A midstream change in attorneys by state schools Superintendent Ryan Walters — a situation brought about by all the in-house lawyers from the Oklahoma State Department of Education leaving the agency in March — and the resulting confusion have led to a renewed push by attorneys for a Moore student to seek a protective order against Walters and the State Board of Education.
The lawsuit, known as 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 a Moore Public Schools student who wanted to change their pronouns in school records.
In September, the Walters-led board 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. Walters and the state board — as well as the individual members of the board — were named as defendants. They 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.
Initially, Bryan Cleveland — then the general counsel for the state Education Department — entered an entry of appearance in the case as the attorney for all the defendants. In January, Cleveland successfully had the case moved from state court to U.S. District Court in Oklahoma City, but the student’s attorneys amended the lawsuit, which they said dismissed all claims brought against the defendants under federal law.
They asked U.S. District Judge David Russell to remand the case back to state court, and Russell agreed, ordering that on March 12. The case has since been assigned to Cleveland County Special Judge Michael Tupper.
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.
Resignation of agency attorney led to confusion in the case, plaintiffs say
On Feb. 28, Cleveland submitted his resignation to the agency, effective March 15. But Leslie Briggs, one of the student’s attorneys, told The Oklahoman they “learned that through the news. There was zero communication through the agency about the departures.” Thus, Briggs said, the student’s attorneys operated as if Cleveland was the agency’s attorney.
The student’s attorneys, in court filings, laid out what they say subsequently happened.
On April 15, they filed for a protective order, seeking to prevent Walters and the other defendants from revealing the student’s identity. The attorneys claimed in the filing that the defendants “have not responded to Plaintiff’s efforts at obtaining agreement” on a proposed protective order. The student’s attorneys said on April 4, they sent an email to Cleveland and two other attorneys at the state agency with an attached draft of the order. In response, they received an automatic email reply, saying Cleveland no longer worked for the agency.
The automatic reply referred them to a generic email address on the agency’s website. The email was sent to that address, they said, but as of April 15, they hadn’t received a response. An April 9 phone call to the agency’s legal-services division went straight to voicemail, and so did a similar call the next day, they said.
The day after the April 15 filing requesting the protective order, Briggs told The Oklahoman, she received a call from Jason Reese, a private attorney who said he was contracted by the agency to represent Walters and the board. So the student’s attorneys withdrew the motion for the protective order “in order to attempt to reach an agreement” with Walters’ new attorneys.
Those negotiations have not been successful, Briggs said, and so on May 14, the student’s attorneys filed another request for a protective order. They say the order is necessary because Cleveland and Walters already publicly identified the student in a public meeting of the state Board of Education. The most recent filings include the back-and-forth emails between Briggs and Reese about the proposed order.
Emails between attorneys indicate differing views of what should be in a protective order
Briggs said Walters’ attorneys have proposed closing hearings in the case to the public, placing a gag order on the parties involved in the case, subjecting all information in the case to the order (which would effectively seal the case from the public) and allowing the defendants to “purposely misgender the Plaintiff without reproach.”
In an email to Briggs, Reese said, “We have no intention of requesting leave of court regarding identification at this time but believe that should be in the discretion of the court as matters unfold.” He later said, “If you have any authority to show me that a protective order is the appropriate means for such a broad application, I would be happy to review it.”
Reese also suggested they “have the Judge decide the terms of the order.”
Reese filed a response to the initial lawsuit on April 26 — more than four months after its filing. In it, he denied “each and every” allegation made by the student’s attorneys and said the case should be tried in Oklahoma County, where the agency is based, instead of Cleveland County, where the student lives. Reese also said the individual board members — Don Burdick, Sarah Lepak, Kendra Wesson, Katie Quebedeaux and Zachary Archer — should not be named as defendants, but only the board itself.
The response also claims the administrative rule concerning pronouns was created legally and asks that the case be dismissed, with the plaintiff paying Walters’ attorneys’ fees and “other legal and equitable relief.”
Reese did not immediately return a message from The Oklahoman, left via email, asking for responses to allegations made by the plaintiff’s attorneys in court filings.
Another attorney, Michael T. Beason, has identified himself in public documents as the state Education Department’s new general counsel, replacing Cleveland, but the agency hasn’t confirmed his hiring and he's still not listed on the agency’s legal services page on its website. The Oklahoman has filed a request under the Oklahoma Open Records Act seeking Beason’s employment contract, but the agency has not answered all but one of 10 open-records requests filed by the newspaper since November. Beason has not filed a record of appearance in the Doe v. Walters case.
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