U.S. District Judge Glenn T. Suddaby (N.D.N.Y.) has ruled that a lawsuit filed by Lambda Legal on behalf of two students (a brother and sister) against the Indian River Central School District (in Central N.Y.) and various district and school officials (including the school board) can proceed on state and federal statutory and constitutional claims, finding that the complaint adequately places in issue whether the school's failure to protect a gay student from bullying and harassment and failure to extend equal access to a proposed gay-straight alliance at the school violated the students' legal rights. The March 29 ruling denied the defendants' motions for summary judgment, and left standing the bulk of plaintiffs' legal claims for trial.
In some ways this is a depressingly familiar sort of case, as once again a group of school administrators and personnel have allegedly failed to rise to their responsibilities under the law to afford equal treatment on the basis of sexual orientation. Indeed, it is rather astonishing, in light of the litigation record on this issue compiled in federal courts around the nation over the past two decades, that school officials and employees anywhere in the country could have behaved the way the defendants in this case are charged with behaving during the relevant period of 2003-2004.
Judge Suddaby decided not to describe the factual allegations in detail in his opinion, noting that this was a pretrial ruling mainly directed to the parties, whose familiarity with the allegations could be presumed. But they are available in detail from the complaint, which can be accessed at Lambda Legal's website. The complaint alleges that Charlie Pratt, then a 15-year-old gay student at the high school, dropped out in 2004 after a campaign of harassment, assault, and threats against him. The complaint was also filed on behalf of his sister, also a student there, who joined Pratt in seeking the establishment of a GSA at the school.
It has long since been firmly established, in decisions by judges ranging across the political spectrum, that under the federal Equal Access Act, students who wish to form a gay-straight alliance at their school are entitled to do so if the school allows any other non-curricular clubs whatsoever, and to be afforded equal status, recognition, and benefits as a recognized student organization. And it has been firmly established as well since late in the last century that anti-gay discrimination by state actors can be challenged under the Equal Protection Clause and is unconstitutional unless supported by a rational non-discrimination justification.
One wonders, reading Judge Suddaby's opinion, whether school officials sought legal advice at any time prior to being served with this lawsuit, since competent legal advice would have warned them about the potential liability they faced. In the first major case on harassment of gay students resulting in a trial verdict, Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), Lambda Legal obtained a settlement of close to $1 million for a gay man subjected to similar conduct after a jury voted to hold the school district liable, and there have been similar cases in the interim involving significant damage awards. Further, it is amazing to read in the court's opinion that the district argues that anti-gay discrimination may not be attacked as unconstitutional because the Supreme Court has not held that sexual orientation claims involve a "suspect class." Ever since the Supreme Court's 1996 decision in Romer v. Evans, 517 U.S. 620, it has been well established that anti-gay discrimination is actionable under the 14th Amendment. But then, perhaps the school district's legal advisors are not particularly well informed, or thought they could render advice without doing legal research. This would be consistent with Judge Suddaby's criticisms about the procedural flaws and oddities of the Defendants' motion, which "vacillates so freely between asserting a [dismissal] challenge and asserting a [summary judgment] challenge — often in the same sentence" that the motion "arguably violates" the Federal Rules of Civil Procedure, and thus shouldn't be considered at all. But the judge decided to overlook these problems and get to the merits of the motions.
As to procedural defenses, the judge rejected the defendants' claims that various state statutory claims had to be dismissed because certain notices hadn't been sent to the defendants before the lawsuit was filed, but accepted the argument that such notice must be given before asserting a state constitutional claim, so the claim of violation of a provision of the state constitution drops from the case. He also found that because plaintiffs' claims concerning defendant's denial of equal access for a GSA could be said to seek to vindicate a public interest, notice requirements under the Education Law for suing a school district were not applicable. The court rejected a statute of limitations argument, finding that lead plaintiff Charles Pratt was a minor when these events occurred, and the statute of limitations on his claims would not start to run until after his 18th birthday. As a result, his state law claims were not time-barred when the lawsuit was filed before his 21st birthday.
