NY attorney general threatens to remove school board members over trans comments
Parents, school board members sue after Letitia James said board members could be removed for making or allowing comments at meetings that "demean” trans students.
Jacob Roth is a third-year law student at Villanova University and a FIRE legal intern.
Last May, New York Attorney General Letitia James warned school boards across the state that when debating bathroom access or sports participation, board members can be removed if they make or even allow comments that “demean” trans students.
This is a problem. School board meetings are where the future of our children’s education is shaped. They offer a venue where the public can openly debate matters of public education, parents can stay informed and advocate for their children, and the community can offer needed feedback. Muzzling speech at these board meetings doesn’t just silence opinions; it undermines the community’s role in shaping their children’s future.
In her letter, James tells boards to shut down any such comments because “purely ideological statements opposing students’ rights under New York law are an unproductive diversion from boards’ important work,” adding that boards should “not entertain baseless allegations that transgender students’ identities and experiences are illegitimate, or that their mere presence in school spaces and participation in school activities is harmful to other students.” She also warns boards not to let speakers intentionally misgender students.
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Colorado just dodged a constitutional bullet. Not a legislative win so much as a near-miss.
Incredibly, James not only threatens to remove board members who make such comments but also those who refuse to censor members of the public for doing likewise.
But when a school board opens the floor for public comment, the First Amendment limits its power to regulate what speakers say. A board can set reasonable ground rules, including time limits on comments and prohibitions on genuinely disruptive conduct, such as speaking out when it’s not your turn. But the government cannot restrict speech simply based on its viewpoint. If a school board member believes there’s no such thing as a “trans child,” they have every right to express that view in a meeting. If a parent thinks letting trans students play on the sports teams of their choice is harmful to other students, they can say that too.
But what isn’t allowed is viewpoint discrimination by the state. The attorney general wants to punish people for making statements she considers transphobic, but she makes no mention of trans-affirming statements. Those are apparently just fine. In other words, whether the state censors your opinion under her direction depends on what that opinion is. The First Amendment simply doesn’t work that way.
Worse still, the attorney general is placing school board members in an untenable position: either carry out her censorship demands and violate the First Amendment, or risk losing their positions.
The references to “harassment” in her letter do not fix the problem. The government cannot evade the First Amendment’s prohibition on viewpoint discrimination by simply affixing the label “harassment” to opinions it dislikes. As a legal matter, harassment generally refers to a pattern of targeted, unwelcome conduct directed at a particular individual, not the public expression of views on matters of public concern.
Even in the educational setting — which does not include a government-run public meeting — the Supreme Court has made clear that “harassment” is actionable only when it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” A school board official or member of the public expressing an opinion relevant to an ongoing public debate, even in sharp or uncomfortable terms, is not harassment under any recognized legal standard. It is protected speech.
This isn’t the first time New York’s attorney general has attempted to stifle speech she doesn’t like. FIRE sued James in 2022 and secured a court order blocking enforcement of a New York law regulating online speech the state deems hateful — an order she later violated. Last month, Glenna Goldis — an attorney in the attorney general’s consumer fraud bureau — was fired after she raised concerns, in her personal capacity, about pediatric gender medicine. Nor is this the first time government officials have tried to control the terms of discussion during public comment periods. In fact, FIRE has frequently warned other government entities against imposing viewpoint-based speech restrictions at their meetings — and, when necessary, sued to vindicate censored speakers’ rights.
Why do students at hyper-liberal colleges seem more tolerant?
It’s no secret that most colleges lean significantly liberal, but it’s easy to forget just how liberal. Describing many colleges as “liberal” doesn’t really do it justice when over 80% of colleges are more liberal than California. It’s therefore become a common refrain that such hyper-liberal colleges make students intolerant of conservatives and unwill…
FIRE also has been a fierce advocate for local elected officials who face state-directed violations of their First Amendment rights. In Nazarene v. Laux, FIRE represents a New Jersey school board member facing a state ethics investigation for asking residents, via social media, their thoughts on a proposed school tax increase. The state’s School Ethics Commission has interpreted state law as preventing board members from discussing matters of public concern on social media and in op-eds. As in that case, board members in New York now face the threat of the state controlling how they communicate with constituents.
