Witold Walczak is legal director of the ACLU of Pennsylvania. Today I speak with him about the ACLU’s ongoing legal battles with Central Bucks School District, its latest complaint filed in court which charges the Republican-run district with illegally retaliating against a teacher for supporting a trans student, and Central Bucks’s million dollar disinformation campaign to avoid responsibility for creating a toxic, discriminatory environment for LGBTQ+ students – a charge currently being investigated by the Department of Education’s Office for Civil Rights.
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Cyril Mychalejko: Hi Witold, welcome to the signal.
Witold Walczak: Thanks for having me.
Cyril: On August 14, the ACLU of PA filed an amended complaint in federal court alleging that Central Bucks School District administration, along with legal counsel from the law firm Duane Morris, deceived the public and provided false information in a report that was issued and publicly presented in April, and that this grand deception was carried out, in part, to retaliate against a beloved district teacher Andrew Burgess. In a statement to the press you noted:
“Time and time again, the district’s attorneys and administrators went out of their way to sully the reputation of an upstanding, wonderful teacher. They even went so far as to put on a show trial for the community in April, further damaging Andrew’s professional credibility. What they’ve done here is illegal retaliation.”
Can you explain to listeners why and how the Central Bucks School District and its lawyers – time and again – vindictively and dishonestly attacked Mr. Burgess, and why this retaliation masquerading as employee discipline, is in fact illegal?
Witold: So we have what five hours to talk here today? I’m teasing, but only a little bit. So, the why I can’t answer. Why is the school district going after Andrew Burgess is in some ways a mystery.
What we can say is that very serious allegations have been raised against the district in terms of how it treats its LGBTQ+ students and even staff. The ACLU filed a complaint in October [2022] with the U.S. Department of Education on behalf of seven students and their families alleging a widespread hostile educational environment. And Andrew Burgess was part of that complaint in terms of being helpful to a trans student. And what we know is that the district has both tried to use Andrew to distract from its failings in supporting all of its students and tried to blame Burgess for all of the problems that it’s having – neither of which makes any sense. And so to us, this appears to be very clear retaliation against Andrew Burgess for really in the beginning, trying to help a trans student. And we can unpack that because that, I think everything goes back to what happened in March, April, and May of 2022.
Cyril: So how exactly are they trying to smear him and why are they manipulating or being deceitful about his actions in support of a LGBTQ student?
Witold: Yeah, you know, the why I don’t know, my speculation, I think is that they’re using him to distract people from their own failings and then try to blame him for the problems that they’re having.
People should understand that this really goes back to something that happened in March of 2022. Folks may recall that in November of 2021, there was a takeover of the school board. The views of elected officials changed about how to support and treat LGBTQ+ students. There was discussions of book banning. There was discussions about changing name and pronoun policies. There were discussions about requiring teachers to remove Pride flags and other symbols supporting the LGBTQ plus community. And so, especially trans students really felt under siege. And in March of 2022, a student at Lenape Middle School where Mr. Burgess was teaching social studies at the time went to him to raise concerns about unaddressed bullying and harassment by other students. So to be clear, student one was having problems in the fall, went to guidance, went to the administration, mom went to the administration, and the situation didn’t improve.
The one time that the student got relief was when he went to Burgess in the fall. And Burgess immediately was supportive, found out all about the problem, and then talked to the student who was doing the bullying, and it stopped. So in March, the student who’d now been victimized a number of times went with another student, with a friend, to Burgess and said, can you help? And Burgess met with him, met with the family, and explained here are your options: You can either file a complaint with a school or you could file a complaint with the U.S. Department of Education Office of Civil Rights. And the family thought about it and said, you know, we’ve tried the school and they haven’t helped. And we’re also worried that if we keep complaining that there may be retaliation from the school. So we wanna try filing a complaint with the U.S. Department of Education.
So Burgess said, great, and helped them do that, got authorization, written authorization from the mother to file that, and then files it, I think it was in mid-April. And then next thing you know, the school district, is suspending Burgess claiming that he mistreated the student and didn’t report this bullying and harassment. This was in…in early May. And Burgess was suspended for the entire summer and then reinstated right before the school year started in a new school, in a new grade, having to teach more students than he’s ever taught before – you know, really kind of a change in the circumstances of his employment. But we thought we were done. And at that point, things started to get even worse.
