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Exeter High School and SAU 16 struck back against a Catholic student suing over his free speech rights, saying he was disciplined for being a bully and not for expressing his religious views. However, they acknowledge in their court filing that the “bullying” in question was expressing his opinion on gender.

The student, known in the lawsuit as M.P., claims he was disciplined for expressing his opinion, informed by his Catholic faith, that there are only two genders. M.P. expressed these views off the school campus and was then suspended from the football team for one game, according to his lawsuit.

The district’s attorney, Michel Eaton, wrote in a response to the lawsuit filed late last week, there is no free speech case here. Eaton also claims M.P. was not suspended by the school, but benched for one game by his coach. The benching had nothing to do with the school’s anti-discrimination policies regarding transgender issues.

“M.P.’s coach did not decide to bench M.P. based upon M.P.’s opinion that there are only two genders, nor would he. Rather, M.P. was benched for using crude, inappropriate, and disrespectful language while communicating with Student Doe. This behavior was consistent with M.P.’s documented history of bullying and inappropriate behavior, including such behavior on the school bus and such behavior targeted at Student Doe specifically,” Eaton wrote.

Student Doe, who is not transgender or non-binary, is the student with whom M.P. had a reportedly heated conversation regarding gender and sexuality while on the school bus. The conversation later continued via text messaging, according to court records. Student Doe, in turn, reported the conversation — which took place outside the classroom and off the football field — to M.P.’s coach, Eaton wrote.

“M.P. ‘s coach took what he believed to be an appropriate and limited remedial measure to teach and ensure the respect that is expected of all student athletes,” Eaton wrote.

According to Eaton’s filing, Student Doe and M.P. have a long-standing antagonistic relationship. Eaton submitted as evidence the football team code of conduct, which M.P. signed, and copies of the text conversation between M.P. and Student Doe. However, both items were sealed by the court and not available to the public. 

Whether or not M.P. engaged in bullying, the district acknowledges in Eaton’s filing that M.P. was disciplined for expressing his views, however crudely, while off-campus. It’s similar to the free-speech case in which a Pennsylvania high school student was disciplined after she posted a profanity-laced message to Snapchat that she recorded at a convenience store.

The U. S. Supreme Court last year ruled 8 to 1 in favor of Brandi Levy, the former cheerleader at Mahanoy Area High School. The high court found the school violated Levy’s First Amendment rights when it reprimanded and suspended her from the junior varsity team because of her off-campus comments about the cheer team.

While the American Civil Liberties Union (ACLU) sided with Levy in her case, the New Hampshire ACLU has been silent in the case of M.P. In the past, protecting an individual’s personal speech against government action would have been a classic ACLU  case. But the organization has become openly partisan, as The New York Times reported in a story headlined “Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis.”

Instead of suing on behalf of an individual’s rights,  New Hampshire’s ACLU is part of a federal lawsuit opposing New Hampshire’s new anti-discrimination law. They want to overturn the law preventing teachers and government employees from teaching that “a person, because of their membership in one or more identified group(s), is inherently either: (1) racist, sexist, or oppressive, consciously or unconsciously or (2) superior or inferior to people of another identified group.”

The ACLU-NH is joined in the lawsuit by Andres Mejia,  director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, and a board member of the Black Lives Matter Seacoast organization. Some Exeter parents have questioned whether a member of a group that claims all white people, regardless of their behavior, participate in white supremacy can treat students fairly. 

Writing about the Exeter case in the Portsmouth Herald, former political consultant Alicia Preston Xanthopoulos defended the Catholic student’s right to express opinions others — including the school district — don’t like.

“No one has the right not to be offended. I do actually have the right to say something that might offend you,” Xanthopoulos wrote. “That’s precisely why there is the First Amendment. It’s not there to protect popular speech, it is there to protect you from being punished by the government for speech that is not popular.

“Which, horrifyingly, is precisely what occurred here.”

Hundreds of New Hampshire families could see their childcare endangered due to provisions in President Joe Biden’s Build Back Better spending plan that penalizes religious education.

The $1.7 trillion social safety net spending plan includes funding for early childhood education and childcare centers, a feature its booster are quick to tout. The White House pledges “universal preschool for all 3- and 4-year olds,” and taxpayer-funded subsidies to many families to keep child care costs “no more than 7 percent of income.” 

However, the bill also places multiple mandates on childcare facilities that accept the funding. For example, they must raise the salaries of their workers to those commensurate with the average elementary school teacher in their area, which would mean more than doubling them in most cases. Economist Casey Mulligan at the University of Chicago estimates the bill’s regulations would raise costs by 80 percent.

And then there’s the bill’s bias against religious and faith-based daycare.

At issue is a provision mandating all providers comply with federal nondiscrimination statutes, which would end up excluding many child care facilities associated with religious organizations and churches.

Bevin Kennedy, the development and communications cabinet secretary for the Roman Catholic Diocese of Manchester, said that means the state’s six Catholic childcare centers could be left out.

“There are six Catholic childcare providers throughout New Hampshire that serve the needs of hundreds of families across the state. The Build Back Better Act in its current form contains new funding for pre-K services, but it makes it virtually impossible for many faith-based child care providers to participate in receiving these funds because of explicit obligations that numerous religions and faith communities cannot meet,” Kennedy said.

