You be the judge

[iamshack]

I don't think keeping that a secret would be all that difficult for a high schooler. I feel like my parents didn't know about 90% of the dumb s*** I did back in the day.

Yes, most likely because you WANTED it that way. The School District has no right to pull you aside and threaten you unless you divulge all your secrets to your parents based on a rumor they heard. There was no imminent danger present, there was no witnessing of an illegal act, this was not something that was reported to them as a potentially dangerous situation from others...this was a coach settling a personal score and then seeking to justify it after the fact with some "duty to disclose" nonsense.

[NorthSideSox72]

It doesn't matter. Legally schools can do pretty much whatever they want.

Regarding privacy, yes. I still think it was wrong what they did, but, legally it will be a difficult case to make.

 

But locking her in room, and badgering her, only to get a false confession, about something not even related to school work... they are screwed on that part, I have no doubt.

 

[iamshack]

It doesn't matter. Legally schools can do pretty much whatever they want.

That is absolutely untrue.

[Kyyle23]

Invasion of privacy, false imprisonment, badgering.....whatever it was, it was wrong on many levels. Those coaches should lose their jobs.

[NorthSideSox72]

Invasion of privacy, false imprisonment, badgering.....whatever it was, it was wrong on many levels. Those coaches should lose their jobs.

Totally agree there. Aside from the lawsuit, if I were an administrator, I would push for the removal of those coaches.

 

[Jenksismyhero]

Yes, most likely because you WANTED it that way. The School District has no right to pull you aside and threaten you unless you divulge all your secrets to your parents based on a rumor they heard. There was no imminent danger present, there was no witnessing of an illegal act, this was not something that was reported to them as a potentially dangerous situation from others...this was a coach settling a personal score and then seeking to justify it after the fact with some "duty to disclose" nonsense.

 

I was just pointing out the fact that it's pretty easy to keep things from your parents. So just because her parents weren't aware doesn't mean that other students and teachers were also not aware prior to this.

 

And she admitted to these coaches that she was having a relationship. It wasn't based on rumor, it was based on what she told them.

 

 

[southsider2k5]

Invasion of privacy, false imprisonment, badgering.....whatever it was, it was wrong on many levels. Those coaches should lose their jobs.

 

That is the thing they can be gotten on.

[StrangeSox]

It doesn't matter. Legally schools can do pretty much whatever they want.

 

Not according to this Texas judge. I posted a link to the judgement on the previous page.

[Jenksismyhero]

yeah the false imprisonment claim is pretty weak here. She voluntarily went into the room and there wasn't any evidence that she couldn't leave if she wanted to.

[StrangeSox]

yeah the false imprisonment claim is pretty weak here. She voluntarily went into the room and there wasn't any evidence that she couldn't leave if she wanted to.

"The Coaches dismissed the remainder of the team, lead S.W. into an empty locker room, and locked the door behind them."

[Jenksismyhero]

Yes, most likely because you WANTED it that way. The School District has no right to pull you aside and threaten you unless you divulge all your secrets to your parents based on a rumor they heard. There was no imminent danger present, there was no witnessing of an illegal act, this was not something that was reported to them as a potentially dangerous situation from others...this was a coach settling a personal score and then seeking to justify it after the fact with some "duty to disclose" nonsense.

 

According to the link provided by SS, the mother also had suspicions about it, so it probably wasn't a complete shock:

 

After the conversation, the coaches met with S.W.'s mother, Mrs. Wyatt. According to Wyatt's recollection, Coach Fletcher "revealed S.W.'s sexual orientation to her mother by telling Ms. Wyatt that S.W. was dating a girl whom Fletcher described as S.W.'s girlfriend."

 

S.W. claims she was not "out" to her mother, and Mrs. Wyatt claims the first she knew that her daughter was a lesbian was when Coach Fletcher told her. She had questioned S.W. about her sexual orientation in the past, but S.W. had always denied being a lesbian. S.W. claimed to have suffered psychological injury as a result of this forced "outing" experience.

[StrangeSox]

In a school setting, kids have zero expectation of privacy. The courts have pretty well vetted that.

