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Filed 11/8/21 John T.D. v. River Delta Joint Unified School District CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

JOHN T. D.,

Plaintiff and Appellant,

v.

RIVER DELTA JOINT UNIFIED SCHOOL 

DISTRICT et al.,

Defendants and Respondents.

C092655

(Super. Ct. No. 

34201700213972CUPOGDS)

John T. D. appeals from a judgment of dismissal entered after the trial court 

sustained respondents’ demurrer to his claims for sexual harassment and retaliation under 

title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) (Title IX). 

With respect to sexual harassment, the trial court concluded John did not adequately 

allege harassment based on gender or sex, or that the moving defendants were actually 

alerted to such harassment. With respect to retaliation, the court concluded deliberate 

indifference was not a permissible theory of liability under Title IX. We conclude 

deliberate indifference may be used to establish a cause of action for retaliation under 
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Title IX, and John’s allegations were sufficient to survive demurrer. We will reverse and 

remand for further proceedings consistent with this opinion.

I. BACKGROUND

The fourth amended complaint was brought by John and his co-plaintiff N.B. 

against River Delta Joint Unified School District (the District), its superintendent, 

plaintiffs’ former principal, and plaintiffs’ former coach. Plaintiffs’ first and second 

causes of action alleged separate claims for sex-based harassment and retaliation against 

the District under Title IX. The third and fourth causes of action were asserted only by 

co-plaintiff N.B. against all defendants and alleged state law claims for negligent 

supervision and hiring that are not at issue in this appeal. For purposes of this appeal, we 

need only summarize the relevant facts pertaining to John.

John was a member of the football team. John alleges his coach would talk about 

sex with his wife and ask “ ‘how far’ ” team members had gotten with their girlfriends, 

questioning them about specifics. If team members admitted they were not having sex 

with their girlfriends, the coach asked, “ ‘why not’ ” and “ ‘what are you waiting for?’ ” 

The coach spoke about the importance of penis size. At weekly team dinners, the coach 

talked about having sex with various players’ mothers. John did not participate in the 

discussions about sex or laugh at the comments, and he alleges he was singled out for 

ridicule for admitting to being a virgin. 

John also alleges football players became members of the “Brotherhood.” One 

rite of passage was that younger team members had to touch the senior players’ testicles 

in order to progress on the team. The coach was aware of this practice. Once, when the 

team was in the locker room unsupervised, teammates demanded John touch another 

teammate’s exposed testicles, and John ran from the room. 

John alleges that due to his refusal to participate in sexualized talk and the 

Brotherhood, “he was further characterized as ‘different’, ‘not macho’ and perceived as 

possibly gay.” 
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John played center. He alleges the quarterback started deliberately grabbing and 

fondling John’s testicles instead of merely touching his leg to indicate he was ready to 

receive the snap. John complained repeatedly, but the coach allowed this to continue. 

Further, the coach began “the Oklahoma Drill” on John to “make a man” out of him. The 

drill consisted of two players running into each other between barriers. The complaint 

alleges the use of this contact drill during the off season was prohibited by law.

Teammates began using the term “FUCKJT[Year]” in the group chat; this term 

was also yelled during classes. 

The complaint alleges John’s mother met with the principal for the first time in 

mid-September and complained that her son was being bullied and sexually harassed in 

violation of the law and the student handbook. Specifically, she reported John had been 

singled out by the coach for his virginity and refusal to actively participate in the 

Brotherhood and the team’s discussions of sexual exploits. John’s mother also reported 

that team members were texting “FUCKJT[Year]” in their group chat, and the 

quarterback had been fondling her son’s testicles during practice. John told the principal 

“he was not permitted to stand up and complain.” John’s mother reported that her son 

felt degraded, humiliated, anxious, and fearful, and this was causing a negative impact on 

his participation in football and his academic performance. 

The complaint alleges the principal’s response was to speak with the coach. At 

the next practice, while in a group huddle, the coach stared at John while explaining that 

“ ‘some people’ are ‘tattle-tales’ ” and “ ‘sometimes people don’t know how to take a 

joke and you can’t say things anymore in group chat that could be perceived as wrong, so 

knock it off.’ ” John alleges the team understood he was the “tattle-tale” and the coach 

was directing the Brotherhood to retaliate against him. At the same practice, the coach 

began using a modified Oklahoma drill that had multiple players almost twice John’s size 

line up and run into him repeatedly. This occurred “practically daily” and caused severe 

bruising. 
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John’s mother met again with the principal in September and complained about 

the modified drill and continued harassment. The complaint alleges the principal took no 

further action other than to explain to John that he needed to let things roll off his back 

and have “ ‘thicker skin,’ ” and inviting him to come to the outer room of her office when 

he became overwhelmed. 

