Settlement approved between Ash Whitaker and Kenosha School Board

KENOSHA, Wis. (CBS 58) -- The Kenosha Unified School District voted to approve a settlement resolving litigation between Ash Whitaker and the board.

They're paying $800,000 with $650,000 of that money going to Whitaker's attorneys' fees and the rest going to Whitaker. 

Whitaker sued the district in the summer of 2016, arguing that its bathroom policy violated his civil rights.

In a statement through his attorneys, Whitaker said,

“Winning this case was so empowering and made me feel like I can actually do something to help other trans youth live authentically. My message to other trans kids is to respect themselves and accept themselves and love themselves. If someone’s telling you that you don’t deserve that, prove them wrong.”

Whitaker is a freshman at the University of Wisconsin-Madison, where he plans to major in biomedical engineering.

The judges agreed, finding that Whitaker was likely to win his case based on that argument. 

The district 5-2 approved the payment of $800,000. Board member Gary Kunich said he preferred the case to be decided by the U.S. Supreme Court. 

"My issue with settling this is that we aren't settling anything. Our policy is still the same, the law hasn't changed. We have not heard from the Supreme Court, this opens us up to additional lawsuits," Kunich said.      

“I realize we have two issues: the civil rights argument on one side and the privacy rights on the other and I’ve said all along that I wanted the Supreme Court to settle this once and for all not just for our district but for other districts,” Kunich said. 

Ronald S. Stadler of Mallery & Zimmerman, S.C., counsel for the Kenosha Unified School District sent CBS 58 News the following statement regarding the settlement:

" On Jan. 9, 2018, the KUSD Board voted to approve the non-monetary components of a settlement agreement resolving the pending litigation between Ash Whitaker and KUSD. The Board reviewed and approved the proposed limited non-monetary aspect that, in sum, permits Whitaker to use the men's restroom when returning to campus as an alumnus or community member, which is consistent with what took place his senior year in the District. The Consent Judgment does not apply to individuals beyond Whitaker.

KUSD and its insurer recently attended a non-binding mediation with Whitaker in which the insurer approved a monetary payment of $800,000 with approximately $650,000 going toward Whitaker’s attorneys' fees and the remainder going to Whitaker. The monetary component was approved by the insurance company in light of mounting legal costs and the risk of potential exposure of several million dollars if the parties continued to litigate to the end of the lawsuit, which could take a few years. The decision to settle was driven by the District’s insurance company’s concern over the legal developments, the mounting costs of defending the claim and ultimately a risk of having to contribute toward Whitaker’s significant attorneys’ fees. The only taxpayer funds spent by the district in defending this matter were its $25,000 deductible.

Whitaker had filed a lawsuit alleging he was discriminated against as a transgender person regarding his use of restrooms and overnight accommodations while enrolled in KUSD. KUSD has maintained all along that Whitaker was being treated entirely consistent with a procedure that, at the time the decision was made, was entirely legal under the law. Whitaker’s complaint contained many allegations, including that transgender students were required to wear "green wristbands" and that Whitaker was singled out from other students. The District strongly denied such allegations and at no point in the litigation did Whitaker submit evidence to substantiate those disputed claims.

During the litigation, the Seventh Circuit Court of Appeals issued a decision upholding an injunction and ruling for the first time by any federal Court of Appeals that transgender students are covered under the term “sex discrimination.” KUSD sought to have the United States Supreme Court review the legal issues, but such requests are rarely granted.

The District has and continues to work diligently with students and their families to address unique needs and accommodations. KUSD looks forward to continuing to focus on the quality education of all students and fostering an atmosphere where all students feel safe and respected."