed their assumptions that George Loomis was gay during a science class and an

25 English class in spring of 1999. At this point, George had never revealed to anyone at

26 Golden West that he was gay much less to these particular teachers from whom George had

27 never even taken a class.

28

33. One teacher at Golden West, Defendant Juan Garcia, actually singled out

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-8-

1 George Loomis for abuse because he suspected he might be gay. On a day in early October

2 1999 in George’s Spanish II class, Garcia noticed the earring that George was wearing and

3 stated to George in Spanish in front of the entire class:

4

“There are only two types of guys who wear earrings—pirates and

faggots—and there isn’t any water around here.”

5

6 The entire class burst out laughing at George. George was shocked, angry, and upset by

7 Garcia’s behavior and was even more upset and embarrassed when the entire class continued

8 to laugh at him as Garcia made the derogatory comment again in English to make sure that

9 everyone in the class could understand it. The students at Golden West stepped up their

10 harassment of George in October 1999 after Garcia made his anti-gay slur. George was spit

11 on by other students, and repeatedly called “pirate,” “fag,” and “faggot.”

12

34. Plaintiffs are informed and believe that other incidents may have occurred

13 where teachers and administrators within the VUSD have harassed gay students.

14

C. Defendants Have Failed To Provide Any Support Mechanisms For Gays And

15

Lesbians And Have Failed To Enact Policies To Ensure That Its Schools Are Safe

From Anti-Gay Harassment. 16

17

35. No support mechanism exists on VUSD campuses for students who are gay

18 or lesbian or who are supportive of gay or lesbians. Plaintiffs are informed and believe that

19 the VUSD does not fund, sponsor, endorse, or promote any organization, support group, or

20 program within the district to provide support to students who are the victims of anti-gay

21 harassment at Golden West and other schools. As a result, no gay student group or school-

22 based organization comprised of gay and straight members designed to alleviate the climate

23 of intolerance exists at Golden West or any other school within the VUSD. VUSD’s failure

24 to support any organization or program to assist students who are victimized by anti-gay

25 harassment at Golden West promotes and perpetuates anti-gay harassment at VUSD schools

26 and exacerbates the damage such harassment causes to VUSD students.

27

36. In fact, Plaintiffs are informed and believe that VUSD may have explicit or

28 unwritten policies designed to deter gay or lesbian students from being open about their
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-9-

1 sexual orientation and freely associating with one another. These policies promote and

2 perpetuate anti-gay harassment at VUSD schools.

3

37. Further, Plaintiffs are informed and believe that the VUSD has no formal or

4 informal policy to ensure that its schools are safe for students who are gay or lesbian or who

5 are perceived as gay or lesbian. The VUSD has no adequate policy in place to prevent or

6 deter students from taunting, harassing, and assaulting other students who are gay or lesbian

7 or who are perceived as gay or lesbian. The absence of such a policy promotes and

8 perpetuates anti-gay harassment at VUSD schools.

9

38. Teachers, counselors, and administrators at VUSD schools are not trained

10 how to assist students who are victims of anti-gay harassment at VUSD schools. Guidance

11 counselors provide no meaningful assistance to students dealing with issues relating to sexual

12 orientation and/or harassment relating to perceived sexual orientation. Instead, it has been

13 VUSD’s practice to ignore harassment based on actual or perceived sexual orientation and to

14 refuse to make any attempts to stop students and teachers from perpetrating any further acts

15 of harassment.

16

39. In fact, teachers, counselors, and administrators are completely insensitive

17 and/or oblivious to the needs, confidences, and dignity of gay or lesbian students. For

18 example, on or about November 1999, while Plaintiff George Loomis was working at his

19 part-time job in a camera store, Sarah Karam Sproles, a Golden West school counselor,

20 entered the store with a friend. While in the store, Sproles turned to her friend and said “That

21 boy is a faggot.” When George realized Sproles had made this statement, he was outraged,

22 stunned, and hurt by the remark. When George went to Sproles’ office at Golden West later

23 and asked her why she had made the statement, Sproles initially denied making the statement

24 at all. Later, in a complete reversal, she admitted making the statement, but claimed that she

25 was not talking about George. Instead, Sproles claimed that her derogatory remark was

26 directed at another Golden West student—a student whom Sproles was counseling—who also

27 happened to be in the camera store at the same time as George.

28

40. Administrators and teachers at VUSD schools have further fueled the anti-

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

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1 gay hostile environment by promoting discussion designed to refute or explain away

2 complaints of anti-gay harassment and reveal other extremely private facts about student

3 victims of harassment. This anti-gay hostility engendered by VUSD was fully evident in

4 May 2000 when the Fresno Bee published an article about George Loomis and how he had

5 been harassed at Golden West. Teachers at Golden West photocopied this article and

6 distributed it to students in classes. One teachers made a remark to a class to the effect that,

7 “Well, we can’t talk about religion, but we can talk about this faggot boy.” Throughout the

8 Spring 2000 semester, other teachers revealed private facts about George’s life in an effort to

9 explain why he might be “troubled.” All of these intentional and deliberately indifferent

10 actions exacerbated the anti-gay harassment that George suffered.

11

II. DEFENDANTS IGNORE AND EXACERBATES THIS HARASSMENT WHEN

12

STUDENTS SEEK HELP FROM TEACHERS AND ADMINISTRATORS.

13 A. Teachers And Administrators Routinely Ignore Student Complaints About

14

Harassment.

15

41. This climate of homophobia and harassment has severely harmed gay or

16 lesbian students who have attended VUSD schools, including Plaintiff George Loomis.

17 Some gay students are afraid to even approach the administration and ask for help for fear

18 that they may face retaliation. Other students who are gay or lesbian have complained

19 repeatedly to Golden West teachers and administrators about the hostile climate for them on

20 campus. Teachers and administrators have taken no action to remedy the harassment and

21 hostile climate and have not attempted to enact formal or informal policies on how to prevent

22 such harassment.

23

42. Even when parents have attempted to intervene with teachers and

24 administrators, the VUSD does nothing to stop the harassment. Indeed, some Visalia parents

25 are outraged that the administration at Golden West has done nothing in the face of these

26 problems.

27

43. Plaintiff George Loomis tried to get the administrators at Golden West to

28 stop the students and teachers from harassing him. In October 1999, George went to the
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
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1 principal of Golden West, Defendant Robert Cesena and told him exactly what Garcia said to

2 him in the Spanish II class about “pirates” and “faggots.” George asked Cesena to take some

3 action to reprimand Garcia for this behavior or to intervene to protect George from this kind

4 of abuse. Cesena not only refused to take any action, but instead told George that it was

5 “inappropriate” for George to “go over Garcia’s head” and that he should talk to Garcia

6 himself.

7

44. George took Cesena’s suggestions and went to Garcia and told him how his

8 “pirates and faggots” comments made him feel, and asked Garcia not to make any more

9 similar anti-gay comments in Spanish II class. Instead of taking any steps to apologize for his

10 treatment of George or to remedy the hostile environment he had fostered, Garcia merely

11 laughed at George. The following week in Spanish II class, Mr. Garcia repeatedly called

12 George “pirate” and on at least two more occasions made the same derogatory slur that

13 George asked him not to repeat (“There are only two types of guys who wear earrings—

14 pirates and faggots—and there isn’t any water around here.”).

15

45. George Loomis attempted to contact then-VUSD Superintendent Linda

16 Gonzales numerous times between October and December 1999 to discuss the constant

17 discrimination that he had been suffering which eventually led to his leaving Golden West.

18 Although George called Gonzales several times, she never returned any of his calls. In

19 December 1999, George actually went to Gonzales’ office but he was informed that she was

20 not in the office that afternoon. George told Gonzales’ assistant the entire story about the

21 harassment that he was facing at Golden West, and the assistant typed notes to give to

22 Gonzales and promised to pass these notes on to her. George never received any response

23 from Gonzales and to his knowledge she never intervened to try to make Golden West safe

24 for George or other students.

25

B. Defendants Encourage Gay And Lesbian Students To Discontinue Their

26

Education In Favor Of “Alternative Education” Programs That Are Neither Designed For, Nor Appropriate, For These Students.

27

28

46. Despite the failure and refusal of VUSD to take any steps to remedy anti-gay

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

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1 hostility at Golden West, Defendants provide no educationally-appropriate alternative to the

2 current environment on campus. Instead, Plaintiffs are informed and believe that

3 administrators and counselors at VUSD schools, including but not limited to Golden West,

4 force victims of anti-gay harassment into independent study programs, adult schools, or some

5 other alternative educational program in order to isolate these students from the rest of their

6 peers. Other times, these administrators and counselors deliberately encourage, convince, or

7 allow gay or lesbian students or those perceived as gay or lesbian to leave school altogether

8 or to enroll themselves into independent study or similar programs on the pretext that they are

9 “assisting” these students.

