Equity, Equality, and Equal Protection

As early as 1954, the United States Supreme Court, in Brown v. Board of Education, recognized the importance of education with these words:

Education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

(Brown v. Board of Education, 1954, p. 493)

In striving for equality, sometimes we deprive the very students who need the most help. This chapter focuses on the tension between issues of equality (treating everyone alike) and issues of equity (understanding that some individuals need more assistance than others). This tension is accentuated when two or more very' deserving groups must compete against each other for scarce resources.

Timothy v. Rochester School District (1989) involves a profoundly intellectually challenged student with multiple handicaps, who suffers from complex developmental disabilities, spastic quadriplegia, cerebral palsy, seizure disorder, and cortical blindness. In this case, the school wanted to deny Timothy access, claiming that he could not benefit from educational services. The court ruled that the law mandates the education of all children with disabilities and does not require that the child demonstrate

“benefit.” This case was particularly controversial because of the high expenses it incurred for the school district. It highlights the tension between serving students with severe disabilities and a district’s responsibilities to other types of disadvantaged students when budgets are tight. This situation raises a more contemporary question foreshadowed in Chapter 15’s Gary B. case: Why is education such a low priority in this country' that the needs of some students must be balanced so sharply with the needs of others?

Aware of research indicating that African-American males learn better in single-gender classrooms, the school district of Detroit, Michigan, established a school solely for young Black men. A Michigan court, in Garrett v. Board of Education of the School District of Detroit (1991) determined that establishing this school constituted gender discrimination in that it was an all-male school. Yet, as Green and Mead (2004) note some 20 years later, several states support the establishment of single-gender schools, many of which are charter schools. Focusing on equity issues, these authors caution us that charter schools need to adhere to legal constrictions, just as other public schools, in that there must be a justification for the school to serve only one gender, and the benefits for that particular sex must be comparable to benefits provided to the opposite sex.

Providing another twist to the gender equity argument, Salomone (2003) cites both legal and social science research that focus on the individual rights and needs of students, asserting there are times when students of each gender would clearly benefit from attending a single-sex school. Her conclusions frame the equity argument this way:

Over the past three decades, the equity ideal has come to mean not just "same is equal” but sometimes “different is equal” and even "more is equal” when applied to various groups, including the economically' and educationally disadvantaged, linguistic minorities, and the disabled. The ultimate goal has been to develop each student’s full potential by initially leveling the playing field to accommodate individual needs. Why should gender be any different? Girls and boys appear largely the same at the core, but also slightly different within a narrow range at the margins, while some within each group depart from the norm.

(Salomone, 2003, p. 244)

In Taxman v. Board of Education of the Township of Piscataway (1996), we turn to an important personnel issue related to equity and equality. In this case, school authorities used race as a factor in deciding to lay off one of two teachers. The teachers had equal seniority and were equally qualified. The district chose to lay off Ms Taxman, the White teacher, instead of Ms Williams, the Black teacher, because there were no other Black teachers in the business department where the cut was taking place, even though the district had a racially diverse faculty. The Supreme Court agreed to review this case; however, the parties settled before the high court had time to hear the appeal. This was a particularly controversial case at the time, in part because affirmative action advocates pushed for a settlement, believing that if the high court heard the case, the justices might use this opportunity to strike down affirmative action policies in employment situations.

Our last two cases are new to this edition. The first of these is Grimm v. Gloucester County School Board, a 2020 decision that involves the bathroom rights of a transgender student, Gavin Grimm, who identifies as a male but was denied use of the boys’ restrooms. For seven weeks, school officials allowed Gavin to use the male facilities with no complaints. It was only when the community’ and school board members got involved that these rights were taken away. This case’s journey through the courts was a long and tedious one and did not get resolved until Gavin was out of high school and in community college. This kind of treatment is reminiscent of earlier cases such as Chapter 14’s Nabozny v. Podlesny, a 1996 decision involving a student who came out as gay, endured great hardships, and eventually won his case, emerging as a gay rights’ activist.

The Grimm case leaves much to be said about student voice, how today’s students appear to be much more accepting of others than in the past, and how some adults continue to speak for students, a concept discussed in Chapter 4. The court summed up these concepts beautifully in its concluding remarks found at the end of the case summary.

Plyler v. Doe (1982), the last case in this chapter, addresses the educational rights of children whose parents are undocumented. While this U.S. Supreme Court decision is an old one, we have added it to the Best Interests' book because it is as relevant today, if not more so, than it was in 1982. Scores of commentators (e.g., Lee, 2020; Moran, 2020; Vazquez, 2020) have written on the limitations of the Plyler decision in relation to the education of undocumented children. Like most Supreme Court rulings, Plyler was a fact-specific narrow decision and certainly one that did not anticipate so many children kept in detention facilities as are at this writing. Plyler also left much discretion to administrative agencies. Our challenge is to examine this decision considering the law, the status of immigration, and ethical constructs as related to sound professional practice and policy.

