In a little-noticed development, the Delaware Department of Education last month released a draft model anti-discrimination policy for the state’s public and charter schools that includes strong protections for LGBT students.
Among other things, the proposed policy and an accompanying draft regulation would require schools to “work with students and families on providing access to locker rooms and bathrooms that correspond to the students’ gender identity or gender expression.”
In the area of team sports in the state’s public and charter schools, the draft regulation states, “A student shall have the opportunity to participate on the team that is consistent with the student’s gender identity regardless of the student’s assigned sex at birth.”
Despite this language, Alison May, a spokesperson for the state Department of Education told the Blade in an email on Wednesday, “Neither the draft regulation nor the draft model policy requires that students be allowed to use a locker room or bathroom that corresponds to their gender identity.”
In a July 17 memorandum, Delaware Gov. John Carney (D) directed the state’s education department to develop the school nondiscrimination policy and called for it to be published for public comment by Nov. 1.
The department appears to have completed that task on Sept. 26, when it posted the draft policy and regulation documents on its website. It also announced that the department was holding “community conversation” meetings this week in each of the state’s three counties and the city of Wilmington to obtain public input on the two documents.
“Every student should be able to learn, achieve, and grow without unlawful discrimination based on their appearance, gender, race and/or ethnicity, gender identity or expression, sexual orientation, or any other protected characteristic,” Carney said in his July 17 memo.
“I hereby direct the Department, in conjunction with stakeholders across our state, to promulgate, through regulation, clear guidance to our school districts and charter schools to prohibit discrimination in educational programs, and activities for students, on the basis of any legally protected characteristic,” Carney states in the memo.
Although he didn’t say so directly, Carney was referring to the state’s sweeping anti-discrimination law that, among other categories, bans discrimination based on sexual orientation and gender identity.
The Delaware education department’s website shows that Carney appointed a 15-member Anti-Discrimination Development Team consisting of community advocates and public school officials from across the state to “review, advise and provide feedback” on the draft anti-discrimination regulation and model policy.
Among those Carney appointed to the advisory body are Delaware gay rights attorney and Equality Delaware official Mark Purpura and Wilmington activist Andrea Rashbaum, who is the mother of a transgender high school student.
Also named to the advisory panel was Cape Henlopen School District Superintendent Robert Fulton, whose district includes schools in the cities of Lewes and nearby Rehoboth Beach, where large numbers of LGBT people live and visit in the summer months.
Fulton came under fire from LGBT students and their parents earlier this year after knowledgeable sources reported he forced LGBT supportive teacher and theater department director Martha Pfeiffer to resign from her job at Cape Henlopen High School. Students and parents have said they believe Pfeiffer was forced out because she aggressively pushed LGBT supportive positions in her role as head of the school’s Gay-Straight Alliance Club.
Fulton declined to comment on the reason for Pfeiffer’s departure, saying it was a personnel matter that could not be discussed publicly under school privacy rules.
In response to complaints by LGBT students about bullying and harassment at Cape Henlopen High, Fulton created an advisory committee of community activists, including LGBT members, to address the students’ concerns.
Linda Gregory, president of the Lewes-Rehoboth chapter of the national LGBT parents group PFLAG, said Fulton “sounded very supportive” of LGBT student concerns at the most recent meeting of the Cape Henlopen advisory committee.
Gregory said there has been a “ton of publicity” about the state’s Department of Education Community Conversation meeting scheduled for Thursday, Oct. 5, for Rehoboth and Lewes area schools in Sussex County. The meeting was to take place at Sussex Central High School in Georgetown, Del.
Sal Seeley, an official with CAMP Rehoboth, the LGBT community center and advocacy group in Rehoboth Beach, said “lots” of CAMP Rehoboth members and supporters were planning to attend the Georgetown meeting.
Purpura told the Washington Blade last month that the proposed anti-discrimination policy for schools throughout the state came at a time when the Cape Henlopen School Board continued to ignore repeated calls that it add protections for transgender students to its existing nondiscrimination policy.
“So my feeling is that the school board is not taking the issues seriously at all, because the nondiscrimination policy would be the very first step if it were,” he said.
Purpura’s concern is shared by other LGBT rights advocates across the state, who have expressed concern that Carney’s office and state Department of Education spokespersons have yet to say what, if any, steps they would take if local school boards and school districts refuse to adopt the draft nondiscrimination policy and regulation.
Mitch Crane, a retired Pennsylvania judge and longtime gay Democratic activist in Delaware, said he was hopeful that a significant number of Delaware school districts and locally elected school boards would adopt the draft nondiscrimination policy but noted they could not be forced to do so.
“It’s already state law,” he said. “The state law prohibits discrimination based on sexual orientation, and gender identity was added four years ago,” he noted. “School boards have some autonomy but they cannot go against state law. And this is the law,” he said.
Crane, who is the former Democratic Party Chair in Sussex County, said that despite the reputation of Rehoboth Beach and Lewes as progressive, pro-LGBT enclaves, the majority of Sussex residents are conservative and Republican leaning who voted for Donald Trump for president last year.
With that as a backdrop, Crane said it is uncertain whether the Cape Henlopen School Board and other nearby school boards would initiate on their own a nondiscrimination schools policy as sweeping as the one proposed by the state education department.
“So they would probably be happier to see a state policy adopted and the state telling them what to do,” he said. “They can protest it and then say we have no choice but to honor it. That’s what some politicians do. They blame somebody else but they’re happy it got done. They just don’t want to do it themselves.”
If the local school districts and school boards refuse to adopt the proposed nondiscrimination policy developed by the state, students encountering discrimination would still have the option of filing a discrimination complaint with the state’s Human Relations Commission, which is charged with enforcing the state nondiscrimination law.
But LGBT rights advocates have said a school nondiscrimination policy is preferable because incidents of discrimination could be addressed quickly by school officials, making it unnecessary for students and others encountering discrimination seek help from the state.
Carney and the Secretary of the Department of Education, Susan Bunting, said a final version the proposed nondiscrimination policy would be completed after the public comment period ends in November.