Teacher accuses TC College of discrimination

Gill says English Department chair at Northeast Campus told her the state and the school ‘do not like homosexuals’

Jacqueline “Jackie” Gill
Jacqueline “Jackie” Gill

TAMMYE NASH  |  Senior Editor
nash@dallasvoice.com

HURST — Jacqueline “Jackie” Gill filed suit Wednesday, Sept. 7, against a professor and a dean at Northeast Campus of Tarrant County College in Hurst, claiming that she was denied the opportunity to apply for a permanent, full- time teaching position there because of the English Department chair’s bias against what he perceived her sexual orientation to be.

Tarrant County College adopted a nondiscrimination policy prohibiting discrimination based on sexual orientation on March 9 of this year.

Frank Griffis, director of public relations and marketing for Tarrant County College, said it “would not be appropriate” for school officials to comment on pending litigation. He also said school officials had not yet been served with papers and therefore had not read the complaint.

Gill said she had worked as a full-time temporary English professor for about a year at the Northeast Campus. But when the position was to be made permanent, English Department Chair Eric Devlin refused to allow her to apply for the permanent position.

Gill said when she complained about Devlin to Northeast Campus Humanities Division Dean Antonio R. Howell, he initially seemed to side with her, but after speaking to Devlin, Howell refused to communicate further with her. Gill said although she is a lesbian and has never tried to hide that fact, she had never talked about her orientation with Devlin or anyone else at the school.

Both Devlin and Howell are named as co-defendants in the lawsuit.

Gill is represented in the lawsuit by Lambda Legal South Central Region staff attorney Ken Upton, joined by pro bono counsel Benjamin D. Williams from the law firm of Gibson, Dunn and Crutcher.

Gill and Upton held a press conference Wednesday to announce that the lawsuit had been filed earlier that morning in U.S. district court in Fort Worth. The press conference was held at a Hurst hotel located just a few blocks from the Tarrant County College campus where Gill had taught.

According to the complaint filed Wednesday, and statements Gill made during the press conference, Gill was first hired on a full time, temporary basis as an English professor on Aug. 21, 2009. A little more than a month later, at the end of October, a female “dual-enrollment” student — a high school student who was also taking college classes — in Gill’s distance learning class cheated by stealing an exam and skipped some classes.

The student’s high school counselor told Gill that the student has a history of disruptive behavior, and when the student dropped the class, Gill was told the situation was closed.

On Nov. 9, however, Devlin called Gill into his office and told her the student had accused Gill of “flirting” with female students. Gill denied the accusations, noting that there was always another teacher in the class at the same time.

That’s when Devlin responded with “a lengthy diatribe about homosexuals and how the Texas public views them,” according to the complaint. Gill said Devlin went on to say that Texas is a conservative state and TCC is a conservative school, and that “Texas and Tarrant County College do not like homosexuals.”

Gill continued to teach at TCC, receiving high praise and compliments from students and staff alike, including from Devlin. Then in May 2010, she and other full-time temporary professors were told by Howell that all seven temporary full- time positions were being made permanent, and that they were being re-designated as adjunct faculty until the permanent positions were filled.

Gill said Howell also encouraged her and the other temporary professors to apply for the permanent jobs. Gill applied for all seven but was the only one of the seven temporary professors not hired for the permanent positions. Gill said that she was, in fact, not even allowed to interview for any of the positions, even though her experience and credentials were as good as or better than those who were hired.

Gill said she met with Howell and told him about Devlin’s anti-gay comments and refusal to allow her to interview for the permanent positions. She said Howell promised her to discuss the situation with Devlin immediately, but that he never got back in touch with her.

She said she also got no response when she tried to discuss the situation with the vice president and president of Tarrant County College.

Gill continued to teach as an adjunct professor at the campus through December 2010, although, she said, Devlin’s attitude toward her became “even more hostile.”

And she said that although she was originally assigned classes for the 2011 spring term, as she was preparing for those classes she discovered she had been removed as the professor. When she inquired about the status of the class, Gill said, she was told that Devlin had specifically instructed that those classes be taken away from her.

Upton said that Devlin and Howell violated the equal protection clause of the U.S. Constitution by refusing to allow Gill to apply for the permanent teaching position. He said Gill’s suit is asking that she be allowed to complete the application process and that she be compensated for the time she has been unemployed.