A. There is a Constitutional Right to Prevent the Unauthorized Disclosure of One’s

Sexual Orientation

The Supreme Court and the Fifth Circuit recognize two branches of substantive due process

privacy rights: autonomy and confidentiality. The autonomy branch involves “‘the interest in

independence in making certain kinds of important decisions[,]’ such as those relating to marriage,

procreation, and education.” Zaffuto v. City of Hammond, 308 F.3d 485, 489 n.4 (5th Cir.

2002)(quoting Whalen v. Roe, 429 U.S 589, 599-600 (1977)). The branch implicated in this case,

however, is the “confidentiality branch” which refers to the Fourteenth Amendment’s protection of

the “individual interest in avoiding disclosure of personal matters.” Id. (citing Whalen, 429 U.S. at

Case 6:10-cv-00674-JDL Document 65 Filed 11/30/11 Page 7 of 23 PageID #: 714

599).

 

This also includes “the right to be free from the government disclosing private facts about its

citizens and from the government inquiring into matters in which it does not have a legitimate and

proper concern.” Ramie v. City of Hedwig Village, Tex., 765 F.2d 490, 492 (5th Cir. 1985)(citing

Whalen, 429 U.S. at 599-600). In evaluating actions under the confidentiality branch, the Fifth

Circuit has adopted a balancing test where the constitutionality of the action is determined by

comparing the interests it serves with those it hinders. Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th

Cir. 1978), cert. denied, 439 U.S. 1129 (1979); see also Coontz v. Katy Independent School Dist.,

No. 98-20188, 1998 WL 698904, at *3 (5th Cir. Sept. 14, 1998)(citing Plante, 575 F.2d at 1135)

(applying the balancing test to a minor in the school setting). Thus, “[a]n intrusion into the interest

in avoiding disclosure of personal information will thus only be upheld when the government

demonstrates a legitimate state interest which is found to outweigh the threat to the plaintiff’s

privacy.” Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. Unit B Jan. 1981). This balancing test is

a question of law for the Court to decide. Id; Woodland v. City of Houston, 940 F.2d 134, 138 (5th

Cir. 1991).

1. S.W. Has a Reasonable Expectation of Privacy in Her Sexual Orientation

“[W]hether or not personal information is private is a matter of reasonable

expectations.”Coontz, 1998 WL 698904 at *3 (citing Plante, 575 F.2d at 1135). Defendants

challenge both whether a student could ever have a reasonable expectation of privacy in his or her

sexual orientation and whether S.W. specifically had a reasonable expectation of privacy in her

sexual orientation. See MOTION at 16-18. While the Fifth Circuit has never explicitly held that a

student has privacy right in keeping his or her sexual orientation confidential, an analysis of existing

Supreme Court and Fifth Circuit precedent compels the Court to find such a right.

8

Case 6:10-cv-00674-JDL Document 65 Filed 11/30/11 Page 8 of 23 PageID #: 715

As an initial matter, Defendants argue in various places throughout their briefing that S.W.

could not have had a reasonable expectation of privacy in her sexual orientation because either Ms.

Wyatt already knew S.W. was homosexual or S.W. was openly gay in school. Plaintiff, however,

provides sworn testimony from Ms. Wyatt that she did not know S.W. was homosexual until the

Coaches told her on March 3, 2009. See RESPONSE at 4 (citing WYATT DECL. at ¶ 7). Although

whether a person has a reasonable expectation of privacy is a question of law, the inquiry relies on

a factual foundation that is not developed at this stage in the litigation. Whether S.W. was openly

gay or whether Ms. Wyatt knew she was homosexual prior to the March 3 incident is a question of

fact requiring credibility determinations that are best left to the trier of fact.

