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Divided 5th Circuit Panel Finds No Constitutional Privacy Protection for Lesbian High School Student

Posted on: June 5th, 2013 by Art Leonard No Comments

A panel of the U.S. Court of Appeals for the 5th Circuit voted 2-1 that a lesbian high school student did not have a clearly established constitutional right of informational privacy in her sexual orientation.  Reversing a district court ruling, the panel held that two female high school softball coaches enjoy immunity from constitutional liability for “outing” the girl to her mother, in apparent retaliation for the girl having told another student that one of the coaches was dating a woman.  Both of the judges in the majority, E. Grady Jolly and Edith H. Jones, were appointed to the court by Ronald Reagan during the 1980s.  The dissenter, James E. Graves, Jr., was recently appointed to the court by Barack Obama.  Wyatt v. Fletcher, No. 11-41359 [2013 Westlaw 2371280], May 31, 2013.

The lawsuit was filed by Barbara Wyatt, the mother of the high school student, against the school district, the athletic director, and the two female coaches.  The athletic director was dismissed as a defendant by agreement of the parties, and the 5th Circuit panel’s decision concerns only the motion by the coaches to dismiss the constitutional claims against them on immunity grounds, which was denied by the district court and then appealed by the coaches.  

The doctrine of “qualified immunity” protects government employees from personal liability for actions they take within the scope of their employment unless the plaintiff can show that those actions violate a “clearly established” constitutional right.  In this case, plaintiff S.W. claims to have been interrogated by the coaches in a locked room in violation of her 4th Amendment right against unreasonable search or seizure, and that her informational privacy, protected by the 14th Amendment, was violated when the coaches told her mother that she was dating an older girl.  The district court found that due to contested facts it could not rule on the immunity issue, and denied the coaches’ motion, but also suggested that if certain factual disputes were resolved in favor of the plaintiff, she would have a valid constitutional claim.

The parties sharply contest some of the facts, but for purposes of ruling on a motion by the coaches to dismiss the claims against them on grounds of immunity, the plaintiff’s allegations are supposed to be taken as true, the issue for the court being whether the defendants enjoy immunity if the plaintiff’s factual assertions prove to be accurate.   Judge Graves criticized Judge Jolly’s majority opinion for failing to treat S.W.’s allegations as true and instead adopting a version of the facts more consistent with the coaches’ account of what happened.

More significantly, however, the majority and Graves part company on the question whether S.W. had a clearly protected constitutional right at stake.  Does an individual have a right not to be “outed” as gay by a government employee who comes into possession of that information as part of their job?  The majority insisted that for the constitutional right claimed by S.W. to be “clearly established,” there must be, in effect, a Supreme Court or 5th Circuit ruling holding that teachers questioning a student in a locked room violates the 4th Amendment or that a teacher telling a parent that her child is gay violates the 14th Amendment.  The majority also suggested that the 4th Amendment issue had faded from the case and that the main focus was on the coaches’ disclosure of information to Ms. Wyatt.  Sharply contesting this approach, Judge Graves argued that there is plenty of precedential authority for S.W.’s constitutional claims, including specific statements by appellate courts (including the 5th Circuit) that information about a person’s sexual orientation is the kind of “personal fact” that is entitled to constitutional protection against unauthorized disclosure by the government. 

Graves particularly criticized the majority’s contention that prior cases do not establish a privacy right since they did not involve minors or high school students, or disclosures to the student’s parents, and that students generally enjoy limited privacy rights in high school locker rooms.  On the contrary, wrote Graves, “school children do not shed their constitutional rights at the schoolhouse gate.  The majority fails to cite any authority to indicate that the Fourth Amendment right to be free from unreasonable seizure does not extend to high school students.”  As to the information privacy issue, he wrote, “Based on the applicable authority and the coaches’ own admissions that they recognized the private nature of the information, the district court is absolutely correct that sexual orientation would fall within the categories of highly personal information protected by the right to privacy.  The district court correctly held that, while the 5th Circuit has never explicitly held that a student has a right to privacy in keeping his or her sexual orientation confidential, an analysis of precedent compels the finding of such a right.”

The majority, by contrast, largely embracing the coaches’ account of what happened, suggested that Ms. Wyatt already knew that her daughter was gay when she was called into a meeting by the coaches, who intended to inform her about her daughter’s dangerous misbehavior for her own protection from the “older woman” – an 18-year-old who had been invited to attend a softball game by her former girlfriend, who was then allegedly dating one of the female coaches!  (This case sounds like a soap opera, doesn’t it?)  The court also suggested that school officials have a right, unimpeded by constitutional considerations, to inform parents about the sexual activities of their children, and that summoning a student into a locked room to interrogate her about her behavior raises no significant 4th Amendment issues. 

The court’s ruling does not totally end the case, because S.W. had also asserted state law claims against the coaches as well as various claims against the school district that were not subject to this pretrial motion.  But the 5th Circuit’s ruling ends S.W.’s constitutional claim against the two coaches.