December 4, 2023

Tracy Dorland The Jefferson County

Superintendent of Jefferson County School Board:
Public Schools
[email protected] Michelle Applegate
[email protected]

Mary Parker
[email protected]

Erin Kenworthy
[email protected]

Danielle Varda
[email protected]

Paula Reed
[email protected]

Dear Superintendent Dorland and Jefferson County Public School officials,

In the summer of 2023, on a cross-country overnight trip, Jefferson County Public

Schools (JCPS) assigned a fifth-grade girl to sleep in the same bed with a fifth-grade
boy who identifies as transgender without notifying the girl or her parents. The girl
only found out because the boy who identifies as transgender told her on the first
night of the trip. It then took the girl and her parents multiple requests to get her
moved to another room. And even then, chaperones told the girl to lie about the reason
for her move because of the district’s overnight rooming policy—a policy that violates
parental rights and student privacy by rooming students based on gender identity
while hiding that information from other parents and students.

Every child should be treated with respect and privacy. But that respect and
privacy must extend equally to all students. JCPS’s overnight rooming policy does
the opposite. JCPS’s policy states that “students who are transgender should be
assigned to share overnight accommodations with other students that share the
student’s gender identity consistently asserted at school.” See JCPS, JB-R (2013)
http://go.boarddocs.com/co/jeffco/Board.nsf/goto?open&id=9DH3J76E6966. The
policy goes on to command that “[u]nder no circumstance shall a student who is
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December 4, 2023
Page 2

transgender be required to share a room with students whose gender identity

conflicts with their own.” Id. However, the policy says nothing about a girl being
required to share a bed with a boy who identifies as transgender. This policy and
practice violates the sincerely held religious beliefs of our clients and their children,
the parental rights of them and other parents in your district, and the privacy rights
of all students

We, Alliance Defending Freedom (ADF), represent the girl, D.W., and her
parents, Joe and Serena Wailes. The Waileses currently have two other children in
JCPS, scheduled to go on that same Philadelphia and Washington D.C. trip. The
Waileses ask that you immediately clarify JCPS policy; specifically, whether JCPS
will continue this practice of intentionally withholding information about rooming
accommodations from parents like the Waileses, who object to their children rooming
with a student of the opposite sex, regardless of the other student’s gender identity.
This practice renders it impossible for these parents to make informed decisions
about their children’s privacy, upbringing, and participation in school-sponsored
programs. Additionally, our clients request information related to JB-R and the
ability to opt out of this rooming policy for all future school trips.

ADF shares our clients’ concerns. By way of introduction, ADF promotes the
freedom of every person to live out their religious convictions in the public square and
is dedicated to ensuring freedom of speech, religious freedom, and the fundamental
right of parents to direct the upbringing of their children. We have a track record of
success.1 We are hopeful that we can resolve this matter amicably.

1 Alliance Defending Freedom has consistently achieved successful results for its clients before the
United States Supreme Court, including 15 victories before the highest court in the last 12 years. See,
e.g., 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (upholding ADF client’s First Amendment rights);
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (served on Mississippi’s legal team to
defend the Mississippi Gestational Age Act); Ams. for Prosperity Found. v. Bonta; Thomas More Law
Ctr. v. Bonta, 141 S. Ct. 2373 (2021) (upholding donors’ First Amendment rights); Uzuegbunam v.
Preczewski, 141 S. Ct. 792 (2021) (student free speech); March for Life Educ. & Def. Fund v. California,
141 S. Ct. 192 (2020); Thompson v. Hebdon, 140 S. Ct. 348 (2019) (overturning ruling upholding a law
limiting political contributions); NIFLA v. Becerra, 138 S. Ct. 2361 (2018) (upholding ADF’s client’s
free-speech rights against California); Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct.
1719 (2018) (upholding ADF’s client’s First Amendment rights); Trinity Lutheran Church of Columbia,
Inc. v. Comer, 582 U.S. 449 (2017) (upholding ADF’s client’s First Amendment rights); Zubik v.
Burwell, 578 U.S. 403 (2016) (representing Geneva College and Southern Nazarene University in
consolidated cases) (upholding ADF’s clients’ First Amendment rights); Reed v. Town of Gilbert, 576
U.S. 155 (2015) (unanimously upholding ADF’s client’s free-speech rights); Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682 (2014) (representing Conestoga Wood Specialties Corp. in consolidated case)
(striking down federal burdens on ADF’s client’s free-exercise rights); Town of Greece v. Galloway, 572
U.S. 565 (2014) (upholding a legislative prayer policy promulgated by a town represented by ADF);
Superintendent Dorland
December 4, 2023
Page 3

Factual Background

In June 2023, D.W. attended the JCPS-sponsored fifth-grade trip to

Philadelphia and Washington, D.C. Serena accompanied her daughter D.W., but she
was not a chaperone. The Wailes family was told at multiple parent meetings prior
to the trip that female and male students would be roomed on different hotel floors,
and on the trip the students were told by JCPS chaperones that boys were not even
allowed to visit the girls’ floor and vice versa without permission. D.W. was assigned
to a room with three other students, two from her school and one from a different
school, K.E.M., whom D.W. did not know prior to the trip. D.W. and K.E.M. were
supposed to share a bed. Because she did not want K.E.M. to feel left out, D.W. made
a point to be friendly throughout the first day of the trip.

