Flores v.

Morgan Hill Unified School District 1

Flores v. Morgan Hill Unified School District

Sharon Stevens

Department of School Counseling and Psychology, La Sierra University

EDPC 504-561: School Psychology and Counseling Law and Ethics

Shirley Gregg, PhD

March 22, 2022

Abstract

Gay, lesbian, and bisexual students from the Morgan Hill Unified School District (MHUSD)

were subjected to daily harassment because of their sexual orientation. Their reports of the

harassment were ignored and discounted. The policies put in place to protect students from

harassment were not equally applied in protection of the LGB students based solely on their

sexual orientation. The suit sought training for the district employees as well as damages. After

two appeals, the 90th Circuit Court of Appeals ruled that the defendants were eligible to stand

trial. The case was settled for damages and required MHUSD to provide comprehensive training

to its staff. The case provides a warning call to all school districts, administrators, principals,

teachers, counselors, and school psychologists.

Keywords: LGBTQ+, equal protection, sexual harassment, harassment

Flores v. Morgan Hill Unified School District

In 1998, six students, Alana Flores, Freddie Fuentes, Jeanette Dousharm, and three other

unnamed students, from the Morgan Hill Unified School District (MHUSD) filed a lawsuit

against the MHUSD, the principal, vice-principal, school proctor, teachers, and school board

members. The suit claimed that the school district employees had repeatedly minimized, or

completely ignored, reports from the plaintiff students that fellow students were harassing them

because they were gay. The harassment took place at three schools in the district – Murphy

Middle School, Britton Middle School, and Live Oak High School – between 1991 and 1998.

The lawsuit sought damages as well improved training for the Morgan Hill Unified School

District. The defendants in the case appealed for a summary judgment against the plaintiff’s case,

claiming they had qualified immunity. In 1999, U.S. District Court Judge James Ware disagreed

with the defendants, and upheld the students right to sue the district. The defendant’s then

appealed the district court’s decision to the 9th Circuit Court of Appeals. The court affirmed the

district courts ruling, and remanded the case back to the district for a jury trial. The case was

ultimately settled before trial. The plaintiffs won damages as well as a comprehensive training

program for MHUSD (American Civil Liberties Union, 2003).

Background

The court record reveals an atmosphere that was terrifying for gay, lesbian, and bisexual

students in the MHUSD. The original court case included many detailed accounts of harassment.

The following examples of abuse, and district employee’s failure to respond, were testified to in

the original court case. It is included here as crucial background as to the severity of the

harassment.
Flores v. Morgan Hill Unified School District 4

7th grade student Freddie was surrounded by a group of students one morning at a school

bus stop when he was brutally beaten, kicked, and called a “faggot”. The bus driver allowed the

attackers onto the bus, and drove away, leaving Freddie bleeding on the ground. The school

disciplined one boy and told Freddie that they could not assure he would be safe if he stayed in

the school. Freddie transferred schools (American Civil Liberties Union, 2003).

While Alana and Freddie ate lunch together, another student handed them a pornographic

magazine with a picture of a man and woman having sex and said, "It's women, faggot.  This is

the way you guys should be doing it." A campus proctor, who saw the incident, did nothing.

When Alana and Freddie reported it, the assistant principal said they were “ making too much of

a fuss”, and refused to take the complaint. Eventually, after weeks of similar harassment by the

same student, and weeks of reporting the incidence, he was suspended for two days, one of

which was a non-teacher day anyway. In comparison, a male student was suspended for five

days after sexually harassing a female student (American Civil Liberties Union, 2003).

One of the unnamed students was called a “faggot” and threatened during math class, and

in front of his teacher, on a daily basis. She did nothing to stop the harassment. The same teacher

did make efforts to stop racial harassment. When another student spoke up about the way the gay

student was being treated, the classmates told her “Shut up, you fucking dumb dyke” (American

Civil Liberties Union, 2003).

