A married gay couple is suing the San Diego Unified School District, an elementary school, and a principal in federal court because they allege false public statements suggest they are attracted to children.
The couple alleges that "a pervasive, unlawful anti-LGBTQI+ culture" helped lead a school principal and parents to "broadcast false public statements suggesting that [they] were pedophiles," according to the lawsuit.
James Donaghe and Alvaro Ortiz filed suit in the United States District Court for the Southern District of California against the school district; Sherman Heights Elementary, or SHE; and principal Nicole Enriquez.
Donaghe and Ortiz, according to the civil complaint filed February 23, live across the street from the school, which is in the Sherman Heights neighborhood of San Diego, south of Balboa Park and east of the iconic Gaslamp Quarter. Through attorney Jeffrey J. Miles of Johnson and Johnson LLP, the law firm representing the couple, the men declined an interview request. Miles did offer to send statements in response to written questions, and a response was given after the initial online publication of this report.
In their response to the question of what they hope to gain from the suit, Donaghe and Ortiz stated, "We desire to return to a peaceful life in our cherished designated historic Victorian home, free from the vitriol and threats incited by Sherman Heights actors and parents. While the school resorted to inflammatory and harmful allegations and the incitement of anti-LGBTQI+ violence, we hope that Defendants will finally address the underlying dangerous conditions around Sherman Heights Elementary that the school itself created."
In their response to the question of if the alleged harassment has continued in spite of their suit, Donaghe and Ortiz stated, "Since filing the lawsuit, the intimidation tactics have only intensified. We have received anonymous death threats that include language of anti-gay hate in texts from unknown phone numbers. There has been a new and ominous presence of individuals lurking near our home whose only purpose appears to be intimidation. A particularly alarming episode last week involved James being followed from his home and an assailant smashing his car window and reaching into his car, when he was stopped at a stop sign, while the attacker shouted anti-gay epithets at James."
Enriquez and the school district did not return requests for comment.
The suit alleges seven causes of action: violation of Title IX of the Civil Rights Act of 1964; First Amendment retaliation; violation of the Bane Civil Rights Act; two counts of nuisance (under federal common law and under California state law); negligence; and intentional infliction of emotional distress.
Miles stated that in this case it's possible for a claim under California state law (one of the two nuisance claims) to be heard in federal court
"With respect to jurisdiction, the state law claims arise from the same nucleus of operating fact as the federal claims and so the state law claims can be heard in federal court through the exercise of pendent or supplemental jurisdiction," he stated.
On May 14, 2022, Enriquez sent an email to Donaghe containing "entirely unfounded allegations that Donaghe's recording of unlawful and unsafe traffic conditions on 22nd Street was an attempt by Donaghe to record Sherman Heights students," according to the civil complaint.
The plaintiffs state they were recording for the purpose of documenting traffic violations.
"Enriquez, her constituents, and agents of Sherman Heights Elementary and SDUSD, wrongfully made and encouraged allegations that interpreted Plaintiffs' constitutionally protected activity of filming school traffic conditions as arising from a deviant and predatory interest in filming students, because of a discriminatory attitude towards homosexuality that falsely equivocates LGBTQI+ individuals as deviants and interpreted Donaghe's behaviors through a warped and discriminatory lens," the civil complaint states.
The complaint states that Enriquez and the San Diego Police Department had previously told Donaghe that the recording of "traffic issues was both appropriate and necessary so that [Sherman Heights Elementary] and San Diego could take corrective measures."
The complaint continues, "Dangerous conditions that meet the definition of nuisance under California state law continue unabated. SDUSD has knowledge of the dangerous conditions on 22nd Street abutting the Sherman Heights Elementary property in the Safe School Zone, including vehicles 'drifting' in the SDUSD parking lot, drag racing and reckless driving, and drivers ignoring stop signs or other traffic signs proximate to SDUSD campus, all while SDUSD staff 'direct traffic.'"
The complaint states, "These open and obvious dangerous conditions are exacerbated by transient camps of individuals openly selling drugs near the school, and numerous intoxicated drivers have caused disproportionate incidents of property damage on and about the SDUSD campus of Sherman Heights Elementary."
Later that month, a comment on the school's Facebook page from a nonparty to the suit named Pablo C. Palomino included a picture of Donaghe, stating that he "has been recording children" and asks, "What can we do to ensure he is not an issue?" The suit claims that the district's decision to keep the post up is "false and defamatory."
Palomino did not return a request for comment.
Anxieties led to Mace attack, complaint states
Donaghe alleges in the complaint that before he got the email from the principal, he was told by Joscelyn Hope Davis, a Sherman Heights Elementary parent, Parent Teacher Association member, and school volunteer that he "should not have bought his house on that street."
Davis could not be reached for comment.
He further alleges Davis made "a limp-wristed gesture that is a common epithet wielded as a gesticulation of gay men in a parodic caricature and mockery of Donaghe's sexual orientation in front of exiting elementary students and parents," the complaint states.
The complaint continues that from March 2022 to June 2023, Davis "stalked, taunted and threatened Donaghe in a sustained anti-LGBTQI+ hate campaign, culminating in Davis carrying out a deliberate attack on Donaghe at his home on 22nd Street."
When Donaghe walked out of his home to present Davis with a court-ordered temporary restraining order, the complaint states, "Davis brandished a can of Mace."
"When Donaghe put the letter in the vehicle window and started to back away, Davis maced Donaghe in the face from her car window in the middle of 22nd Street, directly in front of his home and Sherman Heights Elementary School," the complaint states. "Davis had maced Donaghe in his eyes, nose, mouth, throat, neck, and chest. Partially blinded, Donaghe called 911, and Davis fled the scene before SDPD officers arrived and took a report. Images of the assault show blistering on his chest and face, and chemical burns on Donaghe's eyelids."
Telemundo report destroyed reputation, complaint states
According to the complaint, in June 2023 the defendants went to local TV "to spread their discriminatory and anti-LGBTQI+ interpretation of Donaghe's lawful actions and spread a discriminatory and false narrative that Plaintiffs were 'intimidators of children.'
"Enriquez caused further harm to Donaghe's reputation by speaking with Telemundo/NBC7 in her official capacity from SHE campus as the principal of SHE," the complaint continues. "Enriquez told Telemundo/NBC7 that she had sent Donaghe a 14-day stay-away letter previously, further inflaming harassment and sowing anti-LGBTQI+ fear among parents, harming Donaghe's reputation by her suggestion to Telemundo viewers that Donaghe's conduct had resulted in a legal action (without sharing any discussion of the merits, or lack thereof, of this otherwise private stay away letter)."
The letter, from Enriquez, was not court ordered, according to the complaint.
"No mention was made of the hate crimes that Donaghe had experienced," the complaint states. "Her misstatements to the media were widely disseminated, effectively destroying Plaintiffs' reputation and causing Plaintiffs to bear the false label of alleged deviants—a scarlet letter that follows them in their personal and professional lives."
The Spanish-language news report is available online. It states parents were afraid of Donaghe, who was interviewed. The report states Donaghe took a video through the school's fence, which he stated was of a man who followed and insulted him outside his house. The report continued that Enriquez gave Donaghe a letter explaining he couldn't be on school property for 14 days.
According to a Google translation of the interview, Donaghe said he was not recording children, only traffic. He said he bought the property in 2021 and expressed that his problem is the traffic in front of his house at the time of entry and exit of the students, traffic that he said he ignored before buying the home.
The Telemundo affiliate, KUAN-LD, did not return a request for comment.
Updated, 3/14/24: This article has been updated with responses from the plaintiffs and an additional comment from their attorney.
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