Here's a story from Pennsylvania showing that you don't even need to have a state gag law to cause expense and headaches for a school district. It also has plenty to say about what is motivating some of the protestors.
Maureen and Christopher Brophy filed a lawsuit in June of 2021 on behalf of their son and daughter, two students in the East Penn School District (Emmaus, Lehigh Valley). This lawsuit is epic-- they sued the district and five district employees (admins and teachers) in both individual and official capacities. The lawsuit charged "severe and pervasive harassment" along with violations of Title VI of the Civil Rights Act, violations of Constitutional rights under the 1st and 14th Amendments, plus violations of the Rehabilitation Act of 1974 and Title II of the Americans with Disabilities Act.
The reasoning for the Title VI violation was that federal courts have said that it covers religious discrimination when the harassment is based on "shared ancestry or ethnic characteristic" rather than religious practices. You'll want to remember that one.
The "statement of facts" portion of the complaint takes up almost 100 paragraphs, but we'll try to catch the highlights.
The trouble started in September of 2020 when the plaintiffs (the son and daughter) were introduced to the book White Fragility in courses they were taking. Mrs. Brophy emailed the principal of an elementary school (it's not clear why, because the son and daughter were 15 and 16 at the time) and the Humanities Supervisor to explain her "non-acceptance" of the book, as well as the discussion of white privilege and Black Lives Matter. She also wanted to complain about Facebook posts from a teacher at the elementary school that she viewed as "anti-Christian, anti-Conservative, and therefore, offensive, derogatory and discriminating against Plaintiff's religious beliefs."
The Humanities Director responded in four days, saying the objected-to items were not part of the school's core curriculum. She didn't address the Facebook posts. Mrs. Brophy fired back more complaints about the teacher's posts, with attachments. The superintendent replied that teachers have First Amendment rights and she wasn't going to do anything about the posts.
Mrs. Brophy gave that issue one more try, then moved on to complaints about a video of police brutality and the Breonna Taylor case shown in an art class. Also, more complaints about systemic racism, white privilege, Black Lives Matter, and other unacceptable topics. And now they offered an explanation:
Plaintiff Parents explained that these topics are anti-Christian and therefore, discriminate directly against their religion.
How, you may ask, are white privilege and Black Lives Matter anti-Christian? The complaint goes on to explain:
Christians and Catholics are a majority white religion, self-identifying white Catholics comprising 60% of the followers. This religion is heavily tied to Italy, whose population is 80% Catholic and home to the Vatican.
So white privilege and Black Lives Matter and all the rest are anti-Christian, because Christians are white.
And if you're think "That can't be right," well, it isn't. According to PEW, roughly 50% of the world's Christian population is located in South America and Africa. They're right about the 6 in 10 Catholics being white--if they talk about the US. Globally, not so much. Maybe the Brophy's are just that uninformedly racist as to imagine that Christianity is a white religion. Or maybe their lawyers told them that this argument would let them throw a Title IV violation in there.
Also, in case you're wondering, East Penn's student body is about 80% white.
By mid-October, the Brophys had opted their children out of all these topics that they found "anti-Christian and anti-Conservative." At this point, they allege that the school started discriminating against the two students, "withholding crucial educational benefits on account of their disabilities." Both children had IEPs, with the son having health issues including hypersomnolence (excessive daytime sleepiness), Chronic Fatigue Syndrome, and Amplified Musculoskeletal Pain Syndrome. His IEP included an exemption from masking.
Now, that fall East Penn was distance learning, but the son needed reduced screen time because of his vision impairment, so the school was supposed to print out some of his work to do. Plaintiff Parents allege the school did not do so, nor did they provide a "reasonable alternative," and the Brophys claim it was because of "religious discrimination." This is one of several points where I feel we're missing some information. We know the Brophys had email--did they not have a printer?
The IEP also called for home tutoring, but there was no tutor available for AP Physics. And the AP teacher, also named in the lawsuit, would not do instruction with an unmasked student. Parents sent a letter to the school saying it's in his IEP, and if she "is not comfortable with that, then she should not be teaching any students in person whatsoever."
So by the end of October, Mrs. Brophy is filing an Educator Misconduct complaint with the Pennsylvania Department of Education and the Office for Civil Rights. Let me recap--because the teacher in the fall of 2020 would not work one on one with an unmasked student, Mom turned that teacher in to the state.
Reading the complaint, one gets the impression that these parents are not trying very hard to build a partnership with the school.
The school offered some alternatives for the AP Physics--take it next year or take a college-level course. Mrs. Brophy rejected those. The school offered a zoom class with the AP Physics teacher and another non-physics teacher in the room with the son. Also not okay. Mrs. Brophy told the district to stick the teacher in a big room with some filtration and an N95 mask.
By January of 2021, the whole mess had moved to Facilitated Resolution Between the Parties. First meeting set for February 3. After receiving a document from the district that they didn't agree with, the parents chose not to attend. After the son was absent five days, the school sent a letter, noting that such a series of unexcused absences is a summary offense. "Harassment," say the parents.
In February, the school district (which has not always covered itself with glory in this tale) finally denied the Brophy's request for exemption from all race stuff. At the same time, the district told the Brophy's that they were banned from communicating with their children's teachers. The Brophy's replied to reiterate that they "are simply seeking religious exemption from the topics that are anti-Christian and anti-Conservative." Is Conservatism a religion?
Well, you get the gist. I go through all this detail so that we can get a feel for how this whole business just kept dragging on, and there is still more, but I'll skim. Son misses homework assignments and it's hurting his grades. More discrimination, and if you'd just let us talk to his teachers, we'd be on top of this, say the parents. It's all just retaliation for expressing the religious and disability discrimination. More attendance issues as the son "would choose to attend school from home on certain days he was scheduled to be in person." New IEP meeting scheduled in April but parents don't like that so many people at the IEP and "they would be more comfortable" if just the special ed director attended (as experienced IEP parents, surely they know that PA IEP meetings require, by law, a full team).
There are plenty of unknowns here--for instance, there doesn't seem enough here to explain a ban on communicating with school staff, and one suspects that perhaps the Brophys haven't reported the full extent of their communications with the school. And as always, the public school district cannot breach confidentiality to defend itself. Also, for what it's worth, there's a perfectly fine Lehigh Valley Catholic high school nearby in Allentown.
The suit was taken on by Derek Smith Law Group, a big legal firm that specializes in discrimination and sexual harassment lawsuits; their lawyer is Catherine W. Smith, who used to be a sex crimes prosecutor in Philly. The Brophys demanded a jury trial. The district's lawyer doubted the success of the suit, saying “Anybody can file a lawsuit by paying the filing fee. Being successful is something completely different.”.
Well, I guess that depends on how one defines success. The Brophys sued for unspecified damages. What they got, earlier this month, was a settlement of $45,000. The district was represented by its insurance company, and this statement was read at the board meeting:There was no admission of liability on the part of the school district or its employees and there was no finding of liability on the part of the school district or its employees. The insurance carrier agreed to make the payment to avoid any additional expenses and the uncertainty of litigation.
So it turns out that actual gag laws aren't needed to harass a school district--just some white fragility, religious paranoia, and a good law firm. We live in interesting times.