by Kevin Mooney
The Daily Signal
Freshmen football players, changing in their high school locker room at the beginning of the school year, were startled to encounter a girl who said she identifies as a boy.
The father of one of the players wrote to the school’s principal and athletic director to express concern about the “young lady” and the “comfort” of the boys, most of whom were 14 at the time and “wondering what was going on.”
“I think you are doing a disservice to the kids by not having at least a casual conversation with them regarding their comfort in the locker as well as treating others with the same respect they want while changing clothes,” the player’s father said in an email to Tana Smith, principal at Hopewell Valley Central High School, and Tripp Becker, the athletic director.
The father asked whether the high school’s football coach and district administrators had planned to provide the team with a “heads up” about the school district’s new transgender policy, adopted three months earlier by the Hopewell Valley Regional Board of Education, and were ready to field questions or concerns.
The answer was no.
David Machin, coach of Hopewell Valley’s freshman football team, emailed team parents Sept. 20, 2016, to say there would be no public announcement clarifying school rules on gender. Machin wrote team parents:
I believe the district policy (which follows federal law) is that any student may use whatever locker room/bathroom that he/she identifies with. I believe that there is no requirement for a public announcement regarding this type of situation or even a ‘heads up,’ so to speak.
The reason for the silence, Hopewell parents who spoke with The Daily Signal said, is that a LGBT advocacy group appears to exercise significant influence on school board members and administrators in the Hopewell Valley Regional School District, especially Superintendent Thomas Smith.
Garden State Equality, headquartered in Asbury Park, New Jersey, describes itself as “a statewide advocacy and education organization for the lesbian, gay, bisexual, and transgender community.”
The Hopewell Valley school board adopted the transgender policy June 20, 2016, one year ago Tuesday.
The action came five weeks after the Obama administration warned local school districts to spell out transgender students’ access to the rest room and locker room facilities of their choice, or risk loss of federal dollars.
Four days after the school board vote, Garden State Equality tweeted a message featuring a photo of its executive director, Christian Fuscarino (at left) with “friends” from the Gay, Lesbian & Straight Education Network:
The incident in Hopewell Valley Central High’s locker room occurred just a few days after the 2016-2017 school year opened. It set off a chain of email communications, copies of which The Daily Signal has obtained through New Jersey’s Open Public Records Act.
Parents across the state should be concerned about how much influence Garden State Equality exerts over “key decision-makers” in local school districts at the expense of sound policy, Len Deo, executive director of the New Jersey Family Policy Council, told The Daily Signal in an interview.
While opposing sides should be heard in public forums, Deo said, he sees a danger that some transgender policies will infringe free speech:
Some of these policies have gender identity pronoun requirements, and we have to ask what the ramifications are if someone does not comply for reasons of conscience. Who is the authority and what are the ramifications? What does this mean for free speech? If a school district suddenly says that gender is fluid and it’s one thing today and another tomorrow, this leads to all kinds of confusion and different interpretations.
Len Deo, executive director of the New Jersey Family Policy Council, in 2013. (Photo: Facebook)
While it’s fine to accept input from advocacy groups, the onus is on school board members and superintendents to look out for the public interest instead of advancing narrow special interests, Deo told The Daily Signal
“Let’s not forget who is paying the taxes for these school districts,” he said, adding:
The parents are paying the taxes and they deserve to be heard instead of being silenced. I think one difference between us and Garden State Equality is we are not trying to manipulate school boards and superintendents. We are trying to give parents a voice.
The Hopewell Valley district serves about 4,000 students from preschool through 12th grade in suburban Mercer County about 10 miles south of Princeton.
The Hopewell Valley player’s father, who asked not to be identified, says he decided to press his point because taxpayers should be heard.
“I also went to meet with the principal and the athletic director to express my concerns,” the father said in an interview with The Daily Signal.
“They insisted this student was not actually changing in the locker room, and I told them that they were wrong, because all of the kids told me otherwise. Instead of having an intelligent conversation where we can all address the concerns of students and parents, they just want to stonewall.”
I’ve coached baseball for 14 years now, and I’m someone who understands kids. We are talking about something that’s occurring during their formative years, and it’s understandable that they would have questions. Honestly, I think they’ve been a lot more mature about this than our own school administrators, who are pushing their own policy agenda. [The administrators] seem to only be concerned with making one student comfortable in a locker room and not the rest. But I think there are ways to make everyone comfortable.
