LETTER: Greenwich Board of Education Fails to Follow the Law with Title IX Policy

Submitted by Jennifer Barro, Greenwich

Republican members of the Greenwich Board of Education (BOE) recently blocked adoption of a Title IX policy for students citing a desire to retain flexibility to discriminate against transgender athletes and potentially prohibit trans athletes from participating on girls’ athletic teams. 

According to testimony from outside counsel at the January 20 BOE meeting (time stamp 2:03:29), federal and state law require that the board adopt and disseminate Title IX policy protecting students and staff against sex discrimination and sexual harassment, as well as outline claim reporting procedures and training for personnel. The US Department of Education clarified in 2021 that Title IX specifically includes protections against discrimination on the basis of sexual orientation and gender identity, thus schools are not permitted to exclude transgender athletes from teams.

The BOE did pass a policy covering discrimination and harassment in the workplace (for personnel) but the proposed Title IX policy for students failed by a four-to-four vote along party lines, with Republicans opting to leave students without codified protections. Dissenting board members acknowledged their understanding of existing law and openly chose noncompliance. According to statements from outside counsel, to not have a policy would be legally problematic, leaving the district open to potential action from the US Department of Education, Connecticut State Board of Education, Connecticut Interscholastic Athletic Conference (CIAC), individual plaintiffs, and even the Department of Justice.  

When the Title IX policy item was raised for discussion, Vice-Chair Karen Kowalski stated, “I have no problem with not committing sexual discrimination.” Her objection, as she described while citing her experience being a woman who played sports and also having daughters, was with students “biological male and transitioning” being allowed to play on girls’ sports teams.

“I am not going to stand for it. I don’t care if it’s Connecticut law,” she stated with audible emotion in her voice. She suggested that others are probably as offended but are not bold enough to speak out. She later queried whether the proposed Title IX policy could be amended to allow case by case discrimination based on gender identity, but such a policy would not be in line with current law. Ironically, Kowalski claims to be protecting girls while she is blocking implementation of policy and procedures that would make students aware of their rights and resources for redress.

New board members, Cody Kittle and Michael-Joseph Mercanti-Anthony, probed what might happen if the BOE declined to approve any policy, with Kittle suggesting that failing to approve the policy would not suddenly make sexual harassment legal. He argued that the board could reassess down the road if failure to have a policy started “costing too much with lawyers.” Who might be footing the bill for those lawyers?

Board member Joe Kelly, added that he understands that it is the law but can’t agree with it, citing his sports experience, his three daughters, and having a wife who is an athlete and “passionate against this topic.” He noted that he believes he is a voice for the underrepresented but does not think it is safe or fair (to have transgender athletes on female teams).  After hearing outside counsel repeatedly tell the board they must be in compliance with state and federal law, Kelly said he was confused, is not a lawyer, and does not want to get himself in trouble, alluding to visions of a “perp walk.”  Kelly went on to vote against the student Title IX policy.

Board members in support of the policy focused on needing to protect the majority of students, to be in compliance with state and federal law, as well as to avoid legal exposure. Members argued that sexual harassment and sex discrimination are frequent occurrences, while transgender athletes wanting to compete on a sports team is an infrequent scenario. Board member Christina Downey mentioned that Dr. Toni Jones, the superintendent, had relayed to their committee that there have already been questions asked by students, their counsel, and their parents about the district policy regarding harassment and discrimination.

Counsel emphasized that the board acts as an entity when it adopts policy and the policies do not necessarily reflect values or beliefs of individual board members. Further, there is room for the board to modify its policy if relevant laws were to change in the future.  

When asked about other school districts, counsel replied that she is not aware of any other Connecticut district that has failed to adopt a policy in compliance with current Title IX regulations.

This vote sends a message that the Republican BOE members are willing to flout federal and state law in deference to their personal bias and feelings, that they believe codifying protections for students is not that important, and that singling out transgender students for discrimination might be acceptable to them despite clear federal and state protections. If this board is not willing to be guided by what is best for our students, they should at least be guided by the law.