10

47. Under independent study programs (“ISP”), students review their

11 educational materials and study independently, and only meet with a teacher for a one-hour

12 class once a week. The ISP is a non-college preparatory academic track that was designed for

13 students who have extremely difficult home lives that affect their in-class performance, who

14 are seriously disabled, who have substance abuse problems, or who need to work full-time

15 because of dire financial need. While in ISP, students are ineligible for participation in

16 extracurricular activities. The ISP is not educationally equivalent to classroom education at

17 Golden West and it was not designed to, and does not, address any of the needs of otherwise

18 ordinary victims of anti-gay harassment who meet none of the traditional criteria for

19 admission to the program.

20

48. Some gay and lesbian students have actually sought entrance to the ISP as a

21 survival mechanism to avoid the constant taunting and harassment by their peers and teachers

22 at Golden West, and these students have been deliberately encouraged to do so by school

23 officials. The students are sometimes promised by their guidance counselors that the

24 independent study program will help end their harassment, although such promises are not

25 kept. One former guidance counselor advised a gay student to get a job so that she could

26 place him in independent study to “get him out” of Golden West.

27

49. In fact, teachers and administrators intentionally steer youth toward the

28 decision to end their formal high school education. They recommend the ISP to students
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-13-

1 despite knowing that ISP was not designed for ordinary students facing anti-gay harassment.

2 This happened to Plaintiff George Loomis. In October 1999, after Garcia repeatedly aired his

3 “pirates and faggots” remark at Golden West, George went to the school psychologist at

4 Golden West, and spoke with her about how the harassment was making him feel, and

5 informed her that such harassment was negatively affecting his ability to learn and function at

6 Golden West. The Golden West psychologist suggested that things might be better for

7 George if he removed himself from full-time attendance at Golden West and attend the ISP.

8

50. The decision to send George to ISP was presented to George as if it would be

9 best for his own future. Officials at Golden West never mentioned that switching to ISP

10 would have a harmful adverse impact on George’s extracurricular activities, his decision to

11 attend college, and his future overall. The psychologist who initially recommended ISP

12 simply described it as a way for George to escape from the constant harassment by studying

13 independently and only coming to school for a one-hour class once a week. According to the

14 psychologist, by attending ISP George could avoid the taunts from Garcia and the other

15 students. She told George that she was planning on meeting with Assistant Principal Gig

16 Stevens later that day, and that she would suggest to Stevens that the school transfer George

17 to ISP. The psychologist told George that, although she recommended ISP, school officials

18 would not protect him from being tormented even in that situation.

19

51. Later that day or the next day, George decided to meet with his guidance

20 counselor, Cuca Atherton, to discuss whether ISP was a good idea for him. Atherton

21 explained to George that she had already discussed the ISP program with George’s

22 psychologist, and that she also thought it was in George’s best interest to enroll in the ISP.

23 She explained that, although most ISP students were required to demonstrate to the school

24 administration that they had a financial need to work at least forty (40) hours a week and

25 demonstrate proof of employment, the school “wouldn’t worry about this requirement” in

26 George’s case. Instead, without any reference to the financial status of George or his family,

27 Atherton told George to go home and get his guardian to sign a form declaring that his family

28 had a “financial need” for him to enroll in the ISP, even though that wasn’t true.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-14-

1

52. On or about the same day that George spoke with Atherton about ISP, the

2 school’s assistant principal, Defendant Gig Stevens, called George to his office and advised

3 George that he had spoken with George’s guidance counselor and psychologist, and that they

4 all thought that it was best if George would enroll in the ISP.

5

53. George’s guardian, Donna Wothe, did not think it was a good idea for

6 George to switch to the ISP, and was especially worried about how the program might look to

7 university admissions officers. George explained to her that all of the school officials at

8 Golden West were recommending it. George and his guardian officially signed the papers

9 enrolling him in the ISP sometime in the middle of October 1999. George believed, based in

10 part on conversations with the various Golden West administrators and staff, that ISP would

11 be the only way he could get away from the constant harassment from Garcia and his fellow

12 students.

13

54. VUSD officials knew that George was heavily involved in extracurricular

14 activities at Golden West and that George intended to pursue higher education. While he

15 attended Golden West, George was a member of the Gifted and Talented Education program

16 (GATE) and aspired to attend the University of California at Berkeley to study pre-medicine

17 and eventually go to medical school. George also was very involved in student activities at

18 Golden West. He was a member of the track and cross-country teams, sang in the school

19 choir, and was one of a select group of students who were chosen to enroll in an exclusive

20 student leadership class based on the recommendation of one of his teachers. In his junior

21 year, George was chosen by a committee of students, teachers and school administrators to be

22 the student representative on the Visalia Unified School District Board of Education (“School

23 Board Student Representative”). In that position, George represented the views of all Visalia

24 students to Visalia superintendent Linda Gonzales and the members of the Board of

25 Education at meetings twice each month. George thoroughly enjoyed his position as School

26 Board Student Representative and felt certain that it would enhance his chances to attend a

27 prominent university.

28

55. Despite the fact that Golden West teachers, counselors, and administrators

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-15-

1 knew of George’s plans as well as the effects his transfer to ISP would have on these plans,

2 these officials never discussed with George any possible negative effects that the ISP might

3 have on George’s ability to continue this extracurricular activities or his aspirations to attend

4 a prominent university. Indeed, when George asked about whether this decision would affect

5 his ability to serve as School Board Student Representative, Golden West guidance counselor

6 Cuca Atherton falsely promised George that he could continue to serve in that capacity while

7 attending ISP. When George attempted to attend a meeting of the Visalia Board, however, he

8 found that he had been replaced by another student. After George inquired as to why he had

9 been replaced, representatives of Golden West told George that ISP students simply cannot

10 serve on the Board.

11

56. Contrary to the representations made to him by VUSD officials, George’s

12 transfer to the ISP resulted in the loss of his position as the School Board Student

13 Representative and the ability to participate in all of the other extracurricular programs in

14 which George previously had participated. George planned to interview with recruiters from

15 the University of California at Berkeley, but they refused to talk to him after they learned he

16 was in ISP.

17 C. These Alternative Education Programs Provide Little Relief From The Pervasive

18

Anti-Gay Harassment At VUSD Schools.

19

57. Defendants’ policy of segregating gay students into alternative educational

20 programs does nothing to solve the problems of anti-gay harassment in the District. To the

21 contrary, it validates the actions and mind-sets of students who verbally harass, physically

22 assault, and/or intimidate students who are gay or lesbian or who are perceived as gay or

23 lesbian. Segregating gay students also allows the teachers and administrators at VUSD

24 schools to continue to ignore harassment within the schools instead of requiring them to make

25 the educational environment safe for these students. Moreover, placing students who are gay

26 or lesbian or who are perceived as gay or lesbian into a separate, one-hour-per-week program

27 with no formal instruction constitutes inherently unequal treatment for these students.

28

58. Even after students who complain of harassment are placed into the ISP,

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-16-

1 however, they continue to be harassed. In order for Plaintiff George Loomis to get to his ISP

2 class that met once a week, he had to travel across the entire Golden West Campus while

3 many students were watching. Each week while walking across campus to and from ISP,

4 many students called him “fag” and “faggot,” and on at least one occasion a student spit on

5 him.

6

59. Administrators at Golden West also mocked George Loomis and refused to

7 do anything to make the school environment safe for him while he attended ISP. One day in

8 November or December 1999 while George was in Golden West counselor Sarah Sproles’

9 office (confronting her about the derogatory “faggot” remark she had made in the camera

10 store), assistant principal Gig Stevens walked into her office. Without any authorization by

11 George and for no apparent reason, Sproles stated, “This is George Loomis and he is gay.”

12 Stevens mocked George in a high-pitched effeminate voice, “Well, George, why didn’t you

13 say that. Why didn’t you say, ‘My name is George and I am gay?’” George felt humiliated.

14 George told Stevens and Sproles that he did not feel safe attending Golden West High School,

15 and asked Stevens whether he would make some efforts to ease the harassment that George

16 was receiving from other students while he attended his ISP class. Stevens refused to help

17 George at all, and told him that if he did not feel safe then he should give up high school

18 altogether and attend adult school. Stevens then waved George’s ISP papers in front of his

19 face and told George that he was in breach of his ISP contract because he had missed two

20 days of ISP class.

21

60. George told Stevens that he would not come onto the Golden West campus

22 unless he was assured that he would be safe from harassment by teachers and students.

23 Stevens told George that he could not promise George that the school would be safe for him.

24

61. After George was told by Sproles and Stevens that Golden West would not

25 assure his safety on campus, he stopped attending ISP altogether. To the best of George’s

26 knowledge, he has not even been given credit for his ISP work during the fall of 1999.

27

62. By January 2000, when George had stopped attending the ISP because

28 Defendants had refused to promise his safety, George’s entire life was affected by the severe
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-17-

1 and persistent discrimination he had suffered as a result of Defendants’ intentional conduct,

2 failure to act, and deliberate indifference. George had developed chronic stress-related

3 illnesses, and was diagnosed as hypo-glycemic. He lost both of his jobs in January 2000

4 because he was missing work as a result of stress relating to the events at Golden West.

