In a little-noticed development, the U.S. Supreme Court is scheduled to deliberate privately on Sept. 26 over whether to accept a case filed by veteran LGBT activist and former D.C. resident Kenda Kirby that potentially could dramatically expand non-discrimination protections for LGBT people.
Kirby, who is not an attorney, wrote and filed her own Petition for a Writ of Certiorari calling on the high court to take a case known as Kirby v. North Carolina State University.
The case is part of a lawsuit that Kirby filed against NCSU in 2014 accusing its School of Veterinary Medicine of illegally expelling her from its Ph.D. program in 1994 because of her “perceived gender non-conformity, sex, sexual orientation, gender, gender identity, and political affiliation or belief.”
Court records show that the statute of limitations for filing a lawsuit for the alleged discrimination in 1994 was reset to 2014 after the university sent Kirby a bill in 2013 for tuition it claimed she owed the school from her enrollment in the Ph.D. program 20 years earlier.
Kirby argued that the tuition bill, which came with a warning that she would be turned over to a collection agency if she did not pay it, represented a continuation of the discrimination she suffered when she was expelled from the program.
The Supreme Court’s website shows that it receives between 7,000 and 8,000 petitions for a Writ of Certiorari each year and the court agrees to accept only about 80 of those cases in a given year.
Two attorneys familiar with Supreme Court cases and who spoke to the Washington Blade about Kirby’s case on condition that they are not identified said it is exceedingly difficult for experienced lawyers to succeed in having the court accept their cases. They said that in a case such as Kirby’s, where she is representing herself and has prepared her own petition, the chances of the court accepting her case are remote.
“The brief is obviously very cogently written,” said one of the attorneys. “And clearly this is a woman with tremendous intellect. And while she did a fine job as a pro se litigant it’s not the level of argumentation and the clarity of elucidating what the true violation is that you would expect from lawyers who live and breathe this stuff day in and day out.”
Kirby, 54, told the Blade she is representing herself because she can’t afford to pay for a lawyer on her current salary as a high school biology teacher in Oklahoma, where she now lives. She said she contacted some of the national LGBT litigation groups but they told her they were busy working other cases and could not represent her at this time.
One of the attorneys who also spoke to the Blade on condition of not being identified said that in the unlikely development that the Supreme Court would accept Kirby’s case, the court would appoint an attorney to represent her who is a member of the Supreme Court Bar. All lawyers who argue cases before the Supreme Court must be a member of the court’s bar under its rules.
The two attorneys who reviewed Kirby’s petition noted that if the high court denies her petition after reviewing the case on Sept. 26 in a private conference, the denial would have no adverse impact on the issue of whether LGBT people are covered under existing federal civil rights laws.
But if the court were to accept the case and then issue a decision against her claim that existing federal civil rights statutes protect LGBT people, that would have a nationwide impact and would be highly damaging to efforts to expand non-discrimination protections for LGBT people through the courts, the attorneys said.
Kirby states in her Supreme Court petition that the discrimination case involving NCSU began in April 1993 when word reached two of her main professors in her Ph.D. program that she attended a national LGBT rights march on Washington held on Sunday, April 25, 1993.
“She took final exams during the week that followed, earning enough points to maintain her passing grades and good standing at the university,” her petition states.
“Within about two weeks, Plaintiff received her grade reports in the mail, showing multiple failing grades,” the petition says. “When Plaintiff contacted her major professors at CVM about the incorrect grades, Dr. Ida Washington Smoak stated to Plaintiff that she and Dr. James E. Smallwood had intentionally changed her grades because they were angry that she ‘was an avid Clinton supporter’ and that she ‘attended a gay rights rally at an inconvenient time.’”
Kirby, a longtime Democrat, said it was well known on campus that she supported Bill Clinton in the 1992 presidential election.
She said the improperly lowered grades her professors gave her led to her termination from the Ph.D. program on grounds of low grades. She appealed the action before a university grievance committee, which ruled against her.
Nearly 20 years later, when she applied to get a copy of her grade transcript from NCSU while applying for a teaching job, she received a bill in June 2013 saying she owned $321 in back tuition from 1993. Kirby said she was told that the university would “ruin her credit” if she did not pay the tuition, which she didn’t believe she owed.
Kirby said the mistaken tuition bill and warning were grounds for her to file her discrimination lawsuit against the university in January 2014 with the U.S. District Court for the Eastern District of North Carolina Western Division.
The court one year later approved a motion by attorneys with the North Carolina Attorney General’s office, which is representing NCSU, dismissing the case on grounds that the court “lacks subject matter jurisdiction over this case.” The court, among other things, cited an 11th Amendment provision of the U.S. Constitution that gives states and state institutions immunity from being sued by private individuals.
It also denied Kirby’s claims that she had been protected under Title IX of a federal civil rights statute on grounds that sexual orientation was not covered under that statute.
Kirby quickly appealed that decision to the U.S. Court of Appeals for the Fourth Circuit. That court also quickly denied the appeal, saying there was no “reversible error” on the part of the District Court that would merit overturning that court’s decision.
Kirby told the Blade she remains hopeful that the Supreme Court will accept her case. She says her case is “clean” for a number of reasons, including the fact that there is no significant factual dispute. She says the two professors boldly admitted they lowered her grades due to their perception of her as “non-conforming with their stereotypes of what a woman is supposed to be.”
“The perpetrators and opposing counsel acknowledged discrimination occurred,” she said. “While I may not be seen as young and sexy, my case is also not as scary to some as bathroom issues, yet I could resolve those issues too,” she said.
Spokespersons for NCSU and the North Carolina Attorney General’s office, which would represent the university if the Supreme Court accepts the case, didn’t respond to calls from the Blade seeking comment.
Representatives of Lambda Legal Defense and Education Fund, the nation’s main LGBT litigation organization, didn’t respond to multiple calls and emails from the Blade seeking comment on Kirby’s Supreme Court petition.