N.B. v. Superior Court CA3

Filed 7/19/21 N.B. v. Superior Court 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----

N.B., C092585

Petitioner, (Super. Ct. No.
34201700213972CUPOGDS)
v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

Respondent;

RIVER DELTA UNIFIED SCHOOL DISTRICT et
al.,

Real Parties in Interest.

This extraordinary writ proceeding arises out of a fourth amended complaint filed
by two former high school students who raise separate claims arising out of alleged sex-
based harassment by the same coach and overlapping teammates. Petitioner N.B.
challenges the trial court’s order sustaining real party in interests’ 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). The trial court concluded petitioner did not

1
establish the school district’s deliberate indifference to any sex-based harassment, and
deliberate indifference was not a permissible theory to support a claim for retaliation
under Title IX. We conclude deliberate indifference may be used in a cause of action for
retaliation under Title IX, and petitioner’s allegations were sufficient to survive demurrer.
We shall issue a writ of mandate compelling the superior court to vacate its order and
enter a new order overruling the demurrer as to petitioner.
I. BACKGROUND
The fourth amended complaint was brought by petitioner and J.D. against River
Delta Unified School 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 petitioner N.B. against all
defendants and alleged state law claims for negligent supervision and hiring that are not
at issue in this proceeding.
Because, as we will discuss, J.D.’s factual allegations relate to the District’s
knowledge with respect to petitioner’s claims, we will begin with a summary of them as
they relate to this issue. J.D. was a member of the football team. He alleges his coach
would talk about sex 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?’ ” J.D. claimed he was singled out for ridicule for admitting to being a
virgin. The complaint alleges the coach joked about J.D.’s virginity and “inferred to all
present that because [J.D.] was still a virgin he was unmanly, not macho, something
contemptible, and so worthy of mistreatment.” J.D. also alleges football players became
members of the “Brotherhood.”
The complaint alleges J.D.’s mother met with the principal and complained that
her son was being bullied and sexually harassed in violation of the law and the student

2
handbook. The complaint specifically alleges she reported J.D. had been singled out by
the coach for his virginity and refusal to actively participate with the Brotherhood and the
team’s discussions of sexual exploits. The team members were texting
“FUCKJ[.D.][Year]” in their group chat. J.D.’s mother reported that a teammate, R.T.,
had been fondling her son’s testicles during practice. J.D. alleges he told the principal
that “he was not permitted to stand up and complain.” J.D.’s mother explained 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. His mother
specifically named the team members involved.
The complaint alleges the principal spoke to the coach. At the next practice, the
coach stared at J.D. 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.’ ” J.D. alleges the coach
modified a contact drill to have players almost twice his size line up and run into him
repeatedly. This occurred “practically daily” and caused severe bruising.
J.D.’s mother met again with the principal and complained about the modified drill
and continued harassment. The complaint alleges the principal took no further action
other than to explain to J.D. that he needed to have “ ‘thicker skin.’ ”
In the same month as J.D.’s mother’s meetings with the principal, petitioner N.B.
joined the basketball team, which the football coach also helped coach. As he had with
the football team, the coach encouraged discussion of sexual exploits and engaged in it
himself.
Petitioner alleges the coach singled him out for being a virgin and failing “to
adequately explain why he was not having sex with his girlfriend.” The coach would ask
petitioner, “ ‘how far did you get last night with [her],’ ” “ ‘last weekend,’ ” “ ‘when are
you going to have sex,’ ” “ ‘what’s wrong with you,’ ” and “ ‘what are you waiting
for?’ ” Petitioner alleges the coach’s “harassing conduct and comments led other

