COMPLAINT FOR DECLARATORY, AND INJUNCTIVE RELIEF, AND FOR COMPENSATORY AND PUNITIVE DAMAGES

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1 MARTHA MATTHEWS, SBN 0 ACLU FOUNDATION OF SOUTHERN CALIFORNIA Beverly Boulevard Los Angeles, CA 00 Telephone: (1) -00 x Facsimile: (1) 0-0 COURTNEY JOSLIN, SBN 0 NATIONAL CENTER FOR LESBIAN RIGHTS 0 Market Street, Suite 0 San Francisco, California Telephone: (1) - Facsimile: (1) - Attorneys for Plaintiff ASHLY MASSEY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASHLY MASSEY, by and through her next friend AMELIA MASSEY vs. Plaintiff, BANNING UNIFIED SCHOOL DISTRICT, DR. KATHLEEN McNAMARA, MANUEL PEREDIA, KIRBY DABNEY, and KAREN GILL, Defendants. Case No.: FOR DECLARATORY, AND INJUNCTIVE RELIEF, AND FOR COMPENSATORY AND PUNITIVE DAMAGES JURY TRIAL DEMAND 0 1 Introduction 1. This is a civil rights action demanding declaratory and injunctive relief and monetary damages from the Banning Unified School District (BUSD) and four individual public school officials for depriving the plaintiff, Ashly Massey, of the benefits and programs based on her sexual orientation. Plaintiff seeks to compel BUSD officials to respond appropriately to complaints of discrimination based on real or perceived sexual orientation. Plaintiff also seeks monetary damages for the discrimination she suffered.

2 Parties. At all relevant times, Ashly Massey was an eighth grade student at Coombs Middle School in the Banning Unified School District. Plaintiff Ashly Massey appears in this action by and through her next friend, her mother, Amelia Massey.. Defendant Banning Unified School District (BUSD) is a public school district organized and operating under the laws of the State of California. BUSD controls and operates the Coombs Middle School and other public schools in the Banning area. A portion of the funding for each of these schools comes from the state and federal governments.. Defendant Kathleen McNamara is the superintendent of BUSD; Defendants Manuel Peredia and Kirby Dabney are the Principal and Vice Principal, respectively, of Coombs Middle School. Defendant Karen Gill is a physical education teacher at Coombs Middle School. All of these defendants were, at all relevant times, acting within the scope of their employment by the BUSD as administrators or teachers.. The BUSD, by and through the Defendants sued individually in this lawsuit, is responsible for creating and maintaining an educational environment that is free from discrimination. The BUSD and individual defendants McNamara, Peredia, and Dabney are responsible for making policy and/or for implementing disciplinary and anti-discrimination policies for the BUSD as a whole and for Coombs Middle School. Further, these Defendants are responsible for enforcing and ensuring that their subordinates, agents, and employees implement and comply with such laws and policies by taking prompt action in response to incidents of inappropriate behavior, harassment, and/or discrimination against students.. Upon information and belief, each of the Defendants performed, participated in, aided and/or abetted, or were deliberately indifferent to the acts averred herein, proximately caused

3 the damages averred below, and are liable for Plaintiff for the damages and other relief sought herein.. Upon information and belief, at all relevant times, each and every Defendant was acting within the scope of his or her authority as a public school administrator or teacher, and was acting with the consent, permission and authorization of the remaining Defendants. All actions of each Defendant was ratified and approved by every other Defendant.. Upon information and belief, all of the actions alleged in this Complaint were taken pursuant to customs, policies, and practices of the BUSD and Defendants have been, are presently, and will be acting under the color and authority of the laws of the United States and the state of California. Jurisdiction and Venue. This Court has jurisdiction over plaintiff s federal civil rights claims, under U.S.C. 1. This Court has supplemental jurisdiction over plaintiffs state-law claims arising from the same factual circumstances, events and transactions, under U.S.C. 1(a).. Venue is proper in this Court under U.S.C. 1(b) because the plaintiff resides in, and all incidents, events, and occurrences giving rise to this action occurred in, the County of Riverside, California. Facts Common to All Claims. In late March 00, while in the locker room after Physical Education class at Coombs Middle School, one of Ashly s friends asked Ashly if Ashly is a lesbian. Ashly responded affirmatively. 1. That evening, Ashly s mother, Amelia Massey, received a telephone call from Ms. Karen Gill (Gill), Ashly s Physical Education teacher, informing Ms. Massey that she had a problem with Ashly being in the girls locker room. Gill said that Ashly told the other girls that she

4 is a lesbian and that the girls feel uncomfortable being around Ashly in the locker room because of Ashly s sexual orientation. 1. Ms. Massey asked if Ashly had behaved improperly in the locker room. Gill responded that Ashly had not acted inappropriately; that Ashly had not made any inappropriate sexual comments or engaged in any inappropriate sexual conduct. 1. Ms. Massey asked Gill if Ashly was meeting the requirements of Physical Education class, to which Gill responded affirmatively. 1. Gill told Ms. Massey that she would call her again if there were any future problems. 1. Ms. Massey never received another phone call from Gill. 1. When Ashly went to P.E. class the next day, Gill told Ashly to go to the principal s office and that she was no longer allowed to go to P.E. class. 1. For the next week and one-half, Ashly sat in the principal s office every day during the time she was supposed to be at Physical Education class. No one explained why she was to sit and wait in the principal s office. And during this week and one-half, no school official ever met with Ashly to discuss the situation.. Every day that Ashly sat in the office, other students would see her there and ask her why she was there. The other students assumed she had done something wrong and was in the principal s office to be disciplined. 0. No school official ever called Ashly s mother, Amelia Massey, to inform her that her daughter was being prohibited from going to Physical Education class. 1. About a week and a half after Ashly was first told by Gill that she could no longer attend Physical Education class, Ms. Massey coincidentally arranged a meeting with Vice Principal Dabney to discuss an unrelated need to arrange Ashly s schedule to accommodate a medical research program Ashly had begun. During this meeting, Ms. Massey asked why Ashly had been