5 III. THE HOSTILE ENVIRONMENT AT VUSD SCHOOLS CREATED AND

6

FOSTERED BY DEFENDANTS CAUSES SUBSTANTIAL INJURY TO GSA NETWORK, ITS MEMBERS, PLAINTIFF GEORGE LOOMIS, AND STUDENTS

7

AND PARENTS.

8

63. The hostile environment towards gays and lesbians at Golden West

9 discourages students from questioning or confronting their own sexual orientation or forming

10 or joining support groups such as GSAs for fear that doing so could subject them to verbal

11 and physical harassment. GSAs and other support groups have not yet organized in the

12 VUSD due to the fact that students may face retaliatory harassment in the event that they

13 would be discovered as participating in such an organization.

14

64. Students such as George Loomis who are openly gay at VUSD schools are

15 subjected to the types of severe verbal and physical harassment described herein and suffer

16 physical and emotional damage from this hostile environment. Further, once these students

17 have been effectively transferred from their classrooms into alternative education programs,

18 they lose the ability to participate in extracurricular activities, they receive an inadequate

19 education, and their college education opportunities are severely limited.

20

65. As a result of this environment, these students and others within the VUSD

21 are deprived of an open educational forum free from unlawful harassment and discrimination.

22

66. In addition, heterosexual students are deprived of an environment that is free

23 from hostility directed toward students who are gay or lesbian or who are perceived to be gay

24 or lesbian. In fact the hostile environment at Golden West and VUSD’s failure to correct that

25 environment or take appropriate steps to respond to specific instances of harassment actually

26 teaches all students that harassment of, and discrimination toward, individuals suspected to be

27 gay or lesbian is acceptable, if not commendable, behavior. Parents in the Visalia community

28 are concerned about the environment of hostility and discrimination in VUSD schools and do
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-18-

1 not want their own children, whether straight or gay, to be educated in such an intolerant

2 climate.

3

67. Despite its responsibility for these wrongs, VUSD has done nothing about

4 the injuries it has caused.

5

CLAIMS FOR RELIEF

6

FIRST CLAIM FOR RELIEF 7
(42 U.S.C. §1983; Equal Protection Under U.S. Constitution Amend. XIV) 8

[By Plaintiff GSA Network against Defendants VUSD by and through its Board of

9

Education and Carlyn Lambert, Bob Cesena, and Gig Stevens in their official

capacities] 10

68. Plaintiffs reallege and replead all the allegations of paragraphs 1-67 of this

11

Complaint and incorporate them herein by reference.

12

69. Students who are gay or lesbian, or who are perceived as gay or lesbian,

13

suffer pervasive and unwelcome harassment and discrimination at the hands of their peers

14

and from their teachers and administrators at VUSD schools, including but not limited to

15

Golden West High School. They are called “faggot,” “queer,” and other derogatory terms,

16

and some are physically assaulted by their peers. Defendants and other VUSD teachers and

17

administrators not only encourage but also perpetuate this discrimination by actively and

18

intentionally taking part in harassing students perceived to be gay and/or by being

19

deliberately indifferent to the anti-gay harassment occurring on VUSD campuses.

20

70. VUSD promotes and fosters this hostile environment. Defendants and other

21

VUSD officials do not fund, sponsor, endorse, or promote any organization within the district

22

to provide support to students who are the victims of anti-gay harassment. VUSD has no

23

formal or informal policy to ensure that its schools are safe for students who are gay or

24

lesbian or who are perceived as gay or lesbian. Teachers, counselors, and administrators are

25

not trained how to assist student victims of anti-gay harassment at VUSD schools. Further,

26

VUSD has no adequate formal or informal policy for preventing or responding to such

27

harassment; the absence of such a policy has the effect of promoting and perpetuating

28

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-19-

1 harassment.

2

71. Students who are gay and lesbian have complained repeatedly to VUSD

3 teachers and administrators about the hostile climate for them on VUSD campuses.

4 Defendants and other teachers and administrators have ignored their complaints, have taken

5 no effective actions, and have not attempted to enact formal or informal policies for how to

6 prevent such harassment.

7

72. Further exacerbating the anti-gay climate, Defendants and other

8 administrators and counselors at VUSD schools, including but not limited to Golden West,

9 force victims of anti-gay harassment into independent study programs, adult schools, or other

10 alternative educational programs in order to isolate these students from the rest of their peers.

11 Other times, these administrators and counselors encourage, convince, or allow gay or lesbian

12 students or those perceived as gay or lesbian to leave school or enroll in independent study or

13 similar programs on the pretext that Defendants and their agents are “assisting” these

14 students.

15

73. These alternative educational programs are non-college preparatory, and

16 were not designed for otherwise ordinary students who are gay or lesbian or who are

17 perceived to be gay or lesbian. Instead, they were designed for students who have special

18 physical or emotional needs, students who have substance abuse problems, and/or students

19 who need to work full-time because of dire financial needs. These programs are not

20 educationally equivalent to classroom education at Golden West and were not designed to,

21 and do not, address any of the needs of victims of anti-gay harassment who meet none of the

22 criteria for admission to the program. Further, these programs provide little relief from the

23 pervasive anti-gay harassment at VUSD schools.

24

74. The intentional discrimination, hostile environment, and deliberate

25 indifference towards VUSD students who are gay or lesbian or who are perceived as gay or

26 lesbian, including but not limited to students at Golden West, causes substantial injury to

27 GSA Network, its members, and Golden West students and parents, and violates the

28 Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983. At all times,
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-20-

1 Defendants have been, are presently and will be acting under the color and authority of the

2 laws of the United States and the State of California.

3

75. Plaintiffs seek a judgment declaring that the intentional acts and the acts of

4 deliberate indifference described above perpetrated by the VUSD and the Defendants are

5 prohibited by the Equal Protection Clause of the Fourteenth Amendment to the Unites States

6 Constitution and 42 U.S.C. §1983 and seek the injunctive relief set forth in the prayer for

7 relief.

8 SECOND CLAIM FOR RELIEF

9

(42 U.S.C. §1983; Equal Protection Under U.S. Constitution Amend. XIV)

10 [By Plaintiff George Loomis against Defendants Linda Gonzales, Bob Cesena, Gig

11

Stevens, and Juan Garcia in their individual capacities]

12

76. Plaintiffs reallege and replead all the allegations of paragraphs 1-75 of this

13 Complaint and incorporate them herein by reference.

14

77. Plaintiff George Loomis was a student at Golden West High School from

15 1996 to 2000. Beginning in 1998 and continuing until the time George stopped attending

16 Golden West in or about January 2000, George was taunted, harassed, and discriminated

17 against by students, teachers, and administrators at Golden West on the basis of his actual or

18 perceived sexual orientation. He was called “faggot,” “queer,” “homo,” and other derogatory

19 terms on the Golden West campus by students and by his teacher Defendant Juan Garcia.

20

78. VUSD had no formal or informal policy to ensure that Golden West was safe

21 for students who, like George, are gay or lesbian or who are perceived as gay or lesbian.

22 When George complained to Defendants Juan Garcia, Bob Cesena, Gig Stevens, and Linda

23 Gonzales, these Defendants were deliberately indifferent to George’s safety and none of them

24 took any action to stop the harassment and discrimination George was suffering.

25

79. Instead of addressing these actions by students and teachers, Defendants

26 encouraged, convinced, and/or allowed George to transfer into an alternative education

27 program—a one-hour-per-week independent study program—which was not designed for

28 ordinary students but instead was designed for students who have special physical or
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-21-

1 emotional needs, students who have substance abuse problems, and/or students who need to

2 work full-time because of dire financial needs. The independent study program was not

3 educationally equivalent to classroom education at Golden West and it was not designed to,

4 and did not, address any of George’s specific needs who did not meet the traditional criteria

5 for admission to the program. Further, the independent study program provided little relief

6 from the pervasive anti-gay harassment and discrimination George suffered at Golden West at

7 the hands of other students and Defendants.

8

80. As a result of Defendants’ actions, failure to act, and/or deliberate

9 indifference, George did not attend regular school for the majority of his senior year in high

10 school, did not receive enough credits to graduate high school with his class, did not receive a

11 diploma, and was deprived of undergraduate education opportunities. George has been

12 damaged emotionally and physically by the harassment and discrimination described above.

13 George has also been damaged to the extent that his expulsion from Golden West has

14 negatively affected, and will continue to negatively affect, his future educational and career

15 prospects.

16

81. Defendants’ actions, failure to act, and/or deliberate indifference towards the

17 harassment and discrimination George suffered was carried out because of George’s actual or

18 perceived sexual orientation in violation of the Equal Protection Clause of the Fourteenth

19 Amendment to the United States Constitution and 42 U.S.C. §1983. At all times, Defendants

20 have been, are presently and will be acting under the color and authority of the laws of the

21 United States and the State of California. As a result of this discrimination and harassment,

22 George suffered economic and non-economic damages in an amount to be more precisely

23 determined at trial.

