School District Must Face Gay Teacher’s Bias Suit

(CN) - A school district may have retaliated against a gay teacher by accusing him of sexually abusing his autistic, 11-year-old nephew, a federal judge ruled.

The gay uncle is identified only as T.V. in the court record, and his nephew is named as D.V.

U.S. District Judge Joseph Irenas left just two claims standing after ruling on a motion to dismiss last week. The claims allege that the Pennsauken School District and its employees made unsubstantiated claims to New Jersey's Division of Youth and Family Services that D.V. was the victim of inappropriate sexual touching by T.V.

The uncle and D.V.'s grandmother, B.V., claim that the allegations were made in retaliation for their attempts to advocate on behalf of the autistic D.V., in retaliation of the Americans with Disabilities Act, the Rehabilitation Act and federal civil rights law.

Judge Irenas will also let T.V. pursue claims that the defendants reported him because he is gay, in violation of the New Jersey Law Against Discrimination.

The complaint alleged that Pennsauken classified D.V. only as having a specific learning disability in math through 2012, despite complaints from T.V. and B.V. about new evaluations confirming that the boy had autism.

Social services allegedly received the report about T.V. one day after the family met with school district officials in August 2011 and discussed the school's concerns about D.V.'s hygiene.

The allegations were eventually proved to be unsubstantiated, but the department received additional reports, also found to be unsubstantiated, at some point after they met with district officials again in September.

T.V. said he had to tell his school's superintendent about the unfounded allegations and must disclose them if he ever applies for future teaching jobs.

Under a settlement the family reached in September 2012, the district agreed to pay for D.V. to attend a private special education school during the upcoming school year and reimburse B.V. $25,000 for legal fees and costs.

In preserving the uncle's claims, Irenas noted that, "although plaintiffs do not explicitly describe the reports to DYFS as false or malicious within their complaint, nowhere do plaintiffs admit that D.V. was the victim of inappropriate sexual touching."

The family cannot, however, preserve claims that the district discriminated against D.V. based on his disability.

"Oddly, the facts contain very little about the district's treatment of D.V., and include no information about what educational programs the district actually provided to D.V.," Irenas wrote. "Absent further guidance from plaintiffs, the court and the district are left to guess which conduct, if any, described in the facts section forms the basis of count III."

It is unclear that the district had actual knowledge of or refused to respond to bullying D.V. allegedly suffered in school.

"The only dates associated with any report to the district of bullying is that on May 16 and 17, 2012, plaintiffs had a meeting with the superintendent and a school psychologist to discuss the bullying," Irenas wrote. "However, by May, D.V. had already stopped attending school, so this meeting would not have put the district on notice of the bullying while the bullying was still ongoing."

The plaintiffs' claims under Title IX of the Education Amendments of 1972 also failed.

"In the instant case, T.V. alleges retaliation based on his advocating for D.V.," Irenas wrote. "T.V.'s advocacy, however, was not to complain about sex discrimination, but to advocate for D.V.'s educational rights as a student with autism. Retaliation for this form of advocacy is not a recognized cause of action under Title IX."

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