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John Myers, Director of Operations and Programs
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The Real or Perceived Gay, Lesbian, Bisexual and Transgendered Student Protection Project

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Mercury News (San Jose, CA)

http://www.bayarea.com/mld/mercurynews/news/5592311.htm
Mercury News | 04/09/2003 | Ruling boosts anti-gay bias claim
Apr. 09, 2003

Ruling boosts anti-gay bias claim
APPEALS COURT ALLOWS HARASS CASE AGAINST M.H. SCHOOL DISTRICT

By Howard Mintz
A federal appeals court on Tuesday gave a major boost to a long-running harassment case against the Morgan Hill Unified School District, finding that a group of former high school students has presented strong evidence that school officials ignored anti-gay hostility among students.

In a ruling hailed by civil rights groups, the 9th U.S. Circuit Court of Appeals rejected efforts by Morgan Hill school officials to dismiss the heart of a lawsuit filed by six former students. The decision, which further refines prior rulings on how schools must respond to anti-gay threats and harassment against students, removes the final obstacle to getting the 5-year-old court battle to trial.

The students originally sued in San Jose federal court in 1998, asserting that administrators and teachers ignored complaints that they had been subjected to ongoing anti-gay remarks and threats of beatings and death. The case has moved slowly, in large part due to the complex issues raised in an area of harassment law still being defined by the courts.

``What the court said is, `Look, if you are a school district and a school administrator, and you know you've got a problem with anti-gay harassment, you can't just sort of look the other way and wait until somebody gets really beat up,' '' said Matt Coles, an American Civil Liberties Union attorney involved in the case. ``If you have a problem, you have an obligation to protect these kids.''

Morgan Hill Unified Superintendent Carolyn McKennan could not be reached for comment. Mark Davis and Marc Cardinal, the district's lawyers, also could not be reached.

District officials have consistently denied treating the anti-gay-harassment complaints differently from other harassment complaints, and also argued that the law on how schools should respond to anti-gay bias among students was not clear when the alleged incidents took place.

As a result, school officials maintained they should be immune from the lawsuit.

But the appeals court, in a 3-0 decision, rejected the district's arguments, upholding an earlier ruling by U.S. District Judge James Ware. Among other things, the appeals court noted that the students have presented strong evidence that administrators and teachers had not been adequately trained to deal with complaints based on sexual orientation, and repeatedly failed to intervene when the students brought their complaints.

``In light of the evidence plaintiffs presented, a jury could find that the defendants took no more than the minimal amount of action in response to the complaints of harassment,'' Judge Mary Schroeder wrote for the court.

The ruling could provide impetus for settlement talks before trial, but efforts to settle the case have failed in the past.

Lawyers for the former students consider the case important because it involved harassment against many students, mostly at the same school, Live Oak High School. The incidents occurred between 1991 and 1996 against five girls and one boy, all of whom had graduated by 1998.

``The law is making it clear that kind of harassment isn't going to result in a free pass,'' said Kate Kendall, a lawyer with the National Center for Lesbian Rights in San Francisco.

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Contact Howard Mintz at (408) 286-0236 or hmintz@mercurynews.com.
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KTU-TV
http://ktvu.com

Court Says Morgan Hill Students Can Sue School District

April 8, 2003

SAN FRANCISCO -- A federal appeals court Tuesday cleared the way for a possible trial on a lawsuit in which seven former students claim that Morgan Hill Unified School District officials failed to protect them from anti-gay harassment.

The 9th U.S. Circuit Court of Appeals upheld a decision in which a federal trial judge in San Jose turned down a bid by school district administrators for dismissal of the case.

The students filed the lawsuit in 1998. They said they either were or were perceived by other students to be lesbian, gay or bisexual. The alleged harassment took place between 1991 and 1998.

One student said that when he was in seventh grade, six other students beat him at a bus stop while saying "Faggot, you don't belong here."

The lawsuit contended that school officials punished only one of the six alleged attackers.

The appeals court turned down six district administrators' argument that they were immune from the civil lawsuit.

The panel said that at the time of the incidents, previous court rulings had clearly established that the constitutional right to equal treatment applies to treatment based on sexual orientation.

The case now goes back to federal court in San Jose for a possible trial.

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John Myers
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