February 2015 Inquiry & Analysis
A Membership Service of the NSBA Council of School Attorneys
Tammy Carter, Editor and Senior Staff Attorney
NSBA Council of School Attorneys 2014-15 Officers
Gregory J. Guercio, Chair
Justin D. Petrarca, Chair-elect
Andrew M. Sanchez, Vice-chair
Pilar Sokol, Secretary
NSBA Officers and Staff
Anne M. Byrne, NSBA President
John D. Tuttle, President-elect
Miranda A. Beard, Secretary-Treasurer
David A. Pickler, Immediate Past President
Thomas J. Gentzel, NSBA Executive Director
Marie S. Bilik, NSBA Deputy Executive Director
Francisco M. Negrón, Jr., NSBA Associate Executive Director and General Counsel
Sonja H. Trainor, Director, Council of School Attorneys
Naomi E. Gittins, Deputy General Counsel
Leza Conliffe, Senior Staff Attorney
Tammy T. Carter, Senior Staff Attorney
Lyndsay Andrews, Manager, Council of School Attorneys
Thomas Burns, Paralegal
Laura Baird, Continuing Legal Education Coordinator
Lenora Johnson, Administrative Assistant
About the NSBA Council Of School Attorneys
Formed in 1967, the NSBA Council of School Attorneys provides information and practical assistance to attorneys who
represent public school districts. It offers legal education, specialized publications, and a forum for exchange
of information, and it supports the legal advocacy efforts of the National School Boards Association.
Inquiry & Analysis is a membership service of the Council, or can be purchased by subscription for $165 per year. Inquiry
& Analysis is published online ten times a year.
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Copyright © 2015 by the National School Boards Association. All Rights Reserved.
ISSN: 1069-0190
GENDER IDENTITY CRISIS: IS YOUR SCHOOL PREPARED?
Gabriel Long, NSBA Law School Intern, National School Boards Association, Alexandria, Va.
“Susan” is a girl.1 Although she was assigned male
at birth, Susan began expressing herself as a girl
as early as age two, and by the fourth grade,
Susan was dressing and appearing exclusively as a
girl. Midway through her fourth grade year,
Susan’s parents and school personnel met to
discuss the implementation of a ‘504’ education
plan in light of Susan’s diagnosed gender
dysphoria.2 Under the plan, it was agreed that
teachers should openly refer to Susan as ‘she’ and
encourage students to use her new gender
appropriate name. It was also decided that the
best practice would be for Susan to use the girl’s
bathroom. As Susan entered the fifth grade, her
use of the girl’s bathroom initially drew no
complaints from fellow students or their parents.
Unfortunately, soon after