John alleges he reported to the principal’s office, upset, on almost a daily basis. 

The principal saw him there, but she never asked why he had come. He missed school—

once for a week and a half straight—and stopped going to football practice. Before the 

end of the school year, he withdrew from the school. 

The defendants except the coach demurred to the first two causes of action in the 

fourth amended complaint. These defendants, who are the respondents in this appeal, 

argued the plaintiffs failed to state facts sufficient to constitute either cause of action. 

They also argued the plaintiffs were improperly joined in the action. 

The trial court sustained the demurrer without leave to amend. 

Judgment was entered dismissing John’s action, and he filed a timely appeal.1 

II. DISCUSSION

A. Standard of Review

“Because this case comes before us on appeal from a judgment sustaining a 

demurrer, we assume the truth of the facts alleged in the complaint and the reasonable 

inferences that may be drawn from those facts.” (Miklosy v. Regents of University of 

California (2008) 44 Cal.4th 876, 883, superseded by statute on other grounds as stated 

in Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 358-359.) 

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 N.B. sought review in this court by filing a petition for writ of mandate, prohibition, or 

other appropriate relief. In an earlier opinion, we issued a writ of mandate directing the 

superior court to vacate its order sustaining the demurrer to the fourth amended complaint 

without leave to amend, and to issue a new order overruling the demurrer as to N.B.’s 

claims. (N.B. v. Superior Court (July 19, 2021, C092585) [nonpub. opn.].) 
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We do not, “however, assume the truth of contentions, deductions or conclusions of law.” 

(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) “Further, we give the 

complaint a reasonable interpretation, reading it as a whole and its parts in their context.” 

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint 

need only allege facts sufficient to state a cause of action; each evidentiary fact that might 

eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. 

Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) 

As John suggests, “[s]trict local rules of pleading cannot be used to impose 

unnecessary burdens upon rights of recovery authorized by federal laws.” (Brown v. 

Western R. of Ala. (1949) 338 U.S. 294, 298.) Previously, we have held “that the state 

courts of California should apply federal law to determine whether a complaint pleads a 

cause of action under [42 U.S.C.] section 1983 sufficient to survive a general demurrer.” 

(Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563.) We do not think there is any 

difference between the applicable state and federal standards that would alter the outcome 

of this appeal.

Under the Federal Rules of Civil Procedure (28 U.S.C.), “a plaintiff need only 

provide ‘enough facts to state a claim to relief that is plausible on its face.’ [Citation.] 

All factual allegations are accepted as true, and all reasonable inferences must be drawn 

in favor of the plaintiff. [Citation.] The standard provides for liberal treatment of a 

plaintiff’s complaint at the pleading stage.” (Austin v. University of Oregon (9th Cir. 

2019) 925 F.3d 1133, 1137.) On appeal, a decision to dismiss for failure to state a claim 

under rule 12(b)(6) of the Federal Rules of Civil Procedure (28 U.S.C.), like the 

sustaining of a demurrer under California law, is reviewed de novo. (Manzarek v. St. 

Paul Fire & Marine Ins. Co. (9th Cir. 2008) 519 F.3d 1025, 1030; McCall v. PacifiCare 

of Cal., Inc. (2001) 25 Cal.4th 412, 415.) 

B. First Cause of Action for Sex-Based Harassment
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Title IX mandates, with certain exceptions not relevant here, that “[n]o person in 

the United States shall, on the basis of sex, be excluded from participation in, be denied 

the benefits of, or be subjected to discrimination under any education program or activity 

receiving Federal financial assistance.” (20 U.S.C. § 1681(a).) “Title IX implies a 

private right of action to enforce its prohibition on intentional sex discrimination.” 

(Jackson v. Birmingham Board of Education (2005) 544 U.S. 167, 173.) 

In Gebser v. Lago Vista Independent School District (1998) 524 U.S. 274 

(Gebser), the United States Supreme Court explained that in cases that do not involve an 

official policy of a recipient entity, “a damages remedy will not lie under Title IX unless 

an official who at a minimum has authority to address the alleged discrimination and to 

institute corrective measures on the recipient’s behalf has actual knowledge of 

discrimination in the recipient’s programs and fails adequately to respond.” (Id. at p. 