Gill, who is a Ph.D. candidate at the University of Texas at Arlington, said she would love to get a teaching job with TCC, and while she would prefer to work at another campus, she is willing to go back to the Northeast Campus and work again in Devlin’s department.

“I worked hard. I earned it,” Gill said of the permanent position. “I have nothing to be ashamed of. If it [her working in Devlin’s department again] would be awkward for anyone, I think it would be awkward for him [Devlin] because he is the one who was in the wrong.”

This article appeared in the Dallas Voice print edition September 9, 2011.

—  Michael Stephens

Obama to sign bill that DOES NOT immediately repeal ‘don’t ask, don’t tell’ on Wednesday

SLDN provided this image from Saturday’s ‘NBC Nightly News’ to illustrate how media outlets are incorrectly reporting that DADT has been repealed.

President Barack Obama will sign the bill that outlines a path for repealing “don’t ask, don’t tell” in a ceremony at the Department of the Interior, at 9:15 a.m. Eastern (8:15 Central) on Wednesday. However, the Servicemembers Legal Defense Network is reminding folks — and especially the media — that even after Obama signs the bill, the law will remain in effect for an unknown period of time.

“We need the media’s help to let troops know they remain at risk under the law even after the President signs the bill,” SLDN Executive Director Aubrey Sarvis said in an e-mail statement this morning under the subject line “URGENT: Media warning ….”

“The Pentagon just released new guidance that made clear ‘Don’t Ask’ may still be the law for some time to come,” Sarvis said. “We respectfully renew our call for Defense Secretary Robert Gates to use his authority to suspend all ‘Don’t Ask, Don’t Tell’ investigations during this limbo period. Until the President signs the bill, until there is certification, and until the 60-day implementation period is over, no one should be investigated or discharged under this discriminatory law. Certification and the implementation period must be wrapped up no later than the first quarter of 2011. The bottom line: for now, gay, lesbian, and bisexual service members must remain cautiously closeted.”

SLDN says LGBT servicemembers with questions should call 202-328-3244 ext. 100 to speak with a staff attorney.

For more on the process for repealing DADT, see this story from the Washington Post.

—  John Wright

Prop 8 oral arguments are today, but if you’re not a lawyer it ‘might be like watching paint dry’

Ken Upton
Ken Upton

With DADT repeal all but dead, we turn our attention to California, where oral arguments are set today in the federal challenge to Proposition 8.

We’ve got a full preview and viewer’s guide over on the main page, and the two-hour proceedings will be broadcast live on the CSPAN website beginning at noon Dallas time.

But we also inquired of Ken Upton, a senior staff attorney at Lambda Legal in Dallas, as to what he’ll be looking for this afternoon. Here’s what Upton said:

I’ll be particularly interested in the panel’s questions surrounding standing (the constitutional principle that says only people actually affected or injured by the dispute have a right to litigate it, not people who merely have an opinion about it in a general sense). Courts can be willing to turn to this doctrine when appropriate to dispose of cases they aren’t ready to decide on the merits.

As for the second session, I’m interested in how the panel reacts to the evidence at trial and what weight they choose to give it. The marriage cases that were lost (e.g., NY, WA, IN, AZ) all resulted from a court willing to allow the government to speculate about the justifications for excluding same-sex couples from marriage. The victories happened when courts required the government to give real justifications that are grounded in fact, not theories made up after the fact based on rank speculation or outdated stereotypes. That will be the key here. How will the panel treat the evidence (which was overwhelmingly supportive of striking down Prop 8)?

It will be fun to watch (for lawyers, at least — might be like watching paint dry for many non-lawyers).

—  John Wright

Lambda Legal releases study on HIV-related stigma, discrimination

In advance of World AIDS Day next Wednesday, Dec. 1, Lambda Legal Defense and Education Fund has released “HIV Stigma and Discrimination in the U.S.: An Evidence-Based Report,” which focuses on the continuing stigma and discrimination faced by people living with HIV to policy makers and advocates.

Scott Schoettes, HIV Project staff attorney with Lambda Legal, said over the next year, Lambda Legal continue to press the legislators and policymakers at all levels to address these issues as they imoplement the strategy.

