As you may be aware, the U.S. Departments of Education and Justice (DOE/DOJ) last week issued a “significant guidance letter” in which they essentially concluded that Title IX requires public schools to permit transgender students to use the bathrooms, locker rooms, and dormitories that correspond to their gender identity, regardless of their biological sex. Title IX generally prohibits discrimination on the basis of sex in educational programs and activities by schools receiving federal funds. According to the DOE/DOJ letter, public schools must treat “a student’s gender identity as the student’s sex.” A panel of our federal Fourth Circuit Court of Appeals recently upheld the DOE/DOJ interpretation, but the ruling has now been stayed pending review by the full Fourth Circuit. DOE, however, through its Office for Civil Rights (OCR), and DOJ have made their position clear.
In the recent case of G. G. v. Gloucester County School Board, a three-judge panel of the Fourth Circuit considered whether Title IX also prohibits discrimination on the basis of gender identity. The case involved a transgender male, G.G. (born female but identifying as male), who challenged the school board’s transgender restroom policy requiring students to use bathrooms corresponding to their biological sex or an alternative private bathroom. The trial court dismissed G.G.’s Title IX claim, and G.G. appealed to the Fourth Circuit. The Fourth Circuit panel reversed the lower court, holding that DOE had correctly interpreted Title IX regulations to require that when a school district elects to separate or treat students differently on the basis of sex, such as when providing restrooms, locker rooms, and the like, the district must generally treat transgender students consistent with their gender identity instead of their biological sex.
The Gloucester County School Board has requested a rehearing before the entire 15-judge Fourth Circuit; the Court issued a “stay” while it considers that request. A stay essentially places the G.G. ruling on hold, though it provides no indication as to how the full Fourth Circuit will ultimately decide the G.G. case.
If the Fourth Circuit denies a rehearing or issues a new decision in line with the decision of the three-judge panel, districts likely will be subject to suit for violating Title IX if they do not allow transgender students to use the restroom that conforms to their gender identity. That is, a transgender male (born female but identifying as a male) would have to be permitted to use the boys’ bathroom facilities. Similarly, a transgender female (born male but identifying as a female) would have to be permitted to use the girls’ bathroom facilities.
While the law in this area remains unsettled, it appears likely that schools will have to work to balance the rights of transgender students with the privacy and safety rights of other students. Indeed, lawsuits are now being filed against school districts that have sought to accommodate transgender students by the parents of non-transgender students who allege the privacy rights of their children are being violated because they are forced to be in the bathroom or locker room with transgender students. This places districts in the untenable position of facing OCR enforcement actions on behalf of transgender students or lawsuits on behalf of non-transgender students.
Despite the uncertain legal landscape, districts should consider taking steps to benefit all students, regardless of how this issue ultimately is settled. Initially, schools may choose to provide all students with access to alternative unisex facilities. This protects transgender students who do not feel comfortable using the facilities that correspond to their gender identity, as well as non-transgender students who are uncomfortable being in a restroom or locker room with a transgender youth. Districts also may consider other methods by which the privacy of all students in restroom and locker room facilities can be protected – for example, creating stalls in showers/restrooms and stalls for changing in locker rooms. Districts also may want to consider reviewing their gender-based rules and practices, such as gender-based dress codes, to avoid potential challenges based on sex discrimination.
There are many less controversial issues besides access to bathrooms and locker rooms that school administrators may encounter when a student expresses a sincere desire to be recognized by a gender identity different from their birth sex. These include determining what name and pronouns to use for a transgender child; how to best protect the transgender child’s privacy concerning school records; how to prevent bullying and harassment; and how to deal with parents who are not supportive of the child’s transgender status. Districts also may be asked by parents to provide separate hotel accommodations for transgender students attending overnight field trips.
Based on the G.G. case and the guidance accompanying the DOE/DOJ letter, this firm is providing a “Question and Answer” document targeted to district administrators, which suggests approaches to accommodating transgender students. Many schools quietly have been addressing these issues on a case-by-case basis, often with great success. We believe this case-by-case approach, through open communication between school officials and the transgender student and his/her parents or legal guardian, is the preferred method of addressing the needs of transgender students until the law is settled. In our view, adoption of a specific policy on this issue is premature and may call unnecessary attention to how a district is handling these controversial student matters.
We will keep you updated on legal developments in this area. In the meantime, if you have questions, please let us know.
What can a school district do in the following “ripped from the headlines” scenarios? A high school student comes to school wearing a t-shirt with “Nobody knows I’m a lesbian” printed on it. A student wears clothing or drives a car to school emblazoned with the Confederate battle flag. A student writes an article for the school newspaper discussing a proposed state law that would legalize medical marijuana. Several students wear breast cancer awareness bracelets bearing the caption “I ♥ Boobies” to school.
