US Magistrate Denies Summary Judgment to Texas School District in Lesbian Student’s Confidentiality Lawsuit

U.S. Magistrate Judge John D. Love denied a Texas school district's motion to dismiss a constitutional tort suit brought by the mother of a lesbian high school student on behalf of her daughter, who alleges that she was "outed" to her mother by the coaches of her high school softball team in violation of her constitutional right to privacy.  Wyatt v. Kilgore Independent School District, 2011 Westlaw 6016467 (E.D. Texas, Nov. 30, 2011). 

Judge Love found that contested fact issues precluded a grant of summary judge, but in reaching this conclusion, he also ruled that Supreme Court and 5th Circuit precedents support the contention that high school students have a constitutionally protected privacy right concerning information about their sexual orientation, and that such a right is well-enough established in law that a school official who violates such a right may not be protected by qualified immunity from liability at law.  Similarly, a school district maintaining a policy that staff members learning such information must disclose it to parents could be liable to the student for invasion of privacy, as could a school district that failed to adequately instruct staff on how to deal with such confidential information.

The case arose out of an incident that took place on March 3, 2009.  Softball coaches Rhonda Fletcher and Cassandra Newell summoned the members of the girls' softball team to a meeting at their off-campus playing field, then dismissed the remainder of the team and led S.W. into an empty locker room, locking the door behind them.  According to S.W., they began questioning her about her spreading a rumor that she was dating a woman identified as "Coach Newell's ex-girlfriend."  The other person in question was an "older woman" named Hillary Nutt.  (At the time, S.W. was 16 and Hillary Nutt was 18.)  S.W. at first denied this, she alleges, but after aggressive questioning and threats, admitted that she "was dating" Ms. Nutt, although at that time she had not yet actually gone out on a date with Nutt.  She claims the coaches threatened to tell S.W.'s mother that S.W. was gay and was having a sexual relationship with a woman, and that she would not be allowed to continue on the softball team until they told her mother about this.  After the conversation, the coaches met with S.W.'s mother, Mrs. Wyatt.  According to Wyatt's recollection, Coach Fletcher "revealed S.W.'s sexual orientation to her mother by telling Ms. Wyatt that S.W. was dating a girl whom Fletcher described as S.W.'s girlfriend." 

S.W. claims she was not "out" to her mother, and Mrs. Wyatt claims the first she knew that her daughter was a lesbian was when Coach Fletcher told her.  She had questioned S.W. about her sexual orientation in the past, but S.W. had always denied being a lesbian.  S.W. claimed to have suffered psychological injury as a result of this forced "outing" experience.  Mrs. Wyatt filed a greivance with the school district, asserting that the coaches should not have revealed this personal, confidential information about her daughter, but it was denied at every level of review, including the school board.  A district official, responding at the second stage of the grievance process, asserted that the coaches "are legally obligated to share this information with the parent." 

Responding to the subsequent lawsuit and in support of their summary judgment motion, defendants presented a different story, denying various aspects of S.W.'s account of what happened in the meeting, and also contending that their obligation to reveal this information to Mrs. Wyatt had nothing to do with S.W.'s sexual orientation but rather was because S.W., a minor, was dating an "older woman," with whom any sexual act would be "statutory rape" under Texas law.   Thus, the school district, seeking to avoid "municipal liability," contends that it doesn't have a policy of "outing" students to their parents, but does have a policy of requiring staff members who learn that students are engaging in unlawful activities to advise their parents.   Plaintiffs criticized this as a post hoc justification thought up in response to the grievance, and that the coaches breached S.W.'s confidentiality out of revenge against her for spreading the rumor implicating one of the coaches.

In denying the motion, Magistrate Judge Love concluded that the factual disparities between the parties' factual allegations precluded summary judgment.  On a motion by the defendant for summary judgment, the court is supposed to treat the plaintiff's factual allegations as true, and deny the defendant's motion if liability could be found based on the plaintiff's factual allegations.  In other words, part of this analysis requires the judge to determine whether the defendant would lose if the plaintiff succeeded at trial in establishing the facts she was alleging.

