United States: Do Students Have The Right To Keep Their Sexual Orientation Private At Public Schools?

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.


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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions