The Examiner U-46 News Feed
U-46 policy changes approved via split vote
By Seth Hancock
The Board of Education in School District U-46 approved controversial changes to the board’s policy under Section 5 pertaining to personnel at its meeting on Monday, Feb. 4. The board voted 5-2, board members Phil Costello and Jeanette Ward voting no.
Included were changes to Code 5.020 (workplace anti-harassment policy) and Code 5.203 (teacher assignments and transfers) which the administration admits could lead to staff being disciplined for recognizing biological facts as well as could lead to biological males supervising girls locker rooms and vice versa based on gender identity.
Also leading to some concerns by one of the district’s unions, Education Support Service Organization (ESSO) representing custodians, came under Code 5.036 (support staff probation and tenure).
Luis Rodriguez, assistant attorney, said changes to codes 5.020 and 5.203 “make protected class verbiage” changes which add “gender identification.”
Prior to the vote Elgin resident Grady Hauser addressed the board during public comments referencing a case from Boyertown, Pennsylvania that is currently in front of the Supreme Court as well as an incident about four months ago in Decatur, Georgia in which the “U.S. Department of Education began an investigation of a sexual assault by a male student against a younger girl in the girl’s bathroom” after a change in that district’s policy concerning gender identity.
“Sincerely I ask you tonight to consider the legal risks to our district and to the board and to U-46,” Hauser said. “If you follow through on this policy tonight without carving out an exception imagine a grown man in the girl’s locker room of a high school. How would that fly when a charge is made let alone a confirmed case?”
At the Jan. 14 meeting Ward had to press the question on whether males could be transferred to supervise girls in the locker room as the district’s legal staff initially evaded directly answering the question but eventually Miguel Rodriguez, chief legal officer, said “the answer would probably be yes.”
Prior to the vote, Ward said: “Our board lawyer admitted at the last meeting that this could happen. This should concern every parent. These policy changes also set the district up for profound potential legal challenges.”
At the January meeting, board member Veronica Noland accused Ward of being offensive and that she was “getting tired” of hearing opinions she disagrees with.
Ward said: “My responsibility as a board member is to perform my fiduciary duty in assessing and warning of risks that changes in policy may bring about which could adversely affect the district. And, although those around me may tire of hearing me do so, I will never tire of doing so.”
Regarding Code 5.020, Ward suggested adding language to clearly define harassment as verbal or physical conduct that is “severe, pervasive and objectively offensive” to clarify “what delineates an infraction.”
Ward said her concerns were “teachers could be compelled to use language that violates their deeply held convictions and First Amendment rights. More specifically, it could be construed to mean that a teacher who refuses to refer to another teacher by the sex they are not is harassing them.”
Rodriguez said a staff member’s First Amendment rights are at a “very limited capacity” in the workplace meaning the district could discriminate against staff members based on their religious beliefs or world view.
Board member Melissa Owens shared concerns with the same codes saying the policy is “more narrow” than the Equal Employment Opportunity Commission’s policies. She said the policy was missing language regarding retaliation and false claims of harassment.
U-46 CEO Tony Sanders said the retaliation language was in Code 5.010: “No employee or applicant will be retaliated or discriminated against for reporting, witnessing or participating in an investigation, provided the employee or applicant did not make a knowingly false accusation or provide knowingly false information.”
“It’s there. It’s not quite as robust,” Owens said who also said the “nondiscrimination language” was unnecessary in Code 5.203 to which Luis Rodriguez said it’s “just a recommendation to the board” while Miguel Rodriguez said he “reviewed (case law) last week” that showed a necessity for the language but said he “can’t recall” if that case law concerned public schools.
Owens said her concerns were different from Ward and made assumptions of what Ward believes.
“I’m going to be abundantly clear that I’m not saying this because of the issue that Mrs. Ward raised,” Owens said. “I firmly reject, and it upsets me that we are saying at this table that a class of persons is automatically assumed to be either pedophiles or sexual criminals, and I resoundingly reject that statement.”
Noland thanked Owens for making the statements against Ward saying: “I completely agree in rejecting those assumptions that are made about groups and communities based on their sexual orientation.”
Ward responded: “I’m not assuming that any person is assumed to be a sexual criminal. But any father of daughters, any mother of sons, does not want their children to be supervised in bathrooms and locker rooms by a member of the opposite biological sex. That is just commonsense reason.”
For Costello, he said it’s already “codified” in policy regarding discriminatory behavior and its unnecessary to single out certain groups for protection over other groups.
“We’ve described the behavior in our policy that there has to be nondiscrimination and that all means all,” Costello said. “It’s just it should be applicable or it’s not.”
Costello added: “We just drill down to the point where it’s just a little bit confusing, and we’re maybe and possibly not addressing each and every sector that might be out there that may be or maybe not be affected by these things. So again, I like the overarching approach of all means all.”
Tim Sheahan, ESSO’s president, raised concerns with changes to Code 5.036 which he said strips seniority status from employees if they are promoted which “sets the value of a promoted employee equal to a new hire.”
The changes eliminate language stating “seniority rights will be retroactive to the first day of employment in that position” and adds language that staff “may be terminated.” It also adds: “For all employees who belong to a collective bargaining unit, the probationary period language of the applicable collective bargaining agreement shall apply.”
“Firing an employee without just cause right after promoting them would be throwing your investment right into the garbage,” Sheahan said.
Sanders said he interpreted it as “still subject to any collective bargaining units,” and Luis Rodriguez said “it’s not a mandate” and the “may language in there” was added to make it “very broad.”
Donna Smith, the board’s president, said: “We do try to write (policy) kind of general and open to allow administration and, you know to make things work well.”
“We don’t get involved in the day to day, and we don’t want our policies to direct the day to day,” Smith added. “So we try to keep our, with the may… that’s a word we use a lot because it doesn’t mean you will. It means you may.”