LEGAL BRIEF

Communicating Student Sexual Orientation

By Perry A. Zirkel/School Administrator, August 2015
  

The two girls’ softball team coaches at a Texas high school met behind closed doors with 16-year-old team member S.W. They confronted her about an alleged relationship with an older female and asked whether she had started a rumor that one of the coaches was gay.

After the meeting, they informed S.W.’s mother of the relationship with the other female whom they regarded as a bad influence. S.W.’s mother filed a civil rights suit in federal court against the coaches and district. The individual defendants filed a motion for summary judgment, contending that even if these allegations were considered factually accurate, the court should rule in their favor based on qualified immunity that school officials may only be liable for civil rights violations where the law is clearly established.
  

Court Rulings

The trial court ruled the coaches were not entitled to qualified immunity. However, the Fifth Circuit Court of Appeals reversed in a 2-to-1 decision, while the claims against the district remained for further proceedings. The majority found “no clearly established law holding that a public secondary student has a privacy right under the 14th Amendment that precludes school officials from discussing with a parent … private matters … relating to sexual activity of the student.”

The judges in the majority observed (a) the specific contours of this case were limited to communication with the parent that did not directly disclose S.W.’s sexual orientation and (b) the previous case law establishing the constitutional right of privacy concerning personal sexual matters failed to address these specific contours.

The dissenting appellate judge read the allegations and law differently. His interpretation of the pretrial pleadings was that one of the coaches was admittedly gay and the other female was an 18-year-old who attended softball games at the invitation of the coach’s former girlfriend. Similarly, he interpreted the case law as clearly establishing a constitutional right to privacy in one’s sexual orientation that extends to public school students.
  

Careful Caveats

This decision is limited in several ways. Jurisdictionally, it is binding only in the Fifth Circuit, covering Louisiana, Mississippi and Texas. Factually, its specific nuances are subject to dispute.

Legally, even the majority’s ruling is confined to the indirect disclosure of a student’s sexual orientation to parents and only applies to individual employee defendants. Their qualified immunity applies retrospectively but not necessarily to other personnel in future cases. The school district may be liable depending on its practices and policies.

Moreover, not revealing such information to parents runs the risk of a suit based on their 14th Amendment right for the upbringing of the child. Yet as a recent law review article concluded, “… just as no student has prevailed in claiming that a school violated her informational privacy rights by disclosing her sensitive personal information to her parents, no parent has prevailed in arguing that a school violated her familial privacy rights by not disclosing such information.”

Thus, school leaders should warn staff to maintain the privacy of students’ sexual orientation except to the extent necessary to protect their safety. Determining the boundaries of this safety exception requires careful policymaking in light of the increasing litigation concerning students’ sexual identity.

Such comprehensive consideration must include other related litigation concerning (a) the recognition of lesbian, gay, bisexual or transgender student groups under the Equal Access Act; (b) freedom of expression of students advocating and opposing homosexuality; (c) Title IX harassment and bullying of students who are gay or perceived as gay; and (d) access of transgender students to school bathrooms and interscholastic athletics.
  

A Need to Know

School leaders must tread carefully on this issue. Avoid kneejerk reactions based on personal morality. The intersecting lines of law require carefully conceived policies and actions backed by legal counsel.

For the specific privacy issue, the key question may be this: Who really needs to know?


Perry Zirkel is university professor of education and law at Lehigh University in Bethlehem, Pa.