This photo of a rainbow is featured on the home page of the Hopewell Valley Regional School District. (Photo: hvrsd.org)
School Board Veteran Challenges Policy
Hopewell Valley’s nine-member school board approved the policy on “Transgender and Gender Nonconforming Students” at its regular meeting one year ago, on June 20, 2016.
School Board President Lisa Wolff joined six other members to OK the policy, while one member abstained and another was absent. The vote occurred little more than a month after the Obama administration mandated such policies for schools that wanted to keep getting federal dollars.
The Hopewell Valley policy says students are responsible for determining their own gender identity, except “in the case of young students not yet able to advocate for themselves”—and then a parent or guardian will make that determination. The policy doesn’t specify any ages.
So long as administrators determine that a student is sincere, the school should accept that student’s “asserted gender identity,” the policy says.
Werner Graf, a former school board member with two daughters in the school system, was the only resident who showed up at the meeting last June to speak out against the transgender policy and the manner in which the system implemented it.
“I took the three minutes the board allotted me to make points about legal liability, privacy, and safety, and suggested the policy be sent back to a larger committee for review,” Graf recalled in an interview with The Daily Signal. “It wasn’t a radical request, especially since the debate thus far was apparently void of any input from concerned parents.”
During time set aside for public comment, Graf warned the school board of the “bad optics” of the LGBT advocacy group’s involvement, given that the school board is supposed to be nonpartisan:
You’ve allowed this Garden State Equality group to come in, and Garden State Equality is clearly a partisan organization. They are a self-described advocacy group for a set of people.
The board gave Garden State Equality “preferential treatment” that “sets a very bad precedent” for how public policy decisions are made in the school district, Graf added.
Werner Graf, who unsuccessfully opposed how the school board adopted a transgender policy, has two daughters in the Hopewell Valley school system. (Photo: Werner Graf)
A Receptive Audience
An analysis of email records obtained by The Daily Signal in a request under New Jersey’s Open Public Records Act shows Garden State Equality began burrowing in as a policymaking entity for the Hopewell Valley school district just over two years ago, in March 2015.
The emails show Lee Rosenfield, who sits on the board of Garden State Equality and has two children in the school district, invited Smith to join him at a fundraising “cocktail party” in Lambertville, New Jersey, for the LGBT advocacy group.
Rosenfield also invited the school superintendent to meet with Andrea Bowen, then the group’s executive director, so she could explain “new plans to combat ongoing bullying, discrimination, and insensitivity in New Jersey’s schools.”
Although he said he couldn’t attend, Smith apparently remained receptive to input from the LGBT group over the next several months. In a Sept. 28, 2015, email to Aaron Potenza, director of programs for Garden State Equality, the superintendent asked whether Potenza would like to attend a “leadership team” meeting.
“I would be honored if you would join one of our leadership team meetings to participate in a discussion about current issues facing students today,” Smith wrote. “We are a pretty informal group and we really enjoy learning from leaders in the field of education.”
Smith was responding to Potenza’s email to superintendents across the state, which sought their participation in an LGBT “needs assessment” program.
Most New Jersey school districts, including Hopewell Valley, subscribe to a state-based education policy consulting service, Strauss Esmay Associates, which has circulated its own transgender policy recommendations.
In an email Oct. 2, 2015, to school superintendents, Potenza explained why Garden State Equality objected to Strauss Esmay’s model policy. He said those recommendations fell short because they gave too much latitude to parents and school officials to determine a student’s gender identity:
Strauss Esmay’s policy contains confusing and potentially harmful language that bases students’ rights on whether they are seen as conforming to masculine or feminine stereotypes associated with their gender identity. Schools should not be in the business of policing students’ gender presentation.
Potenza concluded by inviting Smith and other superintendents to “work with” Garden State Equality “to help create better policy.”
Garden State Equality recommends its own transgender policy for schools and a guidance document interpreting state and federal laws. Little daylight appears between what the Hopewell Valley school board adopted and what the LGBT group proposed.
As of 2016, the group estimates, 25 of the 584 operating school districts in New Jersey had moved to implement policies spelling out the rights of transgender students.
Garden State Equality “provided training and consultation on LGBT students to over 50 school districts in New Jersey” in 2015 and 2016, according to the records obtained by The Daily Signal.
Fuscarino, the group’s executive director since April 2016, said he views Hopewell Valley’s transgender school policy, and similar policies throughout the state, as a success.
“We’ve had nothing but positive feedback from individuals who worked with school districts regarding our policy,” Fuscarino said in an interview Friday. “We do this work because we want a safe environment for all students.”
