PITTSBURGH – A federal judge has clarified the admissibility of child statements made to parents suing the Mount Lebanon School District, in a lawsuit which alleged their civil rights were violated when the district provided classroom instruction to their first-grade children on the topics of gender dysphoria and transgender transitioning.
Carmilla Tatel, Stacy Dunn and Gretchen Melton first filed suit in the U.S. District Court for the Western District of Pennsylvania on June 8, 2022 versus the Mount Lebanon School District, Mount Lebanon School Board, first-grade teacher Megan Williams, Superintendent Dr. Timothy Steinhauer, Assistant Superintendent Dr. Marybeth D. Irvin, Principal Brett Bielewicz and Mount Lebanon School Board members Jacob W. Wyland, Valerie M. Fleisher, Todd W. Ellwein, Andrew D. Freeman, Erin C. Gentzel, Claire B. Guth, Dr. Justin D. Hackett, Anamaria A. Johnson and Sarah L. Olbrich.
The suit claimed that Williams, a first-grade teacher at Jefferson Elementary School, a part of the Mount Lebanon School District in Pittsburgh, violated the parents’ rights when she inserted her personal beliefs around gender dysphoria and transgender transitioning into her first-grade classroom.
Williams allegedly played a video called “Jacob’s New Dress” for her six- and seven-year-old students, read from books whose subject matter included gender dysphoria and transgender transitioning, explained that her child had worn an “Elsa dress” for Halloween and “explained to her students that sometimes ‘parents are wrong’ and parents and doctors ‘make mistakes’ when they bring a child home from the hospital.”
The suit went on to say that the child of one of the plaintiffs explained to his mother that Williams had told him, “I can wear a dress and have hair like my mom," chose to speak with one of the plaintiff’s children about gender dysphoria repeatedly and supposedly told him not to tell his parents about their conversations.
“Defendant Williams is the mother of a transgender child who, like her students, is in the first grade. While that may give her unique perspectives and views on gender dysphoria and transgender transitioning, it does not give her the right to impose those views on a captive audience of six- and seven-year-old children. This is particularly true given that the scope of the Grade 1 Curriculum which is published to parents includes no such instruction, let alone such instruction that is not given by a professional counselor,” the suit said.
“Williams’ unrequested and unconsented to teaching of these topics is in large manner no different than, and as equally improper as, an unsolicited approach by a neighbor that raises these topics with a young child. On another level, however, it is far worse – because her role as a teacher gives her a unique ability to influence the young children in her class. She used plaintiffs’ children as part of an unconsented to social/thought experiment to fulfill her own personal agenda.”
The suit added that Williams stood by her actions in the classroom, actions that were supported by her co-defendants in the Mount Lebanon School District, and continued to do so in a phone call to one of the plaintiffs.
“Weeks after this plaintiff had removed her child from Williams’ class, she received a call from a private number (not a District number). Although she did not recognize the number, she answered the call. Remarkably and shockingly, it was Williams calling this parent. This student was no longer in Williams’ class. She had no professional (or other) basis for calling plaintiff. Obviously emboldened by the support from the Administration and School Board defendants, Williams first sarcastically said to plaintiff that she ‘wanted to applaud her,” the suit stated.
“Williams then voiced to plaintiff that she did not understand why her instruction [on gender dysphoria and transgender transitioning] was a problem. Plaintiff not so politely told her of her strong parental viewpoint to the contrary. Williams then said to plaintiff, ‘As long as I am on this Earth, I am going to teach children what I feel they need to know’ and hung up. Under no circumstances was this call appropriate for Williams to make.”
A spokesperson for Mount Lebanon School District remarked that the lawsuit “contains various allegations that are untrue or based on partial truths that mischaracterize events for sensational effect” and “looks forward to the opportunity to set the record straight.”
The District filed a motion to dismiss the case on July 27, for failure to state claims upon which relief could be granted.
“Plaintiffs assert that these classroom readings violated their Constitutional rights, premised upon an alleged interference with the parental right to control the upbringing and education of their children. Plaintiffs’ claims fail because federal courts have unanimously held that exposure to certain concepts or ideas at school without notice does not violate any Constitutional rights,” the dismissal motion stated.
“Plaintiffs have not cited and defendants have not located one case that supports any of their claims for relief. To the contrary, every federal court addressing these issues, including those related to LGBTQ+ instruction in elementary schools, has held that parents have no Constitutional right to exempt their child from certain subjects, reading assignments, community service requirements or assembly programs they find objectionable.”