24

THIRD CLAIM FOR RELIEF

25

(42 U.S.C. §1983; Procedural Due Process Under U.S. Constitution Amend. XIV)

26

[By Plaintiff GSA Network against VUSD by and through its Board of Education and

27

Defendants Carlyn Lambert, Bob Cesena, and Gig Stevens in their official capacities]

28

82. Plaintiffs reallege and replead all the allegations of paragraphs 1-81 of this

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-22-

1 Complaint and incorporate them herein by reference.

2

83. Students who are gay or lesbian or who are perceived to be gay or lesbian

3 have a protected liberty interest in a high school education, conferred by the California State

4 Constitution and Education Code. Article I, Section 28(c) recognizes that students in

5 California schools have an “inalienable right to attend campuses which are safe, secure and

6 peaceful,” and Article 9, Section 1 recognizes that “[a] general diffusion of knowledge and

7 intelligence [is] essential to the preservation of the rights and liberties of the people.” The

8 California Education Code, Sections 48200 et seq., recognizes the importance of education to

9 children through the age of eighteen. Further, Education Code Sections 200 et seq.

10 specifically prohibit discrimination on the basis of actual or perceived sexual orientation or

11 gender identity, and California regulations require the VUSD to implement policies to

12 prevent and/or respond to acts of harassment and discrimination in schools.

13

84. VUSD and/or Defendants have a custom, policy, and/or they tolerate a

14 custom or policy that results in intentional discrimination and/or deliberate indifference to

15 Plaintiff’s legal rights. Students who are gay or lesbian or who are perceived to be gay or

16 lesbian at VUSD schools, including but not limited to Golden West, have been deprived of

17 their liberty interest in a safe, secure and peaceful education without due process of law.

18 They suffer pervasive and unwelcome harassment and discrimination at the hands of their

19 peers and from their teachers and administrators at VUSD schools, including but not limited

20 to Golden West High School. They are called “faggot,” “queer,” and other derogatory terms,

21 and some are physically assaulted by their peers. Defendants and other VUSD teachers and

22 administrators not only encourage but also perpetuate this discrimination by actively and

23 intentionally taking part in harassing students perceived to be gay and/or being deliberately

24 indifferent to the anti-gay harassment occurring on VUSD campuses.

25

85. VUSD has no formal or informal policy to ensure that its schools are safe for

26 students who are gay or lesbian or who are perceived as gay or lesbian. Teachers, counselors,

27 and administrators are not trained how to assist student victims of anti-gay harassment at

28 VUSD schools. Further, VUSD has no adequate formal or informal policy for preventing or
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-23-

1 responding to such harassment; the absence of such a policy has the effect of promoting and

2 perpetuating harassment.

3

86. Students who are gay or lesbian repeatedly have complained to VUSD

4 teachers and administrators about the hostile climate for them on VUSD campuses.

5 Defendants and other teachers and administrators have ignored their complaints, have taken

6 no effective actions, and have not attempted to enact formal or informal policies on how to

7 prevent such harassment.

8

87. Further exacerbating the anti-gay climate, Defendants and other

9 administrators and counselors at VUSD schools, including but not limited to Golden West,

10 force victims of anti-gay harassment into independent study programs, adult schools, or other

11 alternative educational programs in order to isolate these students from the rest of their peers.

12 Other times, these administrators and counselors encourage, convince, or allow gay or lesbian

13 students or those perceived as gay or lesbian to leave school or enroll themselves into

14 independent study or similar programs on the pretext that Defendants and their agents are

15 “assisting” these students.

16

88. These alternative educational programs are non-college preparatory, and

17 were not designed for ordinary students who happen to be gay or lesbian or who are

18 perceived to be gay or lesbian. Instead they were designed for students who have special

19 physical or emotional needs, students who have substance abuse problems, and/or students

20 who need to work full-time because of dire financial needs. These programs are not

21 educationally equivalent to classroom education at Golden West and were not designed to,

22 and do not, address any of the needs of ordinary students who are victims of anti-gay

23 harassment, who meet none of the criteria for admission to the program. Further, these

24 programs provide little relief from the pervasive anti-gay harassment at VUSD schools.

25

89. Students who are gay or lesbian or who are perceived as gay or lesbian are

26 being constructively expelled from VUSD schools, including but not limited to Golden West,

27 because of the discrimination and harassment they have suffered at the hands of

28 administrators, counselors, and teachers and the pervasive discrimination they suffer at the
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-24-

1 hands of other students as a result of the actions and deliberate indifference of Defendants.

2

90. Defendants did not follow VUSD procedures or the minimum procedures

3 required by the Constitution and state law in response to complaints of harassment and

4 discrimination made by students who are experiencing anti-gay harassment. As a result of

5 the foregoing actions, failures to act, and/or the deliberate indifference of Defendants, VUSD

6 students who are gay or lesbian or who are perceived as being gay or lesbian have stopped

7 attending classes full time, have transferred into alternative educational programs, and/or

8 have been otherwise constructively expelled by ceasing to attend VUSD schools altogether.

9

91. By failing to follow VUSD procedures or the minimum procedures required

10 by the Constitution and state law, Defendants deprived these students of their liberty interest

11 in a safe, secure and peaceful education in violation of the Due Process Clause of the

12 Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983. At all times,

13 Defendants have been, are presently and will be acting under the color and authority of the

14 laws of the United States and the State of California.

15

92. Plaintiffs therefore seek a judgment declaring that the intentional acts and the

16 acts of deliberate indifference described above perpetrated by the VUSD and the Defendants

17 are prohibited by the Due Process Clause of the Fourteenth Amendment to the United States

18 Constitution and 42 U.S.C. §1983, and seek the injunctive relief set forth in the prayer for

19 relief.

20 FOURTH CLAIM FOR RELIEF

21

(42 U.S.C. §1983; Procedural Due Process Under U.S. Constitution Amend. XIV)

22

[By Plaintiff George Loomis against Linda Gonzales, Bob Cesena, Gig Stevens, and

23

Juan Garcia in their individual capacities]

24

93. Plaintiffs reallege and replead all the allegations of paragraphs 1-92 of this

25 Complaint and incorporate them herein by reference.

26

94. Plaintiff George Loomis had a protected liberty interest in a high school

27 education, conferred by the California State Constitution and Education Code. Article I,

28 Section 28(c) recognizes that students in California schools have an “inalienable right to
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-25-

1 attend campuses which are safe, secure and peaceful,” and Article 9, Section 1 recognizes

2 that “[a] general diffusion of knowledge and intelligence [is] essential to the preservation of

3 the rights and liberties of the people.” The California Education Code, Sections 48200 et

4 seq., recognizes the importance of education to children through the age of eighteen. Further,

5 Education Code Sections 200 et seq. specifically prohibit discrimination on the basis of actual

6 or perceived sexual orientation or gender identity, and California regulations require the

7 VUSD to implement policies to prevent and/or respond to acts of harassment and

8 discrimination in schools.

9

95. VUSD and/or Defendants have a custom, policy, and/or they tolerate a

10 custom or policy that results in intentional discrimination and/or deliberate indifference to

11 Plaintiff’s legal rights. Plaintiff George Loomis was deprived of his liberty interest in a safe,

12 secure and peaceful education without due process of law. George was a student at Golden

13 West High School from 1996 to on or about January 2000. Beginning in 1998 and continuing

14 until the time George stopped attending Golden West on or about January 2000, George was

15 taunted, harassed, and discriminated against by students, teachers, and administrators at

16 Golden West on the basis of his actual or perceived sexual orientation. He was called

17 “faggot,” “queer,” “homo,” and other derogatory terms on the Golden West campus by

18 students and by his teacher Defendant Juan Garcia.

19

96. VUSD had no formal or informal policy to ensure that Golden West was safe

20 for students who, like George, are gay or lesbian or who are perceived as gay or lesbian.

21 When George complained to Defendants Juan Garcia, Bob Cesena, Gig Stevens, and Linda

22 Gonzales, these Defendants were deliberately indifferent to George’s safety and none of them

23 took any action to stop the harassment and discrimination George was suffering.

24

97. Instead of addressing these actions by students and teachers, Defendants

25 encouraged, convinced, and/or allowed George to transfer into an alternative education

26 program—a one-hour-per-week independent study program—which was not designed for

27 ordinary students but instead was designed for students who have special physical or

28 emotional needs, students who have substance abuse problems, and/or students who need to
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-26-

1 work full-time because of dire financial needs. The independent study program was not

2 educationally equivalent to classroom education at Golden West and it was not designed to,

3 and did not, address any of George’s specific needs, nor did he meet the criteria for admission

4 to the program. Further, the independent study program provided little relief from the

5 pervasive anti-gay harassment and discrimination George suffered at Golden West at the

6 hands of other students and Defendants.