CASE STUDY 16.1: TIMOTHY W. v. ROCHESTER SCHOOL

DISTRICT, 875 F.2d 954 (1st Cir. 1989)

Born prematurely in 1975 in Rochester, New Hampshire, Timothy W. suffered numerous problems that left him severely handicapped and intellectually challenged. He also suffered from blindness, a seizure disorder, cerebral palsy, and spastic quadriplegia. Timothy’s family sought treatment for him at an early age. Before he was five, he received limited services from the Rochester Child Development Center.

In 1980, when it was time to enroll Timothy in school, he was denied admission. The Rochester School District refused to provide him with educational services. The officials at the school district determined that Timothy was not entitled to educational services because he was not considered educationally handicapped. The school district explained this as meaning that the nature of Timothy’s handicap was so “severe” as to make him unable to benefit from any kind of educational program.

The decision to deny the boy services took place after the district had held a determination meeting. During this meeting, several medical professionals, as well as Timothy’s mother, testified that he was able to benefit from an educational program of the type that Rochester could provide. However, one medical professional present at the meeting testified that there was no service available that would be of benefit to Timothy.

In 1982, during a review of the Rochester School District’s special education program, the New Hampshire Department of Education found the district to be noncompliant because they regarded “capable of benefiting” as a criterion for providing educational services. In response, the school district met one year later to consider Timothy’s case. The district heard the testimony of various medical professionals, including those who worked closely with Timothy. These professionals confirmed that Timothy had made progress in recent years, and they gave recommendations as to what they believed would be a suitable educational program. Once again, the school district denied services.

In 1984, Timothy’s attorney contacted the school district, and as a result, the placement team met to discuss the case. Additional expert testimony was gathered, and suggestions were again made. The placement team followed the ideas offered and recommended that an education program for Timothy begin at the Rochester Child Development Center. Such a program would have incurred considerable expense to the school district. The school board rejected the placement team’s findings, and the district sought more information including both an additional neurological evaluation and a CAT scan. Timothy’s mother refused the district’s requests.

Shortly thereafter, Timothy’s attorney requested, through a complaint to the New Hampshire Department of Education, that an educational program for Timothy start without further delay. By October of 1984, the Department of Education ordered the school district to place Timothy in an educational program immediately. The school district refused. District officials, during a meeting on November 8, 1984, once again determined that Timothy was ineligible for special education services.

A little over a week later, Timothy’s attorney filed suit in federal court, alleging that Timothy’s rights under the federal Education for All Handicapped Children Act (1975) and New Hampshire state law had been violated. The suit also alleged that Timothy was denied his right to equal protection and due process as guaranteed by the Fourteenth Amendment to the United States Constitution,

Timothy’s mother wanted the school district to be ordered to provide Timothy with educational services immediately. She also sought $175,000 in monetary' damages. Reviewing the federal EAHCA (Education for All Handicapped Children Act, 1975) and New Hampshire law, a federal district court determined that the school district was not bound to provide Timothy W. with special education services because the student was not capable of benefiting from these services.

Timothy’s parents appealed. Focusing on the interpretation of the EAHCA, the First Circuit Court of Appeals ruled in favor of Timothy. In making its determination, the court noted that the legislative history'of the EAHCA not only guarantees services for students with disabilities, but also gives priority’ to those with the most severe disabilities. Furthermore, a benefit/eligibility' test is not necessary to determining senices. In its concluding remarks, the court noted:

The statutory language of the Act, its legislative history, and the case law construing it, mandate that all handicapped children, regardless of the severity' of their handicap, are entitled to a public education. The district court erred in requiring a benefit/eligibility test as a prerequisite to implicating the Act. School districts cannot avoid the provisions of the Act by returning to the practices that were widespread prior to the Act’s passage, and which indeed were the impetus for the Act’s passage, of unilaterally excluding certain handicapped children from a public education on the ground that they' are uneducable.

The law explicitly recognizes that education for the severely handicapped is to be broadly defined, to include not only traditional academic skills, but also basic functional life skills, and that educational methodologies in these areas are not static, but are constantly evolving and improving. It is the school district’s responsibility to avail itself of these new approaches in providing an education program geared to each child’s individual needs. The only question for the school district to determine, in conjunction with the child’s parents, is what constitutes an appropriate Individualized Education Program (IEP) for the handicapped child. We emphasize that the phrase “appropriate individualized education program” cannot be interpreted, as the school district has done, to mean “no educational program.”

