Judge mocks school’s defence in ‘two sexes’ case, but legal loophole lets Exeter off scot-free

A former Exeter High School student who was disciplined after being wrongly accused of using the wrong pronouns lost his lawsuit despite school officials lying during his testimony, a judge ruled Monday.

Rockingham County Court Judge Andrew Schulman quoted the band Buffalo Springfield (“There are battle lines going on signed; No one is right when everyone is wrong) and the film ““Casablanca” in his 18-page ruling criticizing school administrators for their dishonest testimony.

Marcy Dovholuk, assistant principal at Exeter High School, and William Ball, football coach, both testified at last year’s trial that the boy was suspended from the football team for allegedly using inappropriate language in a text message conversation, such as “bozo” and “STFU,” and not for allegedly misgendering another student.

“School officials’ alleged shock at plaintiff’s use of the terms ‘bozo’ and ‘stfu’ has about as much credibility as Captain Renault’s famous exclamation of shock in Casablanca. Context is everything,” Schulman wrote.

But the student lost his case anyway because New Hampshire law does not allow public institutions such as schools to be held liable for civil rights violations unless there is at least monetary damages, Schulman’s ruling said.

“Because New Hampshire law does not recognize a private cause of action for a violation by a political subdivision of a plaintiff’s constitutional rights in the state, absent bodily injury, property damage, personal injury, or a statute, the court grants judgment for the defendants,” Schulman wrote.

Attorney Richard Lehmann, who represents the student and his mother, called Schulman’s ruling a partial victory because the judge found the facts were in his client’s favor, even though the law does not.

“My clients won this case on every count except the law. The court believed their testimony and disbelieved the testimony of school officials when they said they took no action against my client because he expressed his beliefs,” Lehmann told NHJournal.

The boy, who has since transferred to another school, is being referred to in the lawsuit as MP to protect his identity. MP and his mother are seeking $1 in nominal damages from the school for violating his freedom of speech and religious rights. The student’s belief in only two genders is based on science and his Catholic faith.

The Christian advocacy group Cornerstone supported the congressman’s lawsuit and plans to support his appeal to the New Hampshire Supreme Court.

“Cornerstone and its attorneys look forward to appealing this decision to the New Hampshire Supreme Court, which will be bound by the trial court’s factual findings, and obtaining a ruling that will protect the freedom of speech and religious freedom for all Granite State students,” said Shannon McGinley, Cornerstone’s executive director.

MP’s beliefs became an issue in September 2021, when he was a freshman on the high school football team. During a conversation with friends on the bus after school, MP expressed his belief that there are only two genders, according to a statement Schulman recites in his ruling. Another student, identified as AG, took offense to the comment, even though she was not part of the conversation and the comment was not directed at her, according to the ruling.

“AG believed that (MP) had the subjective belief that there are only two genders. In fact, that is exactly what (MP) believed. He follows what he presents as the Catholic religious doctrine that God created humans as either male or female,” Schulman wrote. “AG believed otherwise and she took it upon herself to correct (MP) by saying in a loud and somewhat aggressive tone that there are more than two genders.”

MP disagreed, saying he believed there was openly bi-gender, and the bus conversation ended there. However, AG would not let it go and got MP’s mobile phone number. She resumed the argument later that evening via text message, the ruling said.

“How can you be in high school and not know the difference between sex and gender? Give a valid reason why ‘there are only 2 genders’,” AG demanded via text message.

AG picked a fight when she sent the message unsolicited and continued to argue with MP until late into the night, Schulman said.

“The Court pauses to consider the import of AG’s text: She intruded on Plaintiff’s privacy by sending him an unsolicited and almost hostile text directly. She asked a question and thereby invited a response. She had no reason to expect the response to be an apology that indicated a cheerful acquiescence in her position. The tone of her text did not suggest a desire for an open exchange of views. At best, AG was proselytizing; at worst, she was name-calling,” Schulman wrote.

In the following text discussion, MP seemed to want to end the conversation without deviating from his positions, while AG kept pushing her positions. During the argument, AG was condescending towards MP for his “ignorance” about gender. MP, on his part, seemed to want to end the argument.

“Just shut up and leave me alone. You brought this up knowing you were wrong, bozo. So grow up and maybe realize there are only 2 genders and sexes,” MP wrote.

But AG didn’t let the matter rest, according to the ruling. The next day, she emailed Ball falsely accusing MP of engaging in “extreme” transphobic bullying, Schulman said. Neither Ball nor any other school official bothered to investigate AG’s allegations before taking action against MP, Schulman said. Based on testimony and evidence presented at trial, Schulman found no evidence that MP engaged in transphobic bullying.

Dovholuk and Ball decided to punish MP for his alleged transphobia, but in a way that left no paperwork, Schulman said. Instead of a formal letter, Ball was authorized to suspend MP from the football team for up to a week.

On the stand, both Ball and Dovholuk claimed the punishment was for using the disrespectful terms “bozo” and “STFU,” and not for stating that he believes there are two genders.

“The court does not believe the school’s witnesses on this point. The school’s witnesses are honorable people in an honorable profession, but the court finds that they were dishonest about their motives,” Schulman wrote.

Neither Ball nor Dovholuk responded to a request for comment. SAU 16 Superintendent Esther Asbell is out of office until July 30. School Board Chair Bill Gauthier declined to comment Monday, saying he had not yet read the ruling.