 

Turning to the law of privacy, the Supreme Court has found under the auspices of personal

autonomy that there is a right to privacy that protects matters related to “marriage, procreation,

contraception, family relationships, child rearing, and education.” Lawrence v. Texas, 539 US 558,

573-74 (2003)(citations omitted); see also Klein Independent School Dist. v. Mattox, 830 F.2d 576,

580 (5th Cir. 1987)(citing Paul v. Davis, 424 U.S. 693 , 713 (1976))(“Under the autonomy branch

of privacy, constitutional protection has been limited to intimate personal relationships or activities,

and freedoms to make fundamental choices involving oneself, one's family, and one's relationships

with others”). Moreover, in Lawrence, the Supreme Court extended the right to privacy to include

“intimate conduct.” Lawrence, 539 US at 562. The Court cautioned against “defin[ing] the

meaning of [a] relationship or [] sett[ing] its boundaries absent injury to a person or abuse of an

institution the law protects.” Id. at 567. Thus, the Court found “[w]hen sexuality finds overt

expression in intimate conduct with another person, the conduct can be one element in a personal

bond that is more enduring. The liberty protected by the Constitution allows homosexual persons

9

Case 6:10-cv-00674-JDL Document 65 Filed 11/30/11 Page 9 of 23 PageID #: 716

the right to make this choice.” Id. With an understanding that the Supreme Court carefully guards

a person’s right to make decisions regarding intimate conduct irrespective of that person’s sexual

orientation, the Court now turns to the Fifth Circuit’s informational privacy precedent.

While there is no concrete definition of what is personal enough to trigger the confidentiality

branch, binding precedent supports a finding that a person’s sexual orientation is of such a highly

personal nature to prevent its unauthorized disclosure. See, e.g., ACLU of Miss. v. Miss., 911 F.2d

1066, 1070 (5th Cir. 1990)(finding “instances of (often unsubstantiated) allegations of

homosexuality, child molestation, illegitimate births, and sexual promiscuity as well as reports of

financial improprieties, drug abuse, and extreme political religious views” sufficiently personal);

Fadjo v. Coon, 633 F.2d 1172, 1174 (5th Cir. Jan. 1981)(finding a legitimate interest in the privacy

of “the most private details of [Fadjo’s] life”); Plante v. Gonzalez, 575 F.2d 1119, 1121 (5th Cir.

1978)(finding detailed personal financial information sufficiently personal).

 

2 Although there is clear precedent that a person has a right to the privacy of sexual

information, the Fifth Circuit has not explicitly held that a person has a right to prevent the

unauthorized disclosure of his or her sexual orientation. Nevertheless, the Court finds that a

person’s sexual orientation is one of “the most private details of [a person’s] life” and subject to the

confidentiality analysis. See Fadjo, 633 F.2d at 1174. This is supported by the Supreme Court’s

careful guarding of the right of an individual to make decisions regarding intimate conduct,

irrespective of the sexual orientation of the individual, and the Fifth Circuit’s protection of

2 See also Wolfe v. Shaefer. 619 F.3d 782, 785 (7th Cir. 2010)(“The courts of appeals, including this court,

have interpreted Whalen to recognize a constitutional right to the privacy of medical, sexual, and perhaps other

categories of highly personal information –information that most people are reluctant to disclose to strangers– and

have held that the right is defeasible only upon proof of a strong public interest in access to or dissemination of the

information.”)(collecting cases).

 

Case 6:10-cv-00674-JDL Document 65 Filed 11/30/11 Page 10 of 23 PageID #: 717

information regarding information of a sexual nature. See Lawrence, 539 U.S. at 573-74; ACLU of

Miss. v. Miss, 911 F.2d at 1070.

 

Several circuits including the Second, Third, Sixth, Ninth, and Tenth circuits have found that

such information is intrinsically private. See Powell v. Schriver, 175 F.3d 107, 111 (2nd Cir.1999)

(“the excruciatingly private and intimate nature of transsexualism, for persons who wish to preserve

privacy in the matter, is really beyond debate”); Sterling v. Borough of Minersville, 232 F.3d 190

(3rd Cir. 2000) (“It is difficult to imagine a more private matter than one’s sexuality”); Bloch v.

Ribar, 156 F.3d 673, 685 (6th Cir.1998)(publicly revealing information regarding sexuality and

choices about sex exposes an aspect of our lives that we regard as personal and private);Thorne v.

City of El Segundo, 726 F.2d 459, 468 (9th Cir.1983) (the interest raised in the privacy of sexual

activities is within the zone of privacy protected by the Constitution); Eastwood v. Dept. of

Corrections, 846 F.2d 627, 631 (10th Cir.1988) (right to privacy “is implicated when an individual

is forced to disclose information regarding personal sexual matters”).

