LGBTQ+ advocates file Title IX complaint against Buncombe schools for implementing SB49

ASHEVILLE - The Campaign for Southern Equality and two other organizations have filed a Title IX complaint against the Buncombe County Board of Education over what it calls "anti-LGBTQ+" policies adopted to adhere to new state law.

The complaint alleges that the policies passed by the school board Dec. 7 to comply with SB49 — known as both the "Parents' Bill of Rights" or, colloquially, North Carolina's version of the "Don't Say Gay" law — create a hostile education environment for LGBTQ+ students, families, staff and faculty.

In doing so, argues the Campaign for Southern Equality in a Dec. 13 news release, the district violates civil rights protected by the federal Title IX and Buncombe County Schools' obligation to provide every student with a safe and non-discriminatory school environment.

The complaint was filed with the Buncombe County Title IX Coordinator Dec. 12 by the Campaign for Southern Equality, Youth OUTright and PFLAG Asheville. It's the organizations' first filing of this kind as districts across the state begin to adopt policies recommended by the N.C. School Boards Association to comply with requirements.

Buncombe County's Title IX Coordinator Shanon Martin responded to the complaint Dec. 20. Martin's email to the three organizations was provided to the Citizen Times by the district's spokesperson Stacia Harris.

As the complaint "does not identify a specific victim or respondent of sexual harassment nor does it outline a specific offense," according to Martin, Buncombe County Schools will not process the complaint under its Title IX policy.

Martin's response said the school has implemented policies, procedures and practices to support its LGBTQ+ students.

"The Parent Bill of Rights does not change our commitment to or the implementation of the above principles and protocols," Martin wrote.

Campaign for Southern Equality spokesperson Adam Polaski said Dec. 20 that they "will be reviewing all available legal options regarding the (Buncombe County Schools) complaint and are also proceeding with a federal Title IX complaint as we continue to work with advocates in other districts who are pursuing legal and organizing strategies."

In August, Republican lawmakers overrode the veto of Democratic Gov. Roy Cooper to pass SB49 into law. It includes requirements that parents must be notified before their child uses a different name or pronouns in school, what critics of the law say will result in students being "outed" to parents, rather than allowing them to come out on their own terms.

It also bans curriculum on gender identity, sexual activity and sexuality from being taught in kindergarten through fourth-grade classrooms.

Legislators gave schools an extension until Jan. 1 to implement the law.

More: NC Parents' Bill of Rights now law; what does this mean for Asheville City Schools?

'Real danger' for students

The policies will create a "crisis" and "real danger" for students, Allison Scott, Director of Impact and Innovation with Campaign for Southern Equality, told the Citizen Times Dec. 20. It also exists in violation of Title IX, she and others argue, the issue at the crux of their complaint, which is the federal law that bars discrimination based on sexual orientation and gender identity in schools.

To communicate the harm, she pointed to Buncombe County School's motto: Preparing students for tomorrow.

“By enacting SB49, they are not preparing students for tomorrow, because what they’re doing is creating conditions in their schools where students have to hide who they are,” Scott said. It would mean students cannot talk in confidence to teachers or counselors, what could result in cutting off students from supportive resources.

As a trans woman, Scott said she can speak from experience to the harms that could be perpetuated from such policy.

“Because growing up and having to hide who I was, generations of us who have had to hide who we are as youth and young adults, will be the first to tell you if you are hiding who you are, you can’t be successful in the moment and where you are right now,” she said.

Buncombe County schools adopt policies Dec. 7

The Dec. 7 meeting of the Buncombe County school board, the second reading and vote on policies intended to bring them into compliance with SB49, was a packed room. The nearly two-hour public comment period, with more than 30 speakers taking to the mic, was a flood of emotion. Of outrage. A full spectrum of experience — from young trans people opposing the law, and the advocates behind them, to those in support, many calling for even more stringent restrictions.

Among supporters of SB49, several wore stickers that read: "No Secrets."

Kay Olsen, of Leicester, the first to speak, said "children are not wards of the state. They are gifts from God to their parents."

"The Parents’ Bill of Rights protects the rights of parents to direct and care an education of their children,” Olsen said, to direct children's "upbringing, moral and religious training."

The "No Secrets" slogan, Scott said, was a glaring hypocrisy. She argued SB49 would create a condition for LGBTQ+ students to have to hold on to secrets for years.

