MH students win ruling on gay issue

After five years, six former Morgan Hill School District
students who accused the district of failing to protect them from
anti-gay harassment will have their day in court.
After five years, six former Morgan Hill School District students who accused the district of failing to protect them from anti-gay harassment will have their day in court.

The students claimed they were physically and verbally harassed because their peers believed them to be gay, and teachers and the administration did nothing to protect them.

The Ninth Circuit U.S. Court of Appeals issued the decision earlier this week that is being proclaimed as “historic” by the American Civil Liberties Union, the group that brought the case, along with the National Center for Lesbian Rights.

“This decision affirms that in the public schools, all students deserve the same protection from school authorities,” said ACLU staff attorney Ann Brick.

The ruling allows the case to go to trial in federal district court.

Judge Mary M. Schroeder of the Ninth Circuit Court of Appeals in San Francisco agreed with a lower court that “there is sufficient evidence for a jury to conclude that the defendants intentionally discriminated against the plaintiffs in violation of the Equal Protection Clause.”

San Francisco-based ACLU attorney Matt Coles described the decision as groundbreaking.

“Absolutely it is,” he said. “In the past … schools had a responsibility to act once they know of violent harassment of an individual. The district here said some kids complained about some things and when they complained, we reacted. You can’t call us to account if we didn’t know. The court said, ‘no’ once you know about the problem you must act.”

The original lawsuit, filed on April 21, 1998, was supposed to go to trial in early 2000 when the district filed its first appeal. The plaintiffs asked for $1 million and that the district be forced to provide sufficient anti-gay harassment training and to respond appropriately and investigate complaints.

The lawsuit, Flores vs. Morgan Hill Unified School District et al, is named for plaintiff Alana Flores. All other plaintiffs are named only by initials because they were minors at the time the suit was filed.

The case was returned to U.S. District Court Judge James Ware, then appealed again. It was this second appeal that was decided this week. A case management hearing is scheduled for 10 a.m. April 28, during which Ware can set a trial date. A jury will hear the case if either side requests it.

San Jose attorney Matt Davis, who represents the school district, made it clear that there was no actual ruling or decision on the merits of the case.

“The court ruled that there was enough evidence to proceed to trial,” he said.

The case, from his point of view, hangs on three issues:

Were the students harassed?

Were their complaints handled properly?

If not, was it because of the nature of the claims (sexual orientation)?

“Basically, it is up to the judge and/or jury to decide,” Davis said.

The Equal Protection Clause is a part of the 14th Amendment to the U.S. Constitution and was used in 1954 in Brown vs. the Board of Education to declare racial segregation in the public schools violated the Constitution.

Now, Coles said, it will protect all students, in California and elsewhere in the Ninth District, not just those in public schools.

“I believe California civil rights laws extend to private schools, too,” he said, because equal protection of the law is a constitutional right.

Coles said, in a narrow view, the court said school employees are not off the hook and the case goes to trial. He is director of the Lesbian and Gay Rights Project of the ACLU.

Coles explained why he thought the district appealed.

“Gee, it wasn’t clear that school administrators had a duty to protect kids from harassment,” he said. “The court said, ‘Yes, it is clear.'”

He further said that if a school district knows there is a problem with anti-gay attitudes, it has to protect the students.

“It can’t sit back and wait,” he said. “The district spent five years making sure there was no trial (by appealing twice).”

James Emery and Jill Ginstling of Keker & Van Nest in New York City argued the case for the students:

“The case is important because it is the first from the Ninth Circuit that tells school officials they have a duty under the Constitution to treat students the same. Officials have to protect students against peer harassment. If they (the school officials) know there is harassment, they have a duty to properly train their staff.

“In a 1996 Wisconsin case, a single plaintiff was the first published federal appellate decision. This one was different because, with the six plaintiffs, the focus is on their status as gay or lesbian students. The focus is on the horrible environment in the school, rather than the bad things that happened to one kid.”

The defendants

Named in the case are district Superintendent Carolyn McKennan; Bob Davis, who was interim Live Oak principal; Delia Schizzano, assistant superintendent; Maxine Bartschi, assistant principal at Live Oak; Rick Gaston, assistant principal at Live Oak; Larry Carr, now a city councilman but then president of the school board; Susan Choi, Del Foster, Jan Masuda, Tom Kinoshita, John Kennett and Rick Herder, all school board members; former Principal Don Schaefer and former Assistant Principal Frank Nucci, both of Martin Murphy Middle School.

McKennan said she could not comment on the lawsuit or the judge’s opinion on advice of the district’s attorney.

“We are in litigation and I am a named party,” she said.

McKennan was also instructed not to respond as to whether the district would offer to settle out of court or if teachers and administrators are now being trained on how to handle incidents of harassment.

She said she couldn’t say how much the district had paid for legal services surrounding the case because the matter is handled with “a consortium of other schools” involving insurance.

School Board President Tom Kinoshita also said he could not comment on the case.

A phone request to speak with the former students was not returned.

Changes at Live Oak High School?

Melissa Ballard, president of the Gay-Straight Alliance at Live Oak, said things are a bit different now at the high school.

“There aren’t a lot of problems,” she said. “The gay people I know keep to themselves. They don’t make a big deal about it (the occasional name calling). It’s there, but they don’t talk about it.”

Ballard also said she doesn’t really remember having organized training against harassment at Live Oak.

“I do remember being told about it when I was in Catholic school,” she said.

Long-time Live Oak English teacher Aaron Spain has seen it all.

“I suppose you can say that change has occurred because of the heightened tension associated with these kinds of issues,” he said.

Spain said the Alliance has a lower profile than in past years.

“They may not feel the need to be out there, he said.”

Spain said teachers are given a little sensitivity training – a brief overview on the legalities.

City Councilman Larry Carr and Trustee Del Foster were elected to the board about the time the lawsuit was filed.

“It’s unfortunate that the court case itself continues to be the focus instead of changes that have been instituted in the district,” Carr said. “I hope that (more changes) is the direction that the people filing the lawsuit are going in.”

Davis said anti-harassment training has been provided to both staff and students.

“They are told that harassment won’t be tolerated,” he said, “and if there is a complaint, that complaint will be investigated.” The district policy, he said, bans all forms of harassment, including that which is sexual or racial.

Schroeder’s ruling can be read in full on the court’s Web site, www.ce9.uscourts.gov.

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