According to the District, the proper remedy is “not to request this Court to create new law or to become a super school board to oversee or govern the curriculum and instruction of the District and other school districts within its jurisdiction.”
“Instead, as noted by the Third Circuit, if their children are exposed to ‘sensitive’ information at school, plaintiffs are ‘free to discuss these matters and to place them in the family’s moral or religious context, or to supplement the information with more appropriate materials,” per the motion.
The District adds that Third Circuit precedent in C.N. v. Ridgewood Board of Education states that “the parental right to control the upbringing of a child must give way to a school’s ability to control curriculum and the school environment,” and that, accordingly, the plaintiffs have “no cognizable claim.”
The District also argued that it could not be proven it was liable for Williams’ actions.
“To establish Section 1983 liability against the District, a plaintiff must show that the enforcement of a District policy was ‘the moving force’ of the violation of plaintiff’s federally-protected rights. Plaintiffs cannot make such a showing. As a matter of law, the Superintendent and Board of Directors have final, policy-making authority with respect to the curriculum,” the District’s dismissal motion said.
“It is not sufficient to simply show that some other public officials generally agreed with an actor’s conduct or expressed support for a state actor. Instead, it must be alleged that the final policy maker knew that the subordinate was violating someone’s rights, but failed to stop it. The complaint does not make such allegations. Indeed, to the contrary, the complaint contends that Williams’ use of the instructional materials violated established District policy. Consequently, all claims against the District should be dismissed with prejudice.”
While the plaintiffs had previously asked for an injunction to prevent the teaching of transgender-related subject matter as the case is ongoing, the defendants stipulated that the District would do so and thus sidestepped the need for an injunction.
U.S. District Court for the Western District of Pennsylvania Judge Joy Flowers Conti granted a partial dismissal to the plaintiffs on Oct. 27, finding they had presented plausible claims and ruling their case could proceed.
Citing precedent from the Third Circuit in Gruenke v. Seip, in which a high school swimming coach involved himself in the possible pregnancy of a student swimmer without informing their parents, Conti explained that “public schools must not forget that ‘in loco parentis’ does not mean ‘displace parents.'”
Other federal appellate courts, such as the Ninth Circuit Court of Appeals in Fields v. Palmdale School District, which addressed sex education in compulsory health classes, found that “parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students.”
Conti’s ruling retained the plaintiffs’ claims under the First and Fourteenth Amendments to the U.S. Constitution, but dismissed other claims that alleged Williams violated her students’ privacy rights, official capacity claims against the individual defendants and claims against the Mount Lebanon School Board will be dismissed with prejudice.
Meanwhile, claims against defendants Fleisher, Ellwein, Freeman, Gentzel, Guth, Hackett, Johnson and Olbrich in their individual capacities were dismissed without prejudice.
After the defendants filed a motion for reconsideration of Conti’s decision and a request to grant qualified immunity to defendants Williams, Bielewicz, Steinhauer, Irvin and Wyland with respect to the Equal Protection claim in Count IV, Conti issued a memorandum opinion on May 31 which denied both requests.
Once again pointing to Gruenke and C.N., Conti found the defendants’ “refusal to recognize any parental rights in a public school setting is contrary to clear, binding U.S. Supreme Court and Third Circuit Court of Appeals authority.”
“Defendants distort decisions holding that parental rights are not absolute to argue that parents have no rights at all. The quotation from C.N. in defendants’ brief illustrates the flaw in their reasoning. The court explained in C.N. that ‘in certain circumstances the parental right to control the upbringing of a child must give way to a school’s ability to control curriculum and the school environment,” Conti said.
“In the Third Circuit, unlike in Fields, parental rights do extend beyond the school door ‘in certain circumstances,’ although – as this court has already recognized – the parental rights are not unlimited. In Mahanoy Area School District v. B.L. (involving a school’s regulation of off-campus speech), Justice Alito explained that the decision to enroll a student in a public school confers some authority to the school, but ‘cannot be treated as a complete transfer of parental authority.’ Plaintiffs do not lose, as defendants suggest, simply because their claims implicate a public school.”
Conti continued that the contested parental involvement “rises to constitutional importance.”