Disappointingly, the court found that controlling appellate division precedent compells dismissal of claims against the school district under the New York State Human Rights Law. The Appellate Division ruled in East Meadow Union Free School District v. New York State Division of Human Rights, 65 A.D.3d 1342 (2009), leave to appeal denied, 14 N.Y.3d 710 (2010), that a school district is not an "education corporation or association" within the definition of a public accommodation in the state Human Rights Law, and thus not governed by that law's ban on sexual orientation discrimination.
However, the court found that the New York State Civil Rights Law, which also mentions sexual orientation and specifically focuses on harassment by any "institution, or by the state or any agency or subdivision of the state," did apply, and that Pratt's factual allegations were sufficient to ground valid claims of sex and sexual orientation discrimination against the defendants under this statute.
Of greater potential significance for purposes of this lawsuit in federal court, Judge Suddaby refused to dismiss the federal statutory and constitutional claims.
Title IX of the Education Amendments Act of 1972 applies to sex discrimination in schools that receive federal funding, and courts have found that it applies to harassment of gay students due to gender non-conformity that results in a hostile educational environment. The court found that Pratt's allegations were sufficient to raise this theory of liability, contending that Pratt was harassed due to gender stereotyping, as reflected in the derogatory language directed against him, and that it was severe enough to create a hostile environment in violation of the statute.
On plaintiffs' equal protection claim, the court noted federal precedents finding that anti-gay discrimination may violate the Equal Protection Clause, and that plaintiffs had alleged facts "plausibly suggesting" that the District, the School Board, and various individual named defendants "discriminated against Plaintiff Pratt because of his sex and sexual orientation, and were deliberately indifferent to antigay harassment of him by other students and faculty." Indeed, plaintiffs alleged harassment so severe that Pratt had to drop out of school, and that various defendants were aware of the harassment but took no remedial action. This is enough to state a valid equal protection claim, in light of evidence that school officials took action to protect non-gay students who encountered harassment.
Plaintiffs alleged that First Amendment expressive association rights as well as the federal Equal Access Act were violated by the way the District responded to their request to start a GSA at the school. Here the school argued that since the lawsuit was filed they have allowed a GSA to meet at the school. However, plaintiffs counter, the GSA still has not been accorded equal treatment with other student groups, a point that defendants didn't bother to refute in their motion to dismiss. Judge Suddaby observed that compliance with the law after a lawsuit is filed would not relieve the defendant of liability for failing to comply with the law before the lawsuit was filed, and would not provide a basis to dismiss a lawsuit that was seeking damages.
The District also mounted the tired old argument, rejected numerous times in other cases, that because it was not required to allow student clubs to exist, it could not be charged with a violation of the First Amendment for rejecting the formation of a GSA. This misses the point of the First Amendment claim, which is that having decided to allow student clubs to form, the school district has created a limited public forum in which it is not free to selectively forbid particular clubs because of its disapproval of their subject matter unless there is some good non-discriminatory justification for doing so. Content-based regulation of speech and association is suspect under the First Amendment, so the court refused to dismiss this claim on a motion to dismiss.
Finally, the court agreed with the defendants that under established law a school district may not be sued for punitive damages, only for compensatory damages and injunctive relief, so the demand for punitive damages was dropped from the case.
The upshot of the court's rulings is that the district will have to stand trial for violations of the New York Civil Rights Law, the federal Equal Access law, Title IX, and the federal constitution. The school district's attorney, trying to put a good face on the decision in a statement to the Watertown Daily Times published March 31, pointed out that the ruling was not "entirely a victory" for the plaintiffs and "isn't something complete adverse for the school district." That's certainly true. But what is also certainly true is that the major legal claims of the case survived the motion, and that the ruling was mostly a victory for the plaintiffs, which means that it's certainly time for a settlement. One suspects that the experience of named defendants testifying at trial would not be enjoyable…. at least to them. Now that the motion to dismiss is past, discovery can begin and Lambda Legal's crack attorneys can make the district officials squirm in depositions, which one suspects they would like to avoid experiencing.