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Educators face termination for proposing male-only, female-only bathrooms in schools

They are challenging school district policy that requires teachers to "issue a disclaimer" when sharing their views off campus.

Updated: July 13, 2021 - 12:55pm

Oregon educators are fighting for their jobs after starting a campaign to keep biological males and females in their own school restrooms and locker rooms and make it optional for school employees to use their students' preferred gender pronouns.

Assistant principal Rachel Damiano and science teacher Katie Medart of North Middle School face a pre-termination hearing before the school board Thursday. They are seeking a temporary restraining order (TRO) and preliminary injunction as they continue suing the Grants Pass School District for violating their speech rights under the U.S. and Oregon constitutions.

A court hearing on their motion is scheduled for Friday afternoon, Ray Hacke, the educators' lawyer at the Pacific Justice Institute, told Just the News. "This means that if Rachel and Katie do have their employment terminated, that could conceivably get reversed one day later."

The district argues the federal court can't reinstate Damiano and Medart to their positions, from which they've been on paid leave for three months for "inappropriate behavior," unless the school board accepts the superintendent's recommendation to fire them.

The educators argue they "spoke as private citizens about gender identity education policy, a matter of public concern," using their own resources over spring break.

The two claim they are challenging a district speech policy that not only regulates their speech on "any political or controversial civil issue" while acting as educators, but also requires them to "issue a disclaimer" when sharing their views off campus.

They have stopped sharing social media posts about the "I Resolve" campaign because of the disclaimer requirement, an unconstitutional chilling effect, the motion for a TRO said. The superintendent suspended them after they refused to take down the website, which also prevented Medart from finishing a district-paid "certification training course."

The Women's Liberation Front is organizing the educators' supporters to participate in their public hearing via Zoom Thursday and circulating a petition in favor of them. The Josephine County Republican Party is urging supporters to file complaints with the district for exempting Black Lives Matter advocacy, including posters in classrooms, from the speech policy at the same time it prohibited the campaign by Damiano and Medart as controversial. (The suit claims Blue Lives Matters posters are also banned.)

The district told a local news station in April that it was investigating two staff members in response to complaints that they "made postings on social media" and "included references to their employment with the District." It implied the investigation was prompted to maintain "welcoming and safe learning environments" for LGBTQ students.

Except for its opposition to the educators' motion, the district has not filed a full response in court. Citing its policy against commenting on litigation, a spokesperson declined to tell Just the News if it claims the right to regulate teachers' conversations during "down time" at school, as the plaintiffs allege. She provided a copy of the district's policy on staff participation in political activities but didn't explain how the plaintiffs violated it.

The resolution written by Damiano and Medart recommends redesignating K-12 boys and girls facilities as "anatomically-male" and "anatomically-female," which is "consistent with historically and scientifically demonstrable anatomically-correct utilization of those spaces." Students who do not want to use their designated space would be offered private facilities.

Following "parent permission," students could request that school employees use "a derivative of their legal name" and pronouns that do not match their "apparent anatomical presentation," but schools could not force employees to comply. A footnote on their website says they support state funding of "individual gender neutral bathrooms."

The educators posted a 17-minute video in late March describing their campaign, identifying themselves only by first name and saying they teach at a middle school in southern Oregon.

It was prompted by the federal Equality Act, which would protect gender identity in civil rights law, and SB 52, which tasks the Oregon Department of Education (ODE) with devising and implementing a statewide education plan for gender-minority students. The former is stuck in the Senate Judiciary Committee, while the latter awaits the signature of Democratic Gov. Kate Brown, who requested it in the first place.

Medart said administrators ordered her to comply with a female student's request to be treated and identified as male, regardless of her parents' wishes, citing nonbinding state guidance.

Their resolution is needed because "there hasn't been a consistent response" to gender identity across schools and districts, she said.

Damiano urged viewers to promote the resolution to the ODE ahead of its next meeting and "speak out to your senators" in every state to make changes to the Equality Act.

The 88-page complaint, filed June 7, alleges that they sought input from Superintendent Kirk Kolb and Principal Thomas Blanchard before posting their resolution. Blanchard shared feedback, and Kolb offered to bring it before the board for a vote. The district renewed the plaintiffs' contracts in mid-March.

But the administrators "quickly resorted to retaliation and censorship to appease public critics" after the educators posted their video, with Blanchard interrogating them on whether "their religious beliefs make them unfit to be public educators," the suit claims. (Both identify as Christian but emphasize the scientific basis for their views on sex.)

The educators said in an Instagram video that administrators "put fear of consequences" in school staff if they supported the campaign. The suit alleges that Kolb suggested the "I Resolve" video was illegal.

The district justified its action on the grounds that they did not state they were sharing "personal viewpoints" when they spoke on "controversial issues," a term that is not defined in the speech policy. The board amended the policy after suspending Damiano and Medart, but it still "circularly defines critical terms" and gives administrators "unbridled discretion" over employee speech, the suit says.

By criticizing the "I Resolve" website in an email to all district staff, the superintendent spurred "harassing, intimidating, and menacing communications" against Damiano and Medart by district staff and third parties.

"The Supreme Court has made clear that educators don't check their freedom of speech at the schoolhouse gate when they accept employment with public school districts," their lawyer Hacke said when the public interest law firm filed suit. 

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