There was an interesting complaint filed in New York yesterday in which a group of parents and educators sued New York Attorney General Letitia James over a letter viewed as threatening those who are raising transgender policies in public meetings.
While the legal basis for the complaint is likely to be challenged as premature by the state, the lawsuit exposes an effort that seems clearly designed to chill such public discussions of transgender issues. The “guidance letter” warns school boards that discussing student trans issues at public meetings could violate the right to privacy for affected students and, if board members engage in such public discussions, “they may be removed” by state education officials.
The letter seems designed not only to threaten those who want to raise these policies, but also to offer cover for boards to cut off public debate. Few boards want to discuss the issue and we have seen heavy-handed tactics to cut off those who raise the policies.
The Southeastern Legal Foundation filed the lawsuit and faces considerable challenges in using a guidance letter as the basis for a lawsuit. James will argue that such letters are common and merely express how her office will interpret the law in these areas in light of questions from various boards.
It states:
“Board members may be removed by the commissioner of education if they, (1) violate the education law or another law ‘pertaining to [public] schools,’ including the state Human Rights Law; (2) willfully neglect their duties as public officers; or (3) willfully disobey a ‘decision, order, rule or regulation’ of the Regents or the commissioner of education.”
The question is whether a court will find the letter itself insufficient to trigger a lawsuit, rather than waiting to see how that legal guidance is applied in any given case.
Putting aside the merits of the legal cause of action, the letter should raise free speech concerns. It seems designed to intimidate some who want to raise these policies while giving others support for shutting down debates. Polls show that the public is generally opposed to transgender policies on pronouns, sports, and bathroom access.
The letter emphasizes that free speech can be limited at these meetings:
“[u]nder the First Amendment, school board meetings are considered limited public fora. This means that school boards that allow public comment ‘may make reasonable, view-neutral rules governing the content of speech allowed,’ including prohibiting all comments on a particular topic that would have discriminatory, harassing, or bullying effects.”
James leaves the scope of what would be considered “discriminatory, harassing, or bullying effects” lingering without any clear definition. It is the same vagueness in standards that we have seen used in higher education where administrators have succeeded in getting students to self-censor to avoid the unknown lines of speech regulation.
In other words, the letter is giving these boards guidance on how to stop public debate in their meetings on issues that are currently unpopular and leading to rising opposition among parents and students.
The timing of the letter before the midterm elections only magnifies suspicions that James is nudging boards to prohibit all comments on these divisive issues.
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