7

98. As a result of Defendants’ actions, failure to act, and/or deliberate

8 indifference, George Loomis was constructively expelled from Golden West. He did not

9 attend regular school for the majority of his senior year in high school, did not receive enough

10 credits to graduate high school with his class, did not receive a diploma, and was deprived of

11 undergraduate education opportunities. George has been damaged emotionally and

12 physically by the harassment and discrimination described above. George has also been

13 damaged to the extent that his expulsion from Golden West has negatively affected, and will

14 continue to negatively affect, his future educational and career prospects.

15

99. Defendants’ actions, failure to act, and/or deliberate indifference toward the

16 harassment and discrimination George suffered was carried out because of George’s actual or

17 perceived sexual orientation. George was constructively expelled because of the

18 discrimination and harassment he suffered at the hands of administrators, counselors, and

19 teachers and the pervasive discrimination he suffered at the hands of other students as a result

20 of the actions and deliberate indifference of Defendants and other VUSD administrators,

21 counselors, and teachers.

22

100. Defendants did not follow VUSD procedures or the minimum procedures

23 required by the Constitution and state law in response to George’s complaints of harassment

24 and discrimination. As a result of the foregoing actions, failure to act, and/or the deliberate

25 indifference of Defendants, George stopped attending classes full time, transferred into the

26 independent study program, and eventually stopped attending Golden West altogether.

27

101. By failing to follow VUSD procedures or the minimum procedures required

28 by the Constitution and state law, Defendants deprived George of his liberty interest in a safe,
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-27-

1 secure and peaceful education in violation of the Due Process Clause of the Fourteenth

2 Amendment to the United States Constitution and 42 U.S.C. §1983. At all times, Defendants

3 have been, are presently, and will be acting under the color and authority of the laws of the

4 United States and the State of California. As a result, George suffered economic and non-

5 economic damages in an amount to be more precisely determined at trial.

6

FIFTH CLAIM FOR RELIEF

7

(42 U.S.C. §1983; Substantive Due Process Under U.S. Constitution Amend. XIV)

8 [By Plaintiff GSA Network against VUSD by and through its Board of Education

9

and Carlyn Lambert, Bob Cesena, and Gig Stevens in their official capacities]

10

102. Plaintiffs reallege and replead all the allegations of paragraphs 1-103 of this

11 Complaint and incorporate them herein by reference.

12

103. VUSD and/or Defendants have a custom, policy, and/or they tolerate a

13 custom or policy that results in intentional discrimination and/or deliberate indifference to

14 Plaintiff’s legal rights. Defendants have interfered and are interfering with the liberty

15 interests of students who are gay or lesbian or who are perceived as gay or lesbian in VUSD

16 schools, including but not limited to Golden West. Students who are gay or lesbian or who

17 are perceived as gay or lesbian suffer pervasive and unwelcome harassment and

18 discrimination at the hands of their peers and from their teachers and administrators at VUSD

19 schools, including but not limited to Golden West High School. They are called “faggot,”

20 “queer,” and other derogatory terms, and some are physically assaulted by their peers.

21 Defendants and other VUSD teachers and administrators even perpetuate this discrimination

22 by actively and intentionally taking part in harassing students perceived to be gay and/or

23 being deliberately indifferent to the anti-gay harassment occurring on VUSD campuses.

24

104. VUSD has no formal or informal policy to ensure that its schools are safe for

25 students who are gay or lesbian or who are perceived as gay or lesbian. Teachers, counselors,

26 and administrators are not trained how to assist student victims of anti-gay harassment at

27 VUSD schools. Further, VUSD has no adequate formal or informal policy for preventing or

28 responding to such harassment; the absence of such a policy has the effect of promoting and
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-28-

1 perpetuating harassment.

2

105. Students who are gay or lesbian have complained repeatedly to VUSD

3 teachers and administrators about the hostile climate they endure on VUSD campuses.

4 Defendants and other teachers and administrators have ignored their complaints, have taken

5 no actions, and failed to enact an adequate formal or informal policy for preventing or

6 responding to such harassment.

7

106. Further exacerbating the anti-gay climate, Defendants and other

8 administrators and counselors at VUSD schools, including but not limited to Golden West,

9 force victims of anti-gay harassment into independent study programs, adult schools, or other

10 alternative educational programs in order to isolate these students from the rest of their peers.

11 Other times, these administrators and counselors encourage, convince, or allow gay or lesbian

12 students or those perceived as gay or lesbian to leave school or enroll themselves into

13 independent study or similar programs on the pretext that Defendants and their agents are

14 “assisting” these students.

15

107. These alternative educational programs are non-college preparatory, and

16 were not designed for ordinary students who happen to be gay or lesbian or who are

17 perceived to be gay or lesbian. Instead they were designed for students who have special

18 physical or emotional needs, students who have substance abuse problems, and/or students

19 who need to work full-time because of dire financial need. These programs are not

20 educationally equivalent to classroom education at Golden West and were not designed to,

21 and do not, address any of the needs of otherwise ordinary student victims of anti-gay

22 harassment who meet none of the criteria for admission to the program. Further, these

23 programs provide little relief from the pervasive anti-gay harassment at VUSD schools.

24

108. Through the foregoing actions, failures to act, and deliberate indifference,

25 Defendants have interfered and continue to directly interfere with VUSD students’ liberty

26 interest in a safe, secure and peaceful education. Moreover, the acts of these school officials,

27 teachers and employees create a risk of physical and emotional harm to students who are gay

28 or lesbian or who are perceived as gay or lesbian, and further demonstrate their deliberate
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-29-

1 indifference to the harassment and threats of harassment by rendering these students more

2 vulnerable to that danger. As a result, these students’ substantive due process rights

3 guaranteed by the Fourteenth Amendment to the United States Constitution and 42 U.S.C.

4 §1983 have been and continue to be violated. At all times, Defendants have been, are

5 presently and will be acting under the color and authority of the laws of the United States and

6 the State of California.

7

109. Plaintiffs therefore seek a judgment declaring that the intentional acts and the

8 acts of deliberate indifference described above perpetrated by the VUSD and the Defendants

9 are prohibited by the Due Process Clause of the Fourteenth Amendment to the United States

10 Constitution and 42 U.S.C. §1983, and seek the injunctive relief set forth in the prayer for

11 relief.

12 SIXTH CLAIM FOR RELIEF

13

(42 U.S.C. §1983; Substantive Due Process Under U.S. Constitution Amend. XIV)

14 [By Plaintiff George Loomis against Linda Gonzales, Bob Cesena, Gig Stevens, and

15

Juan Garcia in their individual capacities]

16

110. Plaintiffs reallege and replead all the allegations of paragraphs 1-109 of this

17 Complaint and incorporate them herein by reference.

18

111. VUSD and/or Defendants have a custom, policy, and/or they tolerate a

19 custom or policy that results in intentional discrimination and/or deliberate indifference to

20 Plaintiff’s legal rights. Defendants interfered with Plaintiff George Loomis’ liberty interests

21 in violation of the Constitution of the United States. George was a student at Golden West

22 High School from 1996 to 2000. Beginning in 1998 and continuing until the time George

23 stopped attending Golden West in or about January 2000, George was taunted, harassed, and

24 discriminated against by students, teachers, and administrators at Golden West on the basis of

25 his actual or perceived sexual orientation. He was called “faggot,” “queer,” “homo,” and

26 other derogatory terms on the Golden West campus by students and by his teacher Defendant

27 Juan Garcia.

28

112. VUSD had no formal or informal policy to ensure that Golden West was safe

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-30-

1 for students who, like George, are gay or lesbian or who are perceived as gay or lesbian.

2 When George complained to Defendants Juan Garcia, Bob Cesena, Gig Stevens, and Linda

3 Gonzales, these Defendants were deliberately indifferent to George’s safety and none of them

4 took any action to stop the harassment and discrimination George was suffering.

5

113. Instead of addressing these actions by students and teachers, Defendants

6 encouraged, convinced, and/or allowed George to transfer into an alternative education

7 program—a one-hour-per-week independent study program—which was not designed for

8 ordinary students who happen to be gay but instead was designed for students who have

9 special physical or emotional needs, students who have substance abuse problems, and/or

10 students who need to work full-time because of dire financial need. The independent study

11 program was not educationally equivalent to classroom education at Golden West and it was

12 not designed to, and did not, address any of George’s specific needs, nor did he meet the

13 traditional criteria for admission to the program. Further, the independent study program

14 provided little relief from the pervasive anti-gay harassment and discrimination George

15 suffered at Golden West at the hands of other students and Defendants.

16

114. As a result of Defendants’ actions, failures to act, and/or deliberate

17 indifference, George did not attend regular school for the majority of his senior year in high

18 school, did not receive enough credits to graduate high school with his class, did not receive a

19 diploma, and was deprived of undergraduate education opportunities. George has been

20 damaged emotionally and physically by the harassment and discrimination described above.

21 George has also been damaged to the extent that his expulsion from Golden West has

22 negatively affected, and will continue to negatively affect, his future educational and career

23 prospects.

