Lawyer questions Kobach’s opinion, motives on trans schoolkids | Opinion

I recently read the opinion articles of Dion Lefler, Kris Kobach and Russell Arben Fox concerning Kansas school boards passing policies concerning transgender children, and some of the referenced court cases concerning the rights of parents and children.

This is an emerging area of law.

Although retired, when I was in the practice of law, one of my primary interests was the rights of minors and the laws that affected them.

I spent part of my career participating in the implementation of those laws and observing how in practice, enacted/case law affected families and especially children.

It is this experience that compels me to weigh in on this issue.

In the absence of decided law, school districts in Kansas and elsewhere are adopting policies in an effort to balance the interests of parents, students and school officials, including teachers, concerning the issues surrounding sexual orientation.

Attorney General Kobach in his article states:

“While it is true that school-aged children do possess some privacy rights, no court has ever held that children have a constitutional right of privacy against their parents in this context. No such imaginary right exists.”

Perhaps what Mr. Kobach meant to say was that while it is true that parents have the right to make decisions concerning the care, custody and control of their children, no court has ever held that the parent’s constitutional rights are superior to their children’s rights to privacy in this context. No such imaginary right exists.

Undecided question

This controversy has not been authoritatively decided.

In his letter, as justification for his action towards Kansas school districts, Attorney General Kobach cites a case, Ricard v. USD 457 Geary County Schools, filed in the United State District Court of Kansas concerning a teacher’s right to freedom of religion. The case was not about parent’s rights.

The teacher filed suit alleging violations of her constitutional rights, including freedom of religion. based on a school district policy that prohibited her from referring to a student by the student’s preferred names and pronouns in her communications with the student’s parents, unless the student requests the administration or counselor to do so (“Communication with Parents Policy”).

Pending resolution of the issues, the teacher asked for a preliminary injunction prohibiting the school district from disciplining her. A preliminary injunction is an order entered prior to trial and is not a final court decision.

The prior school year, the teacher had been disciplined for violating the district’s policy because two students had felt discriminated against, because the teacher was not using their preferred names.

The court heard evidence on May 6, 2022, filed its decision granting the teacher a preliminary injunction May 9, 2022, and ordered the injunction to terminate on May 18, 2022, or at the conclusion of the teacher’s contractual obligation to the district.

The teacher had informed the court that she was not returning to work the following year. In granting the injunction the Court found that based on the evidence presented at the preliminary injunction hearing that the teacher was likely to succeed on her free exercise of religion claim for the Communication with Parent Policy.

Case settled

Following the granting of the injunction, the case never went to trial, was settled out of court and then dismissed. The case was never litigated.

In his letter Mr. Kobach states: “On the specific issue of teachers being forced to conceal students’ transgender status from their parents, the U. S. District Court for the District of Kansas has already applied this constitutional right and enjoined the Geary County school district’s policy.

In his letter Mr. Kobach states: “The court also held that the policy would violate the teacher’s First Amendment right not to violate her religious beliefs.”

In his letter Mr. Kobach states: “In Ricard v. USD 457 Geary County School Board, the court held that “it is illegitimate to conceal information from parents for the purpose of frustrating their ability to exercise {their} fundamental right” to direct the education and upbringing of their child.

What the court actually said was: “Because it is illegitimate to conceal information from parents for the purpose of frustrating their ability to exercise a fundamental right, there are real questions whether the District’s claimed interests in the Communication with Parents Policy-broadly written as it is-would satisfy even the rational basis standard that would govern if the rule were neutral and generally applicable.”

Mr. Kobach statements are suspect. The court during its analysis of the facts did make findings that favored the teacher in the absence of other evidence to be presented at trial. But the court entered only one relevant order pending trial.

The court ordered: “that Defendants are enjoined from disciplining Plaintiff for referring to a student by the student’s preferred name and pronouns in her communications with the student’s parents within the regular course of her duties. The Court relies on Plaintiff’s statements that she does not intend to communicate with a parent for the sole purpose of disclosing a student’s preferred name and pronouns. This injunction terminates on May 18, 2022, or at the conclusion of Plaintiff’s contractual responsibilities to the District, whichever is later”.

After reading the memorandum and order of the Court in the Ricard case and the three articles in the paper, Mr. Kobach has completely convinced me that he is only motivated by political gain.

What Mr. Kobach has realized through his examination of this issue is that children’s rights do not include the right to vote.

We have elected as attorney general a politician. There was no legitimate reason for Attorney General Kobach to become involved in this controversy and pick a side in the way that he did.

If he wants to be a lobbyist he should resign and register as one.