Later that same meeting, the board unanimously adopted the policies. After the vote, Reynolds District Representative Rob Elliot, chair of the board's policy committee, spoke at length about the "friction" he said was apparent between existing laws at different tiers of government.

“They need us as a board to figure out ways through our policy to reconcile all this federal law and state law somehow to allow them to do their job, to save a student’s life," he said. "That’s how heavy all of this is. It’s not just as simple as finding the one or two sentences that don’t work."

With that in mind, he said, "there is a lot of fear and concern on different sides of the spectrum. How do we balance that?”

As challenges to the law and policies inevitability emerge, he said, the board will continue to listen and work with its constituents.

Craig White, Supportive Schools Director at the Campaign for Southern Equality, said in a Dec. 13 release that the Title IX complaint was filed "more in sorrow than in anger."

"It was clear that the BCS policy committee did what they could to reduce the harm caused to LGBTQ young people by S.B.49," White said. "But less harm is not no harm, and after hearing the testimony of students, families, and educators, it was clear that we have to take all possible steps to prevent the provisions in this discriminatory state law from going into effect in Buncombe County.”

What about Asheville City Schools?

Meanwhile, Asheville City Schools has not yet voted to adopt the seven policies that would bring it into compliance with SB49. The policies have been in discussion for several months, most recently at a Dec. 11 meeting.

Under advisement from legal counsel, board members adopted two procedures contained within one of the policies, but not the policy itself, on Dec. 11. Board Attorney Chris Campbell said these were not necessarily "controversial" sections of the policy, and would ensure parent concerns and information requests would come to the Asheville City school board before going to court or the state board.

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Board Vice Chair Amy Ray said “it doesn’t change our policy substantively with respect to any of the policies the law purports to put in place."

The rest of the policies will be discussed next in open session at the board's Jan. 18 retreat. Board Chair George Sieburg told the Citizen Times Dec. 20 there is the possibility of holding public comment at the retreat, or taking a vote, which would require a special called session, but the decision isn't final.

No regular meeting is scheduled for January.

While some aspects of the law are things the district already adheres to, Sieburg said, like the right of parents to see report cards and materials used for instruction, he said the board recognizes that other policies represent potential harms for LGBTQ+ students.

Of the constraints around pronoun and name changes and the ban on discussion of LGBTQ+ topics in some elementary school grades, Sieburg said, "we understand that those two, in particular, are written especially to silence our queer and trans youth."

It's the reason they've taken so long to deliberate over the policies, he said, both to demonstrate support to LGBTQ+ students and their families, and to make sure they are considering additional policies and procedures specific to Asheville schools that will ensure "a safe and caring environment" and "mitigate any harm this legislation could do."

Of the Title IX complaint filed against Buncombe, Sieburg said the Asheville board's legal counsel is exploring the issue of potential violations.

Scott said Asheville's decision to continue delaying the vote demonstrates there is more than one way to respond to the new state law. Over and over, she said, they are hearing from boards that "our hands are tied," something she would argue isn't true if a state law directly opposes constitutional rights.

"That is really the dilemma that we are in," Scott said. Board members must wrestle with their oath to uphold the duties of their office, to uphold state law, "but what do you do when state law is in direct conflict with federal law, which is clearly and irrevocably above state law?"

Continued delays of the policies could result in "personal ramifications," Sieburg said legal counsel advised the board. As individual board members, they could be personally liable.

More: Social-emotional learning in Asheville City Schools; How does it impact students?

What's next?

In October, the Campaign for Southern Equality published a legal memorandum highlighting the ways it found that SB49 violates Title IX, it said in its Dec. 13 release.

The N.C. Department of Public Instruction and N.C. State Board of Education responded to that memo stating that they required a determination from the U.S. Department of Education Office of Civil Rights, the release said.

Accordingly, Scott said they will file a complaint with that department in January.

More: Asheville City Schools parents on SB49: Violation of federal Title IX

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Sarah Honosky is the city government reporter for the Asheville Citizen Times, part of the USA TODAY Network. News Tips? Email shonosky@citizentimes.com or message on Twitter at @slhonosky. Please support local, daily journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Buncombe schools face Title IX complaint over Parents' Bill of Rights