Holding Schools Accountable

After an Ashland student was harrassed and beaten by his classmates, he took his school to task. Tamara Packard takes a look at a legal precedent.

I often think that our founding fathers were a whole lot smarter than those who govern us now. The United States Constitution includes the following language, which was added as part of the Fourteenth Amendment to the Constitution in 1868: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Simple. Elegant. Comprehensive. No footnote says “except gays.”

In a groundbreaking case set in Ashland, Wisconsin, based on horrible student-on-student violence and a handful of school administrators who had the duty to stop it, but didn’t, it was firmly established that gay students are protected by this part of the United States Constitution, the Equal Protection Clause. We all owe a debt of gratitude to Jamie Nabozny, the Ashland Public Schools student who survived years of harassment and beatings due to being gay, for having the courage to stand up not just for himself, but for all LGBT students who would come after him.

Jamie’s story is heartbreaking. Yet he believed that the Equal Protection Clause protected him, and pursued this belief in court. Now students, teachers, school administrators, and parents across the country look to the decision in his case for guidance. I hope by repeating his story here, you too will learn from it, and do everything in your power to be sure no student ever has to go through what Jamie did in order to get justice.

Jamie Nabozny attended middle and high school in the Ashland Public School District. He realized he was gay by the time he was in seventh grade, and proudly chose not to hide his orientation. From seventh grade until he finally withdrew from high school in his junior year, fellow students continually harassed him, calling him “faggot,” and physically assaulting him. These assaults ranged from spitting on him, to knocking him over into a urinal and urinating on him, to simulating gang rape before a room full of other students, to a severe beating causing internal injuries. The school had a policy of investigating and punishing student-on-student battery and sexual harassment, and as required by Wisconsin Statute §118.03(1), the school district also had a policy prohibiting discrimination against students on the basis of sexual orientation.

Jamie and his parents frequently demanded that school authorities take action to punish the assaulting students, and to protect Jamie from further abuse. The authorities repeatedly promised to take action, and then repeatedly did nothing. In fact, the school principal told Jamie and his parents more than once that he should expect such treatment for being openly gay. After Jamie experienced the mock rape, as twenty other students watched and laughed, the principal told him that “boys will be boys.” In tenth grade, after Jamie was beaten by eight boys so severely that he collapsed weeks later due to internal bleeding, another school official laughed at Jamie and told him he deserved the beating because he was gay. Jamie left the Ashland Public Schools and found a good lawyer. He sued the School District and the officials who should have protected him, but instead did nothing.

The Federal trial court judge who first considered Jamie’s case thought that the law did not protect him, and did not allow him to have a trial. Yet Jamie persisted and appealed. At the Court of Appeals in 1996, he finally found justice and made history. After reviewing the facts of Jamie’s harassment and the inactions of the various school district officials, the Court of Appeals held that Jamie did have a case, and he should be allowed to present it to a jury. The Court of Appeals explained that under the Equal Protection Clause of the United States Constitution, the government, including government officials like school district employees, cannot single out an identifiable group of people and choose to act in a way which results in harm to, or “adversely affects,” that group. Rather, “the Equal Protection Clause . . . require[s] the state to treat each person with equal regard, as having equal worth, regardless of his or her status.”

While the state can treat different groups differently if there is at least a rational basis for different treatment, the court in Jamie’s case, perhaps stating what is obvious now, found that there was absolutely no rational basis for allowing students to assault gay students but not other students. For the first time in history, a court found that a public school system and its officials could be held accountable for failing to stop anti-gay abuse. Jamie got his day in court, and the jury found that the officials did violate Jamie’s right to equal protection under the laws. The School District paid nearly $1 million for the harm it did to Jamie. Courts and juries all over the country have followed suit in similar cases, resulting in tens and even hundreds of thousands of dollars paid to harassed students, as well as improved conditions for LGBT students at school.

You have a right to be free from harassment, assault, and other discrimination at school based on your sexual orientation. The Equal Protection Clause likely also protects students against discrimination based on their gender identity, so transgendered kids should have the same legal rights and remedies if their school officials do nothing to prevent harm to them at school. For more information about the laws protecting LGBT students, Lambda Legal and the ACLU have useful information on their websites. If you think your legal rights have been violated, you should also consider talking with a civil rights lawyer about your case.

Tamara Packard is a Madison civil rights lawyer, activist, and partner in the law firm of Cullen Weston Pines & Bach LLP.