Wednesday, January 18, 2006

Move Over, Wingnuts...

…The Subversive Librarian is forced to sit with you for a moment. Sigh. Big sigh.

The case: a teenage girl who was expelled from a private Christian school in Loganville, Georgia, for kissing her girlfriend off-campus during a slumber party. Her father is suing the school for one million dollars for breach of contract.

Now let me say, first of all, that I have not seen the complaint. I am just going on news accounts. So I'm the first to admit that I don’t have all the facts.

Second, you have no idea how much it pains me to have to side with the bad guys in this case. But I’ve seen the consequences of bad litigation. You see, I was lucky enough to clerk for a federal appeals judge after law school. Among the cases I worked on were two sexual harassment cases, only one of which had merit.

Unfortunately, my judge had been so jaded by meritless cases that I couldn’t get him to take a closer look at the one that was wrongly decided. This woman had lost at trial. Her defeat was affirmed, and she never got the remedy she deserved.

And therein lies the problem. Meritless lawsuits have consequences. For one thing, they make it harder for legitimate plaintiffs to get a fair hearing. For another, they increase the possibility of setting bad precedent.

But isn’t the whole point of the court to help us enforce our rights? Yes, indeed. But if lawsuits are not brought prudently, and we end up with a bad outcome, we run the risk of moving backward instead of forward.

Take Brown v. Board of Education, for example. Brown is the landmark case in which the Supreme Court declared segregation – and the whole concept of “separate but equal” – unlawful. But that decision came only after many years of carefully chosen lawsuits designed to advance case law in very small increments until the Supreme Court had no choice to take it the rest of the way. . (For a fascinating account of the strategy that culminated in Brown, read Simple Justice by Richard Kluger. It’s long, but well worth the effort.)

That’s just what LGBT civil-rights attorneys are trying to do now, which is why Lambda Legal has asked us to think very carefully before suing someone over gay-rights issues:

…a few same-sex couples have raised the possibility of filing lawsuits to make sure their marriages are respected. Litigating over your marriage is a huge decision that may affect the whole LGBT community. Occasionally, it’s the right thing to do. It can also have serious negative consequences for your family and other LGBT couples. “We Got Married in Canada, What’s Next? A Marriage Guide for Newlyweds,” available at http://www.lambdalegal.com/.

So what does all that have to do with a teenager getting expelled over a kiss? Unfortunately, everything. Recall the facts: The student, a 13-year-old girl, was expelled for violating a policy in the school’s handbook that prohibits “sexual immorality” even off school property. The girl’s lawyer says that the provision is too vague to be enforced, especially since the handbook doesn’t expressly mention same-sex kissing. Therefore, he reasons, the school violated its contract with the student by expelling her for something she couldn’t know was prohibited.

Is the school’s policy toward same-sex relationships intolerant and mean-spirited? Sure it is. Was the school wrong to expel the student? Of course. But being morally right isn’t enough to justify a lawsuit.

For one thing, the girl’s argument is a stretch, factually. She’s in a Christian school and it didn’t occur to her that a lesbian kiss might be considered ‘sexually immoral’? Not likely. Just the fact that the handbook mentioned sexual immorality should have been enough to put her on notice.

But the case has more disturbing implications. It requires a court to decide (or tell a jury to decide) the meaning of sexual immorality. Even if the student wins, that’s bad for the LGBT community, because it makes sexual immorality a state issue. And that’s what got us into trouble in the first place.

Even if you eliminate the risk of setting bad precedent (after all, most cases settle out of court and most court opinions aren’t published), I have to hope the girl’s father loses. Why? Because this is a private school. A religious school. I may abhor the policy that got the girl expelled, but if the government can tell the school today who it can’t expel, it’s a very small step to interfering in our own religious rights tomorrow. No, best to leave bad policy to the wingnuts. If we want freedom of religion, then we must be prepared for the consequences when others do, too.

The school was wrong to expel the student, and I wish her only the best. But any way you slice this cheese, it’s seriously stinky.

Click here for the news story.

9 comments:

  1. Unfortunately, it's not the only similar case out there. The school in CA which expelled a child because of same sex parents comes to mind.

    A private school receiving no public funds is pretty much free to practice it's narrow, bigoted, hateful ways.

    I wouldn't let my kids within 5 miles of the place but there's not a lot anyone can do about the private schools.

    Neither one of us are siding with the wingnuts and I'm glad to hear your viewpoint. I wondered in the CA case why the girl was there in the first place. If I were lesbian, I wouldn't want to send my child to a school which promotes hatred, no matter how presitigious.

    For that matter, I wouldn't send my child to that school, period.

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  2. this is "damned if you do, damned if you don't" situation. Clearly.

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  3. Very fascinating assessment of the case.

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  4. I too am going by the news reports (having not read the complaint), but I agree that I don't see how a private institution can be told what is or is not moral by a court.

    But I think your comments may go too far in complaining about meritless cases (and thank you for not using "frivolous"). Just because a case is filed doesn't mean that the case will be successful or that it would even survive a motion to dismiss. A case like this was probably brought on contingency by the law firm, meaning that they have some faith in it otherwise it would be money thrown out the window if they lost. In fact, virtually all personal injury cases / discrimination cases are brought in this manner so if the plaintiff loses, the lawyer doesn't even get paid. This is obviously a great way to keep most meritless cases from ever making it to the courthouse. But for those that still do, a judge can dismiss and even sanction a lawyer for bringing a case that lacks merit.

    The bad guys have spent millions of dollars telling the public that our courthouses are clogged with frivolous lawsuits when in fact the number of civil cases brought by private parties has remained about the same (according the Center for Justice and Democracy). The only type of cases that have been growing at an alarming rate are cases brought by one company against another (again, from the Center).

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  5. Very well written!

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  6. I suppose the one thing about a lawsuit is the publicity and the light it shines on a school and its practices.

    Some parents might think twice about enrolling their child in that school.

    Or they might double their enrollment of wingnuts and get them out of my hair.

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  7. Do we know for sure that the school isn't getting any public funds? Directly or indirectly?

    The thing is, whether or not we hold the religious/state line on our side, it's already getting seriously blurred by the wingnuts. Vouchers, funding for "faith-based" charities...


    Ultimately I don't think the court's decision would have much effect on marriage or related issues, in the greater scheme of things. It depends how the case is made. But if it ends up being narrowly defined as breach of contract, it really doesn't say much about "morality" as would be defined outside of a private school one way or the other. Just a question of whether the school worded its policies specifically enough.

    Whether or not the father wins, or even should win, I think, hell, he's got as much right to try as any number of people who file lawsuits over far more trivial and unwinnable shit.

    And then, too, I don't think that exposing these fuckers to the light or making them worry about their pocketbook is such a bad thing. Consider: Bob Jones is a private university. No public funding; they aren't even accredited. Up until fairly recently they had rules against interracial (heterosexual; homo's still off the table there, of course) dating. Why'd they change it? Because a high-profile controversy (Dubya's visit) suddenly put them on the public hot seat.
    Ultimately, people like that will be exactly as hateful as they think they can get away with.

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  8. G*d, you are strikin' a nerve with the frivolous sexual harrassment suit topic...

    I guess back to the private school, they need to be given a much wider berth--it's hard to see how they extend control to the slumber party, though.

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