 

While S.W. may have a legitimate interest in preventing the unauthorized disclosure of her

sexual orientation, the inquiry does not end there. The Court must next determine whether the

Coaches had a legitimate interest in disclosing that information and whether that State interest

outweigh’s S.W.’s privacy interest in her sexual orientation.

[iamshack]

According to the link provided by SS, the mother also had suspicions about it, so it probably wasn't a complete shock:

I doubt the standard is how shocked the audience was to learn of the news the subject wished to keep private.

 

The bottom line is that this is not the school's place to get involved in this sort of thing.

 

Do you really believe this wasn't the coach being upset that this player was supposedly dating her ex?

[Jenksismyhero]

"The Coaches dismissed the remainder of the team, lead S.W. into an empty locker room, and locked the door behind them."

 

She'd have to testify that she understood all of that to mean she was being confined against her will. That could potentially be refuted by a defense attorney asking if she ever asked to leave and if not, why not. Is that a slam dunk defense? No, but neither is just having the door locked. I think it'd be a tough sell.

[Jenksismyhero]

I doubt the standard is how shocked the audience was to learn of the news the subject wished to keep private.

 

The bottom line is that this is not the school's place to get involved in this sort of thing.

 

Do you really believe this wasn't the coach being upset that this player was supposedly dating her ex?

 

I agree it's not the schools place, and I agree these guys didn't do the right thing. But all that is different from whether or not her privacy was invaded.

[iamshack]

Sexual orientation and personal health are two privacy rights that the courts will upheld, barring some imminent harm to another party unless the information is disclosed.

 

There is no way around that.

[StrangeSox]

According to the link provided by SS, the mother also had suspicions about it, so it probably wasn't a complete shock:

 

The coaches disclosed private information that the mother was unaware of that unambiguously revealed the daughter's sexual orientation. Even if the mother was suspicious, they still violated her privacy by confirming those suspicions.

 

The only question in my mind is whether they had an obligation or duty to report the rumored relationship. Given that the age difference was less than 3 years and that they had no knowledge of any physical relationship, it seems like a clear "no."

[iamshack]

I agree it's not the schools place, and I agree these guys didn't do the right thing. But all that is different from whether or not her privacy was invaded.

You and I both know that a judge can see the intention of these coaches and craft the decision to work however the hell he or she wants...

Edited February 15, 2012 by iamshack

[southsider2k5]

Sexual orientation and personal health are two privacy rights that the courts will upheld, barring some imminent harm to another party unless the information is disclosed.

 

There is no way around that.

 

They why do schools require parental approval for even an aspirin to be taken/

[StrangeSox]

They why do schools require parental approval for even an aspirin to be taken/

 

Liability would be my guess.

[StrangeSox]

SSshack

 

finally on the same side of an argument

[southsider2k5]

Liability would be my guess.

 

If the courts had upheld it, the schools wouldn't be allowed to disclose any medical information, including what pills their kids were taking.

[Jenksismyhero]

The coaches disclosed private information that the mother was unaware of that unambiguously revealed the daughter's sexual orientation. Even if the mother was suspicious, they still violated her privacy by confirming those suspicions.

 

The only question in my mind is whether they had an obligation or duty to report the rumored relationship. Given that the age difference was less than 3 years and that they had no knowledge of any physical relationship, it seems like a clear "no."

 

How did the coaches "confirm" it? I'd be arguing that the coaches telling her wasn't "outing" her any more than whatever other evidence led to the mother's suspicions before all of this happened. The kid could have easily refuted it. "Mom, they're lying, they just don't like me. Hell, they kicked me off the team!"

 

 

Again, I think this was inappropriate. Not arguing that.

Edited February 15, 2012 by Jenksismybitch

[iamshack]

If the courts had upheld it, the schools wouldn't be allowed to disclose any medical information, including what pills their kids were taking.

Schools wouldn't be allowed to disclose it to whom?

 

My guess is they are already prohibited from disclosing health-related information to anyone but school medical employees or outside medical professionals.

[southsider2k5]

Schools wouldn't be allowed to disclose it to whom?

 

My guess is they are already prohibited from disclosing health-related information to anyone but school medical employees or outside medical professionals.

 

to the parents they are calling to ask if their kids can take medications.