24

115. Defendants’ actions, failures to act, and/or deliberate indifference towards

25 the harassment and discrimination George suffered were carried out because of George’s

26 actual or perceived sexual orientation. Through the foregoing actions, failure to act, and

27 deliberate indifference, Defendants interfered with George’s liberty interest in a safe, secure

28 and peaceful education. Moreover, Defendants’ actions, failure to act, and/or deliberate
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-31-

1 indifference created a risk of physical and emotional harm to George and further

2 demonstrated their deliberate indifference to the harassment and threat of harassment by

3 rendering George more vulnerable to that danger. As a result, George’s substantive due

4 process rights guaranteed by the Fourteenth Amendment to the United States Constitution and

5 42 U.S.C. §1983 were violated. At all times, Defendants have been, are presently and will be

6 acting under the color and authority of the laws of the United States and the State of

7 California. As a result, George suffered economic and non-economic damages in an amount

8 to be more precisely determined at trial.

9 SEVENTH CLAIM FOR RELIEF

10

(California Education Code Sections 200, 220, 233.5, 262.4; Student Discrimination)

11 [By Plaintiff George Loomis against VUSD, and Linda Gonzales, Bob Cesena, Gig

12

Stevens, and Juan Garcia in their individual capacities]

13

116. Plaintiffs reallege and replead all the allegations of paragraphs 1-115 of this

14 Complaint and incorporate them herein by reference.

15

117. Plaintiff George Loomis was a student at Golden West High School from

16 1996 to 2000. Beginning in 1998 and continuing until the time George stopped attending

17 Golden West in or about January 2000, George was taunted, harassed, and discriminated

18 against by students, teachers, and administrators at Golden West on the basis of his actual or

19 perceived sexual orientation. He was called “faggot,” “queer,” “homo,” and other derogatory

20 terms on the Golden West campus by students and by his teacher Defendant Juan Garcia.

21

118. VUSD had no formal or informal policy to ensure that Golden West was safe

22 for students who, like George, are gay or lesbian or who are perceived as gay or lesbian.

23 When George complained to Defendants Juan Garcia, Bob Cesena, Gig Stevens, and Linda

24 Gonzales, these Defendants were deliberately indifferent to George’s safety and none of them

25 took any action to stop the harassment and discrimination George was suffering.

26

119. Instead of addressing these actions by students and teachers, Defendants

27 encouraged, convinced, and/or allowed George to transfer into an alternative education

28 program—a one-hour-per-week independent study program—which was not designed for
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-32-

1 ordinary students who happen to be gay but instead was designed for students who have

2 special physical or emotional needs, students who have substance abuse problems, and/or

3 students who need to work full-time because of dire financial need. The independent study

4 program was not educationally equivalent to classroom education at Golden West and it was

5 not designed to, and did not, address any of George’s specific needs, nor did he meet the

6 criteria for admission to the program. Further, the independent study program provided little

7 relief from the pervasive anti-gay harassment and discrimination George suffered at Golden

8 West at the hands of other students and Defendants.

9

120. As a result of Defendants’ actions, failure to act, and/or deliberate

10 indifference, George did not attend regular school for the majority of his senior year in high

11 school, did not receive enough credits to graduate high school with his class, did not receive a

12 diploma, and was deprived of undergraduate education opportunities. George has been

13 damaged emotionally and physically by the harassment and discrimination described above.

14 George has also been damaged to the extent that his expulsion from Golden West has

15 negatively affected, and will negatively affect, his future educational and career prospects.

16

121. Defendants’ actions, failures to act, and/or deliberate indifference towards

17 the harassment and discrimination George suffered were carried out because of George’s

18 actual or perceived sexual orientation. Through these intentional acts and the acts of

19 deliberate indifference, George was deprived of the equal rights and opportunities in a public

20 educational institution as guaranteed under the California Education Code Sections 200, 220,

21 233.5, and 262.4. As a result, George suffered economic and non-economic damages in an

22 amount to be more precisely determined at trial.

23

EIGHTH CLAIM FOR RELIEF

24

(California Civil Code Sections 51 & 52(a), Unruh Civil Rights Act)

25

[By Plaintiff George Loomis against Linda Gonzales, Bob Cesena, Gig Stevens, and

26

Juan Garcia in their individual capacities]

27

122. Plaintiffs reallege and replead all the allegations of paragraphs 1-121 of this

28 Complaint and incorporate them herein by reference.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-33-

1

123. Defendants are engaged in the business of operating schools which are a

2 business and public accommodation as defined by Civil Code Section 51.

3

124. Plaintiff George Loomis was a student at Golden West High School from

4 1996 to 2000. Beginning in 1998 and continuing until the time George stopped attending

5 Golden West on or about January 2000, George was taunted, harassed, and discriminated

6 against by students, teachers, and administrators at Golden West on the basis of his actual or

7 perceived sexual orientation. He was called “faggot,” “queer,” “homo,” and other derogatory

8 terms on the Golden West campus by students and by his teacher Defendant Juan Garcia.

9

125. VUSD had no formal or informal policy to ensure that Golden West was safe

10 for students who, like George, are gay or lesbian or who are perceived as gay or lesbian.

11 When George complained to Defendants Juan Garcia, Bob Cesena, Gig Stevens, and Linda

12 Gonzales, these Defendants were deliberately indifferent to George’s safety, and none of

13 them took any action to stop the harassment and discrimination George was suffering.

14

126. Instead of addressing these actions by students and teachers, Defendants

15 encouraged, convinced, and/or allowed George to transfer into an alternative education

16 program—a one-hour-per-week independent study program—which was not designed for

17 ordinary students who happen to be gay but instead was designed for students who have

18 special physical or emotional needs, students who have substance abuse problems, and/or

19 students who need to work full-time because of dire financial need. The independent study

20 program was not educationally equivalent to classroom education at Golden West and it was

21 not designed to, and did not, address any of George’s specific needs, nor did who he meet the

22 criteria for admission to the program. Further, the independent study program provided little

23 relief from the pervasive anti-gay harassment and discrimination George suffered at Golden

24 West at the hands of other students and Defendants.

25

127. As a result of Defendants’ actions, failure to act, and/or deliberate

26 indifference, George did not attend regular school for the majority of his senior year in high

27 school, did not receive enough credits to graduate high school with his class, did not receive a

28 diploma, and was deprived of undergraduate education opportunities. George has been
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-34-

1 damaged emotionally and physically by the harassment and discrimination described above.

2 George has also been damaged to the extent that his expulsion from Golden West has

3 negatively affected, and will negatively affect, his future educational and career prospects

4

128. Defendants’ actions, failure to act, and/or deliberate indifference toward the

5 harassment and discrimination George suffered was carried out because of George’s actual or

6 perceived sexual orientation. These actions, failures to act, and/or deliberate indifference

7 denied George the full and equal accommodations, advantages, facilities, privileges, and

8 services in a business and public accommodation under Civil Code Section 51 and 52(a). As

9 a result, George suffered economic and non-economic damages in an amount to be more

10 precisely determined at trial.

11

12

PRAYER FOR RELIEF

13

WHEREFORE, Plaintiffs pray for judgment as stated below:

14

1. Issue a judgment declaring that the acts of the Defendants described herein

15 violate the Fourteenth Amendment to the Constitution of the United States, California

16 Education Code Sections 200 et. seq, and Civil Code Sections 51 et seq; and further that said

17 constitutional and statutory rights so violated are present rights of GSA Network which must

18 immediately be respected and protected.

19

2. Issue an injunction ordering Defendants to stop engaging in such

20 unconstitutional and unlawful acts, and to develop policies and procedures for ending any

21 such unconstitutional and unlawful acts and the hostile and intolerant environment, including

22 but not limited to the following:

23

a. Stop Defendants from coercing or convincing ordinary students, who are

24

being harassed on the basis of their sexual orientation, to withdraw from full-

25

time classroom attendance and attend alternative educational programs such

26

as independent study programs.

27

b. Require Defendants to implement mandatory training programs for VUSD

28

faculty and staff on issues relating to diversity, homophobia, and methods to

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-35-

1

intervene to stop students from harassing other students who are gay or

2

lesbian or who are perceived to be gay or lesbian.

3

c. Require Defendants to adopt policies with specific guidelines for instructing

4

teachers and administrators about how to address complaints by students who

5

have been taunted, harassed, or discriminated against because of their actual

6

or perceived sexual orientation or gender.

7

d. Require teachers and administrators in VUSD high schools to conduct

8

assemblies for all students addressing issues of diversity, homophobia, and

9

tolerance, wherein students are instructed about laws prohibiting harassment

10

and discrimination based on actual or perceived sexual orientation or gender.

11

e. Require Defendants to maintain statistical data concerning each complaint of

12

anti-gay harassment made by a student, as well as the specific action VUSD

13

teachers and administrators took to resolve that complaint.

14

f. Require Defendants to facilitate formation of extracurricular clubs addressing

15

homophobia and intolerance at VUSD high schools, such as school-based

16

Gay-Straight Alliance organizations, when students approach them with a

17

request for such a club.