Findings in the report include:

• Nearly 63 percent of the respondents who had HIV reported experiencing discrimination in healthcare.

• A Kaiser Family Foundation report shows that the percentage of people who incorrectly believe that HIV can be transmitted by sharing a drinking glass is actually higher now than in 1987, and the percentage of people who incorrectly believe that transmission can occur by touching a toilet seat actually rose between 2006 and 2009.

• People with HIV are subject to prosecution and/or harsher sentencing for conduct that is not criminal. For example, in 2009, Daniel Allen was charged with violating a Michigan bioterrorism statute outlawing the use of harmful biological substances, based on allegations Allen has HIV and bit his neighbor during a fight. That charge was dismissed.

• Discrimination against people living with HIV as they seek to access elder care occurs throughout the country. Robert Franke, a 75-year-old retired university provost and former minister, was abruptly ejected from an assisted living facility in Little Rock, Ark., in 2009 because he has HIV. Representing Franke and his daughter, Lambda Legal sued the company operating the facility, alleging violations of the ADA and the federal Fair Housing Act, as well as similar state antidiscrimination laws.

This case recently settled.

To see the complete report, go online to LambdaLegal.org.

This article appeared in the Dallas Voice print edition November 26, 2010.

—  Michael Stephens

BREAKING: Transgender girl not a finalist for homecoming queen despite enough votes

SISTERLY SUPPORT | Andy Moreno, left, has her family — including sister Daisy Moreno, right — and her friends backing her up in her bid to be the 2010 homecoming queen at North Dallas High. (Tammye Nash/Dallas Voice)
Andy Moreno, left, and her sister Daisy Moreno

Trangender student Andy Moreno wasn’t among the three finalists for homecoming queen at North Dallas High School announced Monday, according to her sister, Daisy Moreno.

Daisy Moreno told Instant Tea that according to poll watchers and friends on the counting committee, Andy received more votes than at least one of the three finalists. However, based on the principal’s previous decision, school officials didn’t allow votes for Andy to count.

Another transgender youth who also identifies as female was nominated for homecoming king and won, Daisy Moreno said. The school allowed the other youth to run for king because she was born male. Students will choose the homecoming king and queen from among the finalists on Friday, Oct. 15.

Queer LiberAction is reportedly planning a protest of Andy’s exclusion from the ballot.

The Canadian Broadcasting Company saw the story about Andy’s homecoming bid on Dallas Voice’s website and interviewed her Monday afternoon. The report is scheduled to run on NPR in the United States.

It’s unclear whether Andy would have a winning case if she brought legal action against the school or the district, according to Ken Upton, a senior staff attorney at Lambda Legal in Dallas.

Upton said recent federal court rulings have supported students’ right to dress consistently with their gender identity in other contexts, but he couldn’t recall one that dealt specifically with homecoming. In Indiana, for example, a school district recently changed its policies and settled a case brought by a trans student who wasn’t allowed to wear female attire to the prom.

“In this type of a situation, there would probably be some federal arguments you could make,” Upton said. “It would depend a lot on the circumstances of the homecoming event, and whether it was truly just extracurricular or whether it was related to the curriculum of the school. But as a general rule, the federal law has been in some cases protective of students who kind of buck the gender norms or bend the molds and administrators don’t like it.

“I think it’s something we’re seeing more and more of, because students are increasingly becoming comfortable in their own skin in situations where five or 10 years ago, they would have been scared to death to be themselves,” he said.

Upton added that regardless of the legal implications, he doesn’t understand the school’s motivation.

“What’s the harm?” Upton said. “Especially in the context of proms or homecoming, I always wonder, what really is the objection? And that’s the question that I’ve never gotten a satisfactory answer to. You [the school district] might win a lawsuit, but why would you care, and why would you expend so much energy on something like this? You’ve got bigger problems.”

Online editor John Wright contributed to this article.

—  David Taffet

What now with Prop 8?

Appeals court has stayed Walker’s ruling, but the case has been fasttracked as appeals over standing, merits work through the system

DAVID TAFFET  |  Staff Writer  taffet@dallasvoice.com

Chris Stoll
Chris Stoll

The three-judge panel of the 9th Circuit Court of Appeals in California that stayed the lower court’s decision this week ordered the Proposition 8 supporters to defend their standing in the case as it moves up on appeal.

