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Judge Refuses to Dismiss Kissing Lawsuit

SANTA ANA, Calif. — A judge refused to dismiss a lawsuit claiming the Garden Grove Unified School District violated the rights of a high school student who was disciplined for kissing her girlfriend on campus, officials said Thursday.

U.S. District Judge James Selna left intact virtually every claim in the suit filed by the American Civil Liberties of Southern California on behalf of Charlene Nguon, a student at Santiago High School.

Nguon, 17, filed the suit last September, saying she was unfairly disciplined by the district for kissing her girlfriend, also 17, while similar activity by non-gay students was ignored.

Nguon said she was suspended then forced to attend another school, even though there was no specific policy addressing displays of public affection in the school’s student handbook.

Nguon also said her rights were violated when Principal Ben Wolf revealed Nguon’s sexual orientation to her parents.

Dennis Walsh, who represents the district, could not be reached for immediate comment.

Alan Trudell, spokesman for the school district, declined comment on the ruling, but reiterated earlier assertions that the district does not engage in discriminatory practices.

The suit was also brought on behalf of Nguon’s mother, Crystal Chhun, who earlier told reporters at a news conference at the ACLU/SC offices in Los Angeles that she did not care about her daughter’s sexual orientation, only her academic performance.

Nguon attended Bolsa Grande High for the last part of her junior year, but she returned to Santiago in her senior year.

In his 13-page ruling issued Monday, Selna held that the district was immune from Nguon’s federal claims, but found that individuals named in the lawsuit, such as Wolf, Superintendent Laura Schwalm and other school administrators did not qualify for immunity at this point in the proceedings.

Selna wrote that the administrators failed to take “action to stop or remedy the alleged harassment and discrimination” and failed to enact an “adequate formal or informal policy to ensure that Santiago High is providing a learning environment free from discrimination” as required by the California Education Code.

While attorneys for the district argued that Nguon had no right to privacy regarding her sexual orientation because she had been openly demonstrative toward her girlfriend in public on the campus, Selna agreed with Nguon’s attorneys that because an event is not wholly private, it does not mean that an individual has no interest in limiting disclosure or dissemination of the information.

“The court finds that (Nguon) has alleged a serious invasion of her privacy interest by Wolf when he disclosed her sexual orientation to her mother,” Selna wrote.

“The court finds that plaintiffs have sufficiently alleged disparate treatment of (Nguon) on the basis of her sexual orientation,” Selna wrote.

“Plaintiffs have alleged that (Nguon) was disciplined for expressive conduct that is not similarly punished when engaged in by heterosexual students,” Selna wrote. “Hence the complaint alleges discriminatory treatment regarding a clearly established constitutional right, and Wolf is not entitled to qualified immunity.”

Selna said Nguon’s claims for relief may proceed “because they allege a reasonable future fear of constitutional violations.”

As to the issue of punitive damages, Selna said that while he finds the district is immune from liability, including punitive damages, he would not bar or dismiss those claims against the individual defendants in their personal capacities.

ACLU/SC attorney Christine Sun said punitive damages could hinge on how much the discipline reflected in her school records will affect her chances of attending some universities.

Sun said Nguon “was an incredibly good student,” but when she had to change schools, her grade in calculus went from “A” to “C.”

But Sun conceded that the discipline “may not affect her at all.”

The lawyer said she believes a supplement was created for the student handbook to say that inappropriate public displays of affection at school can be the cause for detention or suspension.

Sun said she was gratified by Selna’s ruling on Nguon’s right to privacy issue.

“It’s important the judge recognized a privacy violation, that he recognized there is a privacy right in someone controlling who knows their sexual orientation,” Sun said.

Sun said there is no trial date as yet but one may be set on Jan. 23 when the parties return to court.

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