No Emotional Distress Liability for Science Camp Exposing Fifth-Graders to "Gender Identity Related Discussions"

From Sandoval v. Pali Institute, Inc., decided Wednesday by California Court of Appeal Judges Thomas Delaney, Joanne Motoike, and Maurice Sanchez:

After returning home from a multiday overnight science camp run by defendant Pali Institute, Inc. (Pali) and organized by their public school district, plaintiffs sued Pali and the school district for intentional infliction of emotional distress and negligent infliction of emotional distress based, in part, on their exposure to gender identity related discussions while at the camp….

While in fifth grade, at 10 and 11 years old, plaintiffs attended an overnight science camp arranged by their public school district and run by Pali. After returning from the four-day camp, plaintiffs sued the school district and Pali for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).

The complaint alleges plaintiffs "were introduced to camp counselors of unknown and ambiguous gender who identified themselves with 'they/them' third person pronouns and asked the students in attendance their 'preferred pronouns.' They further asked students to state their 'preferred pronouns' and taught students various matters pertaining to transgendered identification and sexual identity." It further alleges plaintiffs had to sleep in a dormitory with only one camp counselor and that counselor identified with they/them pronouns. When they allegedly asked to call their parents to discuss these matters, camp counselors did not let them due to a Pali policy prohibiting students from calling home while at camp.

{[Plaintiffs'] declaration set forth a more detailed account of what the daughter said occurred at camp. According to the declaration, the counselors "aggressively introduced themselves with their preferred pronouns and threatened the children with disciplinary action if they failed to use the[ ] pronouns correctly."

The daughter felt scared and asked to call home, but that request was denied repeatedly. In doing so, the counselor "belittled" the daughter's feelings as "'stupid.'" When peers tried to comfort her, the counselor "scolded" them and sent them back to bed, "further exacerbating [her] feelings of isolation and fear." The daughter was later denied some "privileges granted to the other campers," such as being able to drink soda. When the daughter returned home, the mother observed "the negative effects of the camp experience on [her]," such as developing a phobia of being alone and not wanting to sleep alone. For these reasons, the daughter started professional therapy with her grandfather.}

As part of their IIED cause of action, plaintiffs allege Pali's actions "were intentional, extreme, and … done with the intent to cause emotional distress or with reckless disregard of the probability of causing plaintiffs emotional distress." And as part of their NIED cause of action, they allege Pali owed them a duty of care "to ensure [they] were not exposed to foreseeable harms." Both causes of action allege Pali's conduct caused them severe emotional distress.

The court concluded that the part of the claims based on the gender identity discussions and preferred pronouns should be dismissed under the California "anti-SLAPP" statute, which provides for early dismissal of claims based on speech on matters of public concern (to oversimplify). The claims based on "Pali's policy of not allowing students to call home while at camp," "allegations concerning sleeping arrangements and the failure to disclose information about camp counselors," and "harassment of the daughter" "unconnected to the subject matter of anything that took place at camp" were apparently not subject to the anti-SLAPP challenge and may still go forward. An excerpt from the analysis:

IIED has three elements: "'(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; [and] (3) … actual and proximate causation of the emotional distress by the defendant's outrageous conduct.'"

Here, the IIED cause of action is generically pled, incorporating by reference factual allegations stated elsewhere in the complaint to supply, for example, the acts which plaintiffs claim were extreme and outrageous and caused severe emotional distress. Those allegations include the following: "[p]arents were in no way informed that sexual matters or LGBTQ issues would be taught at Pali and their consent was not obtained"; "[w]hile present at Pali, … [plaintiffs] were introduced to camp counselors of unknown and ambiguous gender who identified themselves with 'they/them' third person pronouns and asked the students in attendance their 'preferred pronouns'"; the counselors "asked students to state their 'preferred pronouns' and taught students various matters pertaining to transgendered identification and sexual identity, all of which were of an age-inappropriate character, were not consented to by plaintiffs' parents and/or guardians and would not have been consented to, had parents been informed"; plaintiffs "requested to call their parents to discuss what had happened but were prohibited [by] camp personnel from doing so"; "Pali's policy prohibited students from calling home while at Pali."

The focus of these allegations is the counselors' actions involving the gender identity subject matter, meaning those actions are at least part of the allegedly outrageous behavior on which the IIED cause of action is based…. [Likewise], the complaint's introduction … states plaintiffs' parents sent them to camp "based on the representation and belief that they would receive education consistent with the Western values with which they were raised at home," and says Pali "pulled a bait-and-switch[ ] [by] instead subjecting [plaintiffs] to instruction of a sexual character, focused on LGBTU [sic] issues with which [they] were unfamiliar and psychologically unprepared to process." …

Although a fair interpretation of the complaint leads us to conclude there are IIED claims which arise from the gender identity related protected activity, it simultaneously confirms plaintiffs also appear to seek to impose IIED liability based on Pali's alleged policy of not letting students call their parents. Plaintiffs expressly represent that claim has no connection to gender identity related matters. And although not in the complaint itself, the mother's declaration raises the specter of harassment of the daughter. To the extent these claims—including any alleged emotional distress—are unconnected to the subject matter of anything that took place at camp, they do not arise from protected activity. Thus, they may not be stricken pursuant to the anti-SLAPP statue. Whether such claims are legally viable and, if so, whether plaintiffs will be able to demonstrate liability, are matters not before us and properly left for another day….