5 removed from Physical Education class. Mr. Dabney said that Principal Peredia had made the decision that Ashly should be precluded from attending Physical Education class.. During this meeting, it was decided that Ashly would leave school early to attend the research program. Physical Education was one of the classes that was eliminated from Ashly s schedule as a result of this decision.. This decision about rearranging Ashly s schedule was independent of and had no relation to Mr. Peredia s decision to forbid Ashly from attending Physical Education class. Had there not been a need to change Ashly s schedule for another reason, the school would have continued to prohibit Ashly from attending Physical Education class.. As a result of Defendants conduct, Ashly was prevented from attending Physical Education class for a period of a week and one-half.. Defendants conduct was emotionally damaging to Ashly. Having to sit in the principal s office every day during Physical Education class was humiliating and denigrating, and made Ashly feel that she was being punished because of her sexual orientation.. At all relevant times, BUSD s written nondiscrimination policy failed to protect students from discrimination on the basis of sexual orientation.. Although Ashly no longer attends school in the Banning Unified School District, she still lives within miles of the district and her grandmother continues to reside within the Banning Unified School District. There is a significant likelihood that she will return to the BUSD some time before she graduates from high school and she is afraid that, if she does return, she will be subjected again to discrimination on the basis of her sexual orientation. Claims for Relief First Claim for Relief (Equal Protection -- U.S.C. )

6 Plaintiff realleges and repleads all of the allegations in paragraphs 1 - of this Complaint and incorporates them by reference.. Defendants denied Plaintiff an equal opportunity to participate in physical education classes at a public school, solely on the basis of Plaintiff s real or perceived sexual orientation. 0. Plaintiff s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution was violated by this denial of equal access to public school classes. 1. Plaintiff has a cause of action for violation of her constitutional right to equal protection, under the Civil Rights Act, U.S.C.. Second Claim for Relief (Cal. Educ. Code 00 et seq.). Plaintiff realleges and repleads all of the allegations in paragraphs 1 of this Complaint and incorporates them by reference.. Defendants prevented Plaintiff from participating in Physical Education class, a program or activity of the school, on the basis of Plaintiff s real or perceived sexual orientation.. Defendants conduct constituted discrimination on the basis of sexual orientation in violation of California Education Code 00 et seq. Third Claim for Relief California Civil Code Sections 1 and (a), Unruh Civil Rights Act. Plaintiff realleges and repleads all of the allegations in paragraphs 1 - of this Complaint and incorporates them by reference. 1.. Defendants are a business establishment within the meaning of Civil Code Section. At all relevant times, Plaintiff was a student at Coombs Middle School in the Banning Unified School District.

7 Starting in March 00, Plaintiff was prevented from attending P.E. class because of her real or perceived sexual orientation. This decision to preclude Ashly from attending P.E. class was made by Principal Peredia and was ratified by Vice Principal Dabney. Prayer for Relief WHEREFORE, Plaintiff prays for a judgment in her favor as follows: 1. Issue a judgment declaring that the acts of the Defendants described herein violate the Fourteenth Amendment to the United States Constitution, California Education Code Section 00 et seq., and the California Civil Code Section 1 et seq.. Issue an injunction ordering Defendants to stop engaging in such unconstitutional and unlawful acts, and to develop policies and procedures for preventing the recurrence of any such unconstitutional and unlawful acts, including but not limited to the following: a. Require Defendants to adopt policies with specific guidelines for instructing teachers and administrators about how to address complaints by students who have been taunted, harassed, or discriminated against because of their actual or perceived sexual orientation or gender; b. Require Defendants to provide annual trainings for BUSD teachers, staff, and administrators on their legal obligation to treat all students equally, regardless of real or perceived sexual orientation and gender, and to respond to and take steps to prevent harassment and discrimination on the basis of actual or perceived sexual orientation or gender; c. Require teachers and administrators in BUSD schools to conduct age-appropriate anti-bias education programs for all students addressing issues of diversity, homophobia, and tolerance, wherein students are instructed about laws prohibiting

8 harassment and discrimination based on actual or perceived sexual orientation or gender; d. Require Defendants to maintain complete and accurate written records concerning each complaint of harassment or discrimination on the basis of real or perceived sexual orientation or gender as well as the specific action BUSD teachers and administrators took to resolve the complaint;. For compensatory damages and consequential damages to be awarded to Ashly Massey according to proof at trial;. For exemplary and punitive damages to be awarded to Ashly Massey according to proof at trial;. For interest;. For costs of suit and attorneys fees; and. For such other and further relief as the Court may deem just, proper, and appropriate. Demand for Jury Pursuant to Rule (b) of the Federal Rules of Civil Procedure and Rule -1 of the Local Rules, Plaintiff demands trial by jury for all the issues pleaded herein so triable. Dated: December 1, 00 1 By MARTHA MATTHEWS ACLU OF SOUTHERN CALIFORNIA COURTNEY JOSLIN NATIONAL CENTER FOR LESBIAN RIGHTS Attorneys for Plaintiff ASHLY MASSEY

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