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Privacy Rights of Same-Sex Couples
7/1/2014
Carolyn Stone, Ed.D.
Tuesday July 01, 2014
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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Two female students were making out in the hallway. Your principal brought the two girls to his office and called their parents and explained the student code of conduct violation and told the parents the gender of the student with whom their daughter was engaged in a public display of affection (PDA). One of the girls is suing the school district and the principal citing a violation of her privacy rights. Will the courts determine that she lost her right to privacy when making out in the hallways or will they conclude that a privacy claim is a valid premise on which she can pursue a court challenge? If you had known in advance of the principal’s plan to out these students to their parents, what advice if any would you have given to the principal?

The privacy rights of students who engage in displays of affection in school hallways is a divisive topic among school. In the case of Charlene Nguon, many school counselors believe the student gave up any claims to privacy when making out in the school hallway. A federal judge in Los Angeles had to decide in the Nguon vs Wolf (2007) case if Nguon had a claim of privacy that could proceed to court. The school sought to have the lawsuit dismissed, but Judge James Selna of the U.S. District Court in the Central District of California allowed the suit to move forward, essentially saying the claim of privacy was a valid premise on which to try the case.

Court documents reveal Nguon thought she was insulated at her school from what her mother would know because her mother struggled with English, never conversed with other parents from the school, only cursorily engaged with Charlene’s friends and only came to school on rare occasions at Charlene’s urging. Charlene explained that she thought her secret was safe at school. School counselors see students use this mindset in separating school from home. Students walk through the door wearing clothes they did not have on when they left their parent’s sight. Or, students have in-school-dates and displays of affection with someone their parents have forbidden them to see. Students think of school as a separate entity from their home life although this is not always the reality.

The ACLU brought the lawsuit on behalf of Nguon, claiming it was reasonable and her right to expect that her sexual orientation remain private from her parents. Nguon, a senior in Orange County’s Garden Grove Unified School District, claimed Principal Wolf violated her privacy rights by telling her parents she was a lesbian after he disciplined her for being affectionate with her girlfriend. In September 2007, a California federal district court ruled the principal had not violated Nguon’s privacy rights by disclosing her sexual orientation to her parents because it occurred within the context of his official duty under the California Education Code to inform parents of disciplinary measures being taken against their child (Nguon vs. Wolf, 2007).

The fact that the case was allowed to move forward was in and of itself considered a victory by the ACLU. “We are pleased that the court recognized that the school does not have the automatic right to disclose a student’s sexual orientation just because that student is out of the closet to his or her friends at school. Coming out is a very serious decision that should not be taken away from anyone, especially from students who may be put in peril if they live in an unsupportive home” (ACLU, 2005, para. 4). Translated this means that educators do not have an automatic right to infringe upon the privacy rights of students.

In light of Nguon vs. Wolf and similar cases, informational privacy as it relates to minors is receiving more attention. Cullitan (2011) proposes that informational privacy afforded to minors should be expanded to better serve the particular vulnerabilities of children such as LGBTQ youth. Cullitan advocates that courts considering such cases should consider whether the state had a compelling interest to intervene, and, if so, whether the state utilized the least intrusive means to violate a minor’s informational privacy. LGBTQ youth have a great deal at stake with informational privacy in the context of their family as they are at greater risk for substance abuse, suicide and homelessness and are often targets of physical, verbal and psychological abuse. Cullitan explains that LGBTQ youth should not be granted more rights concerning their sexual behavior or conduct but should be provided with the assurance that their private information will remain confidential when expressing themselves in ways that are legal for minors.

If Cullitan’s advocacy were in place, Nguon’s outing would have been unconstitutional, in that she considered school to be insulated from home, a reasonable expectation of privacy, and even if the school had a compelling interest in “outing” Charlene, the principal would not be able to demonstrate that he employed the least intrusive means available for achieving that interest.

Lessons Learned
This case provides a number of valuable lessons:
  • School counselors abstain from insinuating themselves in discipline issues. However, equity is always the school counselor’s business, and politically astute school counselors will use their legal muscle to let their administrator know that outing LGBTQ students is legally dangerous. Political astuteness can go a long way in supporting equitable learning environments for all students while keeping relationships positive to advocate for future students.
  • The fact that an event is not wholly private does not mean an individual does not have an interest in limiting disclosure or dissemination of the information. According to the federal judge in the Nguon case, Nguon did not give up her privacy rights when she was making out in the hallways of her high school. The case is viewed as critical in forwarding LGBTQ students’ rights to give permission before having their sexual orientation revealed by school officials.

Educators may not engage in personal viewpoint-based discrimination of speech or expressive conduct protected by the First Amendment.

School districts have a right to enforce reasonable and equitable rules against inappropriate public displays of affection, but enforcing the policy must not be discriminatory. Court documents revealed that same-sex couples were disciplined for behavior routinely tolerated by heterosexual couples, negating the reasonable and equitable rule.

The descriptions school officials use to explain to parents disciplinary measures should not out LGBTQ students to their parents. Use of the words gay or lesbian to parents about their children can be liable under the law. An educator should simply state that the PDA behavior occurred with another student, making identifying the gender irrelevant to the discipline.

Court documents revealed that anti-discrimination policies were not disseminated. This is problematic when educators are trying to claim they did not discriminate. Written policies widely conveyed are necessary.

Outing students to their parents can create a rift between parent and student. LGBTQ youth are disproportionately represented in the homeless teenager population. The father of Nguon’s partner threatened to send his daughter to Florida to a special school that would “fix her.”
Educators should not treat LGBTQ students as if their identity needed an intervention.
School counselors should never out students to their parents. Even if students are suicidal, school counselors act immediately in notifying parents of the threat of self-harm but do not put students in what could possibly be a breaking point by having their parents learn of their sexual identity before the student is ready for them to know, indeed if ever they want them to know.

Carolyn Stone, Ed.D., is professor and counselor educator, University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.