Last week, a federal judge narrowed the scope of a lawsuit against Great Salt Bay Community School officials and employees that alleges the school’s transgender student policies violated the constitutional rights of a parent.
A decision whether to dismiss the suit entirely for failure to state a claim is pending a review of additional legal citations on the school’s liability and the existence of an alleged unwritten policy of withholding information from parents.
Amber Lavigne, parent of a teenage student at GSB whom she removed from the school last year, filed suit in April. She alleges the school violated her 14th Amendment rights by not informing her that her child used a different name and pronouns and had been given two chest binders by school social worker Samuel Roy. Lavigne seeks injunctive relief, a declaratory judgment, and damages through the suit.
U.S. District Court judge Jon D. Levy heard oral arguments in Portland on Wednesday, Nov. 1 over the defendants’ motion to dismiss for failure to state a claim. The motion was filed in June by all defendants: the seven-member Great Salt Bay School Committee, GSB social workers Roy and Jessica Berk, Principal Kim Schaff, and AOS 93 Superintendent Lynsey Johnston in their official capacities.
Levy ultimately dismissed the individuals from the case.
Lavigne appeared in court Nov. 1 with attorney Brett Baber, of the Bangor-based Lanham Blackwell & Baber, and Adam Shelton, lead attorney from The Goldwater Institute, a national conservative policy nonprofit with headquarters in Arizona.
Drummond Woodsum attorney Melissa Hewey appeared on behalf of all defendants.
Much of the discussion in the Portland courtroom focused on whether the defendants are liable under the Monell doctrine, which states a municipality can be liable for an employee’s violation of a plaintiff’s constitutional rights only if that violation resulted from an institutional policy, custom, or deliberate indifference. As a public school, GSB is a municipal party.
Legal precedent cited in defendant filings states the plaintiff must prove the violation came from following a policy, not the violation of one.
Levy said the Monell question is likely the strongest argument the plaintiff has.
Shelton presented statements made by the school committee early this year that he said ratified Roy’s actions after the fact, making the school liable.
A Jan. 14 letter to parents from the school committee stated that “all of the board’s policies comply with Maine law, and neither the board nor school administration are aware of any violation of policy or law which requires further action at this time.”
Shelton also said what defendants did not say in a response filing was “telling,” along with the fact the school committee did not “punish” school officials or employees and then renewed Roy’s contract as a social worker.
Roy has since resigned, according to the agenda from the school committee’s Aug. 9 meeting.
Hewey argued that a policymaker would have to say directly that they approved of the action for a statement to count as ratification. She said the letter does not necessarily imply no violation was made, only that no violation needed more action.
“Ratification requires more than a failure to act,” she said.
Attorneys also presented opposing arguments about whether the school has an unwritten policy of withholding information from parents and how the facts in court filings support this claim.
Lavigne’s attorneys maintain the school has a “policy, pattern, and practice” of withholding information from parents and allege Roy told the student they did not have to inform Lavigne about the chest binder.
In filings, defendants admit Roy helped the student obtain a chest binder but state Lavigne had been in communication with the school about pronoun and name use for her child “for some time.”
“There is not one fact” that “plausibly” supports the claim, according to Hewey, who said “there is no discussion or reference anywhere” of an unwritten information withholding policy.
Filings by the defense state GSB’s policies, which outline making a plan for transgender students, were adopted to meet state law that classifies information students share with counselors as privileged communication.
“They have no evidence because there is no evidence,” Hewey said.
The judge agreed current filings do not identify an unwritten policy.
“There are no facts that support that there’s this active withholding policy,” Levy said.
Shelton responded that no single fact alone proved it, but all the facts together do. When asked by Levy, he gave as examples the statements issued by the board and the renewal of Roy’s contract.
“I think it’s very clear that’s what the policy of the school is,” he said.
Levy said the complaint does not give information about how the board has investigated the situation. He suggested Shelton should be required to provide more facts about the school’s handling of the case.
Shelton said Lavigne was “entitled to reasonable inference” and that she had no reasonable access to information about the board’s internal investigation or response.
Hewey also argued establishing liability typically requires more than one instance. Shelton countered a legal precedent does exist for single-instance liability.
He said he believes ratification and failure to train claims could both be made.
Levy also asked the attorneys whether Lavigne’s case should be stayed until the resolution of a Massachusetts case appeal, Foote v. Ludlow, which is pending a decision in the 1st U.S. Circuit Court of Appeals.
That case by two parents against a school committee alleges staff kept secret that their two children were transgender and using different names at school. It also alleges staff discussed gender issues with students after the parents had instructed them not to. The case states this violated parental due process rights under the 14th Amendment.
Hewey said Lavigne’s case should be stayed. Shelton countered that the case is time sensitive and has factual differences from Foote.
In closing arguments, Hewey said the plaintiff has made a case “based solely on the idea there is a secret policy that trumps the written policy” and has not met the pleading burden to establish the existence of an unwritten policy.
Shelton said he is not arguing an unwritten policy trumps the written policy, but rather supplements it.
At the end of the hearing, Levy dismissed the individuals from the case, stating with agreement from Hewey that they will cooperate with the court and deposition should not be an issue if the suit goes to trial. Shelton had said keeping the named individuals in the suit would make it easier to depose them.
Levy asked attorneys on each side to send him citations supporting their respective arguments by Wednesday, Nov. 8 before he makes a decision on the overall motion to dismiss.
