An intriguing mix of case law behind Anoka-Hennepin LGBT lawsuits

Two lawsuits over the treatment of gay students in the Anoka-Hennepin School District offer something old and something new for legal observers.

The suits seek financial damages for six students who claim district leaders did not properly address harassment; it also seeks the removal of a controversial policy.

For all the precedent that exists on the topic of the harassment side of the case, the policy issue is seen as a potential legal trailblazer.

Jamie Nabozny, who, as a bullied child, filed a lawsuit in the 1990s against the Ashland, Wis. school district, comes up time and again when discussing landmark court cases in the LGBT community.

"It's a bizarre feeling to know I was part of something that had that significant of an effect," he said.

Nabozny's story was documented in a film last year called "Bullied."

"While he was kicking me, the kid ended up saying he would kill me if I said anything to anybody about what he'd done," Nabozny said in the film. "The beating was so bad that I ended up having to have surgery and ended up in the hospital for five days."

The film is distributed for free to any school or group that requests it; more than 50,000 copies have been sent to date.

The film was made by the Southern Poverty Law Center — one of two groups suing the Anoka-Hennepin school district.

The groups claim district leaders failed to address illegal harassment of current and former students who say they were targeted because they're gay or perceived to be. The district disputes that.

Nabozny, who now lives in Minneapolis, said the precedent set in his case has been cited in lawsuits across the country, and Anoka-Hennepin should be no different.

"It was the first time that said, ever, that kids have a right to be safe in schools, and that schools have a responsibility for that safety," he said. "It seems ridiculous to think that schools didn't have that before, but it was the first time legally somebody said that, and it was said about a gay student."

Lawyers suing Anoka-Hennepin confirm the Nabozny case will be in their arguments. They'll also likely turn to the 2003 California case Flores vs. Morgan Hill. That case marked the first court victory in a suit filed by multiple plaintiffs. That's key because six Anoka-Hennepin students are suing.

Shannon Minter helped argue the California case and is working the Anoka case, too. He's with the National Center for Lesbian Rights, the other group suing the district.

"I am very confident that the courts will do what they've been doing all over the country, which is rule that school districts can't just sit on their hands and let these students be brutalized every day at school," Minter said.

The Nabozny and Morgan Hill cases, though, did not explore a question the Anoka case will: Can a harassment claim force a district policy off the books?

The previous claims argued those school districts had the right policies in place; leaders didn't use those policies to police the harassment. The Anoka-Hennepin lawsuits ask the court to remove what's known as the 'neutrality policy,' which requires teachers to remain neutral if the subject of sexual orientation comes up.

Plaintiffs claim that policy should be dropped because it directly contributes to a hostile environment for gay students. The district counters the neutrality policy only relates to curriculum matters and other policies police bullying and harassment.

Jeremy Tedesco, a legal counsel with the Alliance Defense Fund, a Christian legal organization, is convinced the district will prevail here and retain the policy.

"It's well-established in the law that public school districts have very broad discretion when it comes to curricular decisions," he said.

Tedesco says a case about Creationism that went before the Supreme Court in the 1980s is relevant to Anoka-Hennepin. In that case, the court stated that "states and local school boards are generally afforded considerable discretion in operating public schools.'"

Tedesco also said it will be a challenge for plaintiffs to directly link harassment to the neutrality policy.

"I don't think there's any connection between the two," Tedesco said.

In cases where districts are held liable for not addressing harassment, legal observers say no one has ever studied whether the climate then changes in those schools. Jamie Nabozny says he's received anecdotal evidence that things have improved in Ashland.

"Two of the emails and Facebook messages that I've gotten that probably have made me feel the best are kids that went to school there and talk about what a great experience they had as an openly gay student," he said. "It's weird, but it makes me feel really proud that I had something to do with changing that."

For Nabozny, though, he's still waiting for one change. He left Ashland High before he graduated because the bullying was so bad, so he asked for a diploma as part of his legal settlement. That diploma was not included.

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