Westerly School Committeemember advocates defying RIDE guidance of transgender student athletes
“At the last meeting,” said Westerly School
Committee Attorney William Nardone on Wednesday,
“there was a suggestion that I give a ‘presentation’ on executive orders. I’ve
decided not to do that. I’m going to give you a general overview of what
executive orders are and what they’re not, what the process is, and what the
effect is.”
Yeah, follow Trump's orders
Attorney Nardone then launched into a simplified explanation
of executive orders. What Attorney Nardone did not say, but was on the minds of
the six school committee members in the room, was that the question he was
answering in general terms was particularly about Donald
Trump’s executive
order banning trans children and young people from participating
in sports in alignment with their gender identity.
Attorney Nardone’s presentation was extremely basic. For
example:
“The first presidential executive order was issued by George
Washington, so it’s been around a long time,” said Attorney Nardone.
“Typically, executive orders are issued by the head of the executive branch of
the government, whether that government is the United States, the State of
Rhode Island, or the Town of Westerly… An executive order is a way for the
[chief executive] to sidestep the legislative branch of the government. You’ve
got three branches of government: executive, legislative, and judicial…”
Because it is important to the following discussion, I will
note that Attorney Nardone also said, “Executive orders cannot create new law
or amend or repeal current laws.”
I’m placing the rest of Attorney Nardone’s presentation in
this footnote.1
The school committee had a brief discussion after Attorney
Nardon’s presentation:
Committeemember Angela Goethals: You said that executive orders cannot create law or change existing law. So, if an executive order is in conflict with a state law, would the executive order be attempting to change an existing state law?
Attorney William Nardone: That’s a determination
that I can’t make. It will typically result in a court procedure. But unless
that court procedure includes a request for an injunction to stop the
effectiveness of the order, it is in effect until the court’s decision is made.
Committeemember Peter Nero: So, I’m just going
to say this: One of the big things we’re looking at is transgender athletes,
and my understanding is that the U.S. Supreme Court is going
to have that on its docket for the next session. It’s going to be the Supreme
Court that makes a decision on that.
Attorney Nardone: They are the final arbiter.
And no disrespect to the United States Supreme Court, but they’re not last
because they’re right, they’re right because they are last.
Committeemember Nero: Based on their decisions
over the last year, we know where that will go, anyway.
Committeemember Michael Ober: In that case, the
executive order is not currently in force because it’s being challenged?
Attorney Nardone: It’s in effect, but it’s being
challenged.
Committeemember Ober: And if another president
is elected, it may change again.
Attorney Nardone: Unless the Supreme Court
decides, the executive order is the law of the land.
Committeemember Lori Wycall: In that
particular case, there is no stay while the court waits to hear it.
Attorney Nardone: That’s my understanding.
Committeemember Wycall: We, as a
school district, are still following RIDE [Rhode Island Department of
Education], which I disagree with, and we’re following the guidance of the
Attorney General, who is not following the executive orders, which are law. I
feel like we’re following RIDE’s advice, but we could be one of the districts
in Rhode Island to lead the way because we have the same [presidential]
administration for the next three and a half years. We may as well be in
compliance and make the changes that we need to, and not listen to ‘guidance’
that people can agree with or not agree with. That is my feeling on this.
[You can read more about the guidance RIDE and the R.I.
Attorney General have provided here: Attorney
General Neronha and Commissioner Infante-Green issue guidance to schools on
LGBTQ+ students’ rights and diversity programs.]
The day before this school committee meeting, Superior Court
Judge Joseph McBurney denied the plaintiff’s prayer for a
declaratory judgment invalidating RIDE’s regulations and dismissed the
complaint. The lawsuit was brought on behalf of a Jane Doe, with the support of
the right-wing Center for Freedom and Prosperity. There is no
written decision, but in his oral decision, Judge McBurney noted that there is
no basis for arguing that RIDE’s regulation was preempted by federal law. Judge
McBurney’s ruling will likely be appealed to the Rhode Island Supreme
Court.
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