Massapequa school board President Kerry Wachter, Rockville Centre parents say in new lawsuit that state censoring discussions on transgender students

The Massapequa school board president, two Rockville Centre parents and an upstate school board member have sued the state’s top law enforcement and education officials, arguing school board members are being forced to censor themselves and others on issues involving transgender students.

The lawsuit, filed Tuesday in federal court in the Northern District, focuses on discussions at school board meetings about transgender students’ access to bathrooms and locker rooms that align with their gender identity, a topic that has stoked controversy on Long Island and across the country.

In court documents, the plaintiffs ask the court to declare unconstitutional and unenforceable a May 8 letter from state Attorney General Letitia James and Education Commissioner Betty A. Rosa. In the letter, James and Rosa warned that school board members could be removed if they engage in or condone harassment, bullying and violation of students’ privacy rights.

School board members have made, or encouraged, statements that “demean and stigmatize” gay and transgender students, potentially violating students’ privacy rights, creating a hostile environment and exposing districts to costly litigation, James and Rosa said in the letter.

School boards may “address questions and concerns about controversial issues,” but “inflammatory remarks” about students’ gender identity or access to school facilities “may only make children feel unwelcome and excluded," the letter states.

Board members should conduct meetings in a way that “ensures respect for the dignity and rights of all students” and they can be removed for official misconduct if they make or condone statements that are discriminatory or violate student privacy rights, the letter states.

The attorney general's office declined to comment. The education commissioner could not be reached.

First Amendment concerns

Kerry Wachter, who leads the Massapequa board, is the lead plaintiff in the lawsuit. The other plaintiffs are Sarah Rouse, who has a child in 11th grade in the Rockville Centre school district; Issac Kuo, who has four children in kindergarten through ninth grade in Rockville Centre schools; and Danielle Ciampino, a parent and school board member in upstate Schenectady County.

The defendants, in addition to James and Rosa, include the members of the state Board of Regents, including Long Island representative Felicia Thomas-Williams and at-large member Roger Tilles.

The suit argues James, Rosa and other state officials “have threatened to remove from office school board members… for publicly supporting sex-separated interscholastic sports and school facilities, or for using pronouns that correspond to biological sex at public school board meetings.”

Even if the board members do not speak about transgender students, the lawsuit alleges, state officials “still threaten them with removal for merely allowing parents or other community members to speak the same viewpoints, purportedly ‘misgender’ students or question the ‘legitimacy of students’ gender identity.’ ”

Kuo and Rouse believe children are assigned their sex by God, that students should use facilities that correspond to their “biological sex” and that schools should not give lessons about “gender identity or transgenderism,” among other beliefs, and they are concerned that if they continue to speak at school board meetings, school officials will reprimand them or stop them from speaking, the lawsuit states.

Wachter, the mother of a high school junior in the district and two children who graduated from Massapequa schools, said in an interview with Newsday that she saw the letter as “an attack on the First Amendment.”

The state officials, she said, are trying “to shut down this kind of discussion, because they knew they have been losing this battle, and there is really not any public support for this.”

New York officials say state law gives transgender students the right to use restrooms and locker rooms that align with their gender identity. Opponents say allowing transgender students to use those facilities violates Title IX, a federal law prohibiting sex-based discrimination in federally funded education programs, as well as President Donald Trump’s January executive order recognizing “two sexes, male and female,” and stating, “Federal funds shall not be used to promote gender ideology.”

Massapequa policy

The Massapequa school board in September approved a policy requiring students use either the bathrooms and locker rooms that correspond with their biological “sex” or separate, gender-neutral facilities. The New York Civil Liberties Union filed an appeal on behalf of a transgender student in the district; Rosa has issued a stay barring the district from enforcing the policy until a decision has been made on the appeal.

Wachter said a group of female students spoke at a recent school board meeting, expressing discomfort about changing in front of transgender students.

Kimberly Hermann, president of the Southeastern Legal Foundation, the Georgia-based conservative legal and policy group that is representing the plaintiffs, said in an interview that the May 8 letter makes it impossible for school board members to know when comments made by board members or the public might result in board members’ removal.

“This is really about everyone's ability to come and speak at a school board meeting,” she said. “As school board members, they don't know, ‘when do we have to shut off their mic? When are we going to be subject to removal?’ And so not only does this letter discriminate against their viewpoints and their strongly held beliefs, but it's also so vague that they're going to have to start to self-censor.” 

By Maura McDermott

maura.mcdermott@newsday.commauramcdermott

Maura McDermott covers education. Since joining Newsday in 2012, she also has worked on the investigations team and covered real estate and the business of health care.