The district made the argument this week to the state Court of Appeal in a case involving a former student at Edison Middle School who was coaxed into sex on and off campus by her teacher, Elkis Hermida, over seven months in 2010 and 2011.
Hermida was convicted of lewd acts with a minor and sentenced to three years in prison in 2011. But two years later, a Los Angeles jury rejected the girl's claims that the district was negligent in supervising Hermida and was liable for her emotional damage, prompting the appeal.
In the appeal, Holly Boyer, the girl's Pasadena attorney, argued that Judge Lawrence Cho erred in allowing evidence of the student's prior sexual history and permitting the district to argue that she was partially at fault in her own abuse.
"It is astounding that the district would take the position that a student has a duty to protect herself from abuse," she said in an interview Wednesday.
L. A. Unified General Counsel David Holmquist said the key issue in the case was not whether the girl bore any responsibility for her abuse but whether the district knew or should have known that Hermida was abusing her. He said the jury properly decided that the district was not liable.
But L.A. Board of Education member Monica Ratliff, who criticized the district's legal defense when it came to light last fall, reiterated her opposition.
"LAUSD should never argue that a girl is responsible for her own sexual abuse," she said in an email late Wednesday. "Such an argument by a school district was appalling then and continues to be appalling now."
In its appellate brief, L.A. Unified's attorneys said the girl was partly responsible because she lied to her parents and teachers to conceal a voluntary sexual relationship with Hermida and "therefore thwarted the District's ability to find out about it and stop it."
They also said it was proper to include evidence of her past sexual history to evaluate her emotional distress.
In any case, the district argued, the jury didn't consider either the issue of responsibility or past sexual history because it based its verdict on a finding that that the district did not know or have reason to suspect Hermida and therefore was not negligent.
Boyer, however, said the district used both issues throughout the trial, which tainted the proceeding.
She said arguments that the girl bore some blame ignored the "grooming" process that sexual abusers often take to disarm young victims.
Hermida first reached out to the girl on social media when she was 13, then moved to texting about "secrets" such as sex. He then began inviting her to his classroom, where they kissed and eventually had sex on campus and at nearby motels, according to court papers.
"People in positions of authority use their positions to build relationships of trust and slowly introduce sex to get the the child to acquiesce," Boyer said. "To then point to the child and say 'you let it happen' is really crazy.'"
The district came under fire last year when its legal strategy first came to light. The furor escalated when its outside attorney at the time, W. Keith Wyatt, told KPCC that it was a more dangerous decision for a 14-year-old to cross the street in traffic than to have sex with a teacher.
L.A. Unified barred Wyatt from further legal work but left open questions of whether it would continue to argue the girl shared responsibility for the abuse.
In July, Gov. Jerry Brown signed into law a bill that bars defendants accused of sexually abusing minors in civil suits from arguing that the sex was consensual. SB 14, by Sen.
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9:57 a.m.: This article has been updated with comments from L.A. Board of Education member Monica Ratliff.