READ: The ‘Stranger Things’ Turning Central Bucks School District Upside Down
Cyril: The right-wing media website Broad and Liberty took to task one of the ACLU’s allegations that Mr. Burgess was suspended based on a policy that wasn’t yet a policy, one that requires a teacher to report student-on-student harassment, in this instance the victim being a trans student, to the school principal. The Broad and Liberty article notes, “The Duane Morris report, however, says on page 56 that the policy in question previously existed as board policy 103 and ‘was merged into board policy 104…as part of a revision and renumbering of certain board policies in 2022.’” What’s your response to this attack?
Witold: It’s wrong is the bottom line. But let’s back up and let me sort of continue the story and how we got to this report. So in October of 2022, the ACLU filed a complaint with the Department of Education on behalf of these seven students and their families alleging a toxic/hostile educational environment. Burgess’s story and what they had done to him for helping this trans student was one of the key sort of narratives within that 70-page complaint. And the school board then hires this law firm to investigate the ACLU’s allegations. Okay, so now the ACLU’s allegations are that the district is in broad fashion discriminating based on gender against LGBTQ+ students. The lawyers that they hired had no background in civil rights, in discrimination, in education law. What they had was one of the attorneys, Bill McSwain, was just recently a failed Republican gubernatorial candidate who had made homophobic comments just months earlier on the campaign trail about during his administration, the gay students wouldn’t be allowed to have a club. And he had also represented the Boy Scouts years earlier in defending their ability to discriminate against gay students. So, from the get-go, hiring these individuals to do an investigation of a complaint about discrimination based on gender or gender identity and gender orientation made little sense.
Fast forward, they do this investigation a week after we file our lawsuit in April on behalf of Andrew Burgess, they issue this 151 page report, essentially holding Burgess responsible for all of the bad press that they’ve been getting. And in the course of this investigation, they did not interview a single student inside the district. They did not interview a single LGBTQ student. They did not go to any of the gay student clubs where they could have spoken to students. And yet they drew all of these conclusions, which are based on either faulty facts, or they make completely indefensible assumptions.
Now, one of the things they said was that Burgess violated a policy that required reporting of bullying and harassment, like the student had told him about in March of 2022. The problem is that the policy they cited did not come into effect until after this happened. The board passed this new policy a month after they suspended Burgess. The Broad and Liberty points to the fact that the report has a very convoluted discussion in there about, oh, well, that’s not a problem because it merges policy 103. 103 does not deal with bullying and harassment. It’s focused primarily on disability-based discrimination and its discriminatory conduct, not harassment and bullying. So even in policy 103 there is not a requirement for teachers to report this. And the fact that they never identified a policy that Burgess allegedly violated when they first suspended him is really proof positive that they didn’t have anything. So again, this is another attempt by the school district to manipulate the facts, to try to make Andrew Burgess look bad and make him the fall guy for their problems.
READ: Central Bucks School Board Has Ties to a Christian Nationalist Group
Cyril: Two things: One, it’s remarkable that they didn’t talk to a single student for their report. And second, I think the fact that the right- wing majority school board would hire Bill McSwain, who, while, as you noted, on the campaign trail, attacked a middle school’s LGBTQ club as “leftist political indoctrination” and vowed that this ends when I’m in office, is almost a testament to the case that the ACLU is making, that there is systemic discrimination against the LGBTQ community within Central Bucks School District. It’s breathtaking. But going back to, we’ve been talking about the bigger picture a little now about the initial complaint that the ACLU filed with the Department of Education’s Office of Civil Rights, which the OCR is now investigating. I was wondering, could you talk a little bit about the months-long investigation that led to the October 2022 legal complaint and highlight maybe a few of the most damning findings that came out of that investigation.
Witold: Sure. So, you know, I feel like we at the ACLU did what the law firm hired by the board should have done, which is when you’re called to come in and investigate, you’re not supposed to have sort of previously identified assumptions, right? You want to come into this with an open mind, which is what we did. We had seen the situation with Andrew Burgess. We had received some complaints from several families, but these could be outliers. We had no idea. So over the course of about four months, myself and two other attorneys at the ACLU of Pennsylvania spent much of our time interviewing about 65, I’ll call them stakeholders, in the district. So that includes students. Obviously, when you’re dealing with minors, you need to get the consent of the parents. So we regularly talk to the students. We talk to parents. We talk to a number of teachers, guidance counselors, librarians, some administrators. We also spoke to some community stakeholders who had been involved. We spoke to former teachers who had left there. And at the end of the day, it was quite clear to us that there was a problem with the district’s failure to provide a safe and supportive environment for LGBTQ+ students.