Attorneys following the case closely all called the stay disappointing but were encouraged by the court questioning the standing of the defendants and the fast track timetable.

Chris Stoll is senior staff attorney for National Center for Lesbian Rights, a San Francisco-based organization that filed a brief in the Prop 8 case. He said that although it was disappointed that same-sex couples could not start getting married immediately, he was encouraged that the court fast-tracked the hearing to December and asked both sides to address standing.

Jennifer Pizer, National Marriage Project director for Lambda Legal, said she, too, was not surprised by the stay.

“It’s common for judges to maintain a status quo,” Pizer said.

She said that the stay does not indicate the merits of the case.

In fact, it is quite the opposite, she said, as indicated by the court directing the defendants to justify their standing in the case.

Ken Upton, senior staff attorney for Lambda Legal’s South Central Regional office in Dallas, said that the stay “probably isn’t going to matter much” in the long run because the court put the case “on a really short docket.”

Upton said he liked the schedule.

The court will hear the case after the election, but before a new governor takes office in California.

A different governor could decide to defend the case, Upton noted.

Federal District Judge Vaughn Walker ruled last week that there was no basis to continue a stay of his Aug. 4 ruling declaring Prop 8 unconstitutional. But he declined to lift his stay early, instead saying that it would expire Aug. 15 at 5 p.m., as he had originally ordered.
That gave the 9th Circuit court time to consider issuing a its own stay.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown had agreed to abide by the lower court’s ruling and said the case should not be appealed.

Since the state was the defendant in the case, the standing of the interveners, the Yes on 8 group that had campaigned for the amendment’s passage and that actually defended the case in court, is now in question.

Stoll explained that in a normal schedule for the 9th Circuit, final briefs might have been filed in December with oral arguments heard in February or later.

With extensions, the case might not have come before the appellate court until well into the spring.

While many cases are decided within weeks, the court is on no deadline. In a more complicated case like this, the decision could take months, Stoll said.

Two cases involving standing will be heard as well as the appeal of the actual ruling.

Officials with Imperial County in southeastern California have filed to defend Proposition 8 on behalf of the state.

And the Yes on 8 group, also known as the interveners, who defended the lower court case are appealing the judge’s decision. But their standing is also being questioned.

Stoll said that traditionally conservatives in the higher courts take a narrower view of standing than liberals.

Jenny Pizer
Jenny Pizer

“In general, they don’t want to be giving opinions that would be advisory and don’t have an impact on real people,” he said. “If the state is willing to abide by the trial court’s opinion, should the courts hear the case?”

When the court rules, presumably it will address standing first. If they find that the interveners and Imperial County officials do not have standing, Stoll said he didn’t expect any further discussion of the case by the court.

If they rule that either of the interveners have standing, then they will rule on the constitutional question.

To show that they have standing to appeal, the interveners “need to show they’ve been harmed to make a federal case out of it,” Pizer said.

“When a law is challenged as being unconstitutional, they can’t just stand up and say, ‘But we really, really want it.’ That works on Fox TV, but not in court.”

However, if the appeals court rules the interveners do not have standing, they can appeal to the U.S. Supreme Court. If that court finds that they do have standing, the case would return to the Circuit Court for a ruling on the legal issues.

If the appellate court finds that the interveners do have standing, then that court will rule on the merits of the case, deciding whether Judge Walker’s interpretation of law was correct and if Proposition 8 is illegal under California’s constitution.

When the three-judge panel that will hear the case makes that decision, either side can petition for the case to be heard “en banc,” which means by the full court. But in the 9th Circuit court, it means a panel of 11 judges chosen randomly from among the 29 on the court.

The ruling by the 11-member panel could then be appealed to the U.S. Supreme Court.

Pizer sees the expedited hearing schedule and the court’s decision to issue the stay as a compromise made by the court.

“The stay keeps things simpler,” she said.

Pizer said that until the hearing, both sides would be writing briefs. The defense will be arguing that they have standing in the case and that in his decision Judge Walker misread the law.