“Defendants, allegedly, are interfering with the parents’ right to form their young children’s identities. In this case, allegedly, young children are being instructed by their first-grade teacher that their parents may be wrong about the children’s gender; one boy was secretly groomed to change his identity to be like the teacher’s transgender child; and (in response to the parents’ complaints) defendants adopted a de facto policy that such conduct could continue in the future without parental notice or opt out rights. That kind of conduct implicates the heart of parental decision-making on matters of the greatest importance, i.e., rises to constitutional importance,” Conti said.
Conti added that the plaintiffs “do not challenge the official curriculum and do not seek to limit the information provided to other students”, but rather “instead seek to protect only their own young children from being subject to Williams’ non-curricular agenda about transgender topics.”
UPDATE
In response to a defense motion in limine to preclude the admissibility of hearsay statements made to the plaintiffs by their children about Williams’s teaching, Conti issued a partial grant and partial denial of that motion on Dec. 21.
Conti explained that her decision was spurred on by the plaintiffs’ decision to prevent defense counsel from deposing their children, and thus, also testifying at trial.
“Plaintiffs recognize that parents testifying about out-of-court statements made to the parents by their children may implicate Federal Rule of Evidence 802, the rule against hearsay. The general rule is that children must be made available to testify at a deposition (with appropriate protective conditions). In this case, plaintiffs cannot prevent their children from being deposed, and then use that lack of availability to offer their own version of the children’s testimony – for the truth of the matter – unless an exception to the hearsay rule applies, e.g. Rule 807. Plaintiffs argue that the exception in Federal Rule of Evidence 807 is applicable,” Conti said.
“Rule 807 (as amended in 2019) provides: (a) In General: Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) The statement is supported by sufficient guarantees of trustworthiness – after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”
Conti said it was her task to determine “whether the hearsay is supported by guarantees of trustworthiness”, and consider that decision based upon corroborating evidence.
“The Court does not reach the trustworthiness inquiry because the proponent of the evidence (i.e., plaintiffs) failed to meet the second Rule 807(a) prerequisite (i.e., the evidence is more probative than any other evidence that can be obtained by reasonable efforts). There was no evidence presented by plaintiffs that the children would be unavailable to be deposed or could not be offered as witnesses through reasonable efforts. For instance, if by reason of the children’s young age, the child could not remember the pertinent facts or would be traumatized by testifying, there may be a basis for a court to conclude that the child’s testimony would not be more probative or that it would be unreasonable to require the child to testify,” Conti said.
“Under the circumstances presented to the court in this case, the Court finds that the testimony of the children about what Williams did or said would be more probative than the recounting by the parents of what the children later told the parents about what Williams did or said. The children’s testimony could be obtained by the proponents (plaintiffs) through reasonable efforts. Obviously, the parents control the availability of their young children and they could have been deposed.”
Conti stated that Mrs. Dunn can testify about the entirety of her own conversation with Ms. Williams, which does not implicate the rule against hearsay evidence – and reserves decision on whether statements made or failures to deny by Ms. Williams during that conversation would constitute adoptive admissions pursuant to Federal Rule of Case Evidence 801(d)(2)(B).
“The statements made by the children to their parents do not implicate the merits of the de facto policy claims. The issues will involve what the policy was, whether each named defendant participated in developing or implementing that policy, and its impact on the parents. It appears that the children did not interact with any of the defendants named in the de facto policy claims. Pursuant to Federal Rule of Evidence 801(c)(2), statements not offered to prove the truth may be admitted. With respect to the de facto policy, the statements of the children are not being offered for the truth of the matter (i.e., what the children saw or heard), but for numerous other reasons (i.e, the parents’ state of mind, context, background, effect on the parents, damages, etc.) The proffered evidence about what the children told their parents can be considered with respect to the de facto policy claims,” Conti concluded.
“In accordance with the foregoing and as explained on the record on Nov. 14, 2023, the motion in limine will be granted in part and denied in part. Testimony by the parents about what their children told them will not be admissible to prove the truth of the matter about what Williams did or said, but will be admissible for other purposes. The court reserves any decision on admissibility or appropriate limiting instructions at trial.”
The plaintiffs are represented by David J. Berardinelli of DeForest Koscelnik & Berardinelli, in Pittsburgh.
The defendants are represented by Christopher L. Voltz and Matthew M. Hoffman of Tucker Arensberg, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00837
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com