And there’s kind of two aspects to this, both of which remain a problem to this day. One is very much like the student who went to Andrew Burgess, we heard time and time again how students and families would go to different people in the district, complain about student on student bullying, or even in some cases, bad behavior by teachers or staff and deliberately misnaming or using inappropriate pronouns, or saying things that I’ll just say were kind of ignorant. And time and time again, things were not getting better for the students, and the families were just really frustrated with a failure to take action.
READ: I’m a trans teen in Central Bucks. Here, it doesn’t ‘get better.’
The second thing we identified, which very much relates to the first one, is that if you go on the websites of the U.S. Department of Education or the Pennsylvania Department of Education, they have suggested best practices and policies on a whole host of issues. One of which is how do you support LGBTQ+ students? Everybody knows these are students who are often discriminated against, who are often bullied and harassed. And there are things you can do to make these students feel more comfortable and provide an environment where they are able to learn and be their full selves. So these are things like fully investigating, and taking action on complaints. It’s on using the preferred names and pronouns. Providing student clubs to support these students. And the Central Buck School District had been asked by staff and parents over the course of many years – we were able to document this – over the course of many years, teachers, counselors, parents had been asking the district, to implement some of these best practices, to work with Children’s Hospital in Philadelphia, which has a nationally renowned program. And time and time again, the district refused.
Now I wanna be clear that there are many very good, compassionate, and supportive professionals in the Central Buck School District. I mean, it’s a huge district. It’s the third or fourth largest in Pennsylvania. You’ve got thousands of students, thousands of staff. And for every story we heard about a failure to take action or support a student, we would hear two stories about other wonderful staff who would go out of their way to help the students. But even if it’s only a small number, it’s still a problem and it needs to be addressed. And what we found is that the school district over the course of years, and especially after the election in 2021 had not only refused to take action, but had really shown hostility towards this particularly vulnerable group of students and was making things worse for them.
Cyril: Can you provide listeners with any updates about the status of the Department of Education’s Office for Civil Rights’ investigation into your complaint?
Witold: I can provide a little. This is not my first rodeo in working with civil rights investigations by the federal government. I had not worked with the Department of Education before, but I’ve done many cases with the Department of Justice. I feel like I have a pretty good sense of how they operate. And the one thing I can tell you is that I absolutely don’t know when they will conclude their investigation. What I can tell you based on our observations and what we are hearing and seeing is that the Office of Civil Rights Investigation is in full swing. They have requested and obtained, I think over 100,000 pages and documents. They are talking to witnesses, potential victims, people in the district, on a daily basis. So we know the investigation is in full swing, when it’s gonna conclude, we don’t know. And we also don’t know, I mean, what they’re trying to figure out with all of this investigating, is whether they believe that the district is violating the law? Is this sort of what we’ve claimed is a toxic environment for LGBTQ+ students in the district. Is that illegal? If they conclude it is, then they will take steps to try to convince the district to take actions to remedy that problem. If the district refuses, then OCR will have a choice of doing nothing and letting them get away with it, pulling their federal funding, which is a pretty draconian step, or actually filing a lawsuit in federal court.
READ: Today, Tomorrow, And Yesterday As A Transgender Youth in Central Bucks School District
Cyril: What’s at stake here, big picture, and beyond this Bucks County district, if Central Bucks is not held accountable for its actions or lack of actions regarding its failure to protect its students and honor its teachers’ rights.
Witold: I think our concern first and foremost is about the students and families who are impacted by this. You know, we have been, we have witnessed just a lot of pain and anguish. We know there are LGBTQ+ students who have left the district, who have told us have been forced out of the district by the ongoing bad behavior. In my mind, the first casualty of a failure by the US Department of Education Act is going to be the future of these students.