That’s why parents and school board members are fighting back. The Southeastern Legal Foundation recently filed a federal lawsuit on behalf of two parent advocates and two school board members seeking to challenge James’s guidance letter, claiming a violation of their right to free speech.
The First Amendment protects the rights of parents and school board members to speak freely on educational matters at public meetings. There’s no exception for speech a state official finds offensive. The attorney general may disagree with others’ views, but as Justice Louis Brandeis famously put it, “the remedy to be applied is more speech, not enforced silence.”
To call this appalling would be an understatement. Democrats continue to dig themselves into an ever deepening hole from which they have no apparent exit strategy. They got Trump elected once by embracing gender ideology , and they are doing everything they can to insure JD Vance can succeed him. This is so exasperating. It appears there are no grownups left in the party.
These are a series of posts by Wesley Yang on X:
1/29/2025
“There are no "anti-trans extremists."
“There is a political party and professional apparatus that put male rapists and murderers in women's prisons, propagandized kindergartners that any of them could change sex, forced taxpayers and insurance customers to fund electrolysis and facial feminization surgeries, put any boy or man who claimed to be female into changing rooms with your daughters, forced you to declare the gender identity of your toddler at the doctor's office, deceived parents about the social transition of their children at school, banned psychological exploration of the mental health comorbidities that manifest as trans-ideation in the midst of an online social contagion generating 5000 percent increases in trans identification among youth, fined all-female nude spas run by immigrants for excluding men with penises who claimed to be women for violating the human rights of those men, imposed men on the athletic playing fields with your daughters, told thousands of parents to submit to the chemical castration of their children to avert imminent suicide risk for which no evidence has ever existed, subjected thousands of children to macabre sex changes procedures while lying about the existence of an evidence base where none ever existed while claiming on the basis of no evidence that the procedures were life-saving, investigated parents who refused to put their children on a pipeline to a lifetime of medicalized self-harm by pretending they had changed sex and sought to seize custody of them, and threatened to unperson you, attack your livelihood and leave you ostracized if you resisted it in any way with the aid of the monopolistic tech platforms that control the circulation of speech and money around the globe in a new surveillance and censorship regime that sought to dismantle biological reality in the name of narcissistic fantasies that it intended to entrench as the only truth while corrupting the truth-seeking apparatus of science itself -- and there is a majority of normal people in both parties who oppose this nonsense and want it stopped.”
6/20/2025
“Transgenderism must revert to being a form of private eccentricity. Recognition as one's preferred gender can be privately negotiated but with no coercion by any entity private or public. We all have an absolute right to affirm or not affirm, believe or not believe, that gender identity exists, that no one can infringe.
Sex segregated spaces and activities remain segregated by sex, not "gender identity."
Adults are free to inflict bodily self-harm on themselves in pursuit of an appearance they like but outside of any pretense of a medical protocol -- these are cosmetic procedures that come with no promises to relieve dysphoria or unlock an authentic self and the cost is borne solely by the person seeking them. Any such promises constitute consumer fraud. Children are of course unable to consent to such procedures.
The state has no role in affirming any aspect of cross-gender ideation, avoids proselytizing to children in schools or to anyone else in any interface it has with the public. The person who has inflicted bodily self-harm on his sex traits is no more a distinct class of person to whom special privileges or protections can be conferred than a person who has covered his face in tattoos. The person who believes with all his heart that he is a woman at heart and would die if others don't recognize him as such imposes no duty on any other person to share in that belief or to pretend to share in it. That person must develop resiliency about living in a pluralistic, liberal, democratic society where every person has a right to belief and a corollary right to unbelief that no one may legitimately infringe.
Any and all deviations from this resolution are morally illegitimate and practically untenable.
The attempt to turn a private eccentricity into a social cause that justified the remaking of society was a ghastly and destructive mistake. It was made inevitable by certain facets of the culture and certain aspects of our politics. We must learn the lesson that experience has now taught us.”