18

3. For compensatory damages and consequential damages to be awarded to

19 George Loomis according to proof at trial;

20

4. For exemplary and punitive damages to be awarded to George Loomis

21 according to proof at trial;

22

5. For interest;

23

6. For costs of suit and attorneys’ fees; and

24

7. For such other and further relief as the Court may deem just, proper, and

25 appropriate.

26

27

DEMAND FOR JURY

28

Pursuant to Rule 38(b), Federal Rules of Civil Procedure, and Rule 38-201, Local

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

-36-

1 Rules, United States District Court for the Eastern District of California, Plaintiffs demand

2 trial by jury for all the issues plead herein so triable.

3

4 DATED: January __, 2001

5

Respectfully,

6

JOHN EICHHORST

EDWARD B. MULLEN III

7

KATHLEEN S. MORRIS

KEVIN H. LEWIS

8

HOWARD, RICE, NEMEROVSKI, CANADY,

FALK & RABKIN

9

A Professional Corporation

10

ROBERT KIM

ANN BRICK

11

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA,

12

INC.

13

By:

14

JOHN EICHHORST

15 16 WD 012501/1/871277/v6

Attorneys for Plaintiffs GAY-STRAIGHT ALLIANCE NETWORK and GEORGE LOOMIS

17

18

19

20

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES
-37-

 
 Case: 1:00-cv-06616-OWW-LJO As of: 01/30/2014 01:01 PM PST 1 of 5
U.S. District Court Eastern District of California − Live System (Fresno) CIVIL DOCKET FOR CASE #: 1:00−cv−06616−OWW−LJO

CLOSED

Loomis, et al v. Visalia Unified Dist, et al Assigned to: Senior Judge Oliver W. Wanger Referred to: Magistrate Judge Lawrence J. O'Neill, MJ Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/29/2000 Date Terminated: 08/15/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

George S Loomis

represented by George S Loomis 1228 E Elizabeth Fresno, CA 93728 559−264−2515 PRO SE

Plaintiff Gay−Straight Alliance Network

represented by John Elliott Eichorst Howard Rice Nemerovski Canady Falk and Rabkin Three Embarcadero Center Suite 700 San Francisco, CA 94111 415−434−1600 Email: jeichhorst@howardrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Visalia Unified School District
Defendant Linda Gonzales Superintendant
Defendant Bob Cesena
Defendant Gig Stevens

represented by John Laurence Rozier Nelson, Rozier and Bettencourt 3924 West Caldwell Avenue Suite A Visalia, CA 93277 (559) 713−0159 Fax: (559) 713−0166 Email: litigate@visalialawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Laurence Rozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Laurence Rozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Laurence Rozier (See above for address) LEAD ATTORNEY

Case: 1:00-cv-06616-OWW-LJO As of: 01/30/2014 01:01 PM PST 2 of 5

ATTORNEY TO BE NOTICED

Defendant Juan − Garcia

represented by John Laurence Rozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sarah Karam TERMINATED: 01/24/2001

Defendant
Carlyn Lambert Superintendent

represented by John Laurence Rozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2000
09/29/2000 09/29/2000 09/29/2000 01/08/2001 01/12/2001 01/16/2001 01/24/2001 02/14/2001 02/15/2001
02/15/2001

# Docket Text
1 COMPLAINT for Damages, injunctive and declaratory relief; jury demand, fee status paid, receipt # 191198, assigned to Judge Oliver W. Wanger referred to Magistrate Judge Lawrence J. O'Neill (rcf) Modified on 09/29/2000 (Entered: 09/29/2000)
2 RECEIPT of $150.00 for plaintiff George S Loomis by George Loomis Receipt # 191198 (rcf) Modified on 09/29/2000 (Entered: 09/29/2000)
3 ORDER setting mandatory scheduling conference for 8:45 1/11/01 before Judge Oliver W. Wanger (rcf) (Entered: 09/29/2000)
4 STANDING ORDER by Judge Oliver W. Wanger (cc: all counsel) (rcf) (Entered: 09/29/2000)
5 NOTICE: from G Lucas scheduling conference continued to 8:45 3/1/01 before Wanger (old) (Entered: 01/09/2001)
6 REQUEST by plaintiff George S Loomis for summons and aid in service of summons (mm) (Entered: 01/16/2001)
7 LETTER to court from counsel for pla George S Loomis requesting the scheduling conference be moved to 8:45 3/9/01 before Judge Wanger (hm) (Entered: 01/18/2001)
8 FIRST AMENDED COMPLAINT [1−1] by plaintiff George S Loomis terminating defendant Sarah Karam and adding pltf Gay−Straight Alliance Network and dft Carlyn Lambert; jury demand (jv) (Entered: 01/25/2001)
9 RETURN OF SERVICE executed upon defendant Visalia Unified Dist, defendant Carlyn Lambert, defendant Bob Cesena, defendant Gig Stevens, defendant Juan − Garcia on 1/30/01 (sr) (Entered: 02/15/2001)
10 MOTION to dismiss for failure to state a claim upon which relief can be granted , for more definite statement , to strike portions of the complaint , for summary judgment or for summary adjudication of issues by dfts Visalia Unified, Lambert, Gonzales, Cesena, Stevens, Garcia motion TO BE HEARD by Judge Oliver W. Wanger; Motion Hearing Set For 3/19/01 at 10:00 (sr) (Entered: 02/16/2001)
11 MEMORANDUM OF POINTS AND AUTHORITIES by dfts Visalia Unified , Linda Gonzales, Bob Cesena, Gig Stevens, Juan Garcia, Carlyn Lambert in support of motion to dismiss [10−1], motion for more definite statement [10−2], motion to strike [10−3], motion for summary judgment of for summary adjudication of issues [10−4] (sr) (Entered: 02/16/2001)

Case: 1:00-cv-06616-OWW-LJO As of: 01/30/2014 01:01 PM PST 3 of 5

02/15/2001 02/15/2001
02/15/2001 02/15/2001
02/21/2001 02/23/2001 03/05/2001
03/05/2001 03/05/2001 03/05/2001 03/05/2001 03/06/2001 03/12/2001 03/12/2001
03/19/2001

12 DECLARATION of John Rozier in support of motion to dismiss [10−1], motion for more definite statement [10−2], motion to strike [10−3], motion for summary judgment or summary adjudication [10−4] (sr) (Entered: 02/16/2001)
13 STATEMENT by dfts Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens, Juan − Garcia, Carlyn Lambert of undisputed facts in support of motion to dismiss [10−1], motion for more definite statement [10−2], motion to strike [10−3], motion for summary judugment or summary adjuciation [10−4] (sr) (Entered: 02/16/2001)
14 REQUEST for Judicial notice by dfts Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens, Juan − Garcia, Carlyn Lambert (sr) (Entered: 02/16/2001)
15 TABLE OF CONTENTS by dfts Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens, Juan − Garcia, Carlyn Lambert RE: motion to dismiss for failure to state a claim upon which relief can be granted [10−1], RE: motion for more definite statement [10−2], RE: motion to strike portions of the complaint [10−3], RE: motion for summary judgment or for summary adjudication of issues by dfts Visalia Unified, Lambert, Gonzales, Cesena, Stevens, Garcia [10−4] (sr) (Entered: 02/16/2001)
16 EXHIBIT "B" by dfts Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens, Juan − Garcia regarding [10−1], [10−2], [10−3], [10−4] (rab) (Entered: 02/22/2001)
17 JOINT SCHEDULING REPORT by pltfs, dfts (jv) (Entered: 02/26/2001)
18 OPPOSITION by pltf's George S Loomis, Gay−Straight to motion to dismiss for failure to state a claim upon which relief can be granted [10−1], to motion for more definite statement [10−2], to motion to strike portions of the complaint [10−3], to motion for summary judgment or for summary adjudication of issues by dfts Visalia Unified, Lambert, Gonzales, Cesena, Stevens, Garcia [10−4] (rcf) (Entered: 03/05/2001)
19 SEPARATE STATEMENT by pltf's George S Loomis, Gay−Straight of facts in opposition to [10−1], [10−2], [10−3], [10−4] (rcf) (Entered: 03/05/2001)
20 DECLARATION of Edward B Mullen III in support of pltf's opposition [18−1] (rcf) (Entered: 03/05/2001)
LODGED (Proposed) Order denying motion to dismiss for failure to state a claim; for a more definite statement; to strike portions of complaint; for summary jgmt and/or summary adjudication of issues by pltf's George S Loomis, Gay−Straight (rcf) (Entered: 03/05/2001)
21 PROOF OF SERVICE by pltf's George S Loomis, Gay−Straight of [0−0], [20−1], [19−1], [18−1] (rcf) (Entered: 03/05/2001)
22 PROOF OF SERVICE by plaintiff Gay−Straight of [21−1], [0−0], [20−1], [18−1] (rcf) (Entered: 03/07/2001)
23 NOTICE by plaintiff George S Loomis of hearing scheduling conference continued to 10:00 3/19/01 before Judge Wanger ctrm 2 ( cc: all counsel) (rab) (Entered: 03/13/2001)
24 REPLY BRIEF IN SUPPORT OF MOTIONS by dfts Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens, Juan Garcia, Carlyn Lambert to to dismiss for failure to state a claim upon which relief can be granted [10−1], to motion for more definite [10−2], to motion to strike portions of the complaint [10−3], to motion for summary judgment or for summary adjudication of issues by dfts Visalia Unified, Lambert, Gonzales, Cesena, Stevens, Garcia [10−4] (rab) (Entered: 03/14/2001)
25 MINUTES of 3/19/01 before Judge Oliver W. Wanger motion to dismiss for failure to state a claim upon which relief can be granted [10−1], motion for more definite statement [10−2], motion to strike portions of the complaint [10−3], motion for summary judgment or for summary adjudication of issues by dfts Visalia Unified, Lambert, Gonzales, Cesena, Stevens, Garcia [10−4] SUBMITTED until further briefing, opening brief 3/26/01; reply brief 4/2/01; C/R S Crump (sr) (Entered: 03/20/2001)

