Telling Tales Out of School: When Principals Out Their Students
posted by Daniel Solove
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.