The Fifth Circuit recently held that two high school softball coaches had qualified immunity from liability for allegedly outing a lesbian student to her mother. Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013).
Plaintiff Barbara Wyatt brought suit on behalf of her minor daughter S.W. against two high school softball coaches. The suit alleged that the coaches questioned S.W. in a locked locker room about S.W.'s relationship with an 18-year-old woman, and then revealed S.W.'s sexual orientation to her mother in a subsequent parent conference. Wyatt claimed that the coaches' disclosure of S.W.'s sexuality to Wyatt violated S.W.'s Fourteenth Amendment right to privacy. She also alleged that the coaches' disciplinary confrontation of S.W. in a locked locker room constituted an unreasonable seizure under the Fourth Amendment.
The issue before the Fifth Circuit was the coaches' defense of qualified immunity, which protects government officials from liability when they reasonably could have believed that their conduct was legal. In order for a plaintiff to overcome a defense of qualified immunity, she must: (1) allege that the defendant violated a clearly established constitutional or statutory right; and (2) show that the defendant's actions were objectively unreasonable.
In a 2-1 decision, the Fifth Circuit found that Wyatt failed to allege any clearly established constitutional right, and thus did not even reach the second prong of the qualified immunity test. As the Court explained, the policy behind the requirement that the plaintiff allege a violation of a "clearly established" right is to ensure that government officials are on notice of what constitutes unlawful conduct before being held liable for such actions. "When there is no controlling authority specifically prohibiting a defendant's conduct, the law is not clearly established for the purposes of defeating qualified immunity." Id. at *503.
Despite acknowledging the Fifth Circuit's recognition of a general right to privacy as well as the private nature of sexual matters, the majority concluded that the establishment of such a general privacy right was insufficient to overcome qualified immunity in the context of Wyatt's Fourteenth Amendment claim. "The Fifth Circuit has never held that a person has a constitutionally-protected privacy interest in her sexual orientation, and it certainly has never suggested that such a privacy interest precludes school authorities from discussing with parents matters that relate to the interests of their children." Id. at *505.
The Court also found Wyatt's Fourth Amendment claim was barred by qualified immunity, holding that there was no clearly established constitutional right "that protects students from being privately questioned, even forcefully, even in a locked locker room." Id. at *504.
Of significance to the majority's conclusion was the fact that the coaches revealed the student's sexual orientation to her parent (and, importantly, not to other teachers or students) after the student violated team rules instituted for the benefit and safety of students.
So what does this decision mean for governmental entities in the Fifth Circuit? Certainly, Wyatt limits the ability of private citizens to successfully sue government officials. The opinion insists that an alleged constitutional right is only "clearly established" to defeat a qualified immunity defense when there is precedent recognizing a fairly narrow definition of the alleged right. It seems the case law must present a significantly similar factual context to the plaintiff's allegations to even begin to overcome qualified immunity.
Wyatt also holds some lessons for public schools wanting to avoid privacy suits from students and parents. Although the opinion does not recognize a constitutional privacy interest that would preclude school officials from discussing information about students with their parents, schools might consider adopting policies that clarify the type of information that may be conveyed in communications with parents. For example, if Wyatt had gotten to the second prong of the qualified immunity test, the question would have been whether the coaches had acted unreasonably in disclosing S.W.'s sexual orientation to her mother. If the coaches' disclosure were made in accordance with a clear school policy that parents are to be informed of student infractions and the context in which they occur, it may be harder to find the disclosure was unreasonable.1
Additional research for this newsletter graciously provided by Amanda Mendiola and Ryan Saharovich.
Footnote
1 A 2007 case out of the District of California bearing similar facts to Wyatt considered school policy regarding communications with parents about disciplinary actions when balancing a student's privacy rights against the duties of a principal to disclose the context of her suspension. See Nguon v. Wolf, 517 F. Supp. 2d 1177 (D. Cal. 2007). In Nguon, plaintiff was suspended after multiple violations of school rules proscribing inappropriate public displays of affection. In his communications with plaintiff's mother about her suspension, defendant school principal allegedly revealed that plaintiff was in a lesbian relationship. Upon an analysis of both the state education statute's and the school policy's contemplation of a meaningful discussion with parents about student misconduct, the court ultimately found that there was a "compelling state interest in the disclosure of the objective facts constituting and providing the context for the discipline imposed." See Nguon, 517 F. Supp. 2d at 1195.
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