- The Washington Times - Wednesday, March 13, 2002

A veteran teacher who sued his bosses because children taunted him after he declared himself a homosexual has lost his civil rights case in federal appeals court.
Tommy R. Schroeder claimed he was driven to a nervous breakdown and disability retirement in 1998 by five years of crude heckling by elementary and middle-school students in Wisconsin, who made anonymous calls, scrawled graffiti in the bathrooms and made catcalls in school corridors.
But the court approved a trial judge's dismissal of the lawsuit. "Schroeder's exhortation to adopt a specific policy requiring students to be sensitive to or accepting of homosexuals is especially problematic in an elementary or early middle-school setting. What would such a policy say?" the court asked.
According to court papers, Mr. Schroeder was told by Templeton Middle School Assistant Principal Patty Polczynski, "You can't stop middle school kids from saying things. Guess you'll just have to ignore it."
The decision likely ends the unprecedented case of a teacher claiming his constitutional rights were violated because a school system failed to stop students and parents from berating him about his homosexuality.
"The well-being of students, not teachers, must be the primary concern of school administrators," the U.S. 6th Circuit Court of Appeals said in Monday's 2-1 ruling, which rejected his claim that homosexuals are due the same constitutional protection as blacks.
"It is also clear that children between the ages 6 to 14 are much more vulnerable to intimidation and mockery than teachers with advanced degrees and 20 years of experience," said the opinion signed by Circuit Judges Daniel A. Manion and Richard A. Posner, both Reagan appointees.
"Homosexuals have not been accorded the constitutional status of blacks or women. This does not make them constitutional outlaws. Any group … has a right not to be victimized by an irrational withdrawal of state protection," Judge Posner said, writing separately to rebut Mr. Schroeder's claim of unequal treatment.
Circuit Judge Diane P. Wood, a Clinton appointee, dissented and said the Supreme Court's 1996 Romer decision requires that official protection not be denied to homosexuals "simply because they may be an unpopular class."
Because the district "treated homosexuals differently from the way it treated other classes, such as racial minorities or gender," Judge Wood said, Mr. Schroeder was entitled to have a jury decide whether he is entitled to compensation.
She did not comment on the majority's point about the difficulty of telling children "why it is wrong to mock homosexuals without discussing the underlying lifestyle or sexual behavior."
On Dec. 31, 1998, Mr. Schroeder sued his Waukesha, Wis., school district and eight educators, including Miss Polczynski, charging they refused to require sensitivity training and did not adequately punish harassers.
Mr. Schroeder's Milwaukee lawyer, Brenda L Lewison, refused to discuss the case further without her client's consent.
School lawyer Michael J. Cieslewicz, also of Milwaukee, said yesterday the board did punish students who could be identified.
"The board did act on his complaint. Mr. Schroeder is saying it didn't do enough," said Mr. Cieslewicz, who argued that school board practices never violated the Constitution.
"Not only do I not know of any cases about student harassment of a teacher, but the act of students harassing a teacher is very rare," he said, contending Mr. Schroeder exaggerated the problem.
Mr. Schroeder's complaints were spread over the past five to six years, Mr. Cieslewicz said, "but he makes it sound like this was a continuous, daily problem which, in fact, it was not."
The court said the teacher was called "queer" and "faggot" in the halls and listed among other specific claims:
A fifth-grade girl asked him "to verify a rumor that he was gay," which the court said he first disclosed to a few Templeton teachers in 1990 and then announced at a public meeting after it became widely known in 1993.
Children said he had AIDS.
A pupil called him a "faggot," then said, "How sad there are any gays in the world."
Bathroom graffiti described "in the most explicit and vulgar terms the type of sexual acts they presumed he engaged in with other men," the court said.
In 1996, the taunting about his sexual persuasion followed, he said, when he was transferred to an elementary school to teach first- and second-grade students.

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