Weaver v. Nebo School District 29 F. Supp. 2d 1279 (D. Utah 1998) A schoolteacher was reprimanded when she said yes when asked by a student if she was gay. Her coaching job was taken away and a notation put in her personnel file. The court held that treating her this way based on sexual orientation was an unconstitutional denial of equal protection. Jenkins, J. For the past 19 years, plaintiff Wendy Weaver has been a teacher at Spanish Fork High School in the Nebo School District. Ms. Weaver, a tenured faculty member since 1982, teaches psychology and physical education. Her reputation as an educator at Spanish Fork is unblemished: she has always been considered an effective and capable teacher, her evaluations range from good to excellent, and she has never been the subject of any disciplinary action. In addition to her teaching responsibilities, Ms. Weaver has served as the girls’ volleyball coach since 1979. She has been effective in this endeavor, leading the team to four state championships. Unlike her teaching position, however, Ms. Weaver’s position as coach was not tenured. Instead, as is the case with all coaching positions at Spanish Fork High School, Ms. Weaver was hired as volleyball coach on a year-to-year basis. For each year she was hired as coach, Ms. Weaver received a stipend, which in her most recent year of coaching was $1,500. The practice of hiring coaches, however, is somewhat informal. It is the policy of lhe School District that Principal Wadley has final decision-making authority in selecting a coach. Generally, Principal Wadley finds out who has an interest, selects a coach from lhe interested candidates, and notifies the coach that he or she has the position. No written contract is prepared. In practice, the coach from the previous year is routinely offered the position for the following year, or, as Principal Wadley slated, “you assign them once and they stay assigned until you assign someone else.”n the late spring and early summer of 1997, Ms. Weaver began preparing for the upcoming school volleyball season—as she did in the past—by organizing two summer volleyball camps for prospective team players. As usual, these camps were to be held at Spanish Fork High School in June and July of 1997. Ms. Weaver telephoned prospective volleyball team members to inform them of the camp schedules. One of the calls went to a senior team member. During the conversation, the team member asked Ms. Weaver, “Are you gay?” Ms. Weaver truthfully responded, “Yes.” The team member then told Ms. Weaver that she would not play on the volleyball team in the fall. On July 14, 1997, the team member and her parents met with defendants Almon Mosher, Director of Human Resources tor the Nebo School District, and Larry Kimball, Director of Secondary Education for the Nebo School District, and told them that Ms. Weaver told them that she is gay and that the team member decided she would not play volleyball. In April of 1997, Gary Weaver, Ms. Weaver’s ex-husband and a school psychologist for the Nebo School District, spoke with Principal Wadley about Ms. Weaver’s sexual orientation. In May of 1997, Nedra Call, the Curriculum Coordinator for the School District, received two calls concerning Ms. Weaver’s “lifestyle and her actions.” She related the substance of these calls to defendant Mosher. Defendant Dennis Poulsen, Superintendent of the Nebo School District, also received calls about Ms. Weaver. In addition, several adults affiliated or formerly affiliated with the school contacted Principal Wadley with comments or questions about Ms. Weaver’s sexual orientation. Principal Wadley held a meeting with his two assistant principals to discuss Ms. Weaver’s Sexual orientation. On May 22, 1997, before the phone conversation with Ms. Weaver, the team member and her mother telephoned Principal Wadley to let him know that the team member would not be playing volleyball because she was uncomfortable playing on the team knowing that Ms. Weaver is gay. On May 22nd, Principal Wadley discussed Ms. Weaver’s sexual orientation with defendant Larry Kimball. Even the School Advisory Council wanted to discuss Ms. Weaver’s sexual orientation. In response to these reports, and after meeting again with the team member’s family on July 14, 1997, defendants Mosher and Kimball discussed taking some action against Ms. Weaver because they felt Ms. Weaver’s comments about her sexual orientation were in “violation of district policy.” Several days later, on July 21, 1997, Ms. Weaver met with Principal Wadley, who informed her that she would not be assigned to coach volleyball for the 1997—98 school year. This discussion was memorialized in a letter to Ms. Weaver dated the same day but sent subsequently. The following day, Ms. Weaver was called to a meeting at the School District office and presented a letter, printed on the School District letterhead. The letter was drafted by defendant Mosher, signed by him and Larry Kimball, was reviewed by defendant Dennis Poulsen, delivered to Ms. Weaver, and placed in her personnel file. On August 8, 1997, a similar letter was issued to Gary Weaver. This letter was delivered to Mr. Weaver and placed in his personnel file. Despite mounting evidence that gay males and lesbians suffer from employment discrimination and, as recent events in Wyoming [the brutal murder of gay college student Matthew Shepard] remind us, other more life-threatening expressions of bias, courts, including the Supreme Court, have not yet recognized a person’s sexual orientation as a status that deserves heightened protection. The deep-seated prejudice on the part of some persons against the gay and lesbian community can be summed up in a single quote from ardent anti-gay activist and former entertainer Anita Bryant: “I’d rather my child be dead than be a homosexual.” See Millie Ball, “I’d Rather My Child Be Dead than Homo,” The Times-Picayune, June 19, 1977, at 3 (quoting Ms. Bryant). To date, Congress has expressly prohibited employment discrimination on the basis of race, religion, national origin, gender, age, and disability, but not sexual orientation. As of this year, eleven states and the District of Columbia offer statutory protection against discrimination on the basis of sexual orientation; thirty-nine states, including Utah, do not. Nevertheless, the Fourteenth Amendment of the United States Constitution entitles all persons to equal protection under the law. It appears that the plain language of the Fourteenth Amendment’s Equal Protection Clause prohibits a state government or agency from engaging in intentional discrimination—even on the basis of sexual orientation—absent