The U.S. Supreme Court was correct to halt a court order that would have immediately forced one school in Virginia to allow students of one biological sex to use the school restroom of the other biological sex.
The U.S. 4th Circuit Court of Appeals had sided with the plaintiff in the lawsuit, but the Supreme Court on Aug. 3 issued a stay, pending potential review. That gives the Virginia school officials time to prepare and file an appeal of the 4th Circuit’s order for the Supreme Court to consider this fall.
This confusing situation was precipitated by the Obama administration’s U.S. Department of Education and U.S. Department of Justice, which took action that many believe exceeds their legal authority. In May, the two federal agencies sent a “guidance letter” to school corporations nationwide, notifying them that allowing students to use restroom and locker room facilities based on gender identity, irrespective of biological sex at birth, is now a condition for receiving Title IX federal funds. The letter appeared to threaten schools with the cutoff of federal funds, which are important to school budgets, if schools don’t comply.
This extraordinary mandate is but the latest example of federal executive branch agencies overstepping their bounds and attempting some action that the people’s elected representatives in Congress have not authorized them to do.
Local school corporations, superintendents and school boards in Indiana have long tried to accommodate situations with students who have special privacy needs. Schools generally seek to do this responsibly and discreetly to maintain student privacy, take parents’ views into account, prevent bullying and respect students’ civil rights. But the U.S. DOE and DOJ directive would instead intrude upon what, under our nation’s system of federalism, should be a state and local decision-making process.
Parents, students, teachers and local school administrators should be allowed to work through highly sensitive personal situations on a case-by-case basis with compassion and in ways that preserve the rights, privacy, modesty and dignity of every student, and don’t distract from the school learning environment. The federal agencies’ top-down, one-size-fits-all approach would be a draconian, impractical and potentially costly federal intrusion into state and local school operations.
That’s why 22 states are challenging the constitutionality of the federal bathroom directive, with one multistate lawsuit filed in federal court in Nebraska, the other in Texas. Indiana often has participated in multistate cases that challenged federal overreach. My office has not yet joined these latest legal challenges, but we reserve the right to do so in the future. Although local school corporations have their own legal counsel, my office as state government’s lawyer could also potentially represent individual schools in future litigation connected to the federal directive, at the request of and with the approval of a school corporation.
Now that the U.S. Supreme Court could address the federal directive in the Virginia school case, it’s likely the Nebraska and Texas federal courts will hold off on final judgments in the multistate suits until there’s further word from the Supreme Court. My view is the U.S. DOE and DOJ should back off of their threat to discontinue federal funding to schools that don’t comply with the directive, until there is a final determination from the Supreme Court.
This is a difficult subject, about which sincere people of good will can have legitimate differences of opinion. Indiana is a strong home rule state where we recognize local authority. In helping young people navigate the difficulties of their school years, we as Hoosiers should value parental rights and local decision-making. The wisest course is to allow parents and local schools to exercise their best judgment until there is greater understanding from the Supreme Court of the extent to which federal agencies can reach into private local decisions affecting our families and children.
Greg Zoeller is attorney general of Indiana.
