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Should Schools Tell Parents that a Child is Lesbian or Gay?: Useful Guidance from a Federal Court in California


by Richard Fossey, Todd A. DeMitchell & Suzanne Eckes - November 08, 2007

In California, a lesbian school girl sued school authorities, arguing that her constitutional right to privacy had been violated when her principal disclosed her sexual orientation to her mother. The case, Nguon v. Wolf, provides useful guidance to educators about how and when to discuss a student's sexual orientation with the student's parents.

In 2005, Ben Wolf, a California high school principal, suspended Charlene Nguon, a lesbian high school girl, for “inappropriate public displays of affection” [IPDA] with her girlfriend. As he was required to do under California law, Wolf contacted Charlene’s mother and explained why Charlene had been suspended. In this conversation, Wolf told the mother that Charlene had been seen kissing another girl. By conveying this information, a court later determined, Wolf communicated to Charlene’s mother that her daughter was a lesbian. Charlene sued Wolf and other school administrators, claiming her constitutional right to privacy had been violated under both the federal and California constitutions.


Although these events took place in California, this lawsuit attracted nationwide attention. A New York Times article reported that a federal judge had allowed Charlene’s case to proceed, ruling that she had “sufficiently alleged a legally protected privacy interest in information about her sexual orientation” (Lewin, 2005). School authorities protested that Charlene was openly gay while at school. Why then should she be permitted to hide her sexual orientation from her parents?  But a spokesperson for the American Civil Liberties Union, which brought suit on Charlene’s behalf, pointed out that not all parents are supportive when they learn that their child is lesbian or gay, and the child should have the right to determine for herself whether or not to tell her parents about her sexual orientation.


A trial was held in late November and early December of 2006, and Judge James Selna issued his decision in late September of this year. Judge Selna ruled that Charlene had a legally protected privacy interest in the non-disclosure of her sexual orientation in her home. Thus, if Charlene’s sexual conduct had not risen to an inappropriate level, Principal Wolf “could not have gratuitously told her parents that she was gay or that she was engaging in displays of affection, within appropriate bounds, with another girl” (Nguon v. Wolf, 2007, p. 35).


However, Judge Selna noted, Principal Wolf had a legal duty under California law to inform Charlene’s parents why she had been disciplined at school, and this duty necessarily required Wolf to explain the objective facts that led to Charlene’s suspension. “Because Wolf had a legitimate governmental interest in describing the context of the suspension, there was no violation of Charlene’s [constitutional] privacy rights when he disclosed to Charlene’s mother she was kissing another girl” (p. 36).


Charlene also argued that the school had violated her First Amendment right to free speech by sanctioning her displays of affection toward her female classmate. Judge Selna acknowledged that some activities fall under the category of “expressive conduct” and are protected under the First Amendment. Indeed, Judge Selna wrote that he was not prepared to rule categorically “that French kissing, making out, and groping are forms of conduct which the First Amendment does not protect.”


Nevertheless, in the school setting, the judge ruled, schools are entitled to censor a student’s expressive conduct based on a judgment that the conduct is inconsistent with the mission of the school. Thus, Judge Selna sensibly concluded that the school could prohibit students from inappropriate displays of affection while on school premises without violating their constitutional rights.


Finally, Charlene had argued that her school’s IPDA policy had been applied in a discriminatory manner, with school authorities reacting more harshly to same-sex displays of affection than to heterosexual displays. This discriminatory enforcement, she charged, violated her constitutional right to equal protection. But Judge Selna denied her equal protection claim, concluding that the school had enforced its IPDA policy in a nondiscriminatory manner.


Nguon v. Wolf is the first federal court decision to rule that a public high school student has a legally protected privacy interest against the disclosure of her sexual orientation to her parents. In this case, the judge ruled that the school’s interest in explaining to Charlene’s mother why she had been suspended outweighed Charlene’s privacy interest, but it seems likely that the judge would have ruled in Charlene’s favor if Principal Wolf had gratuitously told her mother that Charlene was a lesbian or that Charlene had engaged in what the Judge described as “appropriate” displays of affection toward another girl.