In this case, since the defendants are either public employees who are being sued for actions taken in the course of their employment, or the school district itself, which can be held liable only if it is found that its employees acted pursuant to a policy of the school district or that it failed to train staff appropriately, Judge Love had to determine whether high school students enjoy a constitutional right of privacy regarding information about their sexual orientation, and that such right was sufficiently well established that a school official could be held liable for violating it, and whether plaintiff's factual allegations, if believed, would be sufficient to show that the school district had a policy that violated such constitutional right, or failed to train its employees on how to deal with constitutionally protected information.

Judge Love concluded that "there is a constitutional right to prevent the unauthorized disclosure of one's sexual orientation."  For a Texas district court, the governing precedents, in addition to decisions by the U.S. Supreme Court, would include decisions by the U.S. Court of Appeals for the 5th Circuit.  "While the Fifth Circuit has never explicitly held that a student has a privacy right in keeping his or her sexual orientation confidential," wrote Judge Love, "an analysis of existing Supreme Court and Fifth Circuit precedent compels the Court to find such a right." 

The starting point for the analysis is Lawrence v. Texas, the U.S. Supreme Court's 2003 ruling striking down the application of the Texas Homosexual Conduct Law to private, consensual adult conduct.  "With an understanding that the Supreme Court carefully guards a person's right to make decisions regarding intimate conduct irrespective of that person's sexual orientation," wrote Judge Love, "the Court now turns to the Fifth Circuit's information privacy precedent."

Judge Love summarized the existing precedents, concluding that "binding precedent supports finding that a person's sexual orientation is of such a highly personal nature to prevent its unauthorized disclosure."  He noted that the only federal circuit court to hold otherwise was ruling in a pre-Lawrence decision, relying on the 1986 Supreme Court decision Bowers v. Hardwick, which the Supreme Court overruled in Lawrence v. Texas.  Having concluded that S.W. "may have a legitimate interest in preventing unauthorized disclosure of her sexual orientation," Love proceeded to evaluate whether the defendants had a legitimate interest in communicating that information to her mother, and found that the evidence presented to the court thus far would suggest they did not, although a final decision would have to await factual findings, which will turn on credibility evaluations of testimony.

The coaches and the school district insist that because it would be unlawful for a 16 year old and an 18 year old to have a sexual relationship, as the younger party is a minor and the older party is an adult under Texas law, therefore the coaches and the school had a legitimate interest in telling Mrs. Wyatt about her daughter's unlawful activities.  But, Judge Love pointed out, in any prosecution involving a relationship between a 16 year old and an 18 year old, Texas law provides the defense that the individuals are within three years of age, which detracts from the credibility of this position.

"Taking the facts as alleged by the plaintiff," wrote Judge Love, "the Court cannot find that Coaches Newell and Fletcher had a legitimate interest in disclosing S.W.'s sexual orientation that outweighed S.W.'s interest in keeping that information private."

Turning to the "municipal liability" issue, plaintiffs have alleged that the school district's written response to the appeal of Mrs. Wyatt's grievance stated a policy of requiring staff to disclose students' sexual orientation to their parents.  Judge Love found that things were not so clear-cut, because of the way the district's response was worded.  It might be interpreted as consistent with the school district's position that its policy was that staff must report to parents if they learn about a student's unlawful activity, although Judge Love noted plaintiffs' argument that "the coaches had no personal knowledge of any sexual contact between S.W. and Ms. Nutt and any belief by the coaches of that was based on rumor and conjuecture."  Further, he wrote, "Defendants' argument is further belied by their own actions: Plaintiff provides evidence that 'Defendants do not attempt to notify parents or authorities when heterosexual students 16 year of age or less have romantic relationships with 18 year olds."

It's all a question of context and credibility, the kinds of things that cannot be resolved on a summary judgment (pre-trial) motion if, as here, the facts are sharply contested, and there has not been an opportunity for witnesses to testify and be cross-examined in court in the presence of a neutral fact-finder (trial judge or jury). 

This ruling by Magistrate Love, who was assigned the task of ruling on pre-trial motions in the case, leaves the lawsuit in a ripe situation for settlement, signaling the possibility that the school district would lose at trial, incurring liability not only for damages for violation of constitutional rights but also, what could be a larger amount, the plaintiffs' costs of litigating the case.  Such pre-trial denials of summary judgment frequently lead to negotiated settlements.

The Texas Civil Rights Project represents Wyatt in the lawsuit.

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