3
Brotherhood team members to perceive there was something ‘different,’ non-macho,
and/or contemptible about [him]—including that he may and/or must be ‘gay.’ ”
Several months into basketball season, in an unsupervised locker room after
practice, petitioner was held down by two teammates while a third, K.N., sat naked on
petitioner and rubbed his penis all over petitioner’s face. These teammates had also been
members of the football team and the Brotherhood, and one of the teammates who held
petitioner down, R.T., was the same individual who had been accused of repeatedly
fondling J.D.’s testicles.
The coach reported the incident to the administration, who reported it to the Yolo
County Sheriff’s office. The three teammates were charged, and K.N. was convicted of a
felony and eventually expelled from school. The two teammates who held petitioner
down were convicted of misdemeanors and suspended for two days. They were allowed
to be around petitioner, where they re-enacted the assault. They also labeled him the
“snitch” who got them arrested. The principal emailed the staff to watch for ongoing
harassment and retaliation. R.T. posted an image of a penis superimposed onto
petitioner’s face in the team group chat. Petitioner alleges that, during class time,
students would reenact his assault and cry out in a “ ‘baby voice’ ” “ ‘Stop it! Stop it!’ ”
He was also called “ ‘Slap-Dick-Face’ ” and “ ‘fag’ ” during class. Petitioner alleges he
or his mother reported all of this to the principal.
Petitioner alleges he reported to the principal’s office, “upset and distraught . . . on
practically a daily basis.” He missed school, stopped playing sports, and became
suicidal. Both plaintiffs allege they withdrew from the school before the end of the
school year.
The defendants except the coach demurred to the first two causes of action in the
fourth amended complaint. Real parties in interest argued petitioner failed to state facts
sufficient to constitute either cause of action. They also argued the plaintiffs were
improperly joined in the action.

4
 The trial court sustained the demurrer without leave to amend.
Petitioner sought review in this court by filing a petition for writ of mandate,
prohibition, or other appropriate relief.1
We issued an order to show cause why the relief prayed for in this proceeding
should not be granted. Real parties in interest filed a return.
II. DISCUSSION
A. Standard of Review
Because real parties in interest demurred to only half of petitioner’s causes of
action, there is no final judgment as to his claims. Nonetheless, we may consider interim
rulings on a petition for an extraordinary writ when it appears the trial court has deprived
the petitioner of an opportunity to plead a substantial part of his case, and the ruling
creates a likelihood that two trials will be necessary rather than one. (Taylor v. Superior
Court (1979) 24 Cal.3d 890, 894; Fisherman’s Wharf Bay Cruise Corp. v. Superior
Court (2003) 114 Cal.App.4th 309, 319.) “We thus consider de novo whether the trial
court, by granting the demurrer to the first and second causes of action without leave to
amend . . . , has erred in its rulings and prejudiced [petitioner] by depriving [him] of a
substantial portion of [his] case.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th
1217, 1223.)
“The reviewing court gives the complaint a reasonable interpretation, and treats
the demurrer as admitting all material facts properly pleaded. [Citation.] The court does
not, however, assume the truth of contentions, deductions or conclusions of law.” (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) “To survive a demurrer, the

1 Petitioner requested that we consider the propriety of the dismissal of J.D.’s claims.
We will not do so. J.D. did not file a petition for writ of mandate; he filed a notice of
appeal and has a plain, speedy, and adequate remedy. (Code Civ. Proc., § 1068.) We
will address J.D.’s claims after they are fully briefed.

5
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.) Additionally,
“[p]leadings must be reasonably interpreted; they must be read as a whole and each part
must be given the meaning that it derives from the context wherein it appears.” (Speegle
v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42, superseded by statute on another
point as stated in Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257,
269.)
As petitioner notes, “[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 Alabama (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 [title 42 United States Code] 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 petition.
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.)

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B. First Cause of Action for Sex-Based Harassment
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-on-
student harassment as well, “but only where the funding recipient acts with deliberate
indifference to known acts of harassment in its programs 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”].)

7
 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, petitioner 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 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.)
Petitioner’s first cause of action is based on two different theories of liability:
(1) deliberate indifference to known acts of harassment involving co-plaintiff J.D. that
caused petitioner to be subjected to harassment, and (2) deliberate indifference to
petitioner’s complaints of harassment. (See Escue v. Northern Oklahoma College (10th
Cir. 2006) 450 F.3d 1146, 1152-1153 [explaining alternate theories of liability].) His
petition focused on the former theory and does not address the theories separately. For
this reason, we will limit our discussion to the first theory of liability as it is dispositive of
his petition.