The second step of the anti-SLAPP analysis [once it is shown that the claim is brought based on speech on matters of public concern] requires evaluating whether a plaintiff has met its burden of demonstrating the claims which arise from protected activity are legally sufficient and factually substantiated….

The tort of IIED applies only to outrageous conduct. "Outrageous conduct has been defined as conduct that is 'so extreme as to exceed all bounds of that usually tolerated in a civilized community' [citation] and 'so extreme and outrageous "as to go beyond all possible bonds [sic] of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."'"

Whether conduct qualifies as outrageous is usually a question of fact, but a court may determine in the first instance whether, as a matter of law, alleged conduct may reasonably be regarded as so extreme and outrageous as to allow the matter to proceed to a trier of fact. And, in the negligence context, the question of duty is a threshold issue of law for the court.

Based on our protected activity analysis, the alleged conduct which we must evaluate here is the exposure of 10 and 11 year olds to gender identity related discussions in a public school setting and the provision of such exposure without parents first being informed. Plaintiffs provide no argument or legal authority explaining how such conduct could be sufficiently outrageous to support an IIED cause of action …. In contrast, we find existing California public policy precludes such potential liability….

As Pali points out, the California legislature has made clear its position that gender identity is a characteristic to be protected and safeguarded, and discrimination based on it should not be tolerated in schools or otherwise. Construing conduct which consists of engaging in gender identity discussions aimed at establishing a more inclusive school environment as outrageous or a breach of a duty of care would run directly counter to that established state policy.

Because the claims arising from the gender identity related protected activity are neither factually substantiated nor legally sufficient, they must be stricken from the complaint….

For similar reasons, the court threw out the negligent infliction of emotional distress claim as well (again, to oversimplify).

Justice Delaney added:

Having authored the majority opinion, I also write separately to express additional thoughts concerning the legal sufficiency of plaintiffs' intentional and negligent infliction of emotional distress claims that arise from gender identity related protected activity. I believe the liability they seek to impose is legally unavailable for reasons beyond a mere conflict with state legislative policy.

As aptly stated by another court in declining to allow a winemaker's defamation claim grounded in a comedian's alleged insinuation that the winemaker's wines were popular with African Americans, "[c]ourts will not condone theories of recovery which promote or effectuate discriminatory conduct." Stated differently, "the law cannot, directly or indirectly, give [private biases] effect."

Opening the door to emotional distress tort liability based on school setting discussions of gender identity aimed at establishing a more inclusive school environment would cast a dark shadow over a matter through which people seek to express their subjective, deep-core sense of self. It would convey a message of intolerance of those perceived as different, and it would work to foster discriminatory attitudes towards them.

As history teaches us, even though such biases may nevertheless persist in society, the law simply cannot give effect to them. (See, e.g., Palmore v. Sidoti (1984) [potential pressures and stress on minor child from living with stepparent of different race due to private racial and ethnic biases may not factor into custody determination]; Shelley v. Kraemer (1948) [declaring judicial enforcement of real property racially restrictive covenants unconstitutional]; Castaneda v. Olsher (Cal. 2007) [refusing to recognize tort based duty of landlord because doing so would likely result in arbitrary discrimination on basis of various protected characteristics]; Polygram Records, Inc. v. Superior Court (Cal. App. 1985) [refusing to recognize defamation theory that would effectively promote racially discriminatory ideas]; Simmons v. American Media, Inc. (Super. Ct. L.A. County, 2017) [concluding mislabeling person as transgender cannot constitute libel per se and refusing to validate private prejudices against transgender individuals by legally recognizing them]; Greenly v. Sara Lee Corp. (E.D. Cal. 2008) [statements wrongly labeling coworker as homosexual cannot be defamatory per se and concluding otherwise would demean lives of homosexual persons]; Albright v. Morton (D. Mass. 2004) [analogizing evolution of societal views of homosexuality with that of race and concluding wrongfully identifying someone as homosexual cannot be defamatory per se].)

The importance of adhering to this fundamental principle, which courts across the country have applied for the greater part of a century, cannot be underscored enough under the circumstances. "[F]oster[ing] an environment of inclusivity, acceptance, and tolerance … serve[s] an important educational function for [all] students. When a school promotes diversity and inclusion, 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting [because] the students have the greatest possible variety of backgrounds.' Students in diverse learning environments have higher academic achievement leading to better outcomes for all students…. [A]nd[,] inclusive classrooms reduce prejudices and promote diverse relationships which later benefit students in the workplace and in their communities."

I would find plaintiffs' claims arising from protected activity to be legally nonviable for this additional, critically important reason….

My view: The court erred, I think, in focusing on the particular views being promoted and concluding that they are endorsed by California public policy and therefore actionable; that suggests that the relevant torts are viewpoint-based speech restrictions, allowing liability for some viewpoints (ones that are seen as "outrageous" and aren't endorsed by California public policy) but forbidding liability for other viewpoints. Rather, the court should have just relied on Snyder v. Phelps (2011), which holds that the First Amendment protects the expression of opinions on matters of public concern, even when they are seen as outrageous and severely emotionally distressing. And I think that principle—and especially its viewpoint neutrality requirement—generally applies to speech to children and students as well as speech to adults.

Disclosure: I knew Andy Wexler, the founder of the Pali Institute (who I assume still owns it) socially, when I lived in the Pacific Palisades; but I haven't discussed this case with him, and in general haven't been in touch with him for more than five years (and likely closer to ten).

Lisa Perrochet and Mark A. Kressel (Horvitz & Levy) and Sonali Olson and Sherri Matta (Olson Law Group) represent the Pali Institute.