Superintendent Thomas Smith, left, and school board President Lisa Wolff, right, are key players in a transgender policy for New Jersey’s Hopewell Valley school district. Here, Wolff receives a volunteerism award from, among others, Pennington Mayor Anthony Persichilli and state Sen. Shirley Turner. (Photo: hvrsd.org)
Smith Opposes Another State’s Law
At the behest of Garden State Equality in a court case, Smith, the Hopewell Valley superintendent, joined an amicus brief opposing North Carolina’s so-called bathroom bill, commonly known as HB 2.
The legislation, which North Carolina lawmakers passed in March 2016, prohibited transgender individuals from using restroom facilities in government buildings that did not correspond with the gender on their birth certificate.
Smith quickly signed on to what became known as the “school administrators’ brief” in cooperation with the San Diego-based law firm of Pillsbury Winthrop Shaw Pittman LLP.
On May 24, 2016, Potenza emailed Smith to introduce the Hopewell Valley superintendent to Asaf Orr, who specialized in transgender youth as a staff lawyer at the National Center for Lesbian Rights, which was working with allied groups to put together the amicus brief.
“Put me down! I will sign,” Smith wrote in response that same day.
In a May 26, 2016, email exchange with Wolff, the school board president, Smith discussed the amicus brief and said: “Clearly I won’t ever be able to work in North Carolina.”
As it turns out, Smith was the only school superintendent in New Jersey to sign on to the amicus brief, and he explained why in his email to Wolff:
Actually I am representing the state. They only wanted one from New Jersey. Apparently they want N.J. because of our governor.
Gov. Chris Christie, a Republican in his second term, was a candidate for president last year and threw his support to Donald Trump after dropping out of the race.
Garden State Equality’s Potenza wrote:
The focus of the brief is using the stories of administrators who have implemented trans-inclusive policies to show the court that all of the claims being made by the state [of North Carolina] about ‘common sense’ and the like is actually nonsense and pretext for discrimination.
But at the time Smith agreed to sign the legal brief, his own school district did not officially have a “trans-inclusive” policy in place. That came a few weeks later.
‘Fearmongering’ and ‘Hatemongering’
In a video of the June 2016 school board meeting linked below, Graf and other speakers begin their remarks at the 26-minute mark.
“As I understand the policy, having read it, a child can go into a locker room or bathroom based on the gender that they identify with,” Graf, the former board member, said. “However, that is subject to some [administrative] overview. If you deny one child and allow another, I don’t see how the board can put itself in that position without potentially having a lawsuit on its hands.”
Graf added that the policy could jeopardize students, especially girls, who are put in a position where they must undress in close proximity to males who say they identify as females. Girls, he said, should not be forced to expose themselves in such a situation:
You are opening up [to others] a safe space for the ladies that I don’t think has to be opened up. There are ways to do this in a way that doesn’t force kids into the bathroom that they are uncomfortable with, but at the same time doesn’t put their rights as something that supersedes other people’s rights.
Graf encouraged board members to carefully consider potential problems that might arise involving staff members, such as janitors, who are considerably older than students. Under the policy, a male janitor who identifies as a woman couldn’t be told to stay out of a girls’ locker room, he warned.
Rosenfield, the board member of Garden State Equality who spearheaded the LGBT group’s outreach to the school district, followed Graf’s remarks with comments supporting the transgender policy.
He denounced Graf’s concerns and request for further review as “hatemongering” and “fearmongering,” turning toward Graf repeatedly during his time at the microphone.
When Graf objected to this characterization, Wolff quickly cut him off, saying he already had his time for public comment.
“He was talking to us,” the school board president scolded Graf, referring to Rosenfield. “He might have looked at you. This is public comment. You do not get a second chance to talk. I didn’t hear any comments directed at you. We don’t have dialogues with members of the public.”
Graf told The Daily Signal:
This ‘hatemongering’ narrative is a typical bullying tactic which erodes civil debate on important issues. The superintendent and board are under the illusion that they are marching across a bridge in Selma. They’re not. All they are doing is reducing the safety, comfort, and privacy of the kids in our district, especially our girls. They’ve also set an extremely bad precedent by letting a political activist group essentially write the policy for them.
The black-clad Hopewell Valley Bulldogs in action. (Photo: Mike Schultz/Hopewell Valley Central High School)
Rosenfield figures prominently in the emails obtained by The Daily Signal under the state’s Open Public Records Act.
“In my view you are a rock star, Tom,” the LGBT activist said in an March 18, 2015, email to the superintendent. “I am so impressed with everything you do.”