The first evening, after the four students were in their room, K.E.M. revealed
that K.E.M. was a male with a transgender gender identity. D.W. was immediately
uncomfortable with the prospect of sharing a room and a bed with a male, regardless
of the student’s gender identity. D.W. snuck into the bathroom, which did not lock,
and quietly called her mother, Serena. D.W. then met her mother in the lobby to share
her concerns. Prior to the trip, no one at JCPS informed the Waileses or D.W. that
her room would include a male who identified as transgender. In fact, JCPS told them
just the opposite: that male and female students would stay on separate floors.

Next, Serena asked a school chaperone, a teacher at D.W.’s school, to come to

the hotel lobby. After listening to Serena and D.W.’s concerns, the teacher called one
of the trip leaders, Principal Ryan Lucas, who in turn called K.E.M.’s parents.
K.E.M.’s parents confirmed their child’s transgender gender identity and that K.E.M.
was to be in “stealth mode,” meaning students on the trip would not know about their
child’s transgender status.

The trip chaperones then asked D.W. if they could merely move her to a
different bed rather than a different room. While D.W. was still uncomfortable with
this arrangement, she agreed to try it for one night because she was tired after a long
travel day. JCPS chaperones decided to lie to D.W.’s roommates, and instruct D.W.
to do the same, telling D.W. to say she needed to switch beds to be closer to the air
conditioner. But once the chaperone and D.W. were back in the room with the other
three students, D.W. was again placed into a difficult position when another girl in
the room offered to let K.E.M. also switch to the bed near the air conditioner, asking,
“[K.E.M.], do you still want to sleep in the bed with [D.W.]?” Despite D.W.’s continued
uneasiness with the arrangement, she was scared to speak up in front of the other
students on such a contentious subject. Instead, D.W. went into the hall and again

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) (upholding a state’s tuition tax credit
program defended by a faith-based tuition organization represented by ADF).
Superintendent Dorland
December 4, 2023
Page 4

told Serena she was uncomfortable. Serena and D.W. returned to the school
chaperone and again asked for D.W. to be moved to a different room. This time, the
chaperones agreed to move K.E.M. and one other girl to a different room but again
lied about why, saying D.W.’s sick roommate needed more space. Throughout the
entire evening, K.E.M.’s privacy and feelings were always the primary concern of
JCPS employees.

After JCPS disregarded D.W.’s privacy and the Waileses’ parental rights,
JCPS then silenced D.W., thus infringing on her freedom of speech, when a JCPS
teacher told the three girls that they were not allowed to tell anyone that K.E.M. was
transgender, even though K.E.M. voluntarily chose to share this information.

JCPS’s “Transgender Students” Policy

JCPS’s policy and practice is to room students based on gender identity rather
than sex “[i]n most cases.” See JCPS JB-R at 3. JCPS’s policy declares that “the needs
of students who are transgender shall be assessed on a case-by-case basis with the
goals of maximizing the student’s social integration, providing equal opportunity to
participate in overnight activity and athletic trips, ensuring the student’s safety and
comfort, and minimizing stigmatization of the student.” Id. The policy then states
that “[u]nder no circumstance shall a student who is transgender be required to share
a room with students whose gender identity conflicts with their own.” Id. The policy
also explicitly requires school officials to keep a student’s transgender status a secret:
“[s]chool staff shall not disclose information that may reveal a student’s transgender
status to others, including parents and other school staff, unless legally required to
do so or unless the student has authorized such disclosure.” Id. at 2.

We are concerned with the unequal application of these policies in practice.

The policy is supposed to “maintain[] the privacy of all students,” Id. at 1, and allow
for “[a]ny student who is transgender or not” to be “provided with a reasonable
accommodation,” including a “private room.” Id. at 3. But in practice, JCPS does not
provide this same opportunity to students like D.W., who do not wish to room with a
student of the opposite sex, nor to parents like the Waileses, who would like to know
whether JCPS intends to require their daughter to share a room with a boy. While
K.E.M.’s parents had all the information and could make informed decisions about
where and with whom K.E.M. would room, D.W.’s parents and the parents of the two
other girls, were intentionally kept in the dark.