290; see also id. at p. 277 [“damages may not be recovered . . . unless an official of the 

school district who at a minimum has authority to institute corrective measures on the 

district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s 

misconduct”].) That case involved alleged misconduct by a teacher. (Id. at p. 277.) 

One year later, in Davis v. Monroe County Board of Education (1999) 526 U.S. 

629 (Davis), the court held a Title IX funding recipient can be liable for student-onstudent harassment as well, “but only where the funding recipient acts with deliberate 

indifference to known acts of harassment in its program or activities,” and “only for 

harassment that is so severe, pervasive, and objectively offensive that it effectively bars 

the victim’s access to an educational opportunity or benefit.” (Id. at p. 633; see also id. at 

p. 650 [“funding recipients are properly held liable in damages only where they are 

deliberately indifferent to sexual harassment, of which they have actual knowledge, that 

is so severe, pervasive, and objectively offensive that it can be said to deprive the victims 

of access to the educational opportunities or benefits provided by the school”].) 
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The four requirements for the imposition of school district liability under Title IX 

for student-on-student harassment are: (1) the school district “ ‘exercises substantial 

control over both the harasser and the context in which the known harassment occurs,’ ”

(2) “the plaintiff suffers ‘sexual harassment . . . that is so severe, pervasive, and 

objectively offensive that it can be said to deprive the victims of access to the educational 

opportunities or benefits provided by the school,’ ” (3) the school district must have 

“ ‘actual knowledge’ of the harassment,” and (4) “ ‘its deliberate indifference subjects its 

students to harassment.’ ” (Reese v. Jefferson School Dist. No. 14J (9th Cir. 2000) 208 

F.3d 736, 739.) Here, John alleges harassment by a coach and students. This showing is 

sufficient to state a claim based on harassment by both or either. (Karasek v. Regents of 

the University of California (9th Cir. 2020) 956 F.3d 1093, 1105; Jennings v. University 

of North Carolina (4th Cir. 2007) 482 F.3d 686, 695, 700.) However, “[t]he relationship 

between the harasser and the victim necessarily affects the extent to which the 

misconduct can be said to breach Title IX’s guarantee of equal access to educational 

benefits and to have a systemic effect on a program or activity. Peer harassment, in 

particular, is less likely to satisfy these requirements than is teacher-student harassment.” 

(Davis, supra, 526 U.S. at p. 653.)

1. Substantial Control

The first requirement is that the District exercised substantial control over the 

harassers and the context in which the harassment occurs. (Davis, 526 U.S. at p. 646.) 

“This requirement can be met by proof that the misconduct occurred ‘during school hours 

and on school grounds’ or when the ‘harasser is under the school’s disciplinary 

authority.’ ” (Roe ex rel. Callahan v. Gustine Unified School Dist. (E.D.Cal. 2009) 678 

F.Supp.2d 1008, 1025, quoting Davis, 526 U.S. at p. 646.) Here, the alleged misconduct 

occurred mainly on school grounds and always during school hours, football practice, or 

another team event. This is sufficient to satisfy the requirement of substantial control on 
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demurrer. (See ibid. [evidence of high school’s sponsorship of off-campus football camp 

supervised by school’s coaches was sufficient on summary judgment].)

2. Harassment

The requirement that a school district can be held liable in damages only where the 

plaintiff suffers “sexual harassment . . . that is so severe, pervasive, and objectively 

offensive that it can be said to deprive the victims of access to the educational 

opportunities or benefits provided by the school” is a multi-part inquiry. (Davis, supra, 

526 U.S. at p. 650.) The trial court concluded that the complaint did not allege 

discrimination or harassment based on gender or sex because it alleged the coach 

“created a sexually charged atmosphere that the students were expected to join, not as to 

each other but as to the opposite sex in general.” Further, while the principal’s “alleged 

response may seem indifferent, the Court’s review of the [complaint] suggests that, based 

on the facts pled, there are a mere handful of identifiable incidents cited to support John’s 

claim.” 

a. On the Basis of Sex

We begin with whether the alleged misconduct was “on the basis of sex.” (20 

U.S.C. § 1681(a).) A plaintiff can demonstrate sex discrimination for purposes of Title 

IX “by showing that he or she was mistreated for failing to conform to traditional sex 

stereotypes.” (Chisholm v. St. Marys City School District Board of Education (6th Cir. 

