School board members sue NY AG James over letter on public transgender debate they find threatening

New York Attorney General Letitia James has repeatedly run afoul of federal judges in her quest to regulate the speech of pro-life pregnancy centers, but that hasn't dissuaded her from trying to control speech on other polarizing issues in which courts have rebuked censors.

School board members and parents are now suing the AG and New York Education Commissioner Betty Rosa for allegedly threatening to remove the former from office for "publicly supporting sex-separated interscholastic sports and school facilities" or "using pronouns that correspond to biological sex" at board meetings, or even for letting the latter say the same things.

Filed by the Southeastern Legal Foundation, the First Amendment lawsuit takes aim at guidance letters, a tool frequently used by AGs and regulators to share their interpretation of the law without bringing formal enforcement action that could trigger litigation, a sort of sword of Damocles hanging over potential targets.

Such letters were widely used in the Obama administration to threaten federal funding for colleges that resisted its interpretation of Title IX as restricting due process rights of students accused of sexual misconduct. Courts repeatedly blocked the Biden administration's similar Title IX regulation, all the way up to its final two weeks in power.

James and Rosa teamed up on a guidance letter this spring on "harassment and bullying at school board meetings," citing "some board members who have made, and encouraged, comments during board meetings that demean and stigmatize LGBTQ+ students."

They didn't mince words on what speech they interpret as prohibited under the state's Dignity for All Students Act: "attacks on school support for LGBTQ+ student groups and on transgender and gender-expansive students’ rights to use facilities, including restrooms and locker rooms, or participate on school athletic teams consistent with their gender identity."

Such comments, by board or audience members, may violate student privacy, "create a hostile school environment" and expose districts to "costly litigation," they said. 

The guidance also specifies that school boards should shut down "baseless allegations that transgender students’ identities and experiences are illegitimate, or that their mere presence in school spaces and participation in school activities is harmful to other students," and stop individuals from "intentionally misgender[ing] district students."

Boards must "adhere to state laws and regulations that safeguard students from harassment, bullying, and the disclosure of protected student information," and members "may be removed from office when they willfully neglect their duty or violate legal protections for students in their districts," the letter warns.

"Letitia James’ policies that say students cannot speak at their own school board meetings about the stress and problematic policies around accommodating trans athletes are anti-American and anti-constitutional," SLF President Kim Hermann said.

"This new lawsuit is especially timely" because a plaintiff's district is embroiled in an active debate over gender identity, SFL said. 

The New York Civil Liberties Union petitioned Rosa on behalf of a transgender student two months earlier, asking her to stop Long Island's Massapequa Union Free School District from enforcing its new policy requiring students to use the restrooms and locker rooms for their sex, not their gender identity. (It offers gender-neutral options as well.)

NYCLU referred to Rosa's joint statement with James in February in response to President Trump's executive orders against gender identity in schools and athletics, which the duo called "legally ineffective" without action from Congress and at odds with state law.

Massapequa sued Rosa Oct. 21 when she ordered the district to let males in female facilities, so as not to violate federal law as interpreted by the Trump administration and risk its funding, and amended its complaint Wednesday. The commissioner then blocked Locust Valley School District's "nearly identical" policy, the New York Post reported Dec. 2. 

Rosa has financially benefited from her sex, which unlike gender identity is immutable. The commissioner "quietly" got a $155,000 raise on top of her $120,000 pension, the Albany Times Union reported in January, which the Board of Regents defended on the basis that "female leaders" have "historically been subjected to lower compensation rates than their peers."

Rosa's department is "confident it will prevail in this lawsuit," spokesperson Karen Male told Just the News Thursday, arguing they lack legal standing. "The plaintiffs have not identified any injury to which they have been subjected; they merely express their feelings that, at some point, they fear removal for engaging in unspecified speech."

James's office did not respond when asked for its response to the lawsuit and how the guidance comports with First Amendment precedents.

'A law that dictates how to curate' speech faces highest judicial scrutiny

The SFL plaintiffs are led by Kerry Wachter, who chairs the Massapequa school board and whom Hermann credited with letting students "speak up and express their fears and discomforts with biological males changing in their girls locker room" and how it often "distract[s] them from learning throughout the school day."

Another is Rotterdam-Mohonasen Central School District Board of Education member Danielle Ciampino, who campaigned in part on her views that sex is immutable, students should use restrooms and play sports based on their sex and that preferred pronouns are a "false acknowledgment that an individual can change his or her sex."

The lawsuit invokes their intended actions — letting parents and community members "speak viewpoints the Guidance Letter prohibits" and "use pronouns that correspond to third persons’ biological sex" — to show they have legal standing, since James and Rosa said officials "may" be removed for doing so.

The other plaintiffs are Rockville Centre Union Free School District parents Sarah Rouse and Issac Kuo, who spoke against gender identity policies at board meetings before the guidance letter but now fear the board will reprimand, censor and "publicly brand [them] as harassing and bullying children" if they do so again.

The board "has made clear, through both a presentation by its legal counsel and statements by its president," that it treats Rosa's guidance letters as legally binding and fears she will pursue action against the district, including defunding, if it flouts her guidance, the suit says.

The lawsuit heavily relies on recent legal precedents in the federal appeals courts, especially the 6th U.S. Circuit Court of Appeals, which just last month banned a school district from punishing students for the "commonplace use of biological pronouns" and in 2021 banned a public college from forcing faculty to use students' preferred pronouns.

The 6th Circuit refused to block content-based school board comment rules on procedural grounds in September in Moms for Liberty's challenge, but two judges emphasized that "happy talk" requirements "necessarily discriminated" between opposing ideas — exactly what the New York guidance letter does by labeling "pure speech" as "harassment," SLF says.

The lawsuit only cites one recent ruling by the controlling 2nd Circuit, which remanded a challenge to New York's "hateful conduct" law to decide whether the statute forces tech platforms to adopt the state's unconstitutional definition of "hateful conduct."

The 2nd Circuit said "a law that dictates how to curate or compile others’ speech is generally a content-based regulation subject to strict scrutiny," the most demanding legal standard for governments to meet. SFL said the guidance letter forces school board members to "curate" speech to create "the false impression that all speakers agree with their message."

Several First Amendment precedents across federal courts this decade prohibit the government from discriminating against "parent and community-member viewpoints on important school-related issues expressed at public comment portions of local school board meetings," the suit says, including the 11th Circuit in another Moms for Liberty challenge.

"We cannot permit a state official to oust an elected representative of the people on the bald ground that she voices unsympathetic political views," the 2nd Circuit ruled 20 years ago in a First Amendment retaliation case by a school board member removed from office on allegedly fabricated claims of sprinkling "a powdery substance" in front of a peer's door.

The suit notes last year's reinstatement of parent activist Maud Maron, now running for Manhattan district attorney against Democrat Alvin Bragg, to a school board-like council from which she was removed for criticizing anti-Israel speech. The speech code she violated is likely unconstitutional, U.S. District Judge Diane Gujarati concluded.

The plaintiffs seek a declaration that the guidance letter, its implementation and enforcement are unconstitutional, injunctions, nominal damages and attorney's fees.