Written by Tom Fiedler, Asheville Watchdog.
A lawsuit backed by the national far-right Moms for Liberty organization is derailing Buncombe County schools’ plans to implement a new federal rule that would protect students from discrimination because of their sexual orientation or gender identity.
The rule, set to take effect Aug. 1, amends a section of Title IX, the landmark federal civil-rights law that prohibits discrimination in education stemming from race, color, religious affiliation, nationality or sex.
The law has upended social barriers inhibiting students – primarily girls and members of marginalized racial and religious groups — from enjoying full participation in school classrooms, sports, and other extracurricular activities.
Moms for Liberty joined a lawsuit challenging the rule with two other groups, the Young America’s Foundation (primarily for conservative college students) and Female Athletes United (an anti-transgender athletes’ group). U.S. District Court Judge John Broomes, a Trump appointee in Wichita, was assigned the case and immediately issued an injunction blocking the rule’s implementation pending a full trial.
Although his court’s orders typically would apply only to Kansas schools, Broomes ruled that his injunction would bar any school in any state where a child of a Moms for Liberty member is enrolled from following the measure. He invited the organization to send him a list of those schools attended by Moms for Liberty members’ children so he could list them in a formal injunction.
He set the deadline for receiving submissions for the list as Friday, July 26 – less than a week before the federal rule is to take effect.
Broomes’ invitation to join the list ignited a frantic membership drive by the recently formed Buncombe County chapter of Moms for Liberty headed by home-schooling advocate Kim Poteat, an unsuccessful candidate for Buncombe school board in 2022.
Moms for Liberty, though ostensibly nonpartisan, aligns with conservative Republicans and its membership is limited to education activists who stipulate in a written pledge that there are only two genders, male and female.
Poteat has declined to speak with Asheville Watchdog. But in an appearance on the Facebook video program hosted by conservative conspiracy theorist Chad Nesbitt, Poteat said her group’s goal was to identify a member’s child in every Buncombe County school – public and private – and forward the school names to the judge.
At stake, Poteat told Nesbitt without any proof, is to protect school children from a list of imagined sexual offenses that she said would be unleashed by the Biden administration’s rule change.
“They will allow biological males into our daughters’ locker rooms, rest rooms and hotel rooms on overnight school trips, which means eliminating safe spaces for our girls,” Poteat said.
The rule would also require school staff and students to “use preferred names and pronouns,” and would pressure girls to remain silent if a transgender male chooses to undress in a girls’ locker room or bathroom, she said.
“If she goes and says something about it, that is the basis of a sex-based harassment suit … she cannot complain.”
Poteat also told Nesbitt the measure would allow schools to teach “gender ideology” and to keep secret a student’s decision to transition to a different gender.
There is no such language in the proposed rule or any basis for expecting such issues to occur, according to fact sheets published by the federal Department of Education’s Office of Civil Rights.
Buncombe County School Board attorney Dean Shatley told The Watchdog that he isn’t aware of any cases similar to those predicted by Poteat as having occurred in Buncombe County.
BCS Superintendent Rob Jackson, in response to a question from The Watchdog, said in a statement that “at this time, [Buncombe County Schools] will continue to follow” the previous Title IX rule, which didn’t include protections for gay and transgender students.
‘A holding pattern’
School board spokesperson Kenneth Ulner said Superintendent Jackson’s decision is intended as “a holding pattern” until Judge Broome issues his final list of Buncombe County schools with a Moms for Liberty parent. If the county isn’t covered in the injunction, “Buncombe County will follow the law because we have a history of always following the law,” Ulner said.
But Shatley said gay and transgender students remain fully covered by the school board’s existing policy, which closely tracks the proposed changes in the federal rule. Shatley said this policy has been in effect since 2020 and requires Buncombe public schools to protect students from “bullying and harassment that is, or appears to be, related to sexual orientation or gender identity.”
As for the list of possible offenses unleashed by the federal rule, Shatley said, “We don’t see anything so apocalyptic taking place… We have processes and policies already in place that ensure our students are in a safe and secure environment.”
Asheville City Schools Superintendent Maggie Fehrman told The Watchdog that, to her knowledge, no public school within the city is affected by the injunction. “We aren’t on any list submitted to the judge at this point,” she said.
But she said she also will delay implementing the new rule until the Kansas court provides more clarity about the reach of the injunction.
The federal push for a new rule grew out of a Supreme Court decision in 2020 extending the civil-rights law against sex discrimination beyond the binary gender definition as male and female. On a 6-3 vote, the Supreme Court ruled that “sex” also must be interpreted to include a person’s gender identity, now commonly encompassed in the acronym LGBTQ+.
In 2022, President Biden directed the U.S. Department of Education to amend Title IX to incorporate this expanded definition, which would legally protect students who identified as being LGBTQ+ from sex-based discrimination, including “bullying and harassment just because of who they are,” the president said.
Schools that failed to combat such practices would be guilty of maintaining a “hostile learning environment” and could lose federal funding, according to the new rule.
“LGBTQ+ students often face additional challenges in schools, including disproportionately experiencing persistent bullying, harassment, and victimization,” Biden wrote in his order, which would affect every school that accepts federal funds.
It’s far from certain whether Broome will maintain his earlier decision to exclude all schools with a Moms for Liberty connection from complying with the new Title IX rule. If so, it would block the rule from taking effect in 850 counties across the nation where Moms for Liberty claims members.
Although Shatley said blocking the new rule may have “no substantial effect” on Buncombe County Schools’ existing policies prohibiting sex-based discrimination, the lawsuit appears to have provided a boost to the local Moms for Liberty membership.
Rapid growth in local chapter’s membership
The Buncombe chapter said on its Facebook page that it had 103 members when Broome issued the original injunction July 2. Poteat, in an email to The Watchdog, said membership had grown to 121 by July 15, after her appeal to Nesbitt’s listeners.
Whether the members are spread widely enough to cover all 45 of the county’s public schools won’t be known until Judge Broome makes public the list he has sought, Shatley said. The timing of that action is unclear.
The increase in Moms for Liberty membership coincides with the opening of the candidate filing period for 2024 school board elections. Poteat, in line with the national Moms for Liberty agenda, has said the local chapter intends to support a slate of candidates for the four BCS school board seats up for election.
If successful, the bloc would comprise the majority of the seven-member board with an agenda that could include eliminating or prohibiting DEI (diversity, equity, inclusion), CRT (critical race theory) and SEL (social emotional learning), as well as policies protecting gay and transgender students, faculty and staff.
Although Moms for Liberty brands itself as a non-partisan “parental-rights organization” akin to traditional parent-teacher organizations, the Southern Poverty Law Center has labeled it as an “anti-government extremist group” with ties to the Republican Party’s reactionary wing. The left-leaning SPLC contends the group’s goal is to weaken public education while promoting charter schools and homeschooling.
The Watchdog sought comment from the U.S. Department of Education and the North Carolina Department of Public Instruction but received no reply. The U.S Department of Justice is appealing to lift the injunction, which now encompasses several states.
In a speech announcing the new rule, U.S. Education Secretary Miguel Cardone appealed to school administrators for its implementation:
“Together we must seize this opportunity to better protect LGBTQ youth who face bullying and harassment, experience higher rates of anxiety, depression, and suicide, and too often grow up feeling they don’t belong,” he said.
“Today we send a loud message to those students and to all our students: You belong in our schools.”
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Tom Fiedler is a Pulitzer Prize-winning political reporter and dean emeritus from Boston University who lives in Asheville. Email him at [email protected]. The Watchdog’s reporting is made possible by donations from the community. To show your support for this vital public service go to avlwatchdog.org/support-our-publication/.