Wash. teen files lawsuit accusing district of failing to protect him from bullying

Malicious MySpace page listed sexual orientation as ‘unsure’

GENE JOHNSON  |  Associated Press

SEATTLE  — A 19-year-old graduate of Aberdeen High School sued the school district Tuesday, Dec. 7, blaming officials for failing to keep him from being bullied by classmates who smashed an egg on his head, taunted him over his race and perceived sexual orientation, and set up a malicious MySpace page in his name.

Sometimes shaking as he recalled the torment during a news conference, Russell Dickerson III said the harassment made it hard to focus on school and was so traumatic that even now the memory sometimes keeps him from leaving his house. His father, Russell Dickerson Jr., said the family complained to school officials repeatedly, to no avail.

“It was like a prison sentence,” the teen said. “I found myself dreading school.”

The American Civil Liberties Union of Washington filed the lawsuit on Dickerson’s behalf in U.S. District Court in Tacoma. It alleges civil rights violations, violations of state anti-discrimination law and negligence, and seeks compensation for emotional harm and lost opportunities.

Aberdeen Superintendent Thomas A. Opstad said the district denies letting any student be harassed without prompt corrective action.

“During Russell’s time as a student, the district worked diligently and collaboratively with the Dickerson family to investigate and address Russell’s complaints about his treatment,” he said. “Where misconduct was substantiated, students who engaged in harassment were appropriately disciplined.”

He noted that Dickerson is a now a member of the district’s staff and provides tutoring to elementary students, which Opstad said shows the former student feels comfortable in the district.

ACLU spokesman Doug Honig said Dickerson’s comfort in tutoring elementary students “in no way speaks to the harassment that he endured for six years in junior high and high school.”

Dickerson and the ACLU said they hoped the lawsuit would help amplify the attention school bullying has garnered lately. In Washington, where officials say that nearly 15,000 students were suspended for bullying in the 2008-09 school year, a new law requires every public school to have a policy for dealing with bullying.

And in response to recent suicides by bullied gay young people, Seattle author and columnist Dan Savage launched a popular national campaign inspiring many people — including President Barack Obama — to record video messages assuring teens, “It gets better.”

Dickerson said the harassment began in junior high in 2003. By the next year, he and his family had complained repeatedly about bullying, and his frustrated parents took it up with the school board during a meeting that fall, according to a 2004 article in The Daily World newspaper of Aberdeen.

Nevertheless, the family said, the harassment continued. Dickerson’s father, a prison guard, is black and his mother is white, and Dickerson said his peers subjected him to racial slurs and derogatory comments about his physical appearance and perceived sexual orientation. They sometimes groped his chest and threw things at him, the lawsuit claims.

The ACLU became involved in the case in 2007, after students created a fake MySpace page in Dickerson’s name. The web page featured an unflattering picture of Dickerson which had been taken without his knowledge at school, and listed his sexual orientation as “not sure,” The Daily World reported.

One student, Brandon Peterman, pleaded guilty to a harassment charge and was sentenced to seven days in jail for writing a racial slur on the Web page and saying, “i’ll hang you so fast if you tell onme (sic) ever again.”

Peterman told the newspaper, “I’m really sorry he had to see it. I just wish I could take it back and it was just an immature thing to do for all of us.”

Then-Superintendent Martin Kay said at the time that he called Dickerson’s family to apologize.

Opstad said Aberdeen took several steps to promote acceptance in schools, including providing guides on the topic to parents and students, discussing bullying at parent-teacher conferences, and training all staff and students to reduce harassment.

But the ACLU said Tuesday that even after that the district failed to take meaningful steps to create a safe learning environment.

Dickerson, who is enrolled in an online college program and hopes to work in information technology, encouraged other bullied youngsters to persevere. Getting an education is too important not to, he said.

“If you give that up, you’re just quitting on yourself,” he said.