2020) 947 F.3d 342, 351.) The complaint alleges that “[r]epeatedly, during the huddles, 

[the coach] questioned and joked openly about [John]’s virgin status and inferred to all 

present that because [John] was still a virgin he was unmanly, not macho, something 

contemptible, and so worthy of mistreatment.” The complaint also alleges, as a result of 

John’s refusal to participate in the Brotherhood and sexualized talk, “he was further 

characterized as ‘different, ‘not macho’ and perceived as possibly gay.” Further, after his 

“apparent failure to demonstrate that he was a whole-hearted member of the Brotherhood, 

by his desperate efforts to prove to the Brotherhood that he was a ‘real man’ who could 
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hit hard in football, [the coach] began the Oklahoma Drill on [John], telling [John] it 

would ‘make a man’ out of him.” In isolation, we might conclude like the court of appeal 

in Chisholm that the coach’s comment “targeted a fundamental requirement for football 

players—toughness” and “[f]or better or worse, [the coach]’s comments were about 

playing football, not gender roles.” (Chisholm, supra, 947 F.3d at p. 352; see id. at p. 

349 [addressing “whether a high school football coach’s use of the term ‘pussy’—in the 

context of football-related activities—is enough to implicate Title IX protections”].) But, 

John alleges the drill began after he failed to participate in conversations about sex, 

admitted his virginity, and refused to participate in a hazing ritual that involved touching 

players’ testicles—none of which is a fundamental requirement for playing football—and 

that he was characterized as “ ‘different’ ” and “ ‘not macho’ ” for his nonconformity. 

On demurrer, he is entitled to all reasonable inferences in his favor. (Miklosy v. Regents 

of University of California, supra, 44 Cal.4th at p. 883.) The complaint is sufficient to 

allege the misconduct directed at John was based on his failure to conform to a traditional 

sex stereotype. 

b. Severe, Pervasive, and Objectively Offensive

“Whether gender-oriented conduct rises to the level of actionable ‘harassment’ . . . 

‘depends on a constellation of surrounding circumstances, expectations, and 

relationships,’ [citation], including, but not limited to, the ages of the harasser and the 

victim and the number of individuals involved.” (Davis, supra, 526 U.S. at p. 651.) 

Additionally, “[c]ourts . . . must bear in mind that schools are unlike the adult workplace 

and that children may regularly interact in a manner that would be unacceptable among 

adults. [Citation.] Indeed, at least early on, students are still learning how to interact 

appropriately with their peers. It is thus understandable that, in the school setting, 

students often engage in insults, banter, teasing, shoving, pushing, and gender-specific 

conduct that is upsetting to the students subjected to it. Damages are not available for 

simple acts of teasing and name-calling among school children, however, even where 
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these comments target differences in gender. Rather, in the context of student-on-student 

harassment, damages are available only where the behavior is so severe, pervasive, and 

objectively offensive that it denies its victims the equal access to education that Title IX 

is designed to protect.” (Id. at pp. 651-652.) Federal courts “have observed that ‘the 

severity and pervasiveness evaluation is particularly unsuited for summary judgment 

because it is quintessentially a question of fact,’ [citation]; and it is even less suited for 

dismissal on the pleadings.” (Doe v. School District No. 1, Denver, Colorado (10th Cir. 

2020) 970 F.3d 1300, 1312.) 

In this instance, John alleges more than simple teasing and name-calling. In 

addition to the “FUCKJT[Year]” campaign and teasing about his virginity, he alleges he 

complained to the coach that the quarterback was grabbing and fondling his testicles, but 

the coach allowed this to continue. After he failed to participate in the Brotherhood, the 

coach used the Oklahoma drill on John. (See Jennings v. University of North Carolina,

supra, 482 F.3d at p. 697 [“Any age disparity between the harasser and his victim is also 

relevant to gauging whether there was a hostile or abusive sexual environment”].) After 

John and his mother complained to the principal, the coach had much larger players run 

into John multiple times, almost daily, to the point of causing severe bruising on John’s 

shoulder, arm, wrist, and the left side of his body. (See Doe v. School District No. 1, 

Denver, Colorado, supra, 970 F.3d at pp. 1310-1311 [considering potentially retaliatory 

actions as part of sexual harassment claim].) John has adequately alleged facts to support 

a claim for sex-based harassment that was severe, pervasive, and objectively offensive.

c. Denial or Exclusion from Educational Opportunities or Benefits

This discrimination must “effectively bar[] the victim’s access to an educational 

opportunity or benefit.” (Davis, supra, 526 U.S. at p. 633.) Physical exclusion is 

unnecessary. (Id. at p. 651.) “Rather, a plaintiff must establish sexual harassment of 

students that is so severe, pervasive, and objectively offensive, and that so undermines 
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and detracts from the victims’ educational experience, that the victim-students are 

effectively denied equal access to an institution’s resources and opportunities.” (Ibid.) 