8
 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, supra, 526 U.S. at p.
646.) Here, the alleged misconduct occurred on school grounds and either during school
hours or during a school activity. This is sufficient to satisfy the requirement. (Ibid.)
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, “at least prior to the locker-room
incident, the [complaint] contains only vague and sweeping conclusions regarding sexual
orientation discrimination, but does not evince any particular and specific harassment
based on sexual orientation.” The court’s ruling expresses no view on whether the
behavior including the locker-room incident would be sufficient.
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.) Here, petitioner alleges his coach singled him out for failing
to adequately explain his virginity—“ ‘what’s wrong with you?’ ”—and that his
teammates also singled him out on this basis, perceived him as “non-macho,” and
inferred that he must be gay. (Italics added.) “We do not agree that [the allegations] are
mere conclusions. [Petitioner] was only required to plead ultimate facts and [he] has
done so. Whether [he] can produce at trial, or in response to a motion for summary
judgment, evidence that will in fact support all or any of those allegations . . . is another

9
matter.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005)
132 Cal.App.4th 1076, 1098; see also Doe v. City of Los Angeles (2007) 42 Cal.4th 531,
550 [“the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary
facts”].) Further, the inference that his assailants perceived he was non-macho and gay is
adequately supported in the pleadings with those facts expressly alleged. Specifically, we
may infer that after the coach suggested there was something wrong with petitioner
because he did not have sex with his girlfriend, his teammates who watched this repeated
behavior adopted some of this reasoning. After he was assaulted, petitioner alleges
students called him “fag” and affected a “baby voice” to imitate his reaction to being
assaulted. We conclude the complaint is sufficient to allege the misconduct directed at
petitioner 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, expectation, 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
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

10
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, petitioner alleges more than simple teasing and name-calling. He
alleges he was targeted for questioning about his sex life by his coach due to his virginity.
(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”].) Further, petitioner alleges his teammates
also singled him out and two of them held him down while a third sat naked on petitioner
and rubbed his penis all over petitioner’s face. Later, two of the participants reenacted
this assault. He alleges students called him “fag” and reenacted his assault during class
time, and that he reported to the principal’s office “on practically a daily basis.” (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].)
Petitioner 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
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
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 petitioner to stop playing sports, become
suicidal, and withdraw from the school. Petitioner has adequately alleged harassment
that caused the denial of educational opportunities.

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 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 was focused on the lack of allegations in the complaint
to suggest there was actual knowledge of any purported harassment of petitioner prior to
the locker room incident. The focus on petitioner’s harassment to the exclusion of co-
plaintiff J.D.’s in evaluating the knowledge requirement was unwarranted. “By noting
that actual knowledge of discrimination in the recipient’s program is sufficient, the
[Gebser] Court implicitly decided that harassment of persons other than the plaintiff may
provide the school with the requisite notice to impose liability under Title IX.” (Escue v.
Northern Oklahoma College, supra, 450 F.3d at p. 1153; see also Gebser, supra, at
p. 291 [“complaint from parents of other students charging only that [teacher] had made
inappropriate comments during class, which was plainly insufficient to alert the principal
to the possibility that [teacher] was involved in a sexual relationship with a student”];
Doe v. School Bd. of Broward County, Fla., supra, at p. 1257 [“no circuit has interpreted
Gebser’s actual notice requirement so as to require notice of the prior harassment of the

12
Title IX plaintiff herself”].)2 Whether or not co-plaintiff J.D.’s allegations were
sufficient to establish a claim on his own behalf, the complaint clearly alleges that, at a
minimum, the principal was informed that he had been targeted for his virginity and
refusal to participate in the “Brotherhood,” and that R.T. was fondling his testicles during
practice. At this stage, petitioner’s allegations of actual knowledge of recent, similar acts
of alleged sexual harassment by the same group of individuals was sufficient. (See Doe
v. University of Tennessee (M.D.Tenn. 2016) 186 F.Supp.3d 788, 807 [concluding actual
knowledge was sufficiently alleged where “plaintiffs allege notice of a number of recent
prior sexual assaults by UT football and basketball players, under similar circumstances
as their own assault”]; see also Hill v. Cundiff, supra, 797 F.3d at p. 969 [“Title IX
plaintiff must prove the funding recipient had actual knowledge that the student-on-
student sexual harassment was severe, pervasive, and objectively offensive”].) Petitioner
pled actual knowledge of 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’