Last week, the United States Conference of Catholic Bishops, along with dozens of other faith-based groups across the religious spectrum, sent a letter to congressional leaders calling out the discrimination baked into the spending bill.

“The faith community has always affirmed that parents should choose the best environment for care and education of their children. The current Build Back Better Act provisions would severely limit the options for parents, suffocate the mixed delivery system for child care and pre-kindergarten, and greatly restrict the number of providers available for a successful national program,” the letter states. 

New Hampshire federal delegation, including Reps. Annie Kuster and Chris Pappas, and Sens. Maggie Hassan and Jean Shaheen, fully back the BBB spending plan.

The problem with the bill, according to the letter, is any organization that receives federal funding would be required to meet the federal government’s non-discrimination requirements, without any exemptions for religious groups. 

Kennedy said the Build Back Better bill’s lack of a religious exemption is a change from past federal funding plans.

“Although the federal funding provision at issue has the laudable goal of increasing the availability of pre-K services, the measure is drafted in such a way that many pre-K programs cannot even participate,” she said.

Early childcare is vital to the many low-income Granite States families served by the church, as it allows parents to work to support their families, according to Kennedy.

“The Diocese of Manchester has serious concerns about these provisions, as our childcare centers are imperative to enabling many families to work, including many low-income parents or guardians providing for their families,” Kennedy said.

Churches and religious organizations provide a disproportionate amount of low-cost daycare for low-income families. As Mulligan points out, “churches and other faith-based institutions have a natural cost advantage in child care because church facilities would otherwise sit unused on weekdays, when the demand for care is greatest. Build Back Better would squander this advantage by financing capacity expansions only at nonreligious competitors.”

More than half of American families using pre-kindergarten and early child care services get their care through a religious-based organization or providers.

An Exeter High School freshman, who is also a practicing Catholic, was suspended from school sports after he affirmed the Catholic Church’s teachings on gender during a private conversation with another student.

Now the teen, identified in court records as M.P., and his family are suing the district for violating his rights. M.P. is represented by Cornerstone attorney Ian Huyett.

According to a Cornerstone statement, M.P. did nothing except express his constitutionally protected views. “M. P. did not harass or demean any student, but simply expressed his views on a contentious cultural issue.” 

Exeter Region Cooperative School Board Chair Helen Joyce did not respond to a request for comment. The lawsuit is filed in Rockingham Superior Court.

Cornerstone is a Christian advocacy non-profit based in Manchester and founded by conservative politician and activist Karen Testerman. According to Cornerstone, M.P. did not target or bully any transgender student with his speech. Instead, he was punished by Assistant Principal Marcy Dovholuk after he had a private conversation with another student.

M.P. had an exchange with a progressive student, who is described as not being transgendered, on a school bus. During the conversation, M.P. relayed his belief informed by Catholic teaching that there are two genders, male and female. This exchange was followed by a conversation between the two students over a text messaging app. That’s when the progressive student then got Dovholuk involved.

“The student then turned a copy of this text conversation over to Vice Principal Dovholuk, who confronted M. P. with printed copies of the text messages. M. P. was then subject to an athletic suspension,” according to the complaint.

Dovholuk suspended M.P. from athletics because of this conversation, which happened outside the school building, Cornerstone said.

Exeter adopted a Gender Nonconforming Students policy in 2016 that states in part, “[a] student has the right to be addressed by a name and pronoun that corresponds to the student’s gender identity,” it also includes a broader rule: “the intentional… refusal to respect a student’s gender identity… is a violation of this policy.” 

Exeter parents are already wary of the district’s handling of controversial issues and what many parents believe is an ideological bias among its leadership.

Exeter’s SAU 16 was put on notice by the state last month when the New Hampshire Attorney General’s Office and the office of the Commissioner for New Hampshire’s Department of Education published a joint report on several concerns at the school, involving the violation of student rights. 

The report found, among other issues, that the school violated students’ rights during the prom when school staff put marks on the hands of students to indicate their vaccination status. 

And the district’s Director of Diversity, Equity, Inclusion, and Justice, Andres Mejia, is part of the leadership team of the Black Lives Matter Seacoast organization.

Asked if, given his open ideological advocacy for BLM, he would work on behalf of religious and conservative students, as much as he works for minority and LGBTQ students, Mejia insisted it would not be a problem.

“My role is working for all students,” Mejia said. “And conservative children are part of that.”

The complaint alleges the district is violating M.P. ‘s rights under Article 22 of the New Hampshire Bill of Rights which protects his right to free speech. The suit also argues the school had no legal ability to punish M. P. for the content of his off-campus text messages.

As many other districts in New Hampshire have adopted similar policies to those in Exeter, M.P. ‘s case could have wide-ranging impacts throughout the Granite State.

“The key question before the court will be if Exeter’s Gender Nonconforming Students policy, nearly identical to the policy adopted by school districts across the state, can be used to suppress the free speech rights of students who hold dissenting views,” Cornerstone said in a statement.