This case alleges harassment that caused John to stop playing football, miss a 

significant amount of school, and ultimately withdraw from the school. (See Jennings v. 

University of North Carolina, supra, 482 F.3d at p. 700 [jury could conclude harassment 

had negative impact on ability to participate in soccer program]; Doe v. School District 

No. 1, Denver, Colorado, supra, 970 F.3d at pp. 1312-1313 [complaint alleged 

harassment became so intolerable plaintiff could not attend class].) John has adequately 

alleged harassment that caused the denial of educational opportunities or benefits. 

3. Actual Knowledge

A school district is liable in damages only where it has “actual knowledge” of the 

harassment. (Davis, supra, 526 U.S. at p. 650.) In Gebser, the U.S. Supreme Court 

explained the actual knowledge requirement and announced that damages may not be 

recovered unless an official “who at a minimum has authority to address the alleged 

discrimination and to institute corrective measures on the recipient’s behalf has actual 

knowledge of discrimination in the recipient’s programs and fails to adequately respond.” 

(Gebser, supra, 524 U.S. at p. 290; see also Davis, supra, at p. 633 [concluding funding 

recipient may be liable where it “acts with deliberate indifference to known acts of 

harassment in its programs or activities”].) Notice to a high school principal is sufficient 

for these purposes. (Doe v. School Bd. of Broward County, Fla. (11th Cir. 2010) 604 

F.3d 1248, 1255.) The trial court stated, “[i]t is unclear how often the student comments 

were directed to John (daily v. occasionally), and whether these moving Defendants were 

actually alerted to intense bullying that could have constituted actual sexual harassment 

for purposes of Title IX liability, as opposed to simple harassment on some other basis.” 

The ruling makes no reference to the allegations that the coach permitted the quarterback 

to fondle John’s testicles during practice and the coach was using a contact drill to punish 

John, all of which the complaint alleges was relayed to the principal. Respondents’ 
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suggestion that John did not allege he or his family reported any of the incidents to any 

school official is not a fair reading of the complaint. The complaint also alleges John’s 

mother told the principal: (1) the coach had violated sexual harassment laws, (2) John 

was being singled out by the coach for his refusal to actively participate in the 

Brotherhood and engage in sexual talk, and (3) John “was being harassed about allegedly 

kissing his sister because he was a virgin.” John pled actual knowledge of sexual 

harassment sufficient to survive demurrer.

4. Deliberate Indifference

“If a funding recipient does not engage in harassment directly, it may not be liable 

for damages unless its deliberate indifference ‘subjects’ its students to harassment. That 

is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo’

harassment or ‘make them liable or vulnerable’ to it.” (Davis, supra, 526 U.S. at pp. 644-

645.) The U.S. Supreme Court explained that we “should refrain from second-guessing 

the disciplinary decisions made by school administrators” and deliberate indifference 

occurs “only where the recipient’s response to the harassment or lack thereof is clearly 

unreasonable in light of the known circumstances.” (Id. at p. 648.) “In an appropriate 

case, there is no reason why courts, on a motion to dismiss . . . , could not identify a 

response as not ‘clearly unreasonable’ as a matter of law.” (Id. at p. 649.) This does not 

appear to be such a case. According to the allegations in the complaint, the principal was 

aware of various allegations including that a teammate had been fondling John’s testicles 

during practice, but the result was only that the coach talked to the team about their group 

texts. Then, after John’s mother complained of continued harassment and the use of the 

retaliatory contact drill, the principal took no further action other than to essentially tell 

John to ignore everything, and to permit him to take refuge in her office. The complaint 

alleges John reported to the principal, upset, on an almost daily basis and received no 

additional response. We cannot conclude the response was not clearly unreasonable as a 

matter of law. (Ibid.) Title IX “does not mean that recipients can avoid liability only by 
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purging their schools of actionable peer harassment or that administrators must engage in 

particular disciplinary action.” (Id. at p. 648.) Nonetheless, “it is not enough to try to 

help a student cope with the misbehavior of other students. [Citation.] Deliberate 

indifference may be shown by a failure to act to halt the misbehavior.” (Doe v. School 

District No. 1, Denver, Colorado, supra, 970 F.3d at pp. 1313-1314.) 

