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When Kilgore High School softball coaches Rhonda Fletcher and Cassandra Newell initiated a conversation with a student’s mother concerning that student’s behavior, it was likely without the intention of provoking constitutional arguments that seem ripped from the headlines of high courts and culture wars. Nevertheless!

At issue was a 16-year-old student, S.W., who had allegedly spread a rumor about a liaison between Coach Newell and a fellow student athlete. First, Newell and Fletcher confronted S.W. in a school locker room (allegedly locking her in it), then they met with S.W.’s mother, Barbara Wyatt, and at some point during this fateful meeting–Barbara would go on to allege–they “outed” the girl to her mother. Subsequently, the mother brought suit against the coaches and Kilgore ISD for violating her daughter’s Fourth and Fourteenth Amendment rights. A trial court sided with her before the Fifth Circuit Court of Appeals slammed on the brakes, vacated the lower court’s ruling, enclosed the embattled coaches in the cocoon of qualified immunity, and found no “clearly established” constitutional right to a privacy interest in one’s sexual orientation–all of which gives us abundant cause to repair to a school district attorney for counsel and instruction in turbulent times.

Melanie Charleston is an attorney in the Houston office of the law firm of Walsh, Anderson, Gallegos, Green & Trevino, P.C.. Asked to explain what the majority in the split ruling meant by claiming that a student did not have a clearly established right to privacy regarding her sexual orientation, she said, “‘Clearly established’ is a term that can be overused and is not as clear as it sounds… You have to ensure that there are distinct similarities between what has already been decided and the situation to which you are trying to apply the doctrine. In this case, Wyatt tried to say that the court had previously addressed the parameters of her [daughter’s] right to privacy.” But the court said it had not, especially in the context of a school situation, when personnel must be allowed to freely discuss with parents issues pertaining to their children.

Perhaps Wyatt v. Fletcher is too singularly modern a case for there to exist clearly established precedent, but doesn’t the U.S. Supreme Court’s recent ruling striking down the Defense of Marriage Act have bearing? “I don’t think so,” Charleston said. “We have to be careful not to broaden the court’s decision in DOMA,” which, she explained, did not address the disclosure of private information or the issue of what is and is not private, but rather dealt with federal recognition of same-sex marriages. While the DOMA case applied a broad brush to the national conversation, this case in Kilgore ISD dealt with a specific set of alleged facts which required a more precise analysis.

To wit: how different would the situation have been had the coaches disclosed S.W.’s sexual orientation to other students or members of the faculty? The court does not tell us, Charleston said, but it did leave some clues. “The court acknowledges that it has previously recognized an individual’s general right to privacy from government disclosure of private information absent a legitimate state purpose… The court also makes a point of saying the disclosure in this case was regarding a minor student’s behavior and welfare to a parent who needed to know.” [Italics in original.] “Moreover,” Charleston went on, “the reason for the meeting with the mother was to discuss concerns over the student’s behavior and compliance with team rules; any disclosure of the student’s orientation was secondary. This leads me to believe that, outside of this context, disclosure of a student’s sexual orientation might well be viewed as a violation of clearly established law.”

Finally, Charleston said she would advise her clients against the sort of aggressive behavior S.W. alleged that the coaches exhibited toward her in the locker room confrontation. “I think there’d be a negative connotation you’d have to overcome when subsequently having to explain about questioning behind a locked door,” she said. “In terms of some of the other behaviors alleged, it’s hard to make blanket statements, like: you should never yell at a student.” Ominously, she concluded: “I would advise clients, however, to remember that their behavior with students could always be called into question and, in this age, it is safe to assume that your actions are being recorded.”
For much more on the ins, outs and implications of Wyatt v. Fletcher et al, as well as the Supreme Court’s DOMA decision, see the July/August issue of Texas School Administrators’ Legal Digest.

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