Because of JCPS’s policy, eleven-year-old D.W. was placed in a position where

her privacy and comfort were not respected or even considered. Her privacy was
violated. And then, to try to protect her privacy, D.W. had to risk social ostracization
because school officials required her to raise her privacy concerns during the trip and
in front of other students and teachers, including the transgender student. Because
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December 4, 2023
Page 5

JCPS’s policy prioritizes the “safety and comfort” of only transgender students to the
exclusion of all other students, there was no way for D.W.’s parents to request an
accommodation prior to the trip so they could protect D.W.’s privacy and “minimiz[e]
stigmatization” of D.W. Therefore, an eleven-year-old child was placed in a position
where she feared social backlash if she requested a different room in front of other
students.

This current policy and practice violate the constitutionally protected parental
rights of the Waileses and other parents in your district. The Supreme Court has
recognized “the fundamental right of parents to make child rearing decisions.” Troxel
v. Granville, 530 U.S. 57, 72–73 (2000) (plurality op.). In fact, parents’ right “to direct
the education and upbringing of [their] children” is “objectively, deeply rooted in this
Nation’s history and tradition.” Washington v. Glucksberg, 521 U.S. 702, 720–21
(1997) (cleaned up); see Wisconsin v. Yoder, 406 U.S. 205, 232–33 (1972). Indeed,
“parents have the right to decide free from unjustified governmental interference in
matters concerning the growth, development and upbringing of their children.”
Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir. 1990) (quoting Arnold v. Board
of Educ. of Escambia Cnty., 880 F.2d 305, 313 (11th Cir. 1989)); see Prince v.
Massachusetts, 321 U.S. 158, 166 (1944) (“[T]he custody, care and nurture of the child
reside first in the parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.”).

Applying parents’ fundamental rights in a different but related context, a

Wisconsin state trial court recently granted summary judgment to a family2 who
challenged a school district’s decision to treat their daughter as a boy without
notifying her parents. T.F. v. Kettle Moraine Sch. Dist., No. 2021CV1650, 2023 WL
6544917, at *10 (Wis. Cir. Ct. Oct. 3, 2023). The court determined the school district’s
actions “implicate[] an infringement against the parental autonomy right to direct
the care for their child.” Id. at *5.

Because “[m]ost children, even in adolescence, simply are not able to make
sound judgments concerning many decisions . . . Parents can and must make those
judgments.” Parham v. J.R., 442 U.S. 584, 603 (1979). But when schools withhold
information from parents—like JCPS has done to the Waileses here—parents cannot
make good choices about their children’s education and well-being. Gruenke v. Seip,
225 F.3d 290, 306–08 (3d Cir. 2000) (finding a constitutional violation after a teacher
withheld information about a student’s pregnancy from her parents).

Similarly, JCPS’s policy and practice, which intentionally hides information

from parents, directly interfered with the Waileses’ ability to make sound judgments

2 Represented by ADF and the Wisconsin Institute for Law & Liberty.
Superintendent Dorland
December 4, 2023
Page 6

for D.W. When JCPS kept K.E.M. in “stealth mode,” it failed to protect the privacy of
all students. Specifically, the Waileses could not make informed decisions about
whether to send D.W. on the trip and whether they needed to request an
accommodation. In other words, “the means adopted” by JCPS to implement this
Policy “exceed the limitations upon the power of the state and conflict with rights
assured to plaintiff[s].” Meyer v. Nebraska, 262 U.S. 390, 402 (1923). Instead, JCPS
could have chosen a means that protects the privacy of all students by asking parents
to opt-in to rooming with a student who identifies as transgender. Or JCPS could ask
for a parent’s permission for their child to room with a student who identifies as
transgender without giving out any child’s identity.

Conclusion

Joe and Serena Wailes have two fourth-grade children who are registered to
attend a trip to New York, Washington, D.C., and Philadelphia next year. The
planning and fundraising for the trip have already begun. Therefore, by 6:00 p.m. on
December 18, 2023, please respond in writing with:

1. Clarification of your policy regarding room assignments for students and

state whether parents of all students will be informed of the sex of their children’s
roommates on school-sponsored trips before the trip;

2. Whether parents can opt their children out of any policy that rooms children
by gender identity rather than sex; and

3. Any documents related to JB-R, including related policies, training

materials, emails discussing JB-R, and documentation of previously granted
accommodations.

We also expect assurances that any such clarification be included in the

written policy going forward.

Respectfully submitted,

__________________________
Katherine L. Anderson
Sr. Counsel, Director of the Center for
Parental Rights