Rosenfield repeated the “rock star” compliment in a Sept. 1, 2016, email to Smith, who emailed back to thank Rosenfield for the connection with Garden State Equality.
“I was asked to sign an amicus brief as part of the lawsuit [in North Carolina] regarding transgender equity,” Smith wrote. “I am the only New Jersey superintendent asked and I was proud to sign my name.”
The superintendent dismissed Graf’s concerns expressed during the public meeting several months earlier, emailing Rosenfield:
We do go to outside groups. That’s not unique here. But it’s up to us how we take that feedback. We are pretty darn objective and not swayed by any particular organization.
But if the superintendent is objective, why was he swayed to join an amicus brief in a court fight and take sides in a national debate over transgender policies extending beyond schools?
Wolff, the school board president, declined to answer that question from The Daily Signal in an email response. But she did defend Hopewell Valley’s transgender policy, saying it formalized practices already in place:
Since the policy basically documented what our district was already doing, the policy implementation did not require sweeping changes. Not surprisingly, now almost one year since the policy was adopted, I am aware of no student complaints or issues.
The transgender policy made media headlines when it was originally passed and I received questions in the months that followed, but other than a few letters of support from people simply confirming that we had a policy on the books, there have been no further concerns raised.
The Daily Signal also invited comment from the superintendent, the freshman football coach, and Garden State Equality officials, including Potenza and Rosenfield.
To date, only Garden State Equality’s executive director, Fuscarino, has responded.
Garden State Equality has not concealed its Democratic Party leanings.
The LGBT advocacy group actively campaigned against two Republican incumbents in Congress, Reps. Scott Garrett and Chris Smith, during the 2016 election cycle. In press releases and media statements, it described both congressmen as “repulsive,” “bigoted,” and “homophobic” proponents of “hate.”
Campaign finance records show Garden State Equality has funneled almost $50,000 to the Democratic Party and its candidates since 2007, and almost none to Republicans.
The organization draws substantial donations from left-leaning foundations inside and outside New Jersey, including $10,000 from Tides, an organization financed in part by hedge fund manager George Soros. With allied groups such as its education fund, Garden State Equality has received nearly $3 million from these foundations since 2005, according to the Washington-based Capital Research Center.
But Fuscarino said the donations in prior years weighted toward Democrats, and the donations from liberal foundations, occurred before he became executive director and “are not reflective of the current leadership.”
“We used to have a political action committee and we don’t have a political action committee anymore,” he said. “We don’t make those kinds of donations anymore. We have been very bipartisan in our efforts more recently.”
We are living in a time now when there is more support for LGBT causes on both sides of the aisle. All of the Republicans, except for two, were supportive of LGBT causes to a certain degree, so we endorsed them.
LGBT advocates, including Fuscarino (second from left in this tweeted photo), took part in an annual Equality March along the boardwalk in Asbury Park two days before the Hopewell Valley school board’s vote:
The Daily Signal may not have received all documents from the Hopewell Valley school district that are responsive to its request under the Open Public Records Act.
In a letter, Robert Colavita, the school district’s business administrator and board secretary, said the district isn’t required to read through all potentially relevant documents.
“While we are required to search for documents, we are not required to read documents to determine whether they are responsive to the OPRA request,” Colavita wrote, referring to the Open Public Records Act. “This would constitute research not required under OPRA.”
As for the father who first registered concern about the locker room at Hopewell Valley Central High School where unsuspecting freshman football players came across a transgender student? He insists the school district should have informed students and parents of the policy and its implications.
In his Sept. 19, 2016, email to the school’s principal and athletic director, he had written: “I think that is the primary reason to have teachers and administrators in the school.”
The federal government’s interpretation of the law cited by Machin, the school’s freshman football coach, has changed radically in the past few months.
On Feb. 22, Trump rescinded President Barack Obama’s 2016 guidelines reinterpreting Title IX of the Education Amendments of 1972 to include protection against discrimination based on a student’s gender identity, rather than biological sex. Little more than a week later, the U.S. Supreme Court declined an opportunity to rule decisively on transgender rights in a school system case out of Virginia.
So long as litigation continues to gestate at the federal level, New Jersey school districts have latitude to craft their own policies with an eye toward state law. In 2007, legislators amended state law to prohibit discrimination based on “gender identity or expression.”
“When I met with the principal and the athletic director, they told me they were going to be talking with their lawyer about whatever discussion they had with me,” the player’s father told The Daily Signal.
“It’s fine if they want to do that, but it seems to me they are only working to make one student comfortable in the locker room, and not all the rest.”
Ken McIntyre contributed to this report.
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