NORMAN ― A Cleveland County judge said Wednesday he will grant a protective order requested by a Moore Public Schools student against the state’s top education official, state schools Superintendent Ryan Walters, and members of the Oklahoma State Board of Education.
The decision involves a lawsuit over the state's power to order local school districts not to alter sex or gender designations in past school records — a dispute often called the "pronoun case."
At the end of a hearing that lasted about 90 minutes, District Judge Michael Tupper told attorneys for the student and Walters to update the language in an order that’s already been proposed by the plaintiff’s attorneys. The changes mostly would make clear that the language in the order — particularly concerning disclosure of confidential information — is applicable to both sides in the case and note that the order could be revisited at a later date.
The judge gave both sides until July 12 to prepare the updated language, at which point Tupper said he would enter the order if he found the language acceptable.
Leslie Briggs, an attorney for the student, expressed satisfaction with the result of the hearing, but declined further comment. Jason Reese, an attorney for Walters and the state board, also declined comment afterward.
The student wants to change their pronouns in school records. But in September, the Walters-led State Board of Education created an administrative rule prohibiting school districts and local schools from “altering sex or gender designations in past student records" without the board's authorization. The board granted final approval to the rule on Jan. 25 despite court orders from judges in Cleveland and Payne counties that allowed for the changes in student records.
In addition to Walters and the board, the individual board members appointed by Gov. Kevin Stitt — Don Burdick, Sarah Lepak, Kendra Wesson, Katie Quebedeaux and Zachary Archer — also are named as defendants. Reese has argued that individual board members should not be listed as defendants, only the board itself. Reese also has asked for the lawsuit to be moved to Oklahoma County — where the Oklahoma State Department of Education is located — from Cleveland County. No rulings have been made on those requests.
The lawsuit, Doe v. Walters, has taken multiple turns since it was filed in Cleveland County District Court on Dec. 21 by the Oklahoma Equality Law Center and the Oklahoma Appleseed Center for Law and Justice on behalf of the student.
The now-departed general counsel of the Oklahoma State Department of Education, Bryan Cleveland, successfully petitioned to have the case moved to federal court. The student’s attorneys responded by amending their lawsuit to dismiss all claims brought under federal law and sought its return to state court. U.S. District Judge David Russell granted that request on March 12.
During the case’s brief time in federal court, the student won one dispute. Attorneys for the student had asked to proceed with the lawsuit using a pseudonym for privacy reasons, but said they were willing to reveal the student’s identity to the defendants. Walters and the board opposed that motion, likening transgender status to “routine personal information,” according to an order from Russell. Russell ruled in favor of the student, and Tupper said Wednesday he’d adopted that “well-reasoned order.”
Student's attorneys claim protective order is needed because Walters has already publicly identified the student
Attorneys for the student claim Walters and Cleveland already publicly identified the student during a meeting of the State Board of Education, so a protective order is needed to prevent such a disclosure from happening again. The student’s attorneys made an initial request from Tupper on April 15, and after confusion over who was representing Walters and the board — due to Cleveland’s departure from the state agency in March — they made a renewed request on May 14.
Reese, a contracted attorney who doesn’t work for the state agency or state board, entered his first appearance in the case on April 26. Reese — a former general counsel for Stitt — objected to the plaintiff’s May 14 motion for a protective order in a court filing on May 31 that included as a court exhibit a copy of a story about the case that appeared in The Oklahoman on May 20.
In the filing, Reese called the motion for a protective order “overly broad, unduly burdensome and disproportionate to the needs of the case.” He asked Tupper to instead issue a protective order “reasonably limited in scope” to shield the student’s identity from the public. During the hearing, Reese said he wanted to resolve questions he had about his ability to contact potential witnesses “before we put a straightjacket on this case.”
Reese claimed Wednesday the student’s attorneys “improperly leaked to the press” information about negotiations in the case, although emails detailing those negotiations were part of a publicly available document. He later acknowledged that “absolutely this (case) is a matter of public interest. This is fundamentally about an administrative rule … That’s about as public interest as you can get.”
The order to be finalized next week will dictate the student and their parent can proceed in the case under the pseudonyms “J. Doe” and “Jane Doe;” that in all public documents, the plaintiffs should be identified only by those pseudonyms; that court documents containing the present or former name of one of the plaintiffs should be redacted; that the plaintiffs file notice under court seal information about their legal names to the defendants and their counsel; that no individual to whom the plaintiffs’ identities are disclosed reveal those identities without written consent, and that no identifying information be disclosed to the media “for any reason.”
It also includes a clause that “the parties shall work collaboratively to ensure that any exhibit providing identifying information presented in any courtroom hearing is protected from public view.”
The latter subject, and how to handle the potential disclosure of the student’s private information during court proceedings, received particular attention during Wednesday’s hearing, with Tupper saying he favors the case remaining open to the public. The judge said “The public’s right to an open courtroom” is something he takes “very seriously” and called the case “a matter of public interest.”
“I don’t have any intent on closing hearings,” Tupper said, unless unusual circumstances would require him to do so.
The Cleveland County hearing was one of three court hearings scheduled Wednesday in lawsuits in which Walters, who took office in January 2023, is a defendant. Status hearings also were set in two federal court cases filed in U.S. District Court in Oklahoma City. One of those is a defamation lawsuit filed by a former Norman High School teacher and the other is a wrongful termination lawsuit filed by a former Oklahoma State Department of Education employee.
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