—  John Wright

Justice Department appeals lesbian’s reinstatement to Air Force

Witt to serve openly while legal, political battles over DADT continue

GENE JOHNSON | Associated Press

SEATTLE — A lesbian flight nurse discharged under “don’t ask, don’t tell” policy barring gays from serving openly can rejoin the Air Force Reserve, even as the government appeals a judge’s ruling that returned her to the job, her lawyers said Tuesday, Nov. 23.

U.S. District Judge Ronald Leighton ruled in September that former Maj. Margaret Witt must be reinstated because her dismissal advanced no legitimate military goals and thus violated her constitutional rights.

The Justice Department appealed that ruling to the 9th U.S. Circuit Court of Appeals on Tuesday, its deadline for doing so.

But government lawyers did not ask the appeals judges to freeze the lower court’s ruling while the appeal proceeds — and Witt’s lawyers said that means she can be reinstated.

“I am thrilled to be able to serve in the Air Force again,” Witt said in a written statement released by the American Civil Liberties Union of Washington state. “The men and women in the unit are like family members to me, and I’ve been waiting a long time to rejoin them.”

Witt was suspended in 2004 and subsequently discharged after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.

Leighton initially upheld her firing, but in 2008 a three-judge 9th Circuit panel said military members could not be discharged under “don’t ask” unless their dismissal furthered military goals such as troop morale or unit cohesion. It sent the case back to Leighton, who ruled that Witt’s firing actually hurt morale in her unit.

If Witt is reinstated, she would be serving openly at a time when the military’s policy on gays is in disarray. President Barack Obama and Defense Secretary Robert Gates want to end the ban, but say it should be done through Congress, not the courts. A federal judge in California has declared the 1993 “don’t ask, don’t tell” law unconstitutional — a ruling the Justice Department is also appealing — and in the meantime, the Pentagon has issued new guidelines that have drastically cut the numbers of gays being dismissed under the policy.

The Pentagon plans to release a monthslong study Tuesday, Nov. 30 on how lifting the gay service ban would affect the armed forces.

The Justice Department did not immediately say why it did not seek a stay of Leighton’s ruling. The Air Force Reserve at Joint Base Lewis-McChord south of Seattle, where Witt was based, did not immediately return a message seeking comment.

“It’s indicative of the effort the White House is making to thread the needle on ‘don’t ask, don’t tell,”’ said Chris Neff, deputy executive director of the Palm Center, a pro-repeal think tank based at the University of California, Santa Barbara. “They’re holding the line that they need to continue to appeal these, but they are taking an extra measure to address this policy and try to make it moot. This is the first White House that has really made an effort to keep gays in the military.”

Despite being excited to rejoin the Air Force, Witt said she was disappointed the government was appealing at all.

Justice Department spokeswoman Tracy Schmaler said the department was simply defending the law, as it historically does when acts of Congress are challenged. White House Press Secretary Robert Gibbs insisted that the appeal shows why it’s important for the Senate to repeal the “misguided policy” quickly — before a new Congress takes over, with a slimmer Democratic majority in the Senate.

“This filing in no way diminishes the president’s — and his administration’s — firm commitment to achieving a legislative repeal of DADT this year,” Gibbs said in an e-mailed statement.

“Don’t ask” prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.

—  John Wright

Judge orders lesbian reinstated to Air Force

Ruling is 2nd this month declaring ‘don’t ask don’t tell’ unconstitutional

GENE JOHNSON  |  Associated Press

TACOMA, Wash. — A federal judge ruled Friday, Sept. 24 that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but Leighton is now the second federal judge this month to deem the policy unconstitutional.

Maj. Margaret Witt was suspended in 2004 and subsequently discharged under the “don’t ask, don’t tell” policy after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.

Leighton hailed her as a “central figure in a long-term, highly charged civil rights movement.” Tears streaked down Witt’s cheeks and she hugged her parents, her partner and supporters following the ruling.

“Today you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon the political branches of government,” the judge told her, choking up as he recalled Witt’s dramatic testimony about her struggles.

The ruling was the second legal victory this month for opponents of “don’t ask, don’t tell,” and it throws the law into further disarray.