Alana’s locker was vandalized with anti-gay obscenities scratched onto it. And, pages

from pornographic magazines were stuffed into her locker throughout her high school years.

After reporting it, the school left the slurs scratched on her locker for months. Subsequently, a

picture of a naked woman, gagged, bound, legs spread, and throat slashed was taped onto her

locker with the words, “Die, die dyke bitch, fuck off. We’ll kill you.” When she reported this to
Flores v. Morgan Hill Unified School District 5

the assistant principal, she asked if she was gay, and then told, "If you're not gay, why are you

crying?" After which, she was sent back to class and told, "Don't bring me this trash anymore,

this is disgusting" (American Civil Liberties Union, 2003).

Students called Freddie “faggot” and “queer” in history class. Once again this was done

in front of the teacher. When Freddie asked them to stop it, the teacher took him to the hallway,

told him he was disrupting the class, and shoved him against the wall (American Civil Liberties

Union, 2003).

Freddie was subjected to daily harassment in front of his teacher during drafting class.

One student said, "I want to beat you up after class but I need a baseball bat to hit you because I

don't want to get AIDS." The teacher did nothing (American Civil Liberties Union, 2003).

Two students, who were a lesbian couple, were harassed in the parking lot by a group of

male students. They threw a hard plastic cup and shouted, “All dykes should die and you should

not exist." The cup hit one of the girls in the head. When they reported it to campus security,

they were told, “You have to expect this” (American Civil Liberties Union, 2003).

During the course of an investigation into a male student who had sexually harassed

female students, Jeannette was asked by the assistant principal whether she had been harasses by

this student. When she said she had been, the assistant principal asked her inappropriate

questions regarding her sexual orientation, and further even suggested Jeannette may have

welcomed the harassment because she must be “tired of girls.” (American Civil Liberties Union,

2003).

While Jeanette was eating lunch, a group of girls shouted anti-gay slurs at her while

another group put penis-shaped balloons on her table, saying, “If you knew what this was, maybe

you wouldn’t be a lesbian.” All of this took place in plain view of a campus proctor, but nothing
Flores v. Morgan Hill Unified School District 6

was done to stop it. Jeanette was told by administration to just go to class early to avoid being

tormented in the halls (American Civil Liberties Union, 2003).

The Court Case

The plaintiffs in the case sued the district board members, the school administrators, and

the school district, claiming that they had been denied equal protection in comparison to the

straight students in the district. The defendants moved for a summary judgment, claiming they

had qualified immunity. The district court denied the defendants’ request. The defendants

appealed the district courts decision, claiming that they did not act with the improper motive that

would be required for a constitutional violation. They further argued that the harassment had

taken place before it was clearly established that the students protected by the Equal Protection

Claus of the Fourteenth Amendment. The lower courts’ ruling was affirmed. The case was found

sufficient and appropriate to submit for a jury trial (Flores v. Morgan Hill Unified School

District, 2003).

The court enumerated several findings in the ruling that are of particular significance to

school administrators, teachers, school counselors, school psychologists, and school boards:

1 - They found that the plaintiffs in this case, as LGBTQ+ students, are members

of an identified class for equal protection because the discrimination is a result of sexual

orientation (Flores v. Morgan Hill Unified School District, 2003).

2 – The court ruled that none of the defendants were entitled to qualified

immunity because the preexisting laws were “fair warning” that their behavior was

unlawful (Flores v. Morgan Hill Unified School District, 2003).

3 – The defendants acted with unconstitutional motive when they showed

deliberate indifference to the complaints, and responded to them in a way that was clearly
Flores v. Morgan Hill Unified School District 7

unreasonable. The court found that each individual defendant would be handled by a jury

trial (Flores v. Morgan Hill Unified School District, 2003).

4 – The defendants treated the plaintiff’s harassment complaints differently than

other harassment complaints in spite of their understanding of the District policies stating

that harassment of any type would not be tolerated. The court held that there was

sufficient evidence that a jury could find that the plaintiffs were treated differently

(Flores v. Morgan Hill Unified School District, 2003).

