Nabozny v. Podlesny
challenges failure of public schools to address anti-gay abuse
On July 31, 1996, the United States Court of Appeals for the Seventh Circuit
ruled in our favor in the first case against a school for failing to stop
anti-gay abuse. The citation is Nabozny v. Podlesny, No. 95-3634,
1996 WL 4208031 (7th Cir. (Wis.)).
The problem Lambda sought to address: The failure of
public schools to address anti-gay abuse of students and the tendency to
sweep this common problem under the rug.
The precedent Lambda has established: A public school,
and school officials as individuals, may be held liable for monetary
penalties under federal equal protection law for failing to address anti-gay
abuse of a student by other students.
The Court: The decision is from the United States Court
of Appeals for the Seventh Circuit, which covers the states of Illinois,
Indiana and Wisconsin (there are twelve other such courts, all of which are
one level below the United States Supreme Court). The decision is binding on
courts in the Seventh Circuit, and is persuasive for courts elsewhere in the
country.
History of the case: Jamie Nabozny suffered years of
anti-gay abuse in middle school and high school, to which school officials
responded by saying that "boys will be boys" and that Jamie had to
expect such abuse if he was going to be gay. In October 1995, the lower
court, a federal district court in Madison, Wisconsin, dismissed Jamie's
case without a trial. Lambda was not involved with the case in the lower
court. We became Jamie's counsel on the appeal from the dismissal of the
case.
What we won: We won a ruling that a public school, and
school officials as individuals, may be held liable for monetary penalties
for failing to address anti-gay abuse of a student by other students. Now
Jamie will have his day in court, in a trial on the issue of whether the
school and the school principals (middle school and high school) denied him
equal protection under the United States Constitution. The trial will
involve two types of unlawful discrimination, gender discrimination and
sexual orientation discrimination. For both, the trial court will review the
issue of the school principals treating the abuse of Jamie differently from
other abuse. On gender discrimination, the appeals court took note of the
school principal's failure to take action on Jamie's complaint that two boys
wrestled him to the floor and conducted a mock rape of him in front of a
classroom full of students, saying: "We find it impossible to believe
that a female lodging a similar complaint would have received the same
response." On sexual orientation discrimination, the appeals court
referred to the school principal's statement that Jamie should expect to be
harassed because he is gay. On the other hand, the school had promptly
disciplined students who harassed their peers for other reasons.
What the court disagreed with: The appeals court
disagreed with our arguments that the school principals also violated
Jamie's right to "federal due process." Under the heading of
"federal due process," we had argued that the principals increased
the risk of harm to Jamie and encouraged a climate of harm. While the court
did not agree with us on the facts and the law, it nonetheless left the
possibility open for similar arguments in the future.
Other important observations by the court:
"The Equal Protection Clause does . . . require the state to
treat each person with equal regard, as having equal worth, regardless
of his or her status."
" There can be little doubt that homosexuals are an identifiable
minority subjected to discrimination in our society."
"[I]t does seem dubious to suggest that someone would choose to
be homosexual . . . given the considerable discrimination leveled
against homosexuals."
"Of course Bowers [the unfavorable 1986 Supreme Court sodomy
case] will soon be eclipsed in the area of equal protection by the
Supreme Court's holding in Romer v. Evans [the favorable 1996 Supreme
Court case on Colorado's Amendment 2] . . . ."
What this means: Schools, and school principals as
individuals, may be liable for payment of damages when they treat abuse of
lesbian or gay students less seriously than other forms of abuse. The
following examples of responses by the principals in the Nabozny case are
typical of the indifference that may lead to liability:
responding to anti-gay abuse by saying "boys will be boys";
responding to anti-gay abuse by saying that lesbian or gay students
should expect abuse because they are gay;
responding to anti-gay abuse by treating the harmed student as the
problem instead of treating the misbehaving students as the problem,
failing to recognize that the solution is not to change the abused
student's seating assignment or class schedule, or to expect that
student to change schools, but to meaningfully discipline the abusive
students.
As with all students in public schools, lesbian and gay students are
entitled to a safe environment in which to get their education, and it is
now clear that school principals not only place their schools' insurance
coverage at risk in failing to meaningfully address anti-gay abuse, but also
place their own personal resources at risk.
What's next: Lambda has written a booklet on how to stop
anti-gay abuse of a student, and how to prepare documentation that may help
in a lawsuit, if nothing else works. The Nabozny decision means
such lawsuits stand a better chance of success than before, and that other
attorneys can use our precedent to try to create safe environments for
students. For those many school principals who already believe every student
deserves a safe environment, but who seek assistance in how to be effective
in dealing with homophobia in particular, our booklet has an appendix full
of resources on helpful groups, presentations, curricular materials, and
videotapes. Call our Public Education Department at (212) 995-8585 for more
information about the booklet.
Prepared by David Buckel, Staff Attorney,
August 1996