Barring an appeal, Witt will now be able to serve despite being openly gay, and a federal judge in California earlier this month ruled the law unconstitutional and is considering whether to immediately halt the ban. While such an injunction would prevent openly gay service members from being discharged going forward, it wouldn’t do anything for those who have already been dismissed.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say her case now provides a template for gays who have been previously discharged to seek reinstatement.

Gay rights advocates say that if the government must justify each firing under “don’t ask,” it will mean a slow death for the policy — even if an outright repeal isn’t endorsed by Congress or the courts.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered engaging in homosexual activity.

The Justice Department did not immediately comment on the ruling, but James Lobsenz, Witt’s attorney, said he expected an appeal.

In 2006, Leighton rejected Witt’s claims that the Air Force violated her rights, following precedent that the military’s policy on gays is constitutional. An appeals court panel overruled him two years later, holding that in light of a Supreme Court ruling striking down a Texas ban on sodomy, “don’t ask, don’t tell” intrudes on the rights of gay service members. For the government to discharge gays it must prove that their firings further military goals, the panel said.

Leighton determined after a six-day trial that Witt’s discharge advanced no legitimate military interest. To the contrary, her dismissal hurt morale in her unit and weakened the squadron’s ability to carry out its mission, he ruled.

“There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds,” Leighton ruled.

Leighton became emotional as he recalled Witt’s testimony about the support she has received from her parents since she came out to them on the eve of filing her lawsuit.

“The best thing to come out of all this tumult is still that love and support,” he said.

A crowd of spectators remained quiet until the judge left the courtroom, when it erupted in cheers.

“I’m just so thrilled I have the chance to do what I wanted to do all along: that’s return to my unit,” Witt said.

She also said that she appreciated the judge’s recognition of the many gays who continue to quietly serve in the military.

—  John Wright

Former colleagues testify for lesbian flight nurse discharged from Air Force under DADT

GENE JOHNSON | Associated Press

TACOMA, Washington — A lesbian flight nurse discharged from the Air Force under the government’s “don’t ask, don’t tell” policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday, Sept. 13.

Former Maj. Margaret Witt is seeking reinstatement to the Air Force Reserve in a closely watched case that “don’t ask, don’t tell” critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.

Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.

The first witness in her case, retired Master Sgt. James Schaffer, testified that Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.

“It was a rather dishonorable act on the part of the Air Force,” Schaffer said. “It should not be about what you are, but who you are.”

Witt’s case has already led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under “don’t ask, don’t tell” unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Witt’s dismissal met that standard.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

While Phillips’ ruling has no effect on the legal issues in Witt’s case, gay rights activists believe a victory — and Witt’s reinstatement — could help build momentum for repealing the policy. The Senate could soon take up a House-approved defense bill that includes a repeal.

Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.

Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Witt’s conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Witt acknowledged in a May deposition.

A 2004 e-mail from the married woman’s husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Witt’s sexuality. Witt remains in a relationship with that woman, whose husband divorced her.

“By committing adultery, she compromised her integrity and her ability to lead,” Phipps said. “Plaintiff set an example of a disregard for Air Force policies.”

Witt’s discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law’s constitutionality doesn’t depend on the views of her friends.

Furthermore, the military cannot handle discipline by referendum, because that would lead to uneven application of the law, Phipps said.

Witt acknowledged in her deposition the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

Former colleagues who testified Monday disagreed that Witt’s firing accomplished anything — especially because it came during a shortage of flight nurses.

“We were at war at the time,” said Lt. Col. Vincent Oda. “It was the loss of an able flight nurse is what that was.”

The court also heard from other service members discharged under “don’t ask, don’t tell.” One, former Army Sgt. Darren Manzella, said that when his superiors first investigated him, he gave them pictures of himself and his boyfriend kissing to make it clear he didn’t want to hide anything.

The result of that initial inquiry? “No evidence” of homosexuality, Manzella said. He served almost two more years before the Army kicked him out in 2008.

