A consensual affair with former student seals decision of school board
A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, ruled on October 5 that the Dearborn, Michigan, public school system did not violate the constitutional rights of Laura Flaskamp, a lesbian who had been a physical education instructor at Fordson High School, when she was denied tenure after a former student’s mother complained about the relationship between Flaskamp and her daughter, referred to as Jane Doe in the court’s opinion.
Flaskamp had argued that the school’s actions violated her rights of privacy, intimate association and due process of law, protected by the 14th Amendment of the Constitution.
According to the opinion for the court by Circuit Judge Jeffrey Sutton, Jane Doe, then 17 years old and in her senior year, served as Flaskamp’s teaching assistant in a leadership class in the spring term in 2000. Over the course of the semester, Flaskamp and Doe became very close, exchanging frequent e-mails, cards and gifts.
“During the semester,” wrote Sutton, “Flaskamp sent Doe an ‘inappropriate joke,’ which apparently was filled with sexual innuendos.”
Doe’s mother saw the e-mail and sent Flaskamp a critical message, demanding an apology. Flaskamp promptly apologized.
In addition to the e-mail exchanges and cards, Flaskamp and Doe also spent time together outside of school. According to Doe’s deposition testimony, at some time after this meeting, but before Doe’s graduation, Flaskamp told Doe “that she was gay And then she had asked me if I was,” to which Doe responded that she didn’t know, and they had a brief discussion about the subject.
Flaskamp attended Doe’s graduation party that June, and the same day Doe sent Flaskamp a note that stated: “My heart aches for you and my stomach is in knots. Now I had to declare. The thoughts of my heart in hopes that you’d give me a place in your heart.”
Doe went off to college, but stopped back at Fordson High School during the fall term to visit with Flaskamp. Doe’s mother, increasingly disturbed about her daughter’s relationship with Flaskamp, sent an e-mail warning Flaskamp to stay away from her daughter and threatening to sue her and inform the school about the relationship. The court’s opinion does not state whether Flaskamp and Doe were ever physically intimate.
Flaskamp took preemptive action, going to the high school principal and acknowledged that she had mistakenly sent an inappropriate joke to her entire e-mail address book, including Doe, which had caused Doe’s mother to be suspicious about her, but that she just had a normal student-teacher relationship with Doe.
In an incident at the school, Flaskamp asked Doe’s younger brother, a student there, how she was doing at college, and he exploded with anger and threatened her. Flaskamp reported this incident to the principal, who contacted Doe’s mother. Doe’s mother claimed Flaskamp questioned the brother as a provocation.
Doe’s mother came in to see the principal several times during the spring 2001 semester, when Flaskamp was being considered for tenure, and complained about Flaskamp. She brought in printouts of e-mails that included sexually charged imagery and loving salutations. At first, the principal formulated a positive tenure recommendation, but after investigating Mrs. Doe’s complaints, he decided that Flaskamp had not been honest about the nature of this relationship and had violated the school rules about teacher-student dating, so he changed his recommendation to the school board, which denied the teacher tenure.
Flaskamp claimed that the principal’s investigation into her relationship with Doe violated her rights of privacy, intimate association and due process of law. Flaskamp argued that nothing untoward had occurred between herself and Doe while Doe was enrolled as a student, and that by the time Flaskamp “came out” to Doe, the student was over 18 and thus an adult under Michigan law.
The principal disagreed. Based on the evidence presented by Mrs. Doe and his investigation, he concluded that not only had Flaskamp and Doe had an unduly familiar relationship during Doe’s last semester at school, but that the teacher had been dishonest about the relationship, and that these were both justifications for questioning her professional judgment and denying her tenure.
A federal trial judge in Detroit, Lawrence P. Zatkoff, granted summary judgment in favor of the Dearborn Public Schools, and Flaskamp appealed. The court of appeals devoted most of its analysis to the question of intimate association.
There is no doubt, based on Supreme Court decisions going back to the 1980s, that an individual’s right to form intimate associations has some degree of constitutional protection against state interference. Last year in Lawrence v. Texas, in the course of striking down a criminal sodomy statute, the Supreme Court said, “choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.”
Sutton noted limitations on the individual’s protections, writing that “not all government action affecting the right to intimate association receives heightened scrutiny. Only government action that has a ‘direct and substantial influence’ on intimate association receives heightened review.” According to this view, government employers may impose general restrictions on student/teacher relationships. Sutton asserted that the court did not need to decide whether the relationship merited Fourteenth Amendment protection because the court concluded that a general restriction did not have such an influence on Flaskamp’s associational rights.
Sutton wrote that Flaskamp’s lack of truthfulness with the principal, standing alone, provided a sufficient reason for the school board to vote against tenure.
Responding to Flaskamp’s argument that the post-graduation relationship was not any business of the school, the court responded that it was significant in establishing that the relationship had begun while Doe was still a student.
At an early stage of the lawsuit, Flaskamp and the school district both stipulated that the decision on her tenure had nothing to do with her sexual orientation. Flaskamp did not allege that she was discriminated against on the basis of her sexual orientation, but only that her relationship with Doe was constitutionally barred from being considered adversely regarding her tenure.
In some ways, the case seemed reminiscent of one decided by the 6th Circuit twenty years ago, when it upheld the discharge of a guidance counselor, Marjorie Rowland, who “came out” to a student who had expressed uncertainty about her own sexual orientation. In that case, a southern Ohio jury had actually ruled in Rowland’s favor, but the circuit court voted 2-1 to reverse and the U.S. Supreme Court denied review, over the dissent of Justice William J. Brennan, who argued that the discharge was really about homophobia, not professional judgment.
Sutton, who wrote the opinion for the court, was appointed by George W. Bush. The other two judges on the panel were appointed by Ronald Reagan.