(Timothy IE v. Rochester School District, 1989, pp. 972-973)

Questions for Discussion

• 1. How might one view this case and the court’s decision from a justice perspective?
• 2. Was Timothy treated in a caring manner? Why or why not?
• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of the Rochester school officials?
• 5. Through a best interests’ perspective, was Timothy afforded his rights or shown his responsibilities? In this respect, how might this situation have been handled differently? Better? Was Timothy afforded respect? Dignity? Why or why not?
• 6. What would you have done in this situation if you were an official at the Rochester schools?

CASE STUDY 16.2: GARRETT v. BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF DETROIT, 775 F. Supp. 1004 (E.D. MICHIGAN 1991)¹

On August 26, 1991, the School District of the City of Detroit, Michigan, planned to open three male-only academies, housing approximately 250 boys. The schools were to serve students from kindergarten to fifth grade, with grades six through eight to open in the following few years. At the time of the suit, the district had spent $454,000 on the project. The students selected to attend the schools would come from a mix of achievement levels with high-needs, “at-risk” students making up approximately one-third of the population. In general, students were not assigned to any particular school within the district’s 251 schools. Participation in the academy program was also to be voluntary.

The curriculum and structure of the school day would differ from that of traditional schools. The curriculum was described as pluralistic, with an Afrocentric focus and an emphasis on male responsibility. One class, called “Rites of Passage,” would teach males to have a vision and plan for life, as well as to learn how to manage their emotions. Males, it said, need to “acquire skills and knowledge to overcome life’s obstacles.” Mentors and counselors would be available to assist students in acquiring these objectives. The program called for Saturday classes, an extended instructional day, and school uniforms.

The school district’s rationale for such schools was to address high rates of unemployment, student dropout, and homicide among urban males. School officials felt that the traditional coeducational school setting had failed to improve educational performance in males, thereby contributing to these social problems. Females’ achievement levels, on the other hand, did not seem to be adversely affected under the existing curriculum. The school district had observed some increased levels of achievement and fewer behavior issues in two experimental but smaller-scale programs running within larger schools. Their plan with this larger experiment was to learn what type of curriculum and teacher training was most helpful for these male students and then use this information for the benefit of all students.

The parents of girls enrolled in the Detroit Public Schools challenged these academies on behalf of themselves and their daughters, contending that the school’s goals do not require a male-only atmosphere to succeed, that the problems facing the target male population are ones that face all children and adolescents, both male and female, and that there was no equivalent school for females. Finally, although the schools’ stated goal was to address social problems facing urban male youth, this “at-risk” population made up only one-third of the school.

The federal district court for the Eastern District of Michigan granted the girls and their parents a preliminary injunction to stop the program. In rendering its decision, the court first looked at the likelihood of success that the girls might have in winning such a case. Here, claims included violation of: (1) equal protection as guaranteed under federal and state constitutions; (2) Title IX (Education Act Amendments, 1972), which prohibits gender discrimination; (3) the Equal Educational Opportunities Act (EEOA), which prohibits assignment of students outside of neighborhood schools if the reassignment results in a greater degree of segregation on the basis of a number of factors including sex; and (4) Michigan’s state code, which prohibits same-sex schools. The court found likely violations on all these counts and determined that no substantial harm would result if it prevented the operation of an unconstitutional school. Concluding with this statement as to its decision and the public interest, the court determined:

Plaintiffs [the girls and their parents] argue that the public interest is better served by preventing the opening of an unconstitutional educational facility. Defendant [school district] argues the Academies seek a bona fide public good to the detriment of no one. Defendant further contends that the creation of the Academies is substantially related to the important governmental interest of the Detroit Public Schools in obtaining information directed toward meeting the special educational needs of inner-city males. This “pilot setting” affords the public schools the opportunity to evaluate the effectiveness of various curricula and other programs in meeting the educational needs of males ... This Court views the purpose for which the Academies came into being as an important one. It acknowledges the status of urban males as an "endangered species.” The purpose, however, is insufficient to override the rights of females to equal opportunities.

(Garrett v. Board of Education of the School District of Detroit, 1991, p. 1014)

Questions for Discussion

• 1. How might one view this case and the court’s decision from a justice perspective?
• 2. How would one with an ethic of care approach this issue?
• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of Detroit school officials? Teachers working in the Academy?
• 5. Through a best interests’ perspective, what does this case say about rights and responsibilities? About respect? About dignity?
• 6. What would you have done in this situation if you were a Detroit school official?

