AOS 93 and Great Salt Bay Community School officials filed response to a Newcastle mother’s complaint in U.S. District Court on Friday, June 2, denying her statements and motioning to dismiss claims that her 14th Amendment rights had been violated by the school.
Amber Lavigne, the parent of a 13-year-old who previously attended Great Salt Bay Community School, listed GSB social workers Samuel Roy and Jessica Berk, Principal Kim Schaff, AOS 93 Superintendent Lynsey Johnston, and the seven-member Great Salt Bay School Committee, identified as the GSB School Board, as defendants in her April 4 complaint.
In her filing, Lavigne alleged the defendants used a “policy, pattern, and practice” of withholding information about children’s’ development from parents under the guise of state law. She requested injunctive relief, declaratory judgment, and damages.
Defendants “deny each and every allegation” in their filed response to the complaint, stating that GSB “does not have – nor has it ever had – an official policy, pattern, or practice of concealing information from parents” and that the school did not conceal information from Lavigne.
Lavigne’s complaint argues the school violated her 14th Amendment rights by not notifying her that her child, identified in filings as A.B., was using a different name and pronouns at school and had been given two chest binders by Roy.
The 14th Amendment states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The defendants’ filing references other cases presently in courts across the country alleging violations of constitutional rights as parents because schools did not disclose their child’s gender identity at school.
In their filing, the defendants “admit that “Defendant Roy helped A.B. obtain a chest binder.” They also “affirmatively state” school officials had been in discussion with Lavigne about A.B.’s request to use a different name and pronouns at school “for some time” and deny that Lavigne was not informed of the matter.
Lavigne’s lead attorney, Adam Shelton of the Goldwater Institute in Phoenix, Ariz., said through a spokesperson that the defendants’ filing does not deny the specific claims in the plaintiff’s complaint.
Shelton said his legal team was “pleased that the school has for the first time publicly admitted that Defendant Samuel Roy gave Ms. Lavigne’s child a chest binder. The school’s filings do not specifically refute our allegation: that Ms. Lavigne was never told that her child was given a chest binder by a public school employee.”
Both filings interpret GSB’s transgender student guidelines policy and staff conduct with students policy in their arguments.
The two policies adopted by the school committee were based on samples from the Maine School Management Association, a nonprofit federation of public school officials that provides draft policies to schools across the state.
GSB’s transgender student guidelines, adopted in 2019, state a meeting “should” be scheduled with the student, parents or guardians, and a building administrator to develop a plan for the student.
“School staff should take care to follow the student’s plan and not to inadvertently disclose information that is intended to be kept private or that is protected from disclosure” as outlined in the student plan, according to the policy.
The transgender student guidelines policy lists the Maine Human Rights Act as a legal reference. Similar policies are recommended by the Maine Department of Education’s website.
A 2016 guidance memo from the commission for interpreting the act specifies that school staff should address a student by their chosen name and pronouns if requested.
A guidance memo from the state says that if a student and parent or guardian disagrees about the student’s orientation or identity, the school should abide by the student’s wishes. The memo does not direct the institution in informing parents.
The student and staff conduct policy, adopted in 2013, outlines examples of prohibited conduct and lists asking a student to keep a secret as an example.
A Feb. 26 letter from Schaff to GSB families, which was submitted as evidence with Lavigne’s claims, said that under state law, a school counselor or social worker “may not be required” to share information a minor discloses to them during counseling.
Information students share with counseling staff is privileged communication under state law, meaning they have a right to privacy even as minors, Schaff said in the Feb. 26 statement.
In addition to their response, defendants also filed a motion to dismiss Lavigne’s four claims with prejudice, which means the ruling is final and charges cannot be refiled.
The motion states Lavigne has “failed to plausibly plead a claim for which relief can be granted,” alleging that “the policy on which she bases her claims simply does not say what (Lavigne) says it does” and that the constitutional basis of her claims is not accurate.
The defendants’ motion for dismissal makes four arguments. First, it states that the claims brought against five individual employees in their official capacities are redundant. Because the claims are against employees of the district, the claims are therefore against the district itself, defendants say.
The defendants’ second argument states Lavigne’s claims do not hold the school liable under existing legal precedents, claiming that a government entity – the public school – is only liable if a policy itself causes the action. In the motion to dismiss, defendants point to the staff conduct with students policy’s inclusion of asking a student to keep a secret as prohibited behavior.
It also says the court should ignore the allegation that the school committee endorsed the conduct, as Lavigne does not allege policymakers approved the actions of social workers.
The third argument states Lavigne fails to state a claim that the school committee violated her substantive due process rights in the 14th Amendment, arguing that for schools to fall under due processes clause, the action must be “conscience-shocking,” which the defendants hold the alleged actions were not.
The argument also states the school has an obligation to the constitutional rights of students as well as parents and that Lavigne’s rights as a parent are “not absolute” in a public school.
The fourth and final claim says Lavigne did not plausibly plead a violation of due process rights. Her filing states the school violated her due processes rights by not providing a way for her to participate in the school’s decision.
Defendants say she does not have a constitutional right to be informed of her child’s gender identity at school or to direct the school’s policies, and also notes that she had attended school committee meetings and made comments there.
The defendants are represented by Drummond Woodsum, of Portland.
