Judging Freedom - Middleschoolers accused of Sexual Harassment for Misusing Pronouns

Episode Date: May 19, 2022

Middle schoolers accused of sexual harassment for not using preferred pronouns https://www.weau.com/2022/05/16/middl... #pronouns #sexualharassment #wokeismSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Big shout out to you for making it through the hectic holiday season. This new year, get clean, quality pregnancy nutrient support off your to-do list, including Ritual's best-selling Essential Prenatal Multivitamin, designed with 12 traceable key ingredients to support a healthy pregnancy. With big changes coming up, take the small steps now and start today with 30% off a three-month supply at ritual.com slash podcast. These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease. Hi, everyone. Judge Andrew Napolitano here with Judging Freedom. Today is Thursday, May 19,

2022. It's about 2.30 in the afternoon on the east coast of the United States. I think all of you watching and listening now are aware of this horrible case in Wisconsin in which three young boys are under investigation by a local school district. The allegation is sexual harassment because they refuse to refer to a single person by the plural pronoun of they or their, T-H-E-I-R. We are fortunate today to have with us one of the very excellent lawyers representing the families of the three boys. Cori Brewer is a lawyer in Milwaukee, Wisconsin, and she joins us now. Corey, it's a pleasure, and welcome to Judging Freedom. Thank you. Thank you for having us on to hear more about this issue.

Happy to be here. Of course. So set this up for us. You and I are going to discuss the legal aspects. The moral and the cultural aspects here are repellent. And most people watching and listening to us now would probably agree. But in the interest of educating our audience about the legal aspects, tell us what happened from your clients' eyes and what the school did to them. Yes. So from a legal perspective, there's kind of two aspects here. The most important, we think, is First Amendment, freedom of speech issues, you're going to be notified about your son having a sexual harassment complaint against him under Title IX. And as you can imagine, that is probably startling for any parent to hear. And they're wondering what exactly it is that their son did. The district followed that up with kind of a form letter and one sentence saying that they are under investigation under Title IX for sexual harassment for using incorrect pronouns for classmates.

Now, let me stop you here. Has a complaint been filed? Internally, yes. Okay, so have you seen it and are you aware of what the school district says the boys did or did not do that in the insane opinion of the school district somehow constitutes sexual harassment? Yes, so on the formal complaint itself, and by the way, the families were not provided with that along with the notice. They had to ask for it many times. But on the formal complaint itself, it's one page and one word. It says mispronouning. And attached there was- Say again, did you say risk or miss? Miss, mispronouning.

M-I-S, pronouning. That's right. Yes, that's right. It doesn't say who, what, when, where, how, who observed this, who was hurt by it, who was the victim. None of this is in the complaint, the type of complaint that we lawyers are accustomed to viewing. It was very, very minimal, but it did include names of individuals and said that it happened in the general music room in the middle school, but no details of the allegations. So do you know from your own investigation what this allegation is about? Is one of the classmates transitioning from one gender to another and chose to be referred to by the plural rather than the singular?

Do I have that right? That's right, yes. At the end of March, excuse me, or early April, a biologically female classmate addressed her eighth grade classmates and kind of let them know that she is non-binary. So instead of using she and her pronouns, she asked that they refer to her by they or them pronouns. So that is kind of where this all began, as far as we know. And what legal arguments are you going to make? Isn't there a right to remain silent? I mean, can the school board force the boys to use a plural to refer to a singular person? Remember, the school board is the government, so they're restrained by the First

Amendment, just as if it were the federal government. No, the school cannot do that, and while minor students' freedom of speech rights maybe aren't as broad as they would be out of school, the freedom to use pronouns is covered by the First Amendment and freedom of speech. A school cannot force or strong-arm students to use another classmate's preferred pronouns. So nothing in this complaint comes close to sexual harassment under Title IX. How can this possibly be considered sexual harassment? I mean, there's nothing sexual or gender-based about it when you refuse to refer to a single person by a plural pronoun. Right. And as most people know, Title IX, as it's currently written,

is based on biological sex. It deals with sex discrimination, sexual harassment, biological sex, males and females. There's nothing in there right now about gender identity. As an aside, the Biden administration