CASE STUDY 16.3: TAXMAN v. BOARD OF EDUCATION

OF THE TOWNSHIP OF PISCATAWAY, 91 F.3d 1547

(3rd Cir. 1996)

In 1980, Sharon Taxman was hired as a teacher in the Business Department at Piscataway (New Jersey) High School. In 1989, the Piscataway School Board acted on a recommendation by the superintendent of schools to reduce the teaching staff in the Business Department by one teacher. Based on New Jersey statutes regarding the dismissal of teachers, the school board’s decision essentially came down to two choices, Taxman or Debra Williams. Ms Williams, who is Black, was hired the same day in 1980 as Ms Taxman, who is White. In addition, Ms Williams was the only minority faculty member in the Business Department at the high school. The state statutes were so stringent that they essentially took away discretion from local school boards to choose between employees for layoffs, except where there was an exact tie in seniority between two employees.

The superintendent of schools, Burton Edelchick, recommended that the district’s affirmative action plan be invoked to settle the dispute. While he believed that Taxman and Williams were equally qualified and tied in seniority, the school board should invoke the affirmative action to keep Williams because Williams was the only Black teacher in the Department. The board’s affirmative action policy, however, did not provide a remedy regarding the district’s problem. Black teachers were neither underrepresented nor underutilized in the district. Further, statistics showed that the percentage of Black teachers employed by the district was at a higher rate than the percentage of Blacks in the available workforce.

Theodore Kruse, the school board president, stated that while debating the decision, the board considered the affirmative action policy to be applicable here because the community is “quite diverse” and there was value in the students seeing “in the various employment roles a wide range of background and that it was also valuable to the work force and in particular teaching staff that ... they see that in each other” (Taxman v. Board of Education of the Township of Piscataway, 1996, pp. 1551-1552). In a disposition, Kruse also stated that the students would have a clear message from the school board that the teachers and staff remain culturally diverse so that when the students come into contact with the faculty, “they are more aware, more tolerant, more accepting and more understanding of people of all backgrounds.”

In the end, the school board unanimously voted to retain Williams in accordance with the affirmative action policy. Ultimately, Taxman hied legal claims under both Title VII (Civil Rights Act, 1964) and the New Jersey Law Against Discrimination (NJLAD, 1945). The New Jersey district court held the school board liable under both statutes for discrimination based on race. Prior to the trial court assessing damages, Taxman was rehired at the high school due to the retirement of another teacher. The court awarded Taxman $134,014.62 for back pay, fringe benefits, and prejudgment interest under Title VII. An additional $10,000 was awarded to Taxman for emotional suffering under the NJLAD. She was also given full seniority to reflect continuous employment from her original date of hire. The school board appealed the district court’s ruling.

In an eight-four ruling, the Third Circuit Court of Appeals affirmed the district court’s grant of summary judgment to Taxman. In writing for the majority, Judge Mansmann maintained that the court had to decide whether an employer with a racially balanced workforce could show preference to promote “racial diversity.” The court stated that there is a clear Title VII violation when an employer makes an employment decision based upon an employee’s race. Judge Mansmann cited a U.S. Supreme Court decision in United Steelworkers v. Weber (1979), where the court determined that affirmative action plans do not violate Title VII’s racial discrimination prohibition if they pass two prongs: “first ‘have purposes that mirror those of the statute’ and second, do not ‘unnecessarily trammel the interests of the [non-minority] employees’” (Taxman v. Board of the Township of Piscataway, 1996, p. 1550, citing United Steelworkers v. Weber, 1979, p. 208).

The court affirmed the district court’s decision to grant summary judgment to Taxman. Judge Mansmann concluded on behalf of the court: “We hold that Piscataway’s affirmative action policy is unlawful because it fails to satisfy either prong of Weber. Given the clear anti-discrimination mandate of Title VII, a non-remedial affirmative action plan, even one with a laudable purpose, cannot pass muster” (Taxman v. Board of Education of the Township of Piscataway, 1996, p. 1550).

The Piscataway School Board filed an appeal to the United States Supreme Court. Prior to court proceedings, Taxman and the school board agreed to a settlement. In a five-three vote the board settled with Taxman. The NAACP Legal Defense and Education Fund, who may have felt that another ruling against the school board in this matter would further restrict affirmative action in employment, supported the board in its decision to settle. The settlement amount was reported at $433,500, which included the amount of back pay mentioned in the original judgment, plus interest and legal costs.

