Ray Carter | April 25, 2022

Hofmeister sends mixed messages on bathroom policy

Ray Carter

A spokesperson for State Superintendent of Public Instruction Joy Hofmeister now says transgender bathroom policies are subject to local control in public schools and not mandated by any court ruling, apparently contradicting a prior statement from Hofmeister’s office.

The spokesperson has also indicated officials in the Stillwater school district misled the public by citing Oklahoma State Department of Education (OSDE) guidance in defense of that district’s policy of allowing boys to use the girls’ bathrooms.

And, at the same time, Hofmeister has suggested in a formal letter that passage of a state law banning boys from competing in girls’ athletic events shows state lawmakers nonetheless signaled their intent to allow boys to use the girls’ restrooms in public schools.

The apparently contradictory statements from Hofmeister’s office come amid controversy over the Stillwater school district’s policy allowing boys to use girls’ bathrooms if they claim to identify as transgender females, and amid public calls for Hofmeister to advance statewide regulations on the school-bathroom issue via her position as head of OSDE and chair of the State Board of Education.

In a recent email to district parents, Stillwater Superintendent Gay Washington said the school’s bathroom policy is based in part on “several legal provisions and court decisions provided to the district by the Office of Legal Services at the Oklahoma State Department of Education that explain why all public school students are entitled to equal access to educational programs, which includes facilities.”

On April 6, the Oklahoma Council of Public Affairs (OCPA) sought comment from Hofmeister’s office, noting that Washington’s comments contradicted a separate report from a Stillwater citizen who said Hofmeister’s office confirmed that school bathroom policy is set locally.

OCPA’s request for comment asked, “Does Superintendent Hofmeister believe the law requires schools to provide bathroom access based on a student’s gender identity, or is that still a policy left in the control of local officials?”

On April 7, Carrie Burkhart, executive director of communications for the Oklahoma State Department of Education, responded that she was not aware of any interaction with the Stillwater citizen, but continued, “The school district did reach out to the department’s office of legal services, however, which affirmed that legal precedent has addressed the need for equal access, including facilities. In the 2020 Fourth Circuit Court of Appeals case of Grimm v. Goucester County School Board, the appellate court ruled that a district cannot prohibit transgender persons from using bathrooms that affirm their gender. That decision was subsequently appealed to the U.S. Supreme Court, which last year declined to hear the case. Other district court cases around the nation have had similar rulings.”

(Oklahoma is not part of the Fourth Circuit Court of Appeals, meaning the referenced ruling is not binding for state schools.)

At no point did the April 7 statement indicate Hofmeister believes the bathroom issue remains one of local control in school districts.

But in an April 14 email to the Hugo News, Burkhart wrote, “Supt. Hofmeister has not changed her stance on this issue since 2016, when she criticized the U.S. Department of Education for attempting federal overreach on the same topic. School districts have local control to make such policy determinations on their own, and Supt. Hofmeister stands by this.”

Burkhart sent a similar email to the McCurtain Daily Gazette on April 12 that also indicated Stillwater school officials had misled local citizens regarding OSDE’s guidance, and the statement downplayed the agency’s role in offering legal direction to schools.

In that statement, Burkhart wrote, “Supt. Hofmeister believes and has said that school districts have local control to make such policy determinations on their own. An Oklahoma school district had requested resources from the Oklahoma State Department of Education (OSDE), which Supt. Hofmeister leads, relating to that district’s transgender-use bathroom policy. The OSDE, which does not provide legal advice or representation to districts, was clear that districts have the authority to make such decisions for themselves. Supt. Hofmeister’s stance has not changed since 2016, when she criticized the U.S. Department of Education for attempting federal overreach on the same topic.”

Amid the controversy over the Stillwater policy and the legal guidance reportedly offered by OSDE to the district, Oklahoma Attorney General John O’Connor sent a letter to the Stillwater district that plainly stated, “No legal precedent currently requires Oklahoma schools to open women’s restrooms and locker rooms to biological males, or vice versa …”

Oklahoma Secretary of Education Ryan Walters also sent a letter to the Stillwater district saying the district’s legal arguments were baseless.

At the Stillwater Board of Education’s April meeting, the board passed a resolution declaring it would not change its bathroom policy unless given “no choice” by state officials.

In defending its policy, the Stillwater board’s resolution again stated that OSDE had provided the district with “non-binding legal authorities in support of the district’s practice to permit students to use restroom facilities that align with their gender identity.”

The Stillwater Board of Education resolution acknowledged the letters from O’Connor and Walters, but claimed the information provided by OSDE “is inconsistent with the information received from the State Secretary of Education and the State Attorney General.”

The Stillwater board resolution then asked OSDE and the State Board of Education to effectively strip districts of local control on the issue and instead “promulgate an emergency rule that provides clear directives to all Oklahoma public school districts concerning the use of student restrooms.”

So far, Hofmeister has declined to take that action.

Instead, in an unusually timed press release issued on Saturday, April 23, Hofmeister announced she was requesting a formal opinion from the attorney general, despite O’Connor’s prior public letter.

Hofmeister’s release said that “appellate court decisions throughout the country have largely weighed in that the rights of transgender students are ensured by Title IX,” but conceded that “no legal precedent currently exists in Oklahoma’s jurisdiction.”

Hofmeister’s request to O’Connor posed several questions, including, “What, if any, law requires local educational agencies to prohibit students from using the restroom facilities that align with their gender identity?”

She also suggested the recent passage of Senate Bill 2, which bans boys from competing in girls’ sporting events in Oklahoma, shows that state lawmakers intended to allow schools to grant boys access to girls’ bathrooms at public schools based on self-proclaimed gender identity.

“Does the mention of athletic teams but exclusion of other programs or areas of school district operations demonstrate legislative intent to not prohibit students from using the restroom facilities that align with their gender identity?” Hofmeister asked.

Hofmeister’s effort to delay any State Board of Education action on the bathroom issue drew criticism from Walters, who is also a candidate for state superintendent this year.

“Hofmeister has gone woke,” Walters tweeted. “This is well within the department’s purview. For years Hofmeister has masqueraded as a Republican, but in reality she is no better than the worst bureaucrat or politician.”

Walters continued, “She refuses to lead and refuses to address the concerns around the radical rules in Stillwater. Oklahomans deserve someone in this office that is putting students’ safety first, not selling out to radicalism.”

Last year Hofmeister switched parties. She is currently seeking the Democratic Party’s gubernatorial nomination.

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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