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Gay Students Press Abuse Claims Against Districts

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The insults and the abuse are etched in the memories of the three young men.

For Jamie S. Nabozny, they include the time in 7th grade when two boys wrestled him to the floor and acted out a rape. And in 9th grade, when schoolmates assaulted and urinated on him in the boys' restroom.

A boy identified in court papers as M. Mario Doe was helping film a football game when his male classmates blew kisses from the stands and mockingly asked if he wanted to dance and have sex with them.

Another student at Mario's suburban Chicago high school, identified in legal papers as John Doe, endured almost daily taunts of "fag" from students passing him in the hallway.

For openly gay high school students, or those perceived as gay, intolerance is a familiar part of what is often a painful time of life. But these three young men believe school officials could have done more to stop their abuse.

Mr. Nabozny, who attended public schools in Ashland, Wis., and the two unidentified young men who attended Riverside-Brookfield High School in Riverside, Ill., are fighting back.

The former students have filed lawsuits claiming that school officials failed to maintain a safe school environment and failed to discipline students who regularly tormented them.

Legal experts believe the cases are among the first by homosexual students seeking to hold school districts responsible for mistreatment by other students, teachers, or other personnel. But if successful, they may be merely the first in a wave of legal action.

"A lot of students have been fearful of reporting this kind of abuse," said David Buckel, a staff lawyer with the Lambda Legal Defense and Education Fund, a New York City-based gay civil-rights organization that is handling Mr. Nabozny's case.

But in the wake of the publicity surrounding that case, "we are getting an amazing number of calls from students who were incredulous" that they could pursue legal remedies for harassment, Mr. Buckel said.

The suits come at a time when public schools are a battleground for gay-rights issues. On one side, five states have amended their education codes to bar discrimination based on sexual orientation. A number of school districts have taken similar action.

On the other side, a New Hampshire district has adopted a policy barring any positive reference to homosexuality. The Salt Lake City schools recently decided to disband extracurricular clubs rather than permit a club for gay students. And in Utah last week, the legislature passed a bill that would ban controversial extracurricular clubs. (See story, page 1.)

The districts involved in the lawsuits argue that they cannot be held liable for alleged abuse by students. They say it is impossible to prevent the taunting and teasing of students who are especially vulnerable in school.

"Unfortunately, it is not at all unusual for students to harass one another, usually because the victim is perceived as 'different,' whether fat or skinny or uncoordinated or poor or gay or whatever," the Ashland school district says in court papers.

'Had To Expect It'

Mr. Nabozny, who is now 20, realized by age 11 that he was gay. But growing up in a small town in northern Wisconsin, he kept his sexual identity a secret at school.

By middle school, however, his classmates perceived him as gay and began what he calls an unrelenting stream of abuse. This included the mock rape and frequent name-calling, kicking, and pushing by other students. He finished 8th grade at a Roman Catholic school in Ashland.

Mr. Nabozny returned to public school in 9th grade, where he says the taunting and other abuse continued, including the assault in the bathroom. He reported the incident to the principal, who he says took no action.

Mr. Nabozny alleges that despite his frequent reports of harassment, and numerous attempts by his parents to prod school officials to act, little was done.

"My middle school principal told me that if I was going to be openly gay, I had to expect this" treatment, he said in an interview last week. "In high school, I was just kind of pushed out of the [school] office."

In 11th grade, after his second suicide attempt, he dropped out of school and moved to Minnesota, where he now lives and attends community college.

Mr. Nabozny sued the Ashland district last year in federal court in Madison. The suit claims, among other contentions, that the district and school officials violated his 14th Amendment right to due process of law by failing to protect him from the harassment and assaults.

No Duty To Protect

Mr. Nabozny sought $350,000 in compensatory and punitive damages, as well as an opportunity to participate in a high school graduation ceremony.

The school district responded that Mr. Nabozny received frequent support from school counselors, including one who was gay. The district says administrators also sought to discipline the students involved and tried to help Mr. Nabozny avoid the worst troublemakers by adjusting his schedule and allowing him to use a private restroom, among other steps.

Timothy J. Yanacheck, the district's lawyer, said it is impossible for schools to prevent all such conduct.

And, as the district put it in court papers, the "defendants did not create this attitude in society. Defendants did not raise the alleged persecutors in their homes to believe that harassment and assault are appropriate responses to someone perceived to be different."

In October, U.S. District Judge John C. Shabaz issued a summary judgment for the district, ruling that Mr. Nabozny did not present any valid federal constitutional claims.

The judge based his decision on several recent federal court rulings. In those cases, courts found that schools are not responsible for protecting students from harm in school unless the students can prove it was the policy or custom of district officials to endorse or ignore wrongdoing.

Judge Shabaz called Mr. Nabozny's case "wrenching," but said "the defendants did not have an affirmative duty to protect plaintiff from private violence."

Mr. Nabozny has appealed his case to the U.S. Court of Appeals for the 7th Circuit. The case was heard last month, and a decision is pending.

State Case Pressed

The case filed against Riverside-Brookfield High School in Cook County Circuit Court in Illinois last year originally had just one plaintiff, "Mario Doe."

He says in court papers that his abuse began in early 1993, when students pinched him and grabbed his genitals. Students said "there's the fag" in the hallways and left notes saying "fag, I love you," the lawsuit claims.

Mario, now 19, states that he repeatedly advised teachers and school counselors of the abuse, and claims they took little or no disciplinary action.

His suit included both federal and state legal claims. The school district had the case removed to federal district court in Chicago. In November, U.S. District Judge George M. Marovich dismissed claims that the district violated Mario's constitutional rights of equal protection and substantive due process of law.

However, the judge refused to dismiss the portions of the suit that dealt with state law, and sent the case back to a Cook County court. Mario's lawyer, William J. Borah, has since added a second plaintiff--John Doe, a 17-year-old boy who has also dropped out of Riverside-Brookfield High School because of anti-gay abuse.

"Our argument is that by their lack of effective involvement, school officials in effect ratified and encouraged this type of behavior," Mr. Borah said. The suit seeks $1 million in damages for each plaintiff.

The school district argues that Illinois law does not hold school districts liable for the improper conduct of students.

"Anybody feels bad if students are teased, whether they are fat or they have a lisp" or because they are gay, said Lisa A. Rapacz, a lawyer for the Riverside-Brookfield district. But, she added, that does not make the school district legally responsible.

Judge Marovich, in dismissing Mario Doe's federal claims last fall, said that while he could not grant legal relief, he wished teachers and school officials had been more responsive to the boy's complaints. "If not because it was constitutionally required," the judge said, "then because it was the right thing to do."

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