Taxman remained employed as a teacher in the high school with her classroom adjacent to Ms Williams’ room. An Associated Press release reported that Ms Williams wept after the school board voted for the settlement and was pained by the entire situation because she felt slighted because she was originally retained only because of her race. The case had gone on for nine years before the settlement was reached (Westfeldt, 1997).

Questions for Discussion

• 1. How might one view this case and the court’s decision from a justice perspective? Was the action taken against Ms Taxman fair to Ms Taxman? To Ms Williams? Was the court’s decision fair?
• 2. Were Ms Taxman and Ms Williams treated in a caring manner? Why or why not? How might school officials have treated them in a more caring way?
• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of Ms Taxman? Ms William? Superintendent Edelchick? Board President Kruse?
• 5. Through a best interests’ perspective, were Ms Taxman and Ms Williams afforded respect? Dignity? Why or why not? What message does the treatment of these teachers send to students? To other teachers? What message, if any, does the court’s decision send?
• 6. What would you have done in this situation if you were Ms Taxman? Ms Williams? Superintendent Edelchick? Board President Kruse?

CASE STUDY 16.4: GRIMM v. GLOUCESTER COUNTY

SCHOOL BOARD, 972 F.3d 586 (4th Cir. 2020)

In September 2013, Gavin Grimm began attending Gloucester High School in Gloucester County, Virginia. Gavin had enrolled as a female but in April 2014, in the spring of his Freshman year, Gavin informed his mother that he was transgender. This decision from the Fourth Circuit Federal Court of Appeals, represents the culmination of Gavin’s five years of litigation with the Gloucester County School Board regarding his rights to use the boys’ bathroom facilities as a transgender student who identified as male. His claims were that the district violated both the Equal Protection Clause of the U.S. Constitution (Amendment XIV, 1868) and Title IX (Education Amendments, 1972).

The U.S. Supreme Court granted certiorari to hear this case and scheduled oral arguments. In the meantime, Donald Trump was elected president and rescinded the past administration’s guidance on transgender students. Because the lower court’s decision partially relied on this past guidance, the High Court decided not to hear this case and sent it back to the Fourth Circuit Court of Appeals for a decision acknowledging these changes. The appeals court once again agreed with its past decision and ruled for Grimm on both his Constitutional and Title IX claims.

Using scientific data as well as social-science research and citing amicus briefs from professional associations, the Fourth Circuit Court clearly and thoroughly explained the concept of transgender and how it applies to the facts of this case. As the court’s three-judge panel noted, most people are cisgender, that is, they easily identify with the sex assigned to them at birth and, therefore, never give any thought to which bathroom they use. Transgender individuals, who comprise approximately 0.6% of the U.S. adult population, identify with a sex other than the one assigned-at-birth. Like cisgender, this is natural and not a choice (Grimm, 2020, p. 613).

Transgender people are up to three times more likely than the general population to be diagnosed with mental health problems. They often suffer from gender dysphoria, a clinical condition arising from debilitating anxiety and distress associated with reconciling the differences between the gender they identify with and the one they were assigned-at-birth. Depression, self-harm (e.g., mutilation), substance abuse, and suicide are among the problems associated with untreated gender dysphoria. In the past, mental health practitioners tried to convert transgender people. Thus, psychological pain and shame, as well as ongoing prejudice and discrimination, can result from and/or exacerbate these symptoms.

Listed in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (APA, DSM-5, 2013), incongruence between gender identity and assigned sex is a clinical diagnosis with specific markers. These include:

• (1) marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics
• (2) strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender
• (3) strong desire for the primary and/or secondary sex characteristics of the other gender
• (4) strong desire to be of the other gender
• (5) strong desire to be treated as the other gender or
• (6) strong conviction that one has the typical feelings and reactions of the other gender.
• (Grimm, p. 595, citing APA, DSM-5, 2013, p. 452)

To be gender dysphoric, one must have symptoms for at least six months and be clinically diagnosed. Currently, there are standards of care and treatment protocols for gender dysphoria agreed upon by the medical and mental health professions. These were developed by the World Professional Association for Transgender Health (WPATH).

This background information applies directly to Gavin, who from an early age, identified with the male gender but did not know how to put these feelings in words. As a child, he wanted to wear boys’ clothing and felt joy when he was mistaken as a boy. When Grimm disclosed to his mother that he was transgender, he began therapy at his own request with Dr Lisa Griffin, Ph.D., a psychologist who counsels transgender youth. After diagnosing Grimm with gender dysphoria, Dr Griffin referred him for hormone treatment and stated in a treatment letter that he should be treated as a male and be allowed to use the men’s restrooms at school.