Ted Olson and David Boies, the two high-profile attorneys representing the plaintiffs in the case, will argue that the interveners have no standing since they are not the ones issuing marriage licenses. Their briefs will argue that the defendants presented no credible witnesses or evidence and the only ones harmed by Proposition 8 are same-sex couples waiting to get married.

Pizer said that the LGBT community should use this time wisely until the case is heard.

“We need to be educating our neighbors about why Judge Walker is correct,” she said.

This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens

Clearing the confusion on lifting the stay: Walker’s stay order will expire as originally scheduled next Wednesday

Ken Upton, senior staff attorney in Lambda Legal’s South Central Regional Office here in Dallas, has cleared up the confusion over Judge Vaughn Walker’s ruling on lifting the stay of his order overturning Proposition 8.

Upton explains, in a comment to an earlier Instant Tea post, that Walker has declined to extend the stay he issued last week, but instead to let it expire as originally scheduled on Wednesday, Aug. 18, at 5 p.m. PST.

The 9th Circuit Court of Appeals has the option to issue its own stay of Walker’s ruling against Prop 8. I have heard a rumor that I can’t even begin to confirm yet that the 9th Circuit isn’t likely to issue a stay. If that is how it turns out, same-sex couples will again be able to legally marry in California beginning next Wednesday.

The question still remains as to whether the Yes on 8 campaign — which unsuccessfully defended Prop 8 in Walker’s court — even as legal standing to appeal Walker’s ruling. The actual defendants in the case were Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, both of whom declined to defend the amendment and both of whom issued statements this week saying same-sex couples should be allowed to legally marry. Since the Yes on 8 people are actually only “defendant intervenors,” they might not have legal standing to appeal Walker’s decision, some experts have said.

—  admin

Lambda Legal’s Ken Upton says today’s Prop 8 ruling will have little immediate practical impact

Ken Upton

We spoke Wednesday morning with Ken Upton, a senior staff attorney with Lambda Legal who’s based in Dallas, about the potential legal implications of this afternoon’s expected ruling in the Prop 8 case. Specifically, we asked Upton what the ruling could mean to folks in Texas, and why we should care.

Upton noted that even if U.S. District Judge Vaughn Walker strikes down Prop 8, it’s likely that the decision will be put on hold pending appeal, meaning no same-sex marriages will be performed in California.

“In the short run, it’s not going to do anything as a practical matter because it will be stayed,” Upton said of today’s decision. “Nobody’s going to get married in California, and the decision won’t be the final decision, because it’s going to get appealed at least once. As a practical matter, it won’t really do anything, but it will start the ball rolling on a path that could eventually do something.”

Upton said he is optimistic Walker will strike down Prop 8.

“I read the transcripts, and I heard the arguments, and I read the briefs,” Upton said. “The law is strong in our favor and the evidence was I thought very persuasive in our favor, so it won’t surprise me if he rules for us.”

But Upton added that the key to today’s ruling is not whether Judge Walker upholds or strikes down Prop 8, but the manner in which he does so.

“The result won’t be the final one anyway,” he said. “At this point, he’s just firing the first salvo if you will. What will really be interesting is how far he goes. What will he say about the constitution and how it protects gay people? What level of scrutiny will he give it? Will he talk about marriage itself or will he talk about discrimination against gay people? The immediate effect of it will be more one for lawyers to dissect than it will have any practical effect. It’s going to be years before we know the ultimate result.”

Despite minimal practical impacts, Upton acknowledged that a victory today will give the LGBT community a psychological boost.

“It feels good to see courts do what they’re constitutionally required to do, and that is be a check on government and the political arms of government,” he said. “One colleague suggested that everybody have a bottle of tequila in their office, and once we win, every time the other side calls him [Walker] an activist judge, take a shot, and see how long it takes to get drunk.”

—  John Wright

Man in rape case also charged with assault in connection with HIV status

Tumbwe, former minister with Potter’s House, claims sex was consensual; 2 other women say defendant didn’t reveal his status and gave them HIV

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Nathaniel Tumbwe is on trial in Dallas for aggravated assault with a deadly weapon. The weapon is his penis and his bodily fluids are the bullets because he has AIDS, herpes and genital warts.

