The Bentonville School District has been discussing for months a proposal backed by at least three of seven board members to add sexual orientation and gender identity to an equal employment policy for the school district.

The right-wing American Family Association has gotten involved to rally its adherents to oppose this. It is their religion to discriminate against gay people. A School Board meeting ended early Monday because of continuing friction on when the matter will be heard and whether powers in the district are attempting to avoid an open discussion. Here’s a Northwest Arkansas Online report on the discordant end of the meeting.

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Though far removed, I’ve heard quite a bit about the tussle:

* The school district’s attorney, Marshall Ney of the Friday Law Firm, has issued some guidance that, at this point, amounts to a punt. It  says that, why yes, the recent U.S. Supreme Court ruling guaranteeing equal treatment for all married people, including same-sex couples, might affect the district’s policy on covering spouses on district health insurance. Needs study, he said. Not much, in my view But more study and even taking unwise action that prompts a lawsuit is all good for a school district attorney. The time clock runs.

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* Board members and School Superintendent Michael Poore have had lengthy discussions by email on what and when certain subjects should be discussed and other matters that look, to an outsider, an awful lot like conducting public business in private. The Freedom of Information Act has been interpreted to prevent public boards deciding matters by round-robin emails.

* In addition to the core battle of equal rights for all employees, the school district is riven by factions that support and oppose the school superintendent and by allegations of private and personal connections among current and former school officials. A typical Arkansas school district, in other words, but it happens to be one with growing wealth and covers the home of one the world’s biggest and richest private corporations.

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I’ve provide Ney’s letter in full at the end. He says the recent U.S. Supreme Court ruling applies only to issuance of marriage licenses and recognition of valid marriages in other states. It does not, he said, require the School Board  “to change any of its policies or implement a new policy relating to same-sex marriages at this time. However, the decision warrants a closer review of any current policies and practices concerning employment benefits for married couples.” He goes on to mention some questions that could arise and the potential for legal challenge.

No kidding. Arkansas Blue Cross has been providing spousal coverage to legally married people since 2014. Ask any insurance regulator if the law now requires policies that cover spouses to also cover same-sex spouses. I dare you to find someone who says no, outside of an American Family Association Church or similar religious bigots. Would the Bentonville School District REALLY allow heterosexual couples to obtain district health insurance but not same-sex couples?  I don’t doubt that there are school board members who’d vote to discriminate on the basis of THEIR religious beliefs and deny such coverage. But they may not legally. acting as a government entity, impose their religion on others contrary to rule of the U.S. Supreme Court.

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Insurance coverage is important in considering the question of a non-discrimination policy. To obtain insurance coverage — presuming Bentonville sees the light and provides coverage for all legally married couples as the U.S. Supreme Court ruling intends — a same-sex couple will have to “out” themselves by declaring their status on insurance forms and by submitting proof of marriage.

Without a nondiscrimination policy, it will remain legal to fire someone simply because they are gay — and there’s evidence of some in the district, including on the School Board, who prefer this legal state of affairs. Employees, or potential employees, might fear disclosures about their personal lives for fear of repercussions. It’s easy to fix: Explicitly provide spousal coverage for all; adopt a non-discrimination policy, and cease bullying anyone — student, employee or school board member.

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Poore has been polling board members on when to meet again on some personnel matters. The non-discrimination policy is most likely to be discussed in August, but the date remains uncertain.

Ney’s letter:

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Mr. Michael Poore, Superintendent
BENTONVILLE SCHOOL DISTRICT

Dear Mr. Poore:

I am writing to address the recent opinion of the United State Supreme Court concerning same-sex marriage.

On June 26, 2015, the Court issued its opinion in Obergefell, et al. v. Hodges, Case No. 14-556, holding that the Fourteenth Amendment to the United States Constitution requires a State to license a marriage between two people of the same-sex and to recognize a marriage between two people of the same-sex when their marriage was lawfully licensed and performed out-of-State. The Court thus ruled in favor of 14 same-sex couples who had filed suit in Michigan, Kentucky, Ohio and Tennessee to challenge statutes and constitutional amendments adopted in those States which define marriage as a union between one man and one woman. In finding that these State measures are unconstitutional, the Court relied upon the fundamental right to marry under the Constitution and the right to equal protection of the laws and due process of law under the Fourteenth Amendment.

The Court’s opinion in Obergefell instructs State governments and their instrumentalities to issue marriage licenses to same-sex couples and to recognize the validity of same-sex marriages licensed in other States. The decision is not directed to other governmental entities that do not issue marriage licenses, nor is it directed to non-governmental parties who perform marriage ceremonies.

We do not believe the Court’s opinion in Obergefell requires the Board of Directors of the Bentonville School District to change any of its policies or implement a new policy relating to same-sex marriages at this time. However, the decision warrants a closer review of any current policies and practices concerning employment benefits for married couples. Although Recent United States Supreme Court Opinion Concerning Same-Sex Marriage the Court did not address the issue of employee benefits, it appears that treating married same-sex couples differently from other married couples would subject the District to a legal challenge under the reasoning of the Court’s opinion. Accordingly, we recommend that the District research and resolve the following additional questions: (a) whether the District’s insurance providers impose any limitation on who can receive dependent insurance coverage or other benefits; (b) the status of any employees who claim to be married as a result of same-sex common law marriages; and (c) whether the Arkansas Department of Education has issued any new rules, regulations or recommendations relating to same-sex marriages in the aftermath of the Court’s opinion.

We will be available to assist you in addressing these questions and any other questions that may arise. If you need clarification or any additional information concerning this analysis, please let me know.

Sincerely yours,
Marshall S. Ney

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