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Rockingham Superior Court Judge David Ruoff rejected requests for summary judgment from both the Exeter High School student claiming he was discriminated against for saying there are only two genders and the school’s attorney, citing “constitutional issues.”

Attorneys for both SAU 16 and the Exeter High School student known as M.P. asked Ruoff for summary judgment. That would essentially have the judge give one side a win and close the case.

Ruoff, however, said there is too much in the case that is in dispute for him to make such a ruling, including constitutional questions that need to be addressed.

“Each version of the relevant events implicates different constitutional issues and consideration,” Ruoff wrote in the July 29 ruling. “Thus, due to the presence of a genuine issue of material fact, the court finds summary judgment inappropriate.”

In his lawsuit, M.P. claims he was disciplined for expressing his views, informed by his Catholic faith, that there are only two genders. M.P. claims he expressed those views outside of the school campus—on a school bus and later through a text app—and that he was suspended from the football team after the conversation was reported to school officials.

Exeter High School and SAU 16 officials say M.P. was disciplined for being a bully and not for expressing his religious views.

The district’s attorney, Michel Eaton claimed M.P. is not the victim of religious discrimination but instead was benched for a game by his coach for violating the team’s code of conduct. The benching had nothing to do with the school’s transgender discrimination policies, according to Eaton.

“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 in the district’s response to the lawsuit.

Court records indicate M.P. and Student Doe’s conversation included M.P. calling Student Doe a “bozo,” and M.P. telling Student Doe to “STFU” because “there’s only 2 genders.” Student Doe took those texts to Coach William Ball, according to the court record.

Ball then took M.P. to Vice Principal Marcy Dovholuk, who told him he would be benched for a week because of the “conversation about pronouns.”

Ball later reduced the suspension to one game, based on M.P.’s alleged violation of the athletic code of conduct.

M.P. ‘s lawyers say the benching was in retaliation for his conservative view of gender.

Exeter High School and SAU 16 have been on the frontlines of the culture wars in New Hampshire. Andres Mejia, the director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, is part of the federal lawsuit against the state over the so-called “banned concepts” law, claiming the state is trying to stop teaching about racial and gender issues.

The anti-discrimination law prohibits students from being taught 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.”

Mejia is also a member of the controversial Black Lives Matter organization and denied it creates a conflict when dealing with students based on race or ideology.

Last year, Exeter High School also got in trouble after staff at the prom started putting Sharpie marks on the hands of students who had not been vaccinated against COVID-19. Numerous parents complained, prompting a joint review by the New Hampshire Attorney General’s Office and the Department of Education, which called the prom fiasco a “disturbing failure.”

The review found the staff at the prom had already been told by administrators to not do anything of the kind before they started marking students.

“The fact that supervising SAU 16 staff did not stop the contact tracing procedure, despite having acknowledged receiving the email from the superintendent informing all staff that they were not to ask students about their vaccine status, is a very disturbing failure to protect students,” the statement reads.

The Attorney General’s Office (AGO) and DOE joint investigation came after months of complaints from parents ranging from the prom incident to the way a sexual assault was reported. The review looked at six issues in the school district. While lapses in some cases were noted, there did not appear to be any criminal or civil charges forthcoming, according to the report.

“The AGO does not find any violation of New Hampshire law regarding discrimination due to this issue. However, both the AGO and DOE are deeply concerned regarding the public marking of students’ hands and the lack of protection for students’ vaccination information,” the joint statement read.

A Superior Court judge has ordered mediation in the lawsuit brought after Exeter High School officials punished a Catholic student for saying there are two genders.

However, Ian Huyett, the attorney for the student and his family, says a settlement is unlikely given Exeter’s current stance, expressed in a recent letter to the school community.

“Given the contents of the letter that (Superintendent) David Ryan sent out on Wednesday, I don’t anticipate that they’ll have any interest in doing that,” Huyett said. 

Ryan sent the letter last week, doubling down on the district’s stated embrace of diversity after Judge David Ruoff issued the scheduling order, which stipulates the two sides attempt to settle the case through an Alternative Dispute Resolution.

