Diaz found an ally—but not in New York City. In the summer of 2003, the Liberty Counsel, a Florida-based nonprofit litigation group inspired by Evangelical causes, offered to back Diaz’s suit against the city. The Liberty Counsel is also contesting some 30 same-sex-marriage cases across the country. Its leader and founder, Mathew Staver, has called Harvey Milk a “school dedicated solely to those engaged in abnormal sexual practices.” Rena Lindevaldsen, an attorney in the case, says of homosexuality, “I do believe that it’s not a right relationship” since “it’s not what God designed.” But if the Liberty Counsel’s objections to the school are based on a narrow interpretation of Scripture, the legal brief they filed on behalf of Diaz is shrewdly grounded in legal argument. The suit charges not only that Mayor Bloomberg, the Department of Education, and Schools Chancellor Joel Klein are guilty of wasting city funds at a time of severe budget distress, but it also uses a clever act of legal jujitsu to charge that the Harvey Milk school is illegal since the Department of Education’s own regulations prohibit discrimination in school admissions on the basis of sexual orientation.
The case is still before Judge Doris Ling-Cohan of the New York State Supreme Court. When she will render a decision is anyone’s guess, but Lindevaldsen says that the suit has already forced Harvey Milk to back down from its original mission. She says that the Liberty Counsel and the lawyers who represent the city have been in closed-door settlement negotiations since last summer, and that many changes have already been agreed to by the Department of Education, including the removal of language from the Harvey Milk Website that formerly identified the school as a haven for “LGBTQ” (lesbian, gay, bisexual, transgender, and questioning) youth, as well as similar changes in the information dispensed to city guidance counselors who refer children to the school. “I would say it is a win for us,” Lindevaldsen says, adding that the sole obstacle to a final settlement is that both sides disagree on how the new rulings will be policed. The Liberty Counsel will not agree to settle until it is satisfied that the school cannot rely on a tacit understanding among the guidance counselors that only gay children should be referred to the school—which, according to her, is the nudge-nudge-wink-wink method by which the school has, so far, managed to circumvent sexual-discrimination statutes.
The city’s lawyers refuse to answer questions about the case, and will neither confirm nor deny that they have been in negotiations with the Liberty Counsel. They have limited themselves to a single written statement, which reads, in its entirety, “The high school has never discriminated on the basis of sexual orientation or any other prohibited basis.” Harvey Milk principal Rossi emphatically reinforces this point. “We certainly don’t base decisions on one’s sexuality. We can’t ask that question, by law.” While this is true, technically, it is also self-evident that the school doesn’t need to select students on the basis of sexuality since (as Rossi admits) that is done for them in the ordinary process of “self-selection.” In other words, gay kids who hang out in downtown Manhattan know that HMI and Harvey Milk are gay institutions, and it’s gay kids who apply. The numbers speak for themselves. Of the 100 students attending the school this year, there is apparently only one whom any of the students identify as straight.
Officials now insist Harvey Milk is not a gay school, but is open “to any interested student.”
In response to the lawsuit, Harvey Milk (which initially courted the press and sought publicity for its launch) went into virtual lockdown, refusing all press interviews. It was only through repeated requests, and with the greatest trepidation, that the school finally agreed to speak to New York. In doing so, the school has clearly put itself in an awkward—if not impossible—position: promoting itself as a life-or-death alternative for the city’s gay youth, and at the same time insisting that, in fact, it’s not a gay high school at all and is open to any child who cares to apply and passes the admissions interview with teachers and staff. Principal Rossi even goes so far as to suggest that the school—despite its name, its symbiotic relationship with a gay youth agency within which it is housed, and its almost exclusively gay teaching staff and student body—got the rap as a gay high school because of the press. “Here, sexuality is not even a focus or an issue,” he claims, “but by nature of the media, it had become, I think, the perceived focus of the school.” While no one associated with Harvey Milk will admit as much, the school’s overwhelming defensiveness and bizarre triangulation—We are a gay high school, but we’re not a gay high school!—is clearly a reaction to the Diaz lawsuit.
It also, perhaps, reflects a dawning realization that, for all the school’s noble intentions, it is founded on an untenable, and indefensible, philosophical idea about the nature of public education. Indeed, one strong advocate for both gay rights and public education has emerged as a salient critic of the school. Jonathan Turley, a professor of constitutional law at George Washington University, says that Harvey Milk, by segregating homosexuals from their straight peers, promotes the return to a “separate but equal” educational system uncomfortably reminiscent of one of the most shameful episodes in American history, when black students were placed in separate schools from their white peers—supposedly for their own good. “I have a long history of supporting gay rights,” Turley says. “One can have great sympathy for the motivation behind this school but question the means used to achieve noble ends. I was flabbergasted that leaders in the gay community embraced this concept, an act of self-exile from the school system, to self-isolation. It was just unbelievable to me.”