Massapequa BOE Chair, Attorney Comment On Suing Letitia James, Claim 'Blatant' First Amendment Violation

MASSAPEQUA, NY. — Massapequa Board of Education Chair Kerry Wachter commented on her ongoing lawsuit against New York Attorney General Letitia James Wednesday, calling James’ May 8 guidance letter mentioned in the suit a “blatant violation” of first-amendment rights.

Wachter filed suit against James Tuesday, along with State Education Commissioner Betty Rosa and the New York State Board of Regents, collectively. In her suit, Wachter seeks a judgment that the letter's guidance was unconstitutional and to prevent James and Rosa from enforcing that guidance. The letter says board members, “have a duty to conduct meetings in a manner that respects the dignity of all students,” before saying that board members could expose their school districts to liability and lawsuits under state law, and subject themselves to removal from their positions, if they fail to carry out that duty.

In a conversation with Wachter and Kim Hermann, president of the Southeastern Legal Foundation, which represents Wachter pro bono in this case, Wachter said she felt immediately upon receiving the May 8 letter that it was an attempt to stop the discussion of policies surrounding transgender students at school board meetings.

“I knew that this was an attempt by New York State to stop the discussion, because they were beginning to lose the battle,” Wachter said Wednesday. “This isn’t even an 80 [percent]-20 [percent] issue, this is a 90-10, or a 95-5 issue. People do not want biological boys in girls’ locker rooms, they don’t want biological boys on girls’ sports teams, and they’re losing the argument and then their solution is ‘stop the discussion.’ And so, now, we will charge you as being hateful and being a bully if you have a different opinion.”

Patch contacted the attorney general's office Wednesday regarding the suit and Wachter's claims, and the attorney general's office declined to comment.

In the letter, James and Rosa listed the questioning of a transgender student’s identity or experiences, as well as the misgendering of transgender students, as conduct that could potentially expose students to harm on the basis of their identity and undermine the Dignity for All Students Act.

“School boards should not entertain 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,” the state officials’ letter said. “Nor should boards allow individuals to intentionally misgender district students — a practice that, according to research, leads to feelings of stigmatization and emotional harm, including anxiety, depression, and stress.”

Wachter said she started circulating the state’s letter among fellow school board members throughout Nassau “immediately” upon seeing it. When asked how her colleagues responded, Wachter said they felt outrage similar to hers.

“They couldn’t believe the blatant violation of these first amendment rights…school board members know that their school board meetings are for their communities to speak to them, to let them know how they feel on issues, that it’s a place where they can have these policy discussions," Wachter said Wednesday. “And that was one of the first things that we saw, and we felt, is that this is not allowing us to conduct business with our communities that elected us…it silences our students, it silences our community, it silences our parents, and it just doesn’t allow us to have a space where these students can express themselves.”

When asked if any of those colleagues discussed joining the suit as co-plaintiffs, Wachter said she could not speak for those colleagues.

“What I think is the broader issue, and the most important thing, is that we do have, now, school board members and parents willing to step up and push back,” Wachter said. “I can’t speak for other people, what they do and what they don’t want to do."

In this case, Wachter filed with three co-plaintiffs: Rockville Centre parents Isaac Kuo and Sarah Rouse, and Danielle Ciampino, a school board member in the Rotterdam-Mohansen school district in Schenectady. When asked how she got connected to a co-plaintiff whose district is so far away from Massapequa, Wachter said, “She’s a colleague, colleagues speak to one another…she’s been on the school board for a while, and we’ve had many interactions.”

As for why the suit was filed in the Northern District Court when previous suits had been filed by the Massapequa School District, Board of Education and some of its members in the Eastern District, Hermann said the choice was made due to the defendants’ location.

“All of the defendants are located in the Northern District. There’s multiple places where this lawsuit could have been filed, but the court has jurisdiction over the defendants, and that’s where we chose to file,” Hermann said.

Finally, Wachter was asked if there is a point past which school board members have a responsibility to curtail or moderate statements made during public comment, with regards to transgender students or other matters. Right now, Wachter said, the board of education only imposes two limits on public comment at its meetings.

"The only thing we do restrict, we can't speak about personnel and we cannot identify students by name," Wachter said. "We can't speak about certain teachers, you can't talk about teachers, staff and students by name. That's the only restriction that we have."