And we’re not talking just about having an environment in which they can learn. We’re talking about an environment in which they are safe, physically safe, emotionally safe. There needs to be changes at the Central Bucks School District. I think that the bigger picture in my mind is that Central Bucks is in many ways the most visible district that has kind of engaged in what I’ll call bad behavior against students that the majority may not like or support. But there are other districts in Pennsylvania, certainly we’re seeing this across the country, Florida is I think a notable example on a statewide basis. But if the U.S. Department of Education is unable to hold Central Bucks accountable, I worry about that sending a message not only to Central Bucks, but other districts that it’s open season on any vulnerable minority groups. And there’s no reason to expect that they’re going to stop with the LGBTQ+ community. And when you look at the library bans, it’s not just about orientation and identity. It’s also about race. This whole CRT thing is really just a way to whitewash, maybe pun intended, the curriculum and the teaching to marginalize, minimize, and even eliminate Black and Brown students inside these districts.
READ: Anti-Critical Race Theory hysteria revives McCarthyism, Klan politics
In some ways, I don’t want to be overly dramatic, and I’m not going to say that Central Bucks is the be-all end-all, but public education in this country is at a critical juncture. And public education has to be for all students. I mean, all abilities, all races, all religions. That is the beauty of public education. And hopefully by students learning to coexist with other children who are different than they are, we’ll make for a better, more peaceful, more civilized society going forward. But boy you look at politics today and it seems a little daunting. But I do think that the fight over public education is very visible in what’s going on in central bucks right now.
Cyril: I think Central Bucks, you know, serves as a thread of a bad example because we’ve seen other school districts like Penncrest in Western PA, as well as a school district in Massachusetts essentially copy and paste Central Bucks’s library challenge policy to make it easier for a small group of parents to effectively ban books that they don’t like. And it’s also the threat of a bad example to just the general student population who are seeing how these administrators and these certain school board members are acting towards students from minority populations or from the LGBTQ community, etc.
To wrap this up, how can people support the work that you and the ACLU of Pennsylvania are doing.
Witold: I think first and foremost, people should vote. School districts are ultimately led by elected officials, and if people don’t like the direction that their districts are taking, they need to get out and vote. And one thing I often hear is that school board elections that occur in off years for elections – so it’s not a presidential year, it’s not even a year when you have congressional and state representative racism. And you just have a small number of what many people would consider just less important positions, but schools are super important. The leadership of public schools is very important. And whether you have kids in the school district or not, these are elections that you need to care about. One of the things I regularly hear is that, oh, I don’t have any kids in the school district. No, but if you live in a district like Central Bucks, relatively affluent, schools with very good reputations, your property values, the value of your home, the ability to attract new people coming in is directly tied to the quality and reputation of your school district. And if your school district has a reputation of not being supportive of all students, maybe its reputation is going down because of actions that are going on, that’s gonna impact your property values.
I think the most important thing people should realize is that if they’re not happy with the direction of their school district, they have the power, direct power, to make a difference by voting this November.
Cyril: Vitold, thanks again for coming on the show and thanks for all the work that you and the ACLU are doing. The Bucks County Beacon will be sure to continue to report on your invaluable work and advocacy on behalf of civil rights. Thank you.
Witold: Absolutely. Thanks for having me.
Host Cyril Mychalejko’s 5 Book Recommendations to Further Shine a Light on the Issue
- The Good News Club: The Christian Right’s Stealth Assault on America’s Children, by Katherine Stewart
- A Wolf at the Schoolhouse Door: The Dismantling of Public Education and the Future of School, by Jennifer Berkshire
- Dark Money and the Politics of School Privatization, by Maurice Cunningham
- Whose America?: Culture Wars in the Public Schools, by Jonathan Zimmerman
- The Undertow: Scenes from a Slow Civil War, by Jeff Sharlet
ORGANIZATIONS
- Advocates for Inclusive Education (Bucks County)
- Central Bucks Neighbors United
- The Network for Public Education
- PFLAG
ALSO LISTEN TO:
- EPISODE 2 – The Merchants of Deception: The Dark Money and Front Groups Behind School Privatization, with Maurice Cunningham
- EPISODE 6 – The Right’s Long War On Public Education, With Jennifer Berkshire
- EPISODE 7 – Understanding Backlash Politics And Religious Conservatives Inciting School Board Wars, With PRRI’s Melissa Deckman
- Episode 10 – Raising A Transgender Child In An Increasingly Transphobic Country, With Brett Freeman
- Episode 11 – Unmasking Moms For Liberty’s Extremism, With Olivia Little And Diana Leygerman