2 Petitioner attempts to rely on Ninth Circuit authority holding that when a plaintiff
alleges that a school’s “official policy” violates Title IX, the school intentionally violates
the statute, and actual knowledge and deliberate indifference is not required. (Karasek v.
Regents of University of California, supra, 956 F.3d at p. 1112.) Though we do not apply
the official policy framework to petitioner’s allegations, we observe that the analysis set
forth by the Ninth Circuit is similar to one many federal courts use in analyzing whether
the actual knowledge requirement was met. (See Roe ex rel. Callahan v. Gustine Unified
School Dist. (E.D.Cal. 2009) 678 F.Supp.2d 1008, 1030 [compiling authorities] [“Title
IX’s third element is satisfied once an appropriate official has actual knowledge of a
substantial risk of abuse of students, whether or not directed at Plaintiff specifically”]; but
see Hill v. Cundiff (11th Cir. 2015) 797 F.3d 948, 969 [concluding “substantial risk”
standard does not apply to student-on-student harassment].)

13
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
knew one of petitioner’s attackers had been fondling J.D.’s testicles during practice, yet
only spoke to the coach, and the coach only talked to the team about their group texts.
The coach, meanwhile, let the behavior continue. Further, “it is not enough to try to help
a student cope with the misbehavior of other students. . . . 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.) Petitioner has adequately pled the theory
that a clearly unreasonable response to what the District did have actual knowledge of
(the harassment of J.D.) made him vulnerable to the harassment he suffered. This is
adequate to state a claim under a deliberate indifference theory. (Doe v. University of
Tennessee, supra, 186 F. Supp.3d at p. 806; Roe ex rel. Callahan v. Gustine Unified
School Dist., supra, 678 F.Supp.2d at p. 1038.)
The trial court erred in sustaining the demurrer to petitioner’s first cause of action.
C. Second Cause of Action for Retaliation
Petitioner’s second cause of action for violation of Title IX was based on alleged
retaliation for reporting the misconduct.
“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.

14
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 concluded petitioner “has pled sufficient facts to establish a causal
link between his complaints of harassment due to reporting the locker room assault and
the adverse actions taken by students as a result thereof. Not only was the student
retaliation close in time to the reporting of the incident, but various students themselves
made expressly clear that their actions were in retaliation for [petitioner] being a
‘snitch.’ ” But 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, supra, 186 F.Supp.3d at p. 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
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

15
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 petitioner adequately
alleged a claim for retaliation. While the assault was reported to law enforcement, and
the three teammates who participated in the assault each received some length of school
suspension, petitioner alleges two of them were allowed to be in direct contact with him
after two days. Then, they labeled him a “snitch” who got them arrested and reenacted
the assault. Petitioner alleges other students reenacted the sexual assault and called him a
“fag” during instructional time and in front of teachers. Petitioner alleges he reported all
of this to the principal, but still ended up reporting to her office nearly every day
distraught. At this stage, petitioner has adequately alleged the principal was aware that
he was being retaliated against during school hours for reporting his alleged sex
discrimination, and was ineffective enough at halting this misbehavior or shielding
petitioner from it that his claims can survive the pleading stage. In other words, while he
may not ultimately prevail, we cannot conclude the response was not clearly
unreasonable as a matter of law. (Davis, supra, 526 U.S. at p. 649.) Title IX “does not
mean that recipients can avoid liability only by purging their schools of actionable peer
harassment or that administrators must engage in particular disciplinary action.” (Id. at p.
648.) Nonetheless, “[d]eliberate 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 p.
1314.) As with his first cause of action, the allegations that petitioner ultimately became
suicidal and withdrew from school were sufficient to allege the retaliation effectively

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barred petitioner’s access to educational opportunities. Thus, the trial court erred in
sustaining the demurrer to petitioner’s second cause of action.
III. DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to vacate its
order sustaining real parties in interests’ 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.
Petitioner N.B. shall recover his costs in this original proceeding. (Cal. Rules of
Court, rule 8.493(a)(1)(A).)

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

MAURO, J.

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