some rational basis for so doing. The Supreme Court has recognized that an “irrational prejudice” cannot provide the rational basis to support a state action against an equal protection challenge. “A bare desire to harm a politically unpopular group” is not a legitimate state interest. Indeed, mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in [the circumstances], are not permissible bases for differential treatment by the government. Supreme Court precedent has recognized that when state action reflects an animus directed at a defined minority, it cannot be supported under the Equal Protection Clause. More recently, in Romer v. Evans, 517 U.S. 620 (1996), the Court was called upon to examine whether an amendment to Colorado’s state constitution, prohibiting any legislation or judicial action designed to protect the status of a person based on sexual orientation violated the Fourteenth Amendment. It had no trouble finding that it did. In Romer, the Court noted that under the ordinary deferential equal protection standard—that is, rational Basis—the Court would “insist on knowing the relation between the classification adopted and the object to be obtained.” It is this search for a “link” between classification and objective, noted the Court, that “gives substance to the Equal Protection Clause.” In Romer, such a “link” was noticeably absent. Noting that the “inevitable inference” that arises from a law of this sort is that it is “born of animosity toward the class of persons affected,” the Court described the amendment as “a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests.” The question then is whether bias concerning Ms. Weaver’s sexual orientation furnishes a rational basis for the defendants’ decision not to assign her as volleyball coach. The “negative reaction” some members of the community may have to homosexuals is not a proper basis for discriminating against them. So reasoned the Supreme Court in the context of race. See, e.g., Brawn v. Board of Education, 347 U.S. 483 (1954) (declaring that racial school segregation is unconstitutional despite the wide-spread acceptance of the practice in the community and in the country). If the community’s perception is based on nothing more than unsupported assumptions, outdated stereotypes, and animosity, it is necessarily irrational and under Romer and other Supreme Court precedent, it provides no legitimate support for the School District’s decisions. The record now before the court contains no job-related justification for not assigning Ms. Weaver as volleyball coach. Nor have the defendants demonstrated how Ms. Weaver’s sexual orientation bears any rational relationship to her competency as teacher or coach, or her job performance as coach—a position she has held for many years with distinction. As mentioned earlier, it is undisputed that she was an excellent coach and apparently, up until the time her sexual orientation was revealed, the likely candidate for the position. Principal Wadley’s decision not to assign Ms. Weaver (a decision reached after consulting with the other defendants) was based solely on her sexual orientation. Absent some rational relationship to job performance, a decision not to assign Ms. Weaver as coach because of her sexual orientation runs afoul of the Fourteenth Amendment’s equal protection guarantee. Although the Constitution cannot control prejudices, neither this court nor any other court should, directly or indirectly, legitimize them. The private antipathy of some members of a community cannot validate state discrimination. Because a community’s animus towards homosexuals can never serve as a legitimate basis for state action, die defendants’ actions based on that animus violate the Equal Protection Clause. Because this perceived negative reaction arose solely from Ms. Weaver’s sexual orientation, and not from her abilities as coach, it does not furnish a rational job-related basis for the defendants’ decision. Therefore, Ms. Weaver’s motion for summary judgment is granted as to this claim. In Ms. Weaver’s second equal protection claim, she asserts that the defendants violated her rights to equal protection by imposing a viewpoint and content-based restriction on her speech. She argues that she was prohibited from discussing her sexual orientation only because she would have discussed her homosexuality, and points out that other teachers were free to discuss their hetero-sexual orientations. Ms. Weaver was threatened with disciplinary action for discussing her intimate associations and sexual orientation. At the same time, no other teacher in the School District was prohibited from discussing these topics. Indeed, as the School District conceded at the hearing, no similar restriction was placed on heterosexual teachers at all. Clearly then, the School District wanted to silence Ms. Weaver’s speech because of its expected pro-homo-sexual viewpoint. Such viewpoint-based restriction is constitutionally impermissible. Simple as it may sound, as a matter of fairness and evenhandedness, homosexuals should not be sanctioned or restricted for speech that heterosexuals are not likewise sanctioned or restricted for. Because the School District has not restricted other teachers in speaking out on their sexual orientation, the School District has not only violated the First Amendment, but also the Fourteenth Amendment’s Equal Protection Clause. In such an instance, when an equal protection claim is based on a person’s exercise of a fundamental constitutional right, the proper standard of review is strict scrutiny—that is, is the restriction supported by a compelling state interest. Because the Court has concluded that the School District’s actions cannot be supported on any rational basis, the District’s actions obviously fail the strict scrutiny test. Ms. Weaver is granted summary judgment on this claim as well. For the foregoing reasons, it is ordered that plaintiff’s motion for summary judgment is GRANTED and defendants’ motion is DENIED; that the School District shall remove the letters from plaintiff’s personnel file; the School District is directed to offer the plaintiff the Spanish Fork High School girls’ volleyball coaching position for the 1999–2000 school year; and the School District pay damages to the plaintiff in the sum of $1,500. Case Questions 1. What would you have done if you had been the school administrator receiving calls in this situation? 2. Do you think the school was correct in ignoring the teacher’s record? 3. Does it make a difference that this matter did not arise at the teacher’s instigation, but in response to a question from a student? Explain.