According to testimony in Tumbwe’s criminal trial, Tumbwe made repeated advances to Carolyn Hudson, which she refused. In October 2008, she reported to police that he raped her in her house. She said she invited him to her home twice to discuss religion and on that second visit he raped her.

Weeks later she learned he had AIDS.

The defense claimed that Hudson simply regrets having had a relationship with Tumbwe.

Hudson is a receptionist at Potters House, a megachurch in Southwest Dallas. Tumbwe refers to himself as a reverend who was affiliated with the church at the time.

Hudson has tested negative for HIV. Two other women who contracted the virus after unprotected sex with Tumbwe will testify at the punishment phase of the trial if he is convicted.

Ken Upton, staff attorney for Lambda Legal in Dallas, said that calling the penis a weapon is unusual.

He said that Lambda Legal has filed briefs in cases where police charged someone with assault when a person with HIV that was being arrested spit on the officer. Since that is not a method of transmission and spitting is not normally seen as assault, the courts dismissed the charges.

In a 2009 case in Michigan, a man with HIV arrested for assault was also charged with bioterrorism after biting his victim. Lambda Legal filed a brief in the matter.

“This charge leads to public misunderstanding of how HIV is transmitted, contributes to stigmatizing people with HIV and undermines important public health goals,” Lambda Legal attorneys wrote in their brief.
In June 2010, the bioterrorism charge was dismissed.

But Upton warned about having unprotected sex or not revealing one’s HIV status to a sexual partner.

“Knowingly having unprotected, nonconsensual sex puts it in a different category,” Upton said.

He said in Texas it would at least be a good argument for battery.

Why Dallas prosecutors would go for the assault with a deadly weapon charge, however, when rape has severe penalties, Upton said he could only speculate. He thought they might have added the charge in order to get a plea bargain. Once the case went to trail, he suggested it might have been to further bias the jury against the defendant or simply add charges.

Jamille Bradfield is the public information officer for the Dallas County district attorney’s office. She said she could not comment on the case because the trial is ongoing.

The charge has worked in North Texas before.

In 2009, a Frisco man was convicted of six counts of aggravated assault with a deadly weapon — his bodily fluids — because he was HIV positive. Ten women who seroconverted after having sex with him testified for the prosecution. The sex was apparently consensual. No rape was charged.

That case was the first in which DNA testing showed that the defendant was the source of the infection. He was sentenced to 45 years in prison.

In March, a Houston man was charged with having unprotected sex with a minor. The charges were upgraded to aggravated sexual assault when police learned that he was aware of his HIV positive status.

Enhancing the charges when HIV is involved is becoming more common according to The Center for HIV Law & Policy. They list about 60 current or recent cases across the country. Charges range from spitting and knowingly spreading infectious disease to assault with intent to kill.

The cases involving sex, rather than spitting or biting, all appear to involve heterosexuals.

The organization calls penalties for crimes involving persons with HIV “draconian,” with up to 25 years in prison even when no transmission occurred.

In the Tumbwe case, there was apparently no infection in the case of the rape victim. Hudson has not tested positive for HIV but is being told that she needs to retest once a year for 10 years.

Bret Camp, associate executive director for health and medical services at Resource Center Dallas, said that was ridiculous and unnecessary.

“Technology has advanced,” Camp said. “HIV RNA testing is now available at Nelson Tebedo Clinic through a partnership with Dallas County. It detects HIV in seven to 10 days after an exposure.”

He said for peace of mind, he’d recommend a follow-up at 60 days, but called even that medically unnecessary. He said he knows of no cases where someone suddenly tested positive years after exposure.

David Clohessy, national director of the Survivors Network of those Abused by Priests, has been following the Tumbwe trial and said the case is of particular interest because of the trust people place in other people involved in their church.

He said that prosecuting crimes involving churches are particularly difficult.

“Often people associated with a church are reluctant to speak up,” Clohessy said. “By cooperating with law enforcement, churchgoers are strengthening their congregations and making them healthier communities.”

And many churches are reluctant to discuss HIV prevention. By going public, Hudson may have helped open the discussion of several topics at the church including HIV testing and revealing status to partners as well as sexual abuse by church elders.

At press time, the trial was still in progress. Tumbwe faces 20 years in prison if convicted.

This article appeared in the Dallas Voice print edition July 16, 2010.

—  Kevin Thomas