The answers are, “It depends.” The mission of schools is to educate children, and in order to foster an environment conductive to learning, schools must maintain order and discipline. At the same time, students have a right to speak and express themselves freely. As the United States Supreme Court noted in the 1969 landmark case of Tinker v. Des Moines Independent Community School District, students do not “shed their constitutional rights to freedom of speech or expression at the school house gate.” Public schools often must balance these two potentially conflicting concepts: (1) the need for a safe and orderly learning environment and (2) students’ constitutional rights to freedom of expression of their views. Determining where to draw the line between these two important interests can be difficult.
The Supreme Court in Tinker held that public schools may regulate a student’s speech or expressive activity if they can demonstrate that it would create a “substantial disruption” of school activities or invade the rights of others. Schools may not restrict a student’s right to freedom of expression simply because the student’s viewpoint is unpopular or may cause discomfort or unpleasantness. Public schools also may not pick and choose the speech it will permit. Nevertheless, free speech cannot be allowed to trump the main mission of education. Therefore, a public school may block or punish student speech or expression in order to maintain a safe and orderly learning environment.
The Supreme Court has also defined some specific situations in which public schools may act to restrict student expression without showing a material or substantial disruption to school activities. It held in Bethel School District v. Fraser that there is no First Amendment protection for vulgar, lewd, or “patently offensive” speech at school. Subsequently, it held in Hazelwood School District v. Kuhlmeier that a public school could edit and censor articles in a school-sponsored publication if such restrictions served a legitimate educational purpose. Finally, it held in Morse v. Frederick that a school could discipline a student for a banner promoting illegal drug use.
The determination of whether a school may restrict or punish student expression is heavily dependent on the facts and circumstances surrounding the student speech in question. Small details may make the difference between an allowable restriction on student speech and an unconstitutional infringement on a student’s freedom of expression.
What happened in the scenarios described in the opening paragraph of this article? The lesbian t-shirt: The school suspended the student who wore the “Nobody knows I’m a lesbian” t-shirt when she refused to change it, on the grounds that it violated the school dress code which prohibits clothing deemed distracting and disruptive. The school’s actions were criticized in the media as unconstitutional because it had no evidence of an actual or likely “material disruption” at the school. The school ultimately reversed the disciplinary decision to suspend the student because the administration realized that while the shirt was offensive and distracting to some adults, the students paid it little attention.
The Confederate battle flag: Some schools have enacted dress codes prohibiting students from attire that reflects adversely on people because of race, gender, or other factors, and some have policies banning vehicles with derogatory messages or racial symbols, specifically including the Confederate flag, from the parking lot. If the schools have proof of current and historical racial tension or unrest in the community that creates a reasonable expectation of substantial disruption in the schools if the Confederate flag is displayed, courts have generally found that such bans on student expression are allowed under the Tinker substantial disruption test. The stronger school policies on student displays of racial symbols are viewpoint-neutral, meaning that they apply to all racially charged symbols, not just the Confederate battle flag.
School newspaper articles about controversial subjects: If a school sponsors a student newspaper for educational purposes and does not open it to unrestricted use by students, the school may require students to submit their articles for review by the school prior to publication because it is deemed school-sponsored speech. A Florida school rejected an article about proposed medical marijuana laws because it “did not fit into what we do” in being “a mouthpiece” for the school. The school’s legal counsel, however, advised the school to allow the article to be published if it met reasonable editorial and pedagogical standards and if the paper is an appropriate forum for controversial political topics. The deciding question in such a situation may turn on whether the paper is produced for class credit or is instead an extracurricular, after-school activity in which students have been given final authority over content decisions or even an independent newspaper.
The “I ♥ Boobies” bracelets: Federal courts have come to differing conclusions on whether schools can ban breast cancer awareness bracelets bearing the slogan “I ♥ Boobies” on the grounds that the slogan is profane, obscene, and lewd. If a school’s decision to allow or ban such bracelets is based on legitimate considerations of the age and maturity of the students and community standards, courts generally will not intervene but will defer to the school’s decision.
Determining where the balance lies between maintaining order while not infringing on students’ free speech rights at school can be difficult. The analysis is more complicated if the student speech occurs off-campus, a wrinkle which is not addressed in this article. If your District needs assistance in analyzing its options when faced with such issues, please feel free to contact us.
