Principals can be held liable for students' abuse, Seventh Circuit rules.

A Wisconsin youth who endured year of severe physical and verbal "gay bashing" by fellow students will get his day in court against the school officials who he says failed to protect firm.

In July, the Seventh Circuit reversed a lower court's summary judgment ruling, finding that school administrators is Jamie Nabozny's case can be held personally liable for anti-gay violence between students. (Nabozny v. Podlesny, No. 95-3634, 1996 WL 4208031 (7th Cir. July 31, 1996).)

Nabozny, now 20 years old, claimed that two principals and an assistant principal at the Ashland, Wisconsin, Public School District he attended chose not to protect him--and at times scoffed at his plight--because he is gay.

The Seventh Circuit's reversal means the case will go to trial, although no date has been set, said David Buckel, attorney for Lambda Legal Defense and Education Fund in New York, which represented Nabozny. The U.S. District Court for Western Wisconsin will decide whether the school officials and the school district violated Nabozny's constitutional rights to equal protection.

In the past decade, schools have seen the number of student-on-student sexual harassment complaints double, according to Norma Cantu, assistant secretary for the U.S. Education Department's Office of Civil Rights. Nabozny's case, however, is the first that seeks to hold a school district and its administrators liable for failing to stop anti-gay abuse, Lambda's Buckel said.

From 7th to 11th grade, Nabozny had been taunted by male students who regularly called him "faggot," the court opinion said. At one point, a student pushed him to a classroom floor and acted out a mock rape on him in front of 20 classmates. At other times during his school years, one student urinated on him, another spit on him, and others punched and kicked him or trapped him in hallways and bathrooms to taunt him. He attempted suicide twice and ran away to Minneapolis once to escape the abuse.

When Nabozny complained to his principal in 7th grade, she said that "boys will be boys" and that he should "expect" abuse if he is going to be "so openly gay." In 10th grade, he complained of the abuse to an assistant principal who laughed and told Nabozny "he deserved such treatment because he is gay," the opinion said.

During his junior year of high school, Nabozny and his family moved to Minneapolis where he obtained a high school equivalency diploma.

"He was not only run out of school but he had to leave his home town and go to Minneapolis to be safe," Buckel said. Nabozny seeks compensatory damages and the right to participate in his school's commencement ceremonies, which he said he missed because he was forced to relocate.

In past years, students across the nation have filed sexual harassment cases claiming violations of Title IX, the civil rights statute that prohibits sex discrimination in federally funded schools. (Beyond Horseplay: Students Sue Schools over Sexual Harassment, TRIAL, June 1994, at 12.) Nabozny seeks redress based on constitutional rights issues.

"We went to the top of the ladder," Buckel said. "In the equal protection claims we asserted that the school treated Jamie's abuse differently than it treated any other student's abuse." The Seventh Circuit also found that the school administrators did not have qualified immunity and, therefore, could be held individually liable.

The court, however, rejected Nabozny's due process claims. The justices said Nabozny presented "wrenching facts" but that he failed to show how the school district "either created or exacerbated the risk of harm" to him.

"The ruling on equal protection was so powerful that I couldn't really say we are disappointed with the outcome [on the due process claim]," Buckel said. "A strong message goes out to school principals that not only can the schools be held liable, but the principals can be held personally liable for anti-gay violence against students."

Lambda publishes a booklet on confronting sexual harassment against gays and lesbians in public schools and offers possible legal remedies for stopping the abuse. To obtain a free copy, write to the organization at 666 Broadway, 12th Floor, New York, NY 10012.