Nguon v. Wolf is only one judge’s opinion, and it remains to be seen whether other courts will adopt Judge Selna’s reasoning. Nevertheless, in light of this decision, schools should consider adopting at least two sets of policies. First, schools should develop a clear, written policy regarding inappropriate public displays of affection among students and should make sure that this policy is adequately publicized. School authorities should enforce the IPDA policy consistently and fairly—regardless of whether the IPDA is same-sex or heterosexual.


Second, schools should have clear guidelines about when parents will be told about their child’s sexual orientation. The National Education Association, in a 2006 publication about sexual orientation and the schools, provides good advice on this delicate issue. NEA advises educators not to tell colleagues or family members that someone in the school community is gay or lesbian. “In most cases,” NEA advises, “individuals who “come out’ must be the ones to discuss their sexual orientation with their friends or relatives” (NEA, 2006, p. 20).


NEA acknowledged, however, that it may occasionally be necessary for school authorities “to breach students’ confidentiality if their safety is in jeopardy” (p. 20). For example, a gay or lesbian student may reveal that he or she is suicidal or is being victimized by peer harassment. In such cases, it might be crucial to notify the student’s parents that the student’s health and safety are at risk. Likewise, as the Nguon case illustrates, educators may need to inform a parent of a child’s sexual orientation in order to convey accurately the circumstances of a disciplinary action.


If parents must be notified about a student’s sexual orientation, NEA advises school personnel to coordinate with their principals and to proceed cautiously. “If possible explore parents’ likely reaction with the student first; come up with strategies for worst case scenarios. Do not blindside students by telling family members without their knowledge” (p. 20).


Educators should keep in mind that Principal Ben Wolf and his colleagues eventually prevailed in Nguon v. Wolf. After a trial, the federal judge concluded that Mr. Wolf acted appropriately when he communicated with Charlene Nguon’s mother about why Charlene had been suspended from school. If educators adopt sound policies for dealing with sexual orientation issues and respond to their students’ sexual orientation with discretion, common sense, and respect, they are unlikely to lose a lawsuit like the one brought by Charlene Nguon—even in this brave new world in which some gay and lesbian students are willing to reveal their sexual orientation in the school environment but not in their homes.


References


Lewin, T. (2005, December 2). Openly gay student’s lawsuit over privacy will proceed. New York Times, p. 21.


National Education Association (2006). Strengthening the learning environment: A school employee’s guide to gay, lesbian, bisexual, & transgender issues. Washington, DC: Author.


Nguon v. Wolfe, SACV 05-868 JVS (C.D. Cal. September 25, 2007).





Cite This Article as: Teachers College Record, Date Published: November 08, 2007
https://www.tcrecord.org ID Number: 14742, Date Accessed: 1/19/2022 5:13:49 AM

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About the Author
  • Richard Fossey
    University of North Texas
    E-mail Author
    RICHARD FOSSEY is a professor of education law at the University of North Texas. He is co-author, along with Todd A. DeMitchell and Suzanne Eckes, of Sexual Orientation, Public Schools, and the Law, published by the Education Law Association. He holds a J.D. degree from the University of Texas School of Law and an Ed.D. degree from Harvard University.
  • Todd DeMitchell
    University of New Hampshire
    E-mail Author
    TODD A. DEMITCHELL is Professor and Kimball Fellow, Department of Education & Justice Studies Program at the University of New Hampshire. He studies school law, educational policy, and collective bargaining. He has published three books and over 120 articles, book chapters, and essays. Prior to joining the faculty in higher education he spent 18 years in the public schools as a substitute teacher, teacher, assistant principal, principal, director of personnel & labor relations and superintendent.
  • Suzanne Eckes
    Indiana University

 
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