School board member hires attorney to defend against discrimination complaints
Frederick County Public Schools received 32 Title IX Discrimination and Harassment complaints and six Hate Bias Incident complaints submitted by employees and community members that specifically denounce Black's language toward transgender and gender non-conforming students at a Jan. 8 school board meeting.
Referring to the part of FCPS' gender identity policy, Policy 443, that instructs teachers and staff members to use a student's preferred name and pronouns, Black said at that meeting: 'Just as much as you have your right to be you, we have our right to be free from you.'
Black has said he was referring to First Amendment rights of speech and association for people who object to the policy's requirements on preferred names and pronouns.
The complaints are dated between Jan. 8 and 17. Some complaints use identical language to describe the problem and how the complainant would like the problem to be resolved.
On Jan. 11, the Frederick County Democratic Central Committee posted a public statement on Facebook urging people to file Title IX Discrimination and Harassment complaints.
A complaint submitted to the school system triggers a response from the FCPS Title IX coordinator, who then identifies an investigator and contacts the complainant, according to FCPS regulation.
Rae Gallagher, president of the school board, on Thursday declined to comment on a Title IX investigation against Black.
Steven Blivess, chief legal counsel for the school district, on Friday declined to comment on the process of a Title IX investigation in the school district.
In an interview on Friday, Black directed questions to his attorney. During a board member comment period at Wednesday's school board meeting, he called on Gallagher to resign, calling it an 'unlawful investigation.'
'We will not be silenced,' he said.
Matthew Ray, legal counsel for the Alliance Defending Freedom, which is representing Black, said Friday that Black's speech is protected under the First Amendment.
The Alliance Defending Freedom describes itself as 'the world's largest legal organization advancing every person's God-given right to live and speak the truth.'
Ray said Black received a message from Blivess on Jan. 15 saying that a Title IX investigation has begun. Brigit Berkeley, a spokesperson for Alliance Defending Freedom, declined to share a copy of the message with The Frederick News-Post.
TITLE IX COMPLAINTS
FCPS Policy 443 was created to 'prevent discrimination, stigmatization, harassment, and bullying of students who are transgender or gender nonconforming' and to 'create school cultures that are safe, welcoming, and affirming for all students.'
The policy — which is up for review by the school board's Policy Committee in May — also details specific guidelines for FCPS students and staff members.
For example, the policy directs students to use locker rooms and bathrooms consistent with their gender identity, and says students can play on sports teams and participate in physical education classes consistent with their gender identity.
Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in federally funded schools and education programs and protects students from sexual harassment in educational spaces.
FCPS Policy 116 and corresponding Regulation 116-01 govern Title IX interpretations within the school system and explain procedures for an investigation.
In April 2024, the U.S. Department of Education under the Biden administration enshrined protections for LGBTQ+ students in its prevention of sex-based discrimination.
In January of this year, a federal district court judge in Kentucky struck down those protections and reverted the policy back to a version from 2020 during President Donald Trump's first term.
About a third of the complaints submitted to the school district recommended that Black be removed from the board or publicly apologize for his comments at the Jan. 8 meeting.
The Title IX complaints also include a multiple choice section about what the alleged discrimination or harassment was based on. The complaints filed included the answers 'sexual orientation,' 'gender identity,' 'gender expression,' 'sex,' or a combination of the four.
One of the complaints from an FCPS community member alleged that Black's comments at the Jan. 8 school board meeting 'suggests that he believes some students can be excluded from FCPS schools and as a board member, may take action that results in exclusion based on sex.'
A different complaint from an FCPS employee said Black's comments were 'hurtful and discriminatory to families, teachers, and trans kids like my daughter.'
The News-Post made a Maryland Public Information Act request for the complaints on Jan. 15. FCPS' legal counsel provided copies of the complaints to the News-Post on Feb. 7, after redacting identifying information about each complainant.
Black said in an interview on Friday that he was notified of an external investigation against him by an email from Blivess.
Ray said on Friday that Black was notified on Jan. 15 by email that the school board retained outside legal counsel to conduct a Title IX investigation against him.
He said the email from Blivess indicates that Mareco Edwards of South River Partners was hired by FCPS to conduct the investigation.
Edwards could not be reached for comment by email or phone on Friday. A phone number on the South River Partners website had a message that it doesn't accept incoming calls. An email message to the company was not immediately returned.
Ray said the email from Blivess explained that the investigation would include an interview with Black and interviews with the complainants. He said Black, as of Friday, had not been interviewed.
'At the end of that process, a determination would be made as to whether Mr. Black's comments did in fact violate the Title IX policy,' he said.
Ray said the investigation 'in and of itself violates Mr. Black's First Amendment rights' and the investigation is 'the Board of Education weaponizing its Title IX policy to silence him.'
'As an elected official, Colt had the duty to speak about these issues that are important to teachers, parents and the students of Frederick County,' he said. 'When he was speaking, he addressed his concerns about the board Policy 443, which he was concerned that violated the First Amendment rights and compelled the speech of students and staff in the school district.'
Ray said the First Amendment protects Black's right to speak on that issue and 'we demanded that the school immediately cease this investigation.'
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