is currently attempting to amend it to add that, so we could see this being more widespread. All right, well, if the Biden administration amends it, it would require an act of Congress. We're talking about a federal statute. Right now, it's in the notice of proposed rulemaking process, so we don't know what the text of the rule would be. It's still being reviewed. It hasn't been released for public comment yet. It's strange that the feds are involved here, and I suspect, correct me if I'm wrong, Corey, when the feds are involved, that has something to do with money. So I'm going to guess that the school district is probably

afraid that if they aren't aggressive on this, as absurd as it sounds, they may set themselves up, particularly with a liberal administration in Washington, to the loss of some federal aid. Is that a fair semi-political analysis of this? I suppose the school could take that position, and I think probably they will. I don't know what else they would say is that, well, we were made aware of this complaint. We had to investigate, you know, otherwise we'd be federally investigated. So in doing our research, we came across, and we may have gotten this from you, I don't know. We got a lot of research. research, a letter from the Department of Education specifically stating that the misuse

of pronouns is not sexual harassment under the federal statute. However, that letter was signed by an assistant or a deputy secretary of education in the Trump administration. Is the Biden administration taking the same view, or has this not yet reached the bureaucrats in Washington? Just to give a brief overview, because it is a little bit confusing, prior to the Trump administration, the Obama administration had issued guidance saying, hey, educational facilities that are covered by Title IX, we want you to interpret Title IX as if it covers gender identity and sexual orientation, even though that is not in the federal law. And the Trump administration rescinded that.

They viewed it as biological sex. And now again, the Biden administration is, they're using, you may be aware of the Bostock federal, federal Biden administration is, they're using, you may be aware of the Bostock federal, federal case, or Supreme Court case, I'm sorry. That dealt with Title VII, the employment context. But because of that, the Biden administration is saying, well, we think that gender identity and sexual orientation should be included in Title IX as well. But it is not. It is not in the law currently written. And another thing that you touched on, Judge, is that even if it were in the law, it still wouldn't be sexual harassment. If anything, it would maybe be sex discrimination. But sexual harassment kind of covers more serious allegations, you know, sexual assault,

dating violence, sexual favors, things along those lines. Right, right, right. What happens next, Corey? I mean, will there actually be a hearing before a hearing officer of some sort, an administrative law judge, a federal judge, a local judge, the school principal? What's the next step in this? What can happen to these boys? We're hopeful that it doesn't get to that point. The school district can still end the investigation and do the right thing here. We have asked that they end the investigation immediately, dismiss the complaints, remove them from the boys' records. I don't know that any college or employers would be able to see this, but if it's in their academic record, it's a possibility. And having a complaint for sexual harassment against them or not using the preferred classmates of a, or I'm sorry, the preferred pronouns of a classmate is not something

that should be in their academic record at all. What's the worst case scenario? I mean, this is not a criminal prosecution. Right. I think it would be up to the district if they do proceed and decide to discipline the boys, perhaps expulsion, maybe suspension. But if they do move forward with discipline, then we would certainly consider pursuing litigation on First Amendment, freedom of speech, and possibly also due process grounds, since they follow their own process. If this isn't intentional infliction of emotional distress, if this isn't an abusive process, I don't know what is. I hope you have affirmative causes of action against these people if they don't dismiss the complaint and end the investigation soon. I can only imagine the terror going through the hearts

and heads of these three little boys. Right. I think they have been confused. Not only are they confused about using they and them pronouns, they're confused about what this whole process entails. Will it be on their permanent records? Will it affect future schooling? And just having to deal with the whole process is so inappropriate. The school should have never escalated this to a Title IX complaint. And even according to their own process, if the complaint on its face, even if the whole thing is true, if it would not be sexual harassment, they are required to not investigate. So if they do take the position that, oh, well, we got this complaint, we need to, they're actually not allowed to. They're supposed to drop it both under Title IX

and their own policy if it doesn't constitute sexual harassment. And in this case, it doesn't come close. Corey Brewer, we have a huge audience here at Judging Freedom, which is internally skeptical of government, particularly government excesses. I hope you'll come back and visit us again, hopefully in triumph, but if not, at least to give exposure to what this school district is doing to these little boys. Thank you very much for joining us. Thank you, Judge. Thank you.

Of course. Judge Napolitano for judging freedom.