“Despite our best intentions to create a safe and welcoming environment for all in our community, we have members in our community who continue to experience feelings of hate and disrespect,” Ryan wrote. “We are a community of acceptance. This means we welcome you with all of your uniqueness, no matter your race, religion/spiritual beliefs, sex, age, national origin, sexual orientation, gender identity, ability/disability, or family structure.”

The student, known in the lawsuit as M.P., claims he was disciplined for expressing his views, informed by his Catholic faith, that there are only two genders. M.P. claims he expressed these views outside of school and off the football field.

Exeter High School and SAU 16 officials struck back saying M.P. was disciplined for being a bully, not for expressing his religious views. The district’s attorney, Michel Eaton claims M.P. is not the victim of religious discrimination. Instead, he was benched for one game by his coach for violating the team’s code of conduct. The benching had nothing to do with the school’s transgender discrimination policies, according to Eaton.

“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 in the district’s response to the lawsuit.

Student Doe, who is not transgendered, is the student with whom M.P. had a reportedly heated conversation about gender and sexuality while on the school bus. This conversation later continued via text messaging, according to court records. Student Doe, in turn, reported the conversation 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.

Huyett claims in the lawsuit that M.P. was punished for expressing his opinion, not for violating any rule.

“M. P. did not harass or demean any student, but simply expressed his views on a contentious cultural issue,” Huyett said in a statement.

Huyett is an attorney with Cornerstone, a conservative Christian organization. While Cornerstone is defending M.P.’s First Amendment rights in this case, the state’s ACLU has been silent. Instead, New Hampshire’s ACLU is part of a federal lawsuit, along with Exeter’s Andres Mejia, against the state over the so-called “banned concepts” law. Mejia is the 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.

The anti-discrimination law challenged by the ACLU and Mejia, signed by Gov. Chris Sununu as part of the state budget, prohibits students from being taught 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.”

Just hours after President Joe Biden held a press conference defending his federal COVID-19 mandates, Nashua’s Board of Aldermen passed one of their own.  The city’s residents are being told to put their face masks back on as the board overwhelmingly voted in favor of a temporary mask mandate. 

The ordinance, approved with 12 votes Tuesday night, will require the wearing of face masks at indoor public spaces through the end of January. The ordinance carries a maximum $1,000 fine, though there is no enforcement mechanism for the measure. 

It is not clear who will end up making sure people will wear masks, as Aldermen said police are already stretched thin.

Nashua’s Director of Public Health Bobbie Bagley said the mandate is needed as COVID-19 cases surge around the holidays. Nashua hospitals are already overwhelmed with COVID-19 patients and there are no ICU beds available in the city.

“Our goal is really to have an impact on the next four weeks to really keep these cases down,” Bagley said.

COVID has swamped the state as cold weather moved in. Bagley said the post-Thanksgiving surge that has inundated hospitals is starting to recede, right in time for the Christmas gatherings which will bring more anticipated spread. The hope is that the temporary masking order will reduce the spread over the next few weeks, until cases start going down again.

Alderman Ben Clemons was the lone holdout against the measure. He said people can choose to wear a mask, just as they can choose to get vaccinated.

“To me, it is a matter of principle. I don’t believe in mandates. I will never vote for mandates,” Clemons said.

Clemons said the vaccines have been available for people for more than a year, and those vaccines are largely effective against serious illness and death. It’s a choice to get vaccinated, and a choice to wear a mask, he said.

“The majority of folks who end up on ventilators are unvaccinated. I find that is their problem,” Clemons said.

A University of New Hampshire Survey Center poll released Monday found 81 percent of Granite State adults have been fully or partially vaccinated, while just 18 percent say they are refusing the vaccine.

Alderman Dave Tencza once sided with those who see mandates as a personal liberty issue, but said his thinking on mask mandates has changed as the pandemic has continued and the science shows how individual decisions impact communities. 