One of Witt’s lawyers, Sarah Dunne of the American Civil Liberties Union of Washington state, said in her opening statement that the McChord Air Force Base aeromedical evacuation squadron with which Witt served welcomed gays and lesbians, and it was her dismissal — not her orientation — that caused problems in the unit.

Schaffer, the retired master sergeant, said he went on hundreds of flights with Witt, including several missions to evacuate ill or wounded Americans from the Middle East and Afghanistan. Witt received a standing ovation when she showed up at his retirement party in 2007, he said.

Dunne said Witt received glowing performance reviews that attested to her nursing ability and leadership, even one that was written in 2005, after her suspension.

Her suspension came less than a year before she would have earned her full pension.

—  John Wright

Lesbian seeks reinstatement to Air Force; DADT opponents hope for another big legal victory

GENE JOHNSON | Associated Press

SEATTLE — Opponents of the “don’t ask, don’t tell” policy against gays serving in the military were hoping for another major legal victory as a federal trial began Monday, Sept. 13 over whether to reinstate a lesbian flight nurse discharged from the Air Force Reserve.

The trial comes just days after a federal judge in California declared “don’t ask, don’t tell” an unconstitutional violation of the due process and free speech rights of gays and lesbians. While the ruling does not affect the legal issues in the case of former Maj. Margaret Witt, gay rights activists believe a victory — and her reinstatement — could help build momentum for repealing the policy.

“There’s already political momentum to do something to repeal this unfair statute,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles who is on Witt’s legal team. “Judicial opinions from multiple jurisdictions saying there’s a constitutional problem with this ought to encourage Congress to act more swiftly.”

Witt was a member of a squadron based at McChord Air Force Base near Tacoma when she was suspended in 2004 and honorably discharged. She challenged the constitutionality of her dismissal, and a federal appeals court panel ruled in 2008 that the military could not discharge service members for being gay unless it proved that the firing furthered military readiness.

The case was sent back to U.S. District Court in Tacoma for Judge Robert Leighton to determine whether Witt’s firing met that standard. Several of Witt’s former colleagues are expected to testify that she was an excellent nurse, and it was her dismissal — not her sexual orientation — that caused morale problems in the unit.

Justice Department lawyers representing the Air Force note that the case has put them in the position of defending a law neither the president nor the department itself believes is good policy. Defense Secretary Robert Gates also favors repealing the 1993 law, which prohibits the military from asking about the sexual orientation of service members but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.

Government lawyers nevertheless insist Witt’s firing was justified — and that the panel of the 9th U.S. Circuit Court of Appeals did not know the extent of her conduct when it sided with her in 2008. That conduct included a long-term relationship with a civilian woman, an affair with a woman who was married at the time and two earlier relationships with fellow servicewomen, Witt acknowledged in a deposition in May.

It was a 2004 e-mail from the husband of the married woman to the Air Force chief of staff, Gen. John Jumper, that prompted the investigation into Witt’s sexuality.

Witt acknowledged the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

For those reasons, it says, Witt’s firing did further military goals, even if 19 current and former members of Witt’s unit have submitted declarations saying they had no problem serving with her.

“Those co-workers are not military commanders, and the military cannot operate by a unit referendum process in which disciplinary policies and outcomes are determined by the individual opinions of a few unit members,” Justice Department attorney Peter J. Phipps wrote in a court filing.

The Air Force also says Witt can’t be reinstated because she no longer meets Air Force nursing requirements, something Witt’s attorneys dispute.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say that it is the Air Force’s burden to prove that her reinstatement would be a detriment to unit cohesion. And, ACLU attorney Sarah Dunne says, the Air Force has provided no such evidence.

Gen. Charles E. Stenner Jr., an expert witness for the government, said in a deposition that he didn’t know if Witt’s reinstatement would negatively affect military functions, and the current commander of Witt’s unit, Col. Janette Moore-Harbert, acknowledged having no evidence to that effect.

The trial is expected to last seven days. Meanwhile, the Senate could take up a defense bill passed by the House that includes a provision to end “don’t ask, don’t tell.”

—  John Wright