The trial court erred in sustaining the demurrer to John’s first cause of action.

C. Second Cause of Action for Retaliation

John’s second cause of action for violation of Title IX was based on alleged 

retaliation for reporting the harassment. 

“An allegation that the plaintiff was harassed for reporting misconduct can . . .

suffice to state a claim for discrimination on the basis of sex if the misconduct reported is 

itself sex discrimination.” (Doe v. School District No. 1, Denver, Colorado, supra, 970 

F.3d at p. 1310; see Jackson v. Birmingham Board of Education, supra, 544 U.S. at p. 

173 [“Retaliation against a person because that person has complained of sex 

discrimination is another form of intentional sex discrimination encompassed by Title 

IX’s private cause of action”].)

The trial court held that a deliberate indifference standard is insufficient to support 

a Title IX retaliation claim. This is incorrect. (See, e.g., Sewell v. Monroe City School 

Board (5th Cir. 2020) 974 F.3d 577, 586 [concluding retaliation claim not based on 

official policy requires deliberate indifference]; Feminist Majority Foundation v. Hurley

(4th Cir. 2018) 911 F.3d 674, 695 [“an educational institution can be liable for acting 

with deliberate indifference toward known instances of student-on-student retaliatory 

harassment”]; Doe v. University of Tennessee (M.D.Tenn. 2016) 186 F.Supp.3d 788, 811 

[“To the extent that Jane Doe V is able to show that UT had notice that she was suffering 

a hostile environment based on the threats the football players made to her and did not 

adequately respond, this is not inaction, but rather the condoning of retaliatory conduct 

that could form the basis for a retaliation claim against UT”].) The trial court’s reasoning 
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was based on the following statements in Jackson v. Birmingham Board of Education, 

supra, 544 U.S. 167: “Retaliation against a person because that person has complained 

of sex discrimination is another form of intentional sex discrimination encompassed by 

Title IX’s private cause of action. Retaliation is, by definition, an intentional act,” and 

“retaliation presents an even easier case than deliberate indifference. It is easily 

attributable to the funding recipient, and it is always—by definition—intentional.” (Id. at 

pp. 173-174, 183.) The U.S. Supreme Court made these statements in explaining that 

“deliberate indifference” in its prior authorities constituted intentional discrimination on 

the basis of sex sufficient to impose liability under Title IX, and so did retaliation. (Id. at 

pp. 182-183.) In Jackson, a teacher alleged a school board had retaliated against him. 

(Id. at p. 171.) There was no need to analyze whether a deliberate indifference standard 

could be utilized in this scenario. These statements in Jackson have not been understood 

to preclude the applicability of a deliberate indifference analysis in a retaliation claim. 

(E.g., Doe v. School District No. 1, Denver, Colorado, supra, 970 F.3d. at pp. 1310-

1311.) 

Applying the deliberate indifference standard, we conclude John adequately 

alleged a claim for retaliation. He alleges that after he and his mother complained to the

principal, the coach called him a “tattle-tale” in front of the team and had much larger 

players run into him multiple times, almost daily, to the point of causing severe bruising 

on his shoulder, arm, wrist, and the left side of his body. John alleges his mother told the 

principal about the retaliatory drill “and other continuing harassment and retaliation” by 

the team and the coach, and the principal took no action. At this stage, John has 

adequately alleged the principal was aware he was being retaliated against for reporting 

sex discrimination and was ineffective enough at halting this misbehavior or shielding 

John from it that his claims can survive the pleading stage. Again, we cannot conclude 

the response was not clearly unreasonable as a matter of law. (Davis, supra, 526 U.S. at 

p. 649.) As with his first cause of action, the allegations that John stopped playing 
15

football, missed class, and ultimately withdrew from school were sufficient to allege the 

retaliation effectively barred his access to educational opportunities. Thus, the trial court 

erred in sustaining the demurrer to John’s second cause of action. 

III. DISPOSITION

The judgment is reversed and the cause is remanded to the trial court for further 

proceedings consistent with the views stated herein. Plaintiff John T. D. shall recover his

costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

MURRAY, J.