Do Students Have The Right To Keep Their Sexual Orientation Private At Public Schools?

The Fifth Circuit recently held that two high school softball coaches had qualified immunity from liability for allegedly outing a lesbian student to her mother. Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013).

Plaintiff Barbara Wyatt brought suit on behalf of her minor daughter S.W. against two high school softball coaches. The suit alleged that the coaches questioned S.W. in a locked locker room about S.W.'s relationship with an 18-year-old woman, and then revealed S.W.'s sexual orientation to her mother in a subsequent parent conference. Wyatt claimed that the coaches' disclosure of S.W.'s sexuality to Wyatt violated S.W.'s Fourteenth Amendment right to privacy. She also alleged that the coaches' disciplinary confrontation of S.W. in a locked locker room constituted an unreasonable seizure under the Fourth Amendment.

The issue before the Fifth Circuit was the coaches' defense of qualified immunity, which protects government officials from liability when they reasonably could have believed that their conduct was legal. In order for a plaintiff to overcome a defense of qualified immunity, she must: (1) allege that the defendant violated a clearly established constitutional or statutory right; and (2) show that the defendant's actions were objectively unreasonable.

In a 2-1 decision, the Fifth Circuit found that Wyatt failed to allege any clearly established constitutional right, and thus did not even reach the second prong of the qualified immunity test. As the Court explained, the policy behind the requirement that the plaintiff allege a violation of a "clearly established" right is to ensure that government officials are on notice of what constitutes unlawful conduct before being held liable for such actions. "When there is no controlling authority specifically prohibiting a defendant's conduct, the law is not clearly established for the purposes of defeating qualified immunity." Id. at *503.

Despite acknowledging the Fifth Circuit's recognition of a general right to privacy as well as the private nature of sexual matters, the majority concluded that the establishment of such a general privacy right was insufficient to overcome qualified immunity in the context of Wyatt's Fourteenth Amendment claim. "The Fifth Circuit has never held that a person has a constitutionally-protected privacy interest in her sexual orientation, and it certainly has never suggested that such a privacy interest precludes school authorities from discussing with...