CHARLESTON, S.C. (CN) — A federal appellate court heard arguments Thursday over whether office windows looking into the locker rooms at a Charleston Catholic school invaded the privacy of students.
Parent Gary Nestler and two former students filed the lawsuit in February 2021 against Bishop England High School and others for claims that included wrongful intrusion into private affairs, negligence and unjust enrichment.
The lawsuit alleges office windows that allowed staff members to view into the locker rooms at Bishop England High School in Charleston, S.C. caused an invasion of privacy for thousands of students who had attended the school since the late 1990s.
The lawsuit was filed in response to the arrest and conviction of a former sports information director who filmed male students in the locker room.
There was no evidence Nestler’s daughter or the two student plaintiffs were victims in that case, but other staff members could view them undressing from office windows, which constituted an invasion of privacy.
The school maintained it was necessary for adults to monitor the locker rooms for misconduct.
The plaintiffs sought class status for approximately 17,000 students and their parents.
U.S. District Judge Richard Gergel ruled in March 2022 that the plaintiffs’ classes were too vague. Plaintiffs claimed all students who attended the school from 1998 to 2019 were class members, regardless of whether school staff actually viewed them in the locker rooms.
Further, the named plaintiffs failed to show injury and therefore lacked standing. The student plaintiffs testified that, to their knowledge, they were not viewed by anyone from the windows. Nestler could not say if his daughter had been photographed or filmed in the locker rooms.
Gergel granted summary judgment for lack of standing three months later and dismissed the case with prejudice.
Plaintiffs' attorney David Lietz argued Wednesday before the Fourth Circuit Court of Appeals that Gergel erred by requiring plaintiffs to show they were actually viewed by anyone to prove invasion of privacy.
South Carolina law is murky on what constitutes an “intrusion” into a person’s private activities, but courts in other states have ruled that a plaintiff does not need to show “actual viewing,” or that someone actually viewed or recorded them, to prove an invasion of privacy claim, Lietz said. The potential to do so is sufficient to invade someone’s privacy.
Lietz suggested that the appellate court should certify the case to the South Carolina Supreme Court to sort out the “muddiness” of the issue.
Attorney Richard Dukes Jr. argued for the school that the federal appellate court had previously ruled in a 2003 case that a defendant must actively engage in “watching or spying” to be liable for wrongful intrusion.
The defendant in that case was a journalist who reported on the testimony of a sexual abuse victim during a public court hearing.
U.S. Circuit Judge Allison Rushing asked how a locker room is like a courtroom. Dukes pointed to the U.S. Supreme Court’s 1995 decision in Vernonia v. Acton, which observed “high school locker rooms are not known for their privacy.”
Regardless of whether potential viewing was sufficient under state law, plaintiffs failed to show they suffered any injury, Dukes said. Therefore, Gergel was right to dismiss the suit for lack of standing.
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