Telling Tales Out of School: When Principals Out Their Students

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From the New York Times:

In a case involving a California high school girl who was openly gay at school, a federal judge has ruled that the girl, Charlene Nguon, may proceed with a lawsuit charging that her privacy rights were violated when the principal called her mother and disclosed that she is gay.

Ms. Nguon filed suit in September after a year of run-ins with Ben Wolf, the principal of Santiago High School in Garden Grove, Calif., over her hugging, kissing and holding hands with her girlfriend. Ms. Nguon was an all-A student ranked in the top 5 percent of her class, with no prior record of discipline. But last year, after Mr. Wolf said he wanted to separate her from her girlfriend, she transferred to another school. Her grades slipped, and her commute grew from a four-block walk to a four-and-a-half mile bike ride.

Judge James V. Selna of the Central District Court of California ruled Monday that Ms. Nguon had “sufficiently alleged a legally protected privacy interest in information about her sexual orientation.”

“This is the first court ruling we’re aware of where a judge has recognized that a student has a right not to have her sexual orientation disclosed to her parents, even if she is out of the closet at school,” said Christine Sun, a lawyer at the American Civil Liberties Union, who brought the case.

The opinion is here.

The interesting issue in this case is whether a student who is openly gay at school still retains a privacy interest in her sexual orientation from the disclosure to her parents. I believe that she does retain a privacy interest.

Some might argue that a lot of people knew her sexual orientation, so it is no longer private. Privacy, however, is far more complicated than total secrecy, as people rarely keep information entirely secret.

Some courts have recognized this fact, and they have concluded that even where many other people know a secret, the plaintiff can still retain a privacy interest. See Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491 (Ga. 1994) (telling 60 people didn’t eliminate privacy claim); Y.G. v. Jewish Hospital, 795 S.W.2d 488 (Mo. Ct. App. 1990) (revealing secret to numerous people at a party didn’t eliminate privacy claim). Other courts follow the less nuanced “cat’s out of the bag” approach. See Duran v. Detroit News, Inc., 504 N.W.2d 715 (Mich. Ct. App. 1993) (telling secret to a few people extinguished privacy claim); Fisher v. Ohio Dep’t of Rehabilitation and Correction, 578 N.E.2d 901 (Ohio Ct. Cl. 1988) (telling four co-workers extinguished privacy claim).

Lior Strahilevitz (law, Chicago) has a terrific paper about privacy and social network theory, A Social Networks Theory of Privacy, 72 U. Chi. L. Rev. 919 (2005). People often reveal secrets within various social networks but don’t expect that information to travel beyond the boundaries of the network. It is likely that the girl’s sexual orientation known by the students and teachers at a school wouldn’t readily spread to the parents, who are generally not within these social circles.

Some might object that this approach is too arbitrary, but without a theory, any line drawn based on the number of people who know a secret can be far more arbitrary. Strahilevitz’s social network theory approach will make the caselaw far less arbitrary. It explains why, I believe, there’s a privacy interest in this case.

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11 Responses

  1. John Anderson says:

    I concur: even if privacy is not absolute, an expectation of privacy remains. Else military plans, for example, known to hundreds of officers would not be expected to remain unknown to the enemy.

  2. meep says:

    I don’t see why a minor has any right to privacy from their parents. Especially if she’s openly behaving in a particular way in a public place.

  3. Garrett says:

    I highly disagree with meep. Being a minor myself, there are things I believe I have the right to keep private from my parents. Especially things about how I spend my money. It is my money and my privacy and my parents don’t have to know anything about it.

  4. joe says:

    Garrett,

    That is funny – a minor who has his own money. How much do you pay for rent and groceries?

  5. Bruce says:

    “People often reveal secrets within various social networks but don’t expect that information to travel beyond the boundaries of the network.” Right — and in addition, the harms of escape beyond the network are far greater for information captured in certain media, such as video or e-mails. That’s what explains, I think, some of the troubling nature of the “internet shaming” cases you blogged about yesterday. Part of the extreme nature of, say, the Star Wars Kid’s harm is not just that his classmates found out about what he does in private, but the entire world did, and it is permanently recorded now.

  6. Adam says:

    Meep,

    Privacy from one’s parents, and the ability to explore their identity that such privacy gives teens, is an important part of growing up. See Turkle’s Life on the Screen, or Schoeman’s Philisophical Dimensions of Privacy.

  7. John Armstrong says:

    One thing in this description is very murky: was she openly gay at school but made a point that she wasn’t out to her family, or was she acting in a way that a reasonable man might assume that she was out to everyone and the outing was an honest accident?

    I’m willing to give her a separate right to privacy from parents, but it’s on her to make that point clear. The principal cannot be expected to guess what is and is not to be kept secret.

  8. Brendt says:

    I certainly hope that no one is surprised by any of this. After all, the Ninth Circus ruled in this same state last month that the government has sole control over a child’s sexuality, and the parents have no rights whatsoever.

  9. California Court Overprotects Teen Privacy

    Over at Concurring Opinions, the always-interesting Dan Solove has a neat post up about a privacy case arising out of a California high school, which the New York Times covered last week. The case involves a homosexual teenager who was

  10. California Court Overprotects Teen Privacy

    Over at Concurring Opinions, the always-interesting Dan Solove has a neat post up about a privacy case arising out of a California high school, which the New York Times covered last week. The case involves a homosexual teenager who was

  11. results says:

    The ruling has just come in and the principal and school district won on all counts of the case. Maybe people should have waited to hear the facts before spouting all their opinions. It turns out Gay teenagers are just as capable of lying as straight teenagers. There’s a reason why all of the witnesses called by the ACLU were her best friends.