In August 2014, as Gavin was preparing to enter his sophomore year, he and his mother met to discuss transition plans with the school guidance counselor, Tiffany Durr. At first, Gavin w^ras permitted to use the nurse’s bathroom, but this resulted in anxiety, shame, and stigmatization and caused him to be late to class because it was so far from the classrooms. After consultation with the school’s superintendent, Dr Clemons, Principal Collins allowed Gavin to use the boys’ restrooms. The school board was not informed of this decision and for seven weeks, Gavin used the male restrooms with no incident. Locker rooms posed no problem as Gavin’s physical education classes were online.

After this time, Principal Collins, Superintendent Clemons, and some members of the school board received complaints from adults in the communit)’, neighboring communities, and even other states. Only one student complained and that was prior to improvements in the restrooms, which included panels between urinals, privacy strips on stall doors, and three separate unisex bathrooms available to all students. In response to these complaints, Carla Hook, a board member who opposed having a transgender student in the boys’ bathrooms, proposed the following policy which was discussed at the November 11, 2014 public board meeting.

Whereas the [Gloucester County Public Schools (GCPS)J recognizes that some students question their gender identities, and

Whereas the GCPS encourages such students to seek support, advice, and guidance from parents, professionals, and other trusted adults, and

Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore

It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.

(Grimm, 2020, p. 599)

Neither school leaders nor board members informed the Grimm family that this proposed policy and Gavin’s bathroom rights would be discussed at the meeting. Gavin’s mother was able to attend only because a friend told her about it the day before. News also circulated on Facebook. At the meeting, community concerns followed two common themes. First, this is a majority-rule country. What about the rights of the non-transgender students? Second, allowing transgender students bathroom access would open the door to predators, especially male students who would pretend to be transgender to gain access to the girls’ restrooms.

This board meeting and one following it, when the policy was approved, were contentious. One person called Gavin a freak and another, a “reformed” lesbian, said that Gavin had an addiction and could be set free like she was by Jesus Christ (Grimm, pp. 599-600). Several citizens stated that they would not vote for board members who allowed Gavin use of the boys’ rooms. Gavin and his parents explained his situation to the meeting attendees, noting that Gavin suffered hardships and stress exacerbated by the current situation. Nonetheless, the board approved this new policy on its December 9, 2014 meeting by a vote of 6-1. The single-stall restrooms were completed a week later but were far from Gavin’s classes. These restrooms were not available at after-school events such as football games. At least twice during such events, Gavin was forced to either go home early or ask a friend to drive him to a restroom in a hardware store. In addition, these facilities were not available if Gavin stayed late at school to study.

Gavin avoided restrooms and suffered from frequent urinary tract infections which are common with transgender students denied access to appropriate restrooms. In his Junior year, Gavin was hospitalized for suicidal ideation resulting from being in an environment that made him feel “unsafe, anxious, and disrespected.” During this time, Grimm continued with his transition by having chest reconstruction surgery (a double mastectomy), obtaining state identification from Motor Vehicles reflecting his gender as male, and successfully getting his birth certificate changed to male. Grimm and his mother requested the school to change his records to reflect his gender as male and provided personnel with his new birth certificate. More than two months later, in January 2017, Grimm received a letter from the Board, through its attorney, declining Gavin’s request without providing a reason for this decision and in spite of Gavin’s adherence to the Family Educational Rights and Privacy Act (FERPA, 1974) regulations. Gavin graduated from high school in June 2017 and began attending community college in California. He planned to transfer to a four-year college and would need accurate transcripts.

Agreeing with its previous decision and that of the lower court’s ruling, the Fourth Circuit maintained that Gavin, as a transgender student, has an equal protection right to use the boys’ restrooms. The majority’s reasoning followed equal protection standards set forth by the U.S. Supreme Court and followed by appellate courts over the years. Accordingly, this federal circuit court applied a four-factor analysis to determine whether transgender persons (i.e., Gavin) constitute a quasi-suspect class. This classification means that the state (school) would need an “exceedingly persuasive justification” (Grimm, p. 608, citing U.S. v. Virginia, 1996, p. 534) to deny Gavin his rights. First, the class must be historically subject to discrimination (Grimm, citing Bowen, 1987). Second, there must be “a defining characteristic that bears a relation to its ability to perform or contribute to society” (Grimm, p. 611, citing Cleburne, pp. 440-441). Third, “the class may be defined as a discrete group by obvious, immutable, or distinguishing characteristics” (Grimm, p. 611, citing Bowen, p. 602). Fourth, transgender people must be “a minority lacking political power” (Grimm, p. 611, citing Bowen, p. 602). (Only 0.6 of the population is transgender). Using the background information provided earlier in this case, the court ruled that Gavin, as a transgender male, easily passes all four prongs of the test for quasi-suspect class and that the school does not have “an exceedingly persuasivejustification” (Grimm, p. 608, citing U.S. v. Virginia, p. 534) to deny him his rights.