5 – The defendants argued that the scope of the administration’s duty for

investigation and remediation of sexual orientation harassment was not clearly

established by the equal protection law. The court found that the law does not prescribe

specific actions, but rather that the same District policies that protect straight students

must be applied to protect LGBTQ+ students (Flores v. Morgan Hill Unified School

District, 2003).

6 – The plaintiffs allege that the defendants discriminated against them in the

enforcement of the policies requiring investigation and remediation of harassment. The

court found the enforcement of the MHUSD policies was discriminatory (Flores v.

Morgan Hill Unified School District, 2003).

7 – The plaintiff’s alleged that the District’s policies were not equally applied for

their protection because of their sexual orientation. The court found that state employees

that treat individuals differently base on the sexual orientation are violating the

individual’s constitutional guarantee of equal protection (Flores v. Morgan Hill Unified

School District, 2003).

8 – The court found that the defendant’s were not entitled to immunity from being

sued because there was sufficient evidence to support a finding that the defendants acted

with deliberate indifference to the plaintiff’s constitutional rights (Flores v. Morgan Hill

Unified School District, 2003).

9 – The court ruled that a jury could reasonably find that the defendant’s did not

provide adequate training to teachers, students, and campus proctors about the District

policies regarding harassment based on sexual orientation. The court ruled that there was

obvious need for that training, and that a jury may conclude that the plaintiff’s faced very

predictable consequences for the lack of training (Flores v. Morgan Hill Unified School

District, 2003).

10 – The court ruled that the employees showed deliberate indifference to the

harassment of the LGBTQ+ students (Flores v. Morgan Hill Unified School District,

2003).

11 – The court ruled that, “the record contains sufficient evidence for a jury to

conclude that the defendants intentionally discriminated against the plaintiffs in violation

of the Equal Protection Claus. At the time of the harassment, the plaintiffs’ right to be

free from intentional discrimination on the basis of sexual orientation was clearly

established” (Flores v. Morgan Hill Unified School District, 2003).

The Significance of the Ruling

Although the case was filed in 1998, it was not settled until 2004. In the settlement,

MHUSD was required to implement a comprehensive training for students, staff, and

administrators aimed at combatting anti-gay harassment (American Civil Liberties Union, 2003).
Flores v. Morgan Hill Unified School District 9

Equally important as the training required for that school district, is the fact that the 9th Circuit

Court of Appeals issued a historic ruling. Although the defendants claimed that the laws

dictating how schools should handle anti-gay bias amidst the student body was unclear, the panel

of judges unanimously ruled that a school is obligated to protect its students with meaningful

steps when they know that there is anti-gay harassment taking place (Flores v. Morgan Hill

Unified School District, 2003).

The student’s harassed in the MHUSD accomplished much more than just seeking justice

for their own harm. Their case prompted a milestone ruling that has protected LGBTQ+ students

throughout the country. Every school district, administrator, teacher, counselor, and school

psychologist is on notice. LGBTQ+ students are an identified class for equal protection under the

law because of their sexual orientation. There has been fair warning for decades, and this case

serves as an exclamation point to that warning. There will be no qualified immunity for

employees who discriminate or unevenly apply protections or disciplines based on sexual

orientation. All claims of sexual harassment must be investigated and resolved with appropriate

discipline without regard for the complainant’s sexual orientation. All district and school policies

must be applied evenly. Not doing so violates student’s constitutional guarantee of equal

protection. And, school districts must provide adequate training to their administrators, teachers,

staff, counselors, and school psychologists about all of these issues. There can be no excuse for

any child to be left unprotected in our schools.

References

Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003).

https://openjurist.org/324/f3d/1130/flores

American Civil Liberties Union. (2003). Case background: Flores v. Morgan Hill Unified

School District. https://www.aclu.org/other/case-background-flores-v-morgan-hill-

unified-school-district