Two Flagler County School Board members don’t mind that the University of North Florida wants to override an agreement with the district that the School Board already unanimously approved two months ago. Or that the reason UNF wants the override is to excise “sexual orientation” from a list of protected classes in the agreement’s non-discrimination clause.
“There’s no reason why we should discriminate against anybody,” Christy Chong the board’s chair, said, before ridiculing more specific non-discrimination clauses: “Where do we draw the line? I mean, I could identify as Chinese, but that doesn’t make me Chinese, right? Like, so I mean, but I don’t see an issue here making a big deal out of it.” (Chong three years ago demanded that an LGBTQ “safe space” sign at Matanzas High School be removed.)
“Our policy does not include ‘sexual orientation’ in our discrimination clause, right?” Board member Will Furry said. “So then what is the argument here? I’m failing to understand why this is an issue.”
The two board members had a point. But there was a larger context to UNF’s deletion, including its arbitrariness, its removal of a federally protected class, and the fact that the agreement had already been voted on. The discussion surrounding the wording at last week’s workshop underscored the different ways members of the School Board interpret discrimination and how legally to protect students and others against it.
Two months ago at a Flagler County School Board workshop, Toussiant Robertson, the district’s director of organizational talent, briefed the board on the renewal of an agreement with the University of North Florida that would enable the college’s students to have teaching and counseling internships in Flagler schools.
There was nothing controversial about it. The agreement had drawn few students before (interns are likelier to come from Daytona State College), but the opportunity is there. “These schools are starting to get smaller and smaller. So there are fewer and fewer students in these schools,” Robertson said. “So for us to be in a situation where we’re getting more and more universities that want to work with us, that’s a very positive thing.”
Board member Lauren Ramirez said the program makes the district “look great” and called internship programs a “great story” that opens the way for students to come back as teachers. Furry proposed a “playbook” to encourage students to come back as teachers.
Two weeks later at a board meeting Ramirez made the motion to approve the agreement. Furry seconded. The motion carried unanimously. “Sexual orientation” included.
The vote seemed irrelevant to UNF. The agreement was back before the School Board at last week’s agenda workshop. “They had a material change that came up after the fact,” Human Resources Director Josh Walker told the board.
The April agreement’s nondiscrimination clause required that “neither party shall discriminate against any person on the basis of age, race, color, religion, gender, sexual orientation, national or ethnic origin, disability or veteran or marital status.” The document that appeared before the Board last week had removed “sexual orientation.”
That surprised Board members Janie Ruddy and Lauren Ramirez. “Is sexual orientation a protected class? Why would they remove that from the non-discrimination portion?” Ruddy asked.
Spence Smith, the attorney for the district, described UNF’s deletion as “policy based. They didn’t cite any statutes or change statutorily or administrative rule, so it’s really something that they requested.” He added: “Just because it’s not in there doesn’t mean now you can do it.”
“They made a point of it, and that’s concerning, and it doesn’t align with our policies,” Ruddy said, raising the possibility of rejecting the deletion.
Ramirez had concerns about how the removal would impact the district’s enforcement of its own policies. “It appears that we still override, no matter what,” she said. “That’s my interpretation. So, if that is correct, then it wouldn’t matter if they removed that wording or not. But if it’s not correct, then I’m wondering if we could be liable.”
None of the board members referred to last April’s vote enacting the agreement, or that UNF was asking for a change after the fact. David Delaney, the school board’s attorney, said district policies would in fact override UNF’s regardless, and that sexual orientation remains a protected class under federal law. Florida law does not refer to sexual orientation specifically, but to “sex” as it relates to gender.
“State law can be broader and more protected than federal law, but it can’t run counter to federal law,” Delaney said. “The term ‘sex’ on the federal level has been interpreted to include protection in things like marriage and housing and employment to protect sexual orientation, but not necessarily in every single circumstance and at all times. I’m thinking of things like certain businesses and whether they have to agree to cater a wedding where two people of the same sex are getting married. So there are protections on the federal level that would apply in Florida, but they are not comprehensive in all circumstances to sexual orientation.”
“Would UNF understand that a school board’s policy supersedes this MOU?” Ruddy asked, referring to the memorandum of understanding. The university would have to, Smith, the other lawyer in the room, said. “So what is the point of removing it?” Smith had no explanation, saying only that UNF did not cite any authority for the removal.
The Flagler district’s non-discrimination policy does not refer to “sexual orientation,” but does refer to “sex discrimination,” in the broader sense that Delaney applied. (The board in December 2020 had adopted an amendment protecting “gender identity,” a nod to transgender students. The board has since quietly deleted that protection.)
When Chong noted that any kind of discrimination is unacceptable, Ruddy agreed, “but that’s where things like this are required in order to support that and protect our students that may be participating in these or former students that may be participating in these programs.”
Ramirez pointed to the section of the same contract with UNF that explicitly defers to Flagler school district policy, only for Furry to claim that “our policy does not have this. It is not like our policy had this, and they’re removing it on their end. It actually brings it more in alignment with our current policy.”
Not exactly: The district’s non-discrimination policy specifically refers (and implicitly defers) to state or federal “protected classes,” including sex in Delaney’s definition, and with more specificity than does the UNF agreement.
Ruddy said it wasn’t UNF’s agreement alone, but a joint agreement between UNF and the district. “This is more akin to an employment relationship, and therefore we should ensure that it’s matching across the board those other employment MOUs that we have with these organizations,” she said. Ruddy called for an agreement consistent with other district memorandums of understanding, while still preferring to see the original language preserved.
The board is expected to vote on the revised agreement at its June 23 meeting, which raises a question the discussion on June 9 did not address: since the board already approved the agreement in April, and based on its own procedures, it would first have to vote to scrap that decision before moving on to the revised agreement, and for that would need a majority of three votes–as it would to adopt the revised agreement.
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