Gavin also succeeded in his Title IX claims. Title IX provides that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (Title IX, 2018). To succeed on a Title IX claim, Gavin must prove:

• 1) that he was excluded from participation in an education program "on the basis of sex”; 2) that the educational institution was receiving federal financial assistance at the time; and 3) that improper discrimination caused him harm.
• (Grimm, p. 616, citing Preston, 1994, p. 206)

The court concluded there was no question whether the use of bathrooms was part of the educational program and whether the school received federal funding. What remained was if the board acted “on the basis of sex” and if those actions caused harm.

The U.S. Supreme Court’s Bostock (2020) decision made it clear that “on the basis of sex” applies to people who are transgender (Grimm, p. 616, citing Bostock, p. 1741). These actions caused harm such as the inconvenience of Gavin’s finding appropriate restrooms and the stigma attached to requiring him to use separate bathrooms, the latter constituting segregation. Similarly, this court ruled that the school’s refusal to change Gavin’s records was “on the basis of sex” and caused damage to Gavin, constituting yet another Title IX violation (Grimm, p. 619).

Ending on a somewhat optimistic note, the court’s concluding remarks raise substantial issues related to law, policy, and ethics and the continuing importance of student voice:

We are left without doubt that the Board acted to protect cisgender boys from Gavin's mere presence—a special kind of discrimination against a child that he will no doubt carry with him for life. The Board did so despite advances in the medical community’s understanding of the nature of being transgender and the importance of gender affirmation. It did so after a major nationwide survey, the NTDS, put stark numbers to the harmful discrimination faced by transgender people in many aspects of their lives, including in school.

It also did so while schools across Virginia and across the country were successfully implementing trans-inclusive bathroom policies, again, without incident. Those schools’ experiences, as outlined in three amicus briefs, demonstrate that hypothetical fears such as the "predator myth” were merely that—hypothetical. Perhaps unsurprisingly, those schools also discovered that their biggest opponents were not students, but adults....

One administrator noted: As to the students, I am most impressed. They are very understanding and accepting of their classmates. It feels like the adult community is struggling with it more. As another explained, "Young people are pretty savvy and comfortable, and can understand and empathize with someone who just wants to use the bathroom."

The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past. How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community. [Citations omitted],

(Grimm, 2020, p. 620)

Questions for Discussion

• 1. Was justice served with this decision? Why or why not? How is a failure of empathy related to acknowledging both the interests and substantive rights of Gavin?
• 2. Were Gavin and his parents treated in a caring manner? Why or why not? How might board members have reacted in a more caring manner?
• 3. What does this case say about the use and possible abuse of power? Why do you think the court spent so much explaining what transgender means and its effect on those individuals who are transgender? Does the ethic of critique help you to answer these questions? Why or why not? Explain your answer.
• 4. What would the profession expect of Principal Collins? Superintendent Clemons? Board Member Carla Hook?
• 5. Compare and contrast the school’s policy and the court’s decision. Were they in Gavin’s best interests? The best interests of the other students in the school? What does this case say about students’ rights, responsibility, and respect? About student voice?

CASE STUDY 16.5: PLYLER v. DOE, 457 U.S. 202 (1982)

On July 15, 1977, the Tyler Independent School District in Smith County, Texas implemented a policy that applied tuition fees to undocumented students residing within its attendance area. This action was based upon a Texas statute (Tex. Educ. Code Ann. § 21.031,1975) that denied state funds to local school districts for the education of children unlawfully admitted to the United States and authorized local school districts to deny enrollment to such children.

In September of the same year, plaintiffs, four families with school-age children both born in Mexico and undocumented, filed a class-action suit in federal district court for the Eastern District of Texas. The families asked for a protective order to ensure their anonymity and for the state law preventing their children from attending school to be suspended temporarily so that education would not be interrupted while they waited for trial. The four families accessed support from the Mexican American Legal Defense and Educational Fund (MALDEF). The case received significant publicity and community backing. The federal district court judge granted the pretrial requests of the families.

Important to note is the Fourteenth Amendment and how it applies in this case. The Equal Protection Clause explains that a state may not “deny to any person within its jurisdiction the equal protection of the laws” (U.S. Constitution, Amendment XIV, 1868). The Clause applies to public elementary' and secondary' schools, in that they are state actors.

