Parents in Hampton Falls became aware of the 2nd reading on an effort to adopt a policy that was recommended by The New Hampshire School Boards Association several years ago, Policy JBAB. You can read the JBAB policy on Barnstead, NH school district website. JBAB is the policy that governs the district on transgender non-conforming students.
Parents were concerned that this policy, which is now being challenged in court in three different districts in New Hampshire, would be adopted by the Hampton Falls School Board. Much to their surprise, when they arrived at the school board meeting on May 10th, the meeting began with an announcement that the agenda item would be tabled. It was then mentioned during public comments that the policy would not be adopted by the school board. The parents who attended the meeting were cautiously optimistic by this announcement which caused one parent to inquire about this announcement during the public comments.
As you can see at the beginning of the meeting, the Chair opens the school board meeting by saying the policy would be redundant based on the laws that are already in place. In other words, the current laws already cover the rights of transgender non-conforming students. There is no reason to adopt the JBAB policy. He then further makes a motion to remove the policy from the agenda and to table it. He mentions the possibility of bringing it up at a later date. This left a little bit of confusion as you can see from the discussion with the first parent during public comments at 43:40.
During this discussion, it was revealed by the Board Chair and Superintendent that the NHSBA withdrew this model policy they drafted and sent to all school districts years ago. The Superintendent also mentions the provision within the JBAB policy that does not allow staff members to share information with parents about their children. It should be noted that this is a gross violation of parental rights and does not allow for due process, but that didn’t stop numerous districts across the state from adopting the JBAB policy.
It should be noted that New Hampshire School Boards operate under Dillon’s Rule. That is reflected in school board policy BBA where it says:
SCHOOL BOARD POWERS AND DUTIES
The Hampton Falls School Board enjoys all the powers and duties prescribed to them by applicable state and federal laws and rules of the State Board of Education.
This means that policies adopted by the school board must be based on laws that have been passed by the state and federal governments. This would mean that the school districts must follow the Law when it comes to Transgender and non-conforming students. But now this policy is being challenged in court for violating the rights of children in New Hampshire schools. This policy was never based on state or federal law. Where does federal or state law instruct school staff to lie to parents about their children or to deny your child their free speech rights?
Within JBAB policy under the section titled “privacy,” it says:
Privacy
The Board recognizes a student’s right to keep private one’s transgender status or gender-nonconforming presentation at school. Information about a student’s transgender status, legal name, or gender assigned at birth also may constitute confidential information. School personnel should not disclose information that may reveal a student’s transgender status or gender-nonconforming presentation to others, including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure.
This appears to violate federal law:
FERPA: Family Educational Rights and Privacy Act:
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Parents or eligible students have the right to inspect and review the student’s education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.
How can a school policy instruct staff lie to parents about their children when federal law affirms a parents right to obtain and inspect their child’s records?
Within the model policy developed by the NHSBA it also says:
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Names/Pronouns
A student has the right to be addressed by a name and pronoun that corresponds to the student’s gender identity. A court-ordered name or gender change is not required, and the student need not change his or her official records. The intentional or persistent refusal to respect a student’s gender identity (for example, intentionally referring to the student by a name or pronoun that does not correspond to the student’s gender identity) is a violation of this policy.
This is compelling the speech of staff members and students which has already proven to violate free speech rights. Note that while there is the threat of punishment, there is no due process mechanism published; arbitrary and capricious.
In Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit handed down a major ruling in favor of Shawnee State University Professor Nicholas Meriwether, who was disciplined for refusing to use a student’s designated pronoun choices.
At the beginning of the school year, Shawnee State emailed all faculty members to order them to refer to students by their “preferred pronoun[s].” The University was ordered to pay the defendant $400k for violating his free speech
This model policy put forth by the New Hampshire School Boards Association is proving to be costly to districts that now have to defend themselves in court. Not only is this costing the district in legal fees, but it also appears to be violating some of our most basic rights.
The NHSBA has come under fire numerous times for standing in the way of parental rights in New Hampshire. Parents are fed up with paying dues out of their school budget to this organization. If the NHSBA is finally withdrawing their model policy, good. It’s about time. But let it be known who put your district in this vulnerable situation. They have a staff of attorneys that you paid, that developed this model policy. They’ve stood behind their model policy for almost a decade now and you paid for it.
The board members across this state that voted to approve this policy also ignored the gross violations of parental rights and free speech. While they may not be constitutional scholars, a novice could see problems with the language if they really cared about potential lawsuits and civil rights violations.
Look to see if you have Policy JBAB in place. Some school boards were wise to never adopt the policy, some revised it to remove the gross violations against the staff, parents, and students.
If you have this policy in place, take it to your school board and update them on what is going on in Gilford, Manchester, and Exeter. Let them know that this policy is followed in your district, opens your district up to a lawsuit too. And not only does it open your district up to a lawsuit, but it is also a policy that can violate your child’s basic fundamental rights.
There is an alternative to The New Hampshire School Boards Association in New Hampshire. Check them out: New Hampshire School District Governance Association.
They don’t appear to be hostile to parental rights. There is no need to pay dues to NHSBA, schools have opted to not pay dues to this organization in the past.
