January 27, 2009

Experimenting Equals Expulsion

Prof. Shaun Martin (who runs one of the best California law blogs out there) is right to be morally judgmental about this case, Jane Doe v. California Lutheran High School Association et. al. The facts are simple. The outcome is not based on a controversial legal proposition. The result is odious.

Start with a private, sectarian high school. Add one principal who spends his time browsing his students MySpace pages. He finds two of his students who self-identify as bisexual or "not sure" of their sexual identity. Then, have the principal call the two girls into his office and ask them what they've done together. Here's the critical part of the recipe -- the students have to be honest, confess that they have indeed kissed and that at one time they felt like they were in love. To finish it off, of course, the principal has to expel these two young experimenters.

I say "experimenters" rather than "lesbians" because it's far from clear that they are lesbians. Maybe they are, or maybe they're experimenting during confused teenage years. That happens sometimes, you know. You would think that an institution that attempted to combine ministering the word of a compassionate and forgiving Jehovah with a mission of educating and preparing teenagers for life as adults would find something to do with girls who hadn't actually had gay sex yet other than simply casting them out of the house. But then again, who am I to tell a Lutheran principal how to handle a situation like that?

The girls got lawyers and sued under the Unruh Act, California's state-law cognate to the Federal Civil Rights Act. And they lost. The reason they lost is simple -- they were going to a reilgious school, which is not a "public accomodation" within the meaning of even the very broadly-construed act, which does prohibit proprietors of public accomodations against discrimination based on homosexuality. Since the school is not a public accomodation -- you have to take a test to get in, Lutherans are given preference for enrollment, and the funding for the school comes from private tuition rather than government funds -- it is not within the scope of the Unruh Act. It didn't matter that there was a history of greater punishments for violations of the "Christian Conduct" code for girls than boys, proven with a variety of evidence.

No, the girls didn't have a right to privacy, either -- the school told their parents what they had done. There is substantial legal precedent that minors do not have a reasonable expectation of privacy with respect to consensual sexual activity with other minors. I'm not sure I agree with it or like it, but there it is, that's the law.

So it's the right result, legally. But it sucks. As far as I'm concerned, those girls didn't do anything wrong morally. I hope that one day we all look back on a story like this and shake our heads sadly and are a little bit ashamed of this part of our history, the way we are (or should be) about slavery.

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