Case: 1:00-cv-06616-OWW-LJO As of: 01/30/2014 01:01 PM PST 4 of 5

03/22/2001
03/28/2001
04/11/2001 04/11/2001
04/25/2001 07/20/2001 08/24/2001 08/28/2001 08/29/2001
09/04/2001 09/10/2001
09/27/2001 12/10/2001

26 SCHEDULING CONFERENCE ORDER by Judge Oliver W. Wanger ORDERING pretrial conference set for 11:00 1/22/02, before Judge Wanger, Ctrm 2; trial set for 9:00 2/26/02, before Judge Wanger, Ctrm 2; settlement conference set for 10:30 7/11/01, before Judge O'Neill, Ctrm 6; non−dispositive motion filing ddl set for 10/30/01 and dispositive motion filing ddl set for 11/9/01; discovery cut−off ddl set for 10/15/01 (cc: all counsel) (jh) (Entered: 03/26/2001)
27 MEMORANDUM, Opinion and Order: by Judge Wanger request for judicial notice by dfts [14−1] GRANTED, motion to dismiss for failure to state a claim upon which relief can be granted [10−1] DENIED, motion for more definite statement [10−2] DENIED, motion to strike portions of the complaint [10−3] DENIED, motion for summary judgment or for summary adjudication of issues by dfts Visalia Unified, Lambert, Gonzales, Cesena, Stevens, Garcia [10−4] DENIED (cc: all counsel) (old) (Entered: 03/29/2001)
28 OBJECTIONS by pla George S Loomis to dfts' "request for clarification" (hm) (Entered: 04/12/2001)
29 MEMORANDUM, Opinion and Order: by Judge Wanger; the memorandum, opinion and order filed on 3/28/01 27 is corrected to read: pursuant to California Govt Code section 818, public entities such as dft, VISALIA UNIFIED SCHOOL DISTRICT, are immune from exposure to punitive damages from State law claims. Plas at oral argument have expressed their intent not to seek punitive damages from the VISALIA UNIFIED SCHOOL DISTRICT. Dfts' motion to dismiss pla GEORGE LOOMIS' prayer for punitive damages against dft VISALIA UNIFIED SCHOOL DISTRICT is GRANTED (cc: all counsel) (hm) (Entered: 04/12/2001)
30 ANSWER to first amended complaint by dfts Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens, Juan − Garcia (mm) (Entered: 04/26/2001)
31 COURT NOTICE: from Irma Lira, Deputy Clerk settlement conference CONTINUED to 10:00 a.m. 9/27/01 before Judge O'Neill, Ctrm 6 (cc: all counsel) (jh) (Entered: 07/24/2001)
LODGED stipulation and order by plaintiffs George S Loomis, and Gay−Straight (old) (Entered: 08/27/2001)
LODGED stipulation and order extending trial date and case management deadlines by plaintiffs George S Loomis, and Gay−Straight (old) (Entered: 08/29/2001)
32 STIPULATION AND ORDER by Judge Oliver W. Wanger pretrial conference set for 11:00 4/9/02; trial set for 9:00 5/14/02; non−dispositive pre−trial motion filing ddl set for 1/18/02; hearing on non−dispositive pre−trial motions set for 2/18/02 at 9:00 before Magistrate Judge O'Neill; discovery ddl set for 12/21/01 Discovery cut−off ddk 12/21/02; last date to file dispositive motions 2/1/02; hearing on dispositive motions set for 3/4/02 at 10:00; expert witness discosure ddl 11/4/01; supplemental expert witness disclosure ddl 11/26/01 (cc: all counsel) (old) (Entered: 08/29/2001)
33 NOTICE by plaintiff's Gay−Straight, George S Loomis [4−1] of entry of order (wh) (Entered: 09/05/2001)
34 STIPULATION AND ORDER by Judge Oliver W. Wanger pretrial conference set for 11:00 am 4/9/02; trial set for 9:00 am 5/14/02; designation of expert witnesses set for 11/5/01; supplemental expert disclosure set for 11/26/01; motion filing ddl set for 1/18/02; last date to file non−dispositive motions 02/1/02; hearing on non−dispostive motions 2/18/02 at 9:00 am before Magistrate Judge Lawrence J. O'Neill; hearing on dispositive motions 03/4/02 at 10:00 am; discovery ddl set for 12/21/01 (cc: all counsel) (tel) (Entered: 09/12/2001)
35 MINUTES of 9/27/01 before Magistrate Judge Dennis L. Beck settlement conference held on 9/27/01 ; no settlement; counsel to notify court if parties have settled (old) (Entered: 09/28/2001)
36 NOTICE by plaintiff George S Loomis of hearing settlement conference set for 10:30 1/29/02 before Magistrate Beck (wh) (Entered: 12/11/2001)

Case: 1:00-cv-06616-OWW-LJO As of: 01/30/2014 01:01 PM PST 5 of 5

01/22/2002 01/24/2002 01/25/2002 01/29/2002 01/31/2002 03/08/2002
03/12/2002 03/13/2002 03/21/2002 08/15/2002
08/23/2002 03/09/2004

37 NOTICE by Counsel for defendants Visalia Unified Dist, Linda Gonzales, Bob Cesena, Gig Stevens and Juan − Garcia of change of Firm Name and Address to Nelson, Rozier &Bettencourt 3924 W Caldwell, Suite A Visalia, CA 93277 (tel) (Entered: 01/23/2002)
38 STANDING ORDER by Magistrate Judge Lawrence J. O'Neill informing the parties on the procedure to follow in pursuing this action (tel) (Entered: 01/25/2002)
LODGED stipulation and order extending and/or vacating trial date and case management deadlines by plaintiff George S Loomis, plaintiff Gay−Straight (sr) (Entered: 01/28/2002)
39 MINUTES of 1/29/02 before Magistrate Judge Dennis L. Beck settlement conference held on 1/29/02; no settlement reached, although discussions will continue (sr) (Entered: 01/30/2002)
40 STIPULATION AND ORDER Judge Oliver W. Wanger ORDERING that trial dates and case management ddls be VACATED (cc: all counsel) (sr) (Entered: 02/01/2002)
41 MAIL returned stipulation and order extending and/or vacating trial date and case mgmt ddls [40−1] addressed to plaintiff George S Loomis at 1228 E Elizabeth, Fresno CA 93728; (order will not be re−served as pltf is no longer pro per; pltf is represented by counsel who was served with copy of order) (jv) (Entered: 03/11/2002)
LODGED Stipulation and order re trial date and case management deadlines by pltf George S Loomis, Gay−Straight (rcf) (Entered: 03/13/2002)
42 STIPULATION AND ORDER by Judge Oliver W. Wanger Stipulation to continue trial date and case managment deadlines [0−0] GRANTED case mgmt ddl set for 4/19/02 to present new trial date and appropriate case mgmt ddls to the Court should not settle by 4/15/02 (cc: all counsel) (rcf) (Entered: 03/14/2002)
43 MAIL returned [42−2] addressed to plaintiff George S Loomis (moved left no address, unable to forward) (sr) (Entered: 03/22/2002)
44 ORDER by Judge Oliver W. Wanger ORDERING Consent Decree and Order; Stipulation of dismissal GRANTED; pltf's and dft's consent to and the Court hereby ORDERS that this action is dismissed w/prejudice provided however, that the Court shall retain jurisdiction over this action for the period specified to ensure compliance w/all provisions of this Consent Order CASE DISMISSED with prejudice (cc: all counsel) (rcf) (Entered: 08/16/2002)
45 MAIL returned [44−2] addressed to plaintiff George S Loomis envelope states RETURN TO SENDER−MOVED LEFT NO ADDRESS (rcf) Modified on 08/26/2002 (Entered: 08/26/2002)
2 RETURNED Receipt from Federal Records Center; 2 volumes (jv) (Entered: 03/10/2004)