Amicus Brief: Wachter v. James

Two elected New York school board members are challenging a May 2025 Guidance Letter issued by Attorney General Letitia James and Education Commissioner Betty Rosa. The school board members wish to express views supporting sex-based sports and facility policies, use biological pronouns, and allow similar speech during public comment periods. The Guidance Letter states that intentional misgendering and related comments may constitute “harassing and stigmatizing” conduct, directs board members not to permit such speech at public meetings, describes adhering to the speech code as part of a school board member's official duties, and threatens removal from office for violations.

Plaintiffs allege the letter chills protected speech and violates the First Amendment. The district court dismissed the case for lack of standing, finding no credible threat of enforcement because the letter lacks legal force.  Now on appeal to the Second Circuit, the board members argue that the letter effectively threatens removal for protected speech, exceeds New York law’s limits, and creates a credible enforcement risk based on the commissioner’s removal authority and prior speech-related proceedings.

The Manhattan Institute has joined the Buckeye Institute, the Defense of Freedom Institute, the Center for American Liberty, and New York school board member Kate DelliCarpini on a brief in support. We argue that guidance letters like this one have long been used by the government as a type of veiled threat. Government officials can use "guidance" to essentially enact a preferred policy without officially changing the law and then argue in court that mere guidance can't be challenged. But the First Amendment protects speakers from credible threats to their protected speech. Here, the threat is quite apparent and credible, and the Second Circuit should hold that it is enough to establish standing for a First Amendment challenge. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.