In May, 2014, the U.S. Departments of Justice and Education (“DOJ/DOE”) issued a “Dear Colleague” letter, updating school districts across the country on their obligations regarding the education of “undocumented” (illegal immigrant) students. While Dear Colleague letters do not carry the same weight as a law or a court opinion, school districts must make every effort to comply with their mandates.
The DOJ/DOE issued this Dear Colleague letter in the wake of numerous school districts across the country coming under attack for student enrollment procedures that discriminated against undocumented students. For example, the American Civil Liberties Union (“ACLU”) filed suit against seven New Jersey school districts that required parents to submit government-issued photo identification as part of their student enrollment process. Through the Dear Colleague letter, DOJ/DOE remind districts that, because they receive federal financial assistance, they are required to adhere to the requirements of federal statutes, such as Title IV and Title VI of the Civil Rights Act of 1964, which prohibit discrimination against students based on their race, color, or national origin. Additionally, the Letter refreshes districts on the ruling of the 1982 Supreme Court case of Plyler v. Doe, 457 U.S. 202, where the Court held that a state may not deny access to a basic public education to any child residing in the state, whether present in the United States legally or otherwise. In the Plyler case, the Court rejected Texas’s arguments that denying educational access to undocumented students would (1) reduce the number of illegal immigrants, (2) improve the quality of education for legal students by preserving limited resources, and (3) result in undocumented children being less likely to remain in the state to put their education to productive use. The Supreme Court found that by “denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”
Using the rationale of the Plyler case and various civil rights statutes, DOJ/DOE explained that districts may not discriminate on the basis of race, color, or national origin or bar the enrollment of students on the basis of their citizenship or immigration status or that of their parents. Accordingly, districts are reminded that while it is permissible to require proof of residency for students who are not homeless, it is unlawful to prohibit a student from enrolling in school because he/she lacks a birth certificate or has a foreign birth certificate. (Schools must enroll homeless children or unaccompanied youth immediately without proof of residency, birth, or immunization.) In South Carolina, State Regulation 43-272 requires that students “submit a birth certificate or other documentation to verify a birth record in special situations as allowed by a local board of trustees. All students in grades K–12 must show evidence of compliance with Department of Health and Environmental Control rules and regulations concerning immunization.” DOJ and DOE also remind districts that they may not deny enrollment to a student if the parent refuses or is unable to provide the student’s social security number. (5 U.S.C. § 552a (note.)) If the district requests a social security number, the district must inform parents that disclosure is voluntary, provide the statutory or other basis upon which it is seeking the number, explain what uses will be made of the number, and indicate how it will keep the number confidential.
Through the Dear Colleague letter, DOJ/DOE tell districts that they may want to review enrollment policies to ensure that the policies do not have a “chilling effect” on students’ enrollment and to verify that the district has not seen a significant drop in enrollment from the area’s undocumented population. Districts should not question parents or students about their immigration or citizenship status, and districts should take proactive steps to reassure parents that their children are welcome in school, regardless of their citizenship or immigration status.
Reporting of Undocumented Students
An area not addressed by the Dear Colleague letter is what responsibilities districts have in reporting undocumented students to Immigration and Customs Enforcement (“ICE”). There is no federal law that requires districts to report undocumented students and their families to ICE, and a district likely would violate the Family Educational Rights and Privacy Act (“FERPA”) by disclosing confidential student records to a third party, such as ICE. Of course, if ICE or local law enforcement present a court order or subpoena for student records, the district must produce those records in compliance the requirements of FERPA. It is important to note, however, that if a school official fears for the safety of a child who is undocumented, the district still is required to notify the Department of Social Services or local law enforcement as appropriate. Schools should never let concern of revealing an undocumented family’s status trump the personal safety and wellbeing of it students.
Immigration Accountability Executive Action
It is still unclear how President Obama’s recent Immigration Accountability Executive Action (“Executive Action”) will affect school districts dealing with undocumented students. The most important part of the Executive Action that relates to school districts will be its expansion of the Deferred Action for Childhood Arrivals, better known as the DACA program. Under the initial DACA program, young people who came to the U.S. as children, had been in the U.S. for at least five years, and who met specific education and public safety criteria were eligible for temporary relief from deportation as long as they were born after 1981 and arrived in the U.S. before June 15, 2007. The Executive Action will expand DACA to provide protection for children brought to the U.S. before January 1, 2010 regardless of their current age. Under the new program, the number of children eligible to apply for DACA protection, and enroll in public school without fear of deportation, will increase greatly because of the elimination of the age requirement.
This is a complex and evolving area of school law and administration. If your District needs assistance in dealing with its obligations toward undocumented students, please feel free to contact us.