Can a school district prohibit a teacher from discussing her “homosexual orientation or lifestyle” with students, staff members, and parents?
That is the central question raised by a lawsuit filed against the Nebo district in Spanish Fork, Utah, by 17-year teacher Wendy Weaver.
Ms. Weaver was removed as volleyball coach at Spanish Fork High School last July and warned not to discuss her homosexuality if she wanted to keep her position as a tenured psychology and physical education teacher.
In a variation on the federal government’s “don’t ask, don’t tell” policy for homosexuals serving in the U.S. military, Nebo district administrators told Ms. Weaver that if students, staff members, or parents asked her about her sexual orientation, she was to tell them that the subject was private and inappropriate to discuss with them.
According to the teacher’s lawsuit, filed Oct. 21 in U.S. District Court in Salt Lake City, Ms. Weaver and her husband, who is also employed by the school district, were divorced in April. Ms. Weaver moved in with her lesbian partner soon afterward. The suit contends that district officials learned of her homosexual orientation from Ms. Weaver’s ex-husband and that she never initiated any conversation about her private life with any students.
In June, a member of the girls’ volleyball team at Spanish Fork High asked Ms. Weaver on the telephone whether she was a lesbian. Ms. Weaver responded truthfully.
In July, school officials informed Ms. Weaver she was being removed as coach of the volleyball team, which she had led to four state championships. Principal Robert Wadley, a defendant in the suit, told her he was taking away the coaching job because it was in the school’s best interest and his “perception of [Ms. Weaver] ha[d] changed,” the suit says. At a later meeting, she was given the letter threatening her with firing if she discussed her homosexuality.
The suit maintains that school officials have refused to clarify whether the restrictions covered Ms. Weaver only at school or also outside school.
Ms. Weaver sued the district with the backing of the American Civil Liberties Union of Utah. Her suit contends that the restriction on discussing her homosexuality violates her constitutional rights of free speech, privacy, and equal protection of the law.
Her lawyers say Ms. Weaver has never intended to discuss her private life in the classroom or with students. But the restrictions apparently bar her from discussing her homosexuality with potentially thousands of fellow teachers and parents in the community, they say.
“Ms. Weaver’s own domestic partner is a parent,” said David Watkiss, one of her lawyers. “Her ex-husband is a parent and staff member. You can see how absurdly broad this gag order potentially is.”
Ms. Weaver’s lawsuit is the second major controversy over gay rights in the schools in the generally conservative state of Utah. Last year, the Salt Lake City district was embroiled in a dispute over a proposed club for gay students.
Mr. Watkiss said: “I am not aware of anything in Utah law that makes being a homosexual disqualifying for teaching in the public schools. There are a number of openly homosexual teachers in [the] Granite and Salt Lake [districts].”
Almon L. Mosher, the director of human resources for the 19,500-student Nebo district, said officials there could not discuss the details of the lawsuit.
“We expect our teachers to teach the curriculum of the school district and the state of Utah,” said Mr. Mosher, a defendant. “We don’t expect them to talk about their private issues, whether they are heterosexual or homosexual.”
According to Mr. Watkiss, one key court decision that supports Ms. Weaver’s case is a 1984 ruling by a federal appeals court striking down part of an Oklahoma law that authorized school districts to dismiss employees who advocate or encourage homosexuality. The U.S. Court of Appeals for the 10th Circuit, which covers Utah, held that the First Amendment protects teachers’ advocacy of gay rights even if they advocate conduct that would be illegal under the state’s sodomy law.
The U.S. Supreme Court reviewed the ruling in 1985 in the case of Board of Education of Oklahoma City v. National Gay Task Force. But the court deadlocked 4-4; then-Justice Lewis F. Powell Jr. did not participate. The tie affirmed the 10th Circuit ruling without making it a nationwide precedent.
Yet another federal appeals court has weighed in with a ruling about the reach of Title IX of the Education Amendments of 1972 in cases involving sexual harassment in public schools.
A divided panel of the U.S. Court of Appeals for the 7th Circuit ruled Oct. 22 that officials of the Perry Township, Ind., district cannot be held liable under Title IX for alleged sexual harassment involving a teacher and a high school senior.
The majority on the three-judge panel said that because the teacher, Steve Rager of Southport High School, and the 17-year-old girl apparently hid their consensual sexual relationship, administrators had no knowledge of the affair and thus could not be held liable under Title IX. The federal law bars all forms of sexual discrimination in public schools receiving federal funds.
The appeals court reversed a federal district judge’s ruling that allowed the lawsuit to proceed. The district judge, as well as the dissenting appeals court judge, said the teacher appeared to use his authority to initiate a relationship with the girl. He chose her as his student assistant and used his private office to make sexual advances, according to court documents.
“There is evidence from which a reasonable jury could find that Southport officials were negligent and that they should have known of Rager’s harassment,” said the dissenting opinion in Smith v. Metropolitan School District by U.S. Circuit Judge Ilana D. Rovner.
--MARK WALSH mwalsh@epe.org