The State of Texas and Tyler Independent School District’s rationale and defense had several layers. The defendants argued that the school system should not have to assume the cost of educating students who could not demonstrate a lawful immigration status. The position was grounded in the idea that the children were not within the state’s jurisdiction and were unlawfully living in the state and therefore subject to deportation. Additionally, the state and local school district argued that by enforcing tuition they were serving the interests of the state by allocating limited financial resources per year on documented students instead of the estimated 20,000 children of undocumented immigrants. Financial hardship for the ISD was also used as an argument with the necessity of hiring more bilingual teachers and providing additional remedial instruction. Texas was ostensibly burdened with the numbers of undocumented families living within its borders, so to provide free education to undocumented students, it was argued, would increase the likelihood that numbers would continue to increase and perpetuate a growing problem.

The State of Texas and Tyler Independent School District relied on an earlier U.S. Supreme Court decision, San Antonio Independent School District v. Rodriguez (1973), which ruled that a free public education was not a fundamental right. The plaintiffs sued the state based on the Fourteenth Amendment, arguing that the law violated equal protection.

On September 14, 1978, the judge ruled in favor of MALDEF and the plaintiff families and determined that Texas law was unconstitutional because it violated the Constitution’s Equal Protection Clause. Judge William Wayne Justice concluded that school attendance of undocumented children was not significant enough to affect school operations at scale. He strongly expressed the effects of depriving undocumented children an education including poverty and other hardships. The court relied on the rational basis test and found no legitimate reasons to support the exclusionary state law. That same year, Tyler ISD filed an appeal in the U.S. Fifth Circuit Court of Appeals along with the State of Texas. As time passed, a multitude of suits were filed against Tyler and the state, along with local officials. In November 1979, the Judicial Panel on Multidistrict Litigation consolidated the claims into a single action.

It was not until October 20, 1987, the U.S. Fifth Circuit Court of Appeals upheld Judge Justice’s ruling on the grounds that the Court could not suspend the operation of the Constitution to aid a state to solve its political and social problems. Ironically, the Court explained how the state of Texas was enduring the hardships of a national problem for not enforcing national immigration laws and upheld a previous 1980 ruling that the State of Texas law violated the equal protection clause of the Fourteenth Amendment.

On December 18, 1980, Tyler ISD and school superintendent, James Plyler, filed for a review under the U.S. Supreme Court that was subsequently granted on May 4, 1981. The case was heard in December of that year. The U.S. Supreme Court had previously ruled that the Equal Protection Clause of the Fourteenth Amendment applies not only to citizens but to “any person,” including aliens (Yick Wo v. Hopkins, 1886, p. 356). The children, in this case, were “persons” living within the jurisdiction of the state since they reside in Texas and are subject to its laws.

The Court found that most of the state funds used for bilingual education and related special needs were spent on pupils who were legal residents because the number of undocumented students was insignificant in comparison. The Equal Protection Clause of the Fourteenth Amendment was interpreted in such a way that when a state establishes a public-school system no child living in that state may be denied equal access to schooling. Furthermore, children should not be penalized for the illegal acts of their parents. In the future, many of these children may become citizens and failure to educate them will incur more expenses due to welfare, crime, and unemployment rates.

The U.S. Supreme Court struck down the Texas law finding it unconstitutional. It was a violation of the Equal Protection Clause to deny a free public education to undocumented school-age children. The Texas state law discriminated against children who were not in control of their legal status, and the Equal Protection Clause applies to all citizens and aliens within its borders. Additionally, the state had to show a “substantial” interest in discriminating against undocumented children. As the law stood, it served no compelling state interest. In fact, not providing an education diminished state interest because it essentially worsened the state’s immigrant burden. Educating undocumented children was viewed as highly cost-effective for the long-term scope of society as these students will have more opportunities to be working members of society. In summary, the U.S. Supreme Court relied on two important factors: (1) the ages of the undocumented students, and (2) the assumption that an education for minority youth was beneficial to the entire state.

Questions for Discussion

• 1. Does this case effectively illustrate the distinction between what is legal and what is ethical? In what ways?
• 2. How does empathy and respect reveal itself in the acknowledgement of undocumented children’s rights?
• 3. Under a critical theory analysis, how important is it to protect undocumented children who are being discriminated against due to no fault of their own? How does this decision relate to the ongoing activities of Immigration and Customs Enforcement (ICE)?
• 4. Does the cost of educating an undocumented student outweigh the cost of the child as an uneducated adult? What ethical lens helps to explain your answer?
• 5. How might the ethic of the profession apply to this case and to the way we treat undocumented students today?

NOTE

1. It should be noted that Shawn Garret and her four-year-old daughter voluntarily withdrew from the suit, citing harassment from the community as the reason.

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