See You In Court! - January 2018

by Shipman & Goodwin LLP
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Mr. Superintendent was hoping that the first meeting of the Nutmeg Board of Education after the holidays would be uneventful, maybe even boring. It was not to be. During Public Comment, Peter Parent gave an impassioned speech about how the Nutmeg Public Schools are depriving his daughter of her privacy rights. At the beginning of the current school year, he reported, a transgender student who identifies as female started using the same girls bathrooms and girls locker room as his daughter. With increasing animation, Mr. Parent described how upset he is that his daughter may encounter this student in the bathroom and in the locker room. He ended his comments by slamming on the podium with each of three words, “This. Must. Stop!”

Veteran Board member Bob Bombast picked up on Mr. Parent’s emotion, and he was very curious to learn more. “How long has this been going on?” Bob asked indignantly. Before Mr. Parent could respond, however, Bob whirled around to confront Mr. Superintendent. “Tell me this isn’t true,” he demanded.

Mr. Superintendent demurred, stating that it was not the right time to discuss this matter. But Bob wouldn’t let it go, and fellow Board member Mal Content chimed in, demanding an explanation from Mr. Superintendent.

“OK, OK,” Mr. Superintendent responded, “I’ll explain.” Mr. Superintendent went on to describe a request by a student to identify as female, even though her assigned sex at birth is male. After meetings with the family, Mr. Superintendent explained, the district made a number of accommodations as requested by the parents, including changing all school records to show her chosen new name, which is consistent with her female identity.

Bob Bombast expressed shock at Mr. Superintendent’s statements. He challenged Mr. Superintendent, telling him that he couldn’t imagine that parents can change assigned bathrooms and even official school records just by asking. Mal Content weighed in as well, stating that falsifying public records must be some sort of crime. But other Board members tried to inject some reason into the discussion. Red Cent told both Bob and Mal to calm down and be more respectful in discussing this sensitive subject. Penny Pincher offered the observation that accommodating parent and student wishes does not cost a penny, and she expressed support for the family’s actions. The Board members went on to discuss Mr. Parent’s concerns for another ten minutes, until Mr. Chairman banged on the gavel and declared that the Board has a full agenda for the meeting and needed to get back on track.

“Just one more thing,” said Bob Bombast. “I move that we direct Mr. Superintendent to put this entire accommodation thing on hold until we appoint a study committee to recommend appropriate procedures for the Board to follow.”

“I second,” interjected Mal. But Mr. Chairperson was not having it.

“If and when I decide to put this matter on the agenda,” he intoned, “we can discuss all that. For now, however, the discussion is over.

Given that Mr. Superintendent is the chief executive officer of the Board of Education, were these Board members off base in discussing Mr. Parent’s concerns?

 *    *    * 

These Board members were indeed off base in discussing Mr. Parent’s concerns. However, their error has nothing to do with the respective roles of the Board and the Superintendent. Rather, their discussion of this matter violated the FOIA because the matter was not on the agenda.

The Freedom of Information Act defines a “meeting” (in relevant part) as “any convening or assembly of a quorum of a multimember public agency . . . to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.” (Emphasis added). The FOIA further provides that the agenda of meetings of public agencies must be posted at least twenty-four hours in advance, describing the business to be transacted. Here, the subject of gender identity and expression was not on the agenda, and the Board thus violated the FOIA by discussing Mr. Parent’s concerns and the accommodations made for the student in question.

More generally, it is inadvisable for board members to respond to concerns raised during public comment. Public comment is a time for boards of education to hear from the public, but it is not a time to engage in discussion. In addition to the legal issue of compliance with the FOIA, there are practical concerns. An expectation that the board of education or the superintendent respond ad hoc to concerns expressed during public comment is an invitation to confusion or even error, given that all the facts may not be known and the speaker may even simply be mistaken. Rather, boards of education should clarify that speakers should not expect a response back at that time.

In recent years, there has been much discussion, debate and some confusion over what is or is not discrimination on the basis of gender identity and expression. In 2016, the United States Department of Education issued guidance stating in part: “The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.” However, that guidance was controversial, and one Texas court even issued an injunction against it. Early in 2017, the United States Department of Education withdrew the guidance.

Connecticut responded quickly. Governor Malloy issued Executive Order 56 on February 23, 2017, directing that bathrooms and locker rooms in public schools be considered places of public accommodation, subject to the prohibitions against discrimination on the basis of gender identity and expression. Governor Malloy also directed the State Department of Education, in consultation with the Commission on Human Rights and Opportunities, to develop guidance for school districts that allows students access to school facilities consistent with their gender identity and expression.

In June 2017, the State Department of Education issued Guidance on Civil Rights Protections and Supports for Transgender Students, as well as a helpful Frequently Asked Questions document, both of which are available on its website. Based on this guidance and the Governor’s Executive Order, school officials must accommodate the gender expression and identity of transgender students and their families in various ways, including using their chosen names and providing access to school facilities. Thus, the rights of transgender students in Connecticut are clear, even while the debate continues nationally.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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