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Can Schools Do More To Protect Gays?

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The insults and the abuse are etched in the memories of the three young men. For Jamie Nabozny, they include the time in 7th grade when two boys wrestled him to the floor and acted out a rape and then 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 filming a school football game when male classmates blew kisses from the stands and mockingly asked if he wanted to have sex with them. Another student at Mario's suburban Chicago high school, identified only 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 the abuse. 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. They have filed lawsuits claiming that school officials failed to maintain a safe school environment by not disciplining 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 students, teachers, or other personnel. If they are successful, a wave of similar suits may follow. "A lot of students have been fearful of reporting this kind of abuse,'' says David Buckel, a staff lawyer with the Lambda Legal Defense and Education Fund, a New York City-based organization that is handling Nabozny's case. But in the wake of publicity surrounding that case, Buckel says, "we are getting an amazing number of calls from students who were incredulous'' that there might be legal remedies for harassment.

The suits come at a time when public schools are a battleground for gay-rights issues. Five states have amended their education codes to bar discrimination based on sexual orientation. A number of school districts have taken similar action. A New Hampshire district, on the other hand, has barred any positive reference to homosexuality. And the Salt Lake City schools recently decided to disband extracurricular clubs rather than permit a club for gay students.

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 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.

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 says was an unrelenting stream of abuse. This included the mock rape and frequent name-calling. He finished 8th grade at a Roman Catholic school. But he returned to public school in 9th grade, where he says the taunting and abuse continued, including the assault in the bathroom. He reported the incident to the principal, who, he says, took no action.

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,'' he says. "In high school, I was just kind of pushed out of the [school] office.'' In 11th grade, he dropped out of school and moved to Minnesota, where he now lives.

Nabozny sued the Ashland district last year in federal court. The suit claims, among other things, that the district violated his 14th Amendment right to due process of law by failing to protect him from the harassment and assaults. He sought $350,000 in compensatory and punitive damages, as well as an opportunity to participate in a high school graduation ceremony.

In its response, the school district stated that Nabozny received frequent support from school counselors, including one who is gay. The district says administrators also sought to discipline the students involved and tried to help Nabozny avoid the worst troublemakers by adjusting his schedule. Timothy Yanacheck, the district's lawyer, says it is impossible for schools to prevent all malicious conduct. And in court papers, the district states that 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 Shabaz issued a summary judgment for the district, ruling that 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. Shabaz called Nabozny's case "wrenching'' but said "the defendants did not have an affirmative duty to protect plaintiff from private violence.'' Nabozny has appealed his case to the U.S. Court of Appeals for the 7th Circuit.

The case filed against Riverside-Brookfield High School in Cook County Circuit Court in Illinois last year originally had one plaintiff, M. Mario Doe. He says the abuse began in 1993, when students pinched him and grabbed his genitals. Students in the hallways said, "There's the fag,'' and others 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.

In November, U.S. District Judge George 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. William Borah, Mario's lawyer, has since added a second plaintiff, John Doe, a 17-year-old boy who dropped out of 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,'' Borah says. The suit seeks $1 million in damages for each plaintiff.

In dismissing Mario Doe's federal claims, Judge Marovich 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.''

--Mark Walsh

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