“I used to think wearing a mask was more of a personal liberty issue, like wearing a seatbelt. Now, I really think it’s comparable to drunk driving. No one has the right to drive under the influence of alcohol,” he said.

Nashua joins a small group of municipalities that have brought back the mask mandates enacted in the first year of the pandemic. Last week, Keene’s city council restarted its mask mandate, as did the town of Exeter.

Andrew Sylvia with Manchester InkLink reported Tuesday night that Manchester’s Board of Alderman split on a mask mandate, ending with a six-to-six tie. Mayor Joyce Craig broke the tie, bringing the mask mandate back to Manchester.

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.”

New Hampshire’s biggest teacher’s union, the National Education Association-NH, and the state chapter of the ACLU have joined forces to combat New Hampshire’s new anti-discrimination law.

Unlike a previously filed lawsuit that used the phrase “divisive concepts” 103 times (a phrase that does not appear anywhere in the law), the lawsuit has updated its language, referring to the law as the “banned concepts” law.

The phrase “banned concepts” does not appear anywhere in the new law, either.

On Monday, the groups announced a new federal lawsuit filed in the United States District Court in Concord against the state’s new anti-discrimination law.

“This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve, and from having important conversations on race, gender, disability, sexual orientation, and gender identity in the classroom,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire.

Meg Tuttle, the president of New Hampshire’s NEA branch, claimed the law prevents teachers from teaching full facts around controversial subjects.

“Parents and educators agree students should learn complete facts about historical events like slavery and civil rights. They agree that politicians shouldn’t be censoring classroom discussions between students and their teachers and that educators shouldn’t have their licenses and livelihoods put at risk by a vague law,” Tuttle said.

The problem for Bissonnette and Tuttle is the law passed this year does nothing to ban any concept from being taught but instead bans students from being discriminated against. Indeed, the law explicitly states it does not prohibit, “as a larger court of academic instruction,” teaching about this history of racism, sexism, etc. 

“I don’t think there’s any statement of facts (in the lawsuit) they can make other than people’s feelings,” said state Rep. Keith Ammon, R-New Boston, one of the legislators behind the bill. “The left created this false image of what the law actually states.”

According to the legal guidance issued to schools by the New Hampshire Attorney General’s Office and the New Hampshire Department of Education, the law does nothing to stop any facet of American history from being taught in the classroom.

“Nothing prohibits the teaching of historical subjects including, but not limited to: slavery, treatment of the Native American population, Jim Crow laws, segregation, treatment of women, treatment of LGBTQ+ people, treatment of people with disabilities, treatment of people based on their religion, or the Civil Rights movement. Nor does anything prohibit discussions related to current events including, but not limited to: the Black Lives Matter movement, efforts to promote equality and inclusion, or other contemporary events that impact certain identified groups,” the legal advice from the Attorney General states. 

Instead, the law prohibits students being taught 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.”

Ammon said the lawsuit, like the error-filled lawsuit filed last week by New Hampshire’s American Federation of Teachers, is simply a fundraising stunt by the unions and the ACLU.

“They are using it to fundraise off their woke base,” Ammon said. “This how far the ACLU has fallen, they are challenging an anti-discrimination law in federal court.”

The lawsuit lists Andres Mejia as one of the plaintiffs. Mejia is director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, the school district where a Catholic student was punished for expressing tenets of his faith to another student outside the school’s purview.

“This law chills the very type of diversity, equity, and inclusion work that is absolutely necessary to ensure that each student is seen, heard, and connected, especially as New Hampshire becomes more diverse,” Mejia said in a statement.

The Catholic student and his family are suing the Exeter district, though without any help from New Hampshire’s ACLU. Bissonnette did not respond to a question on Monday as to why the American Civil Liberties Union would not defend a student punished for expressing his faith. 

Mejia is also a board member of Black Lives Matter Seacoast, a group that demands the removal of police officers from schools. 

Ammon says he does not think the lawsuit will succeed but does think New Hampshire taxpayers will still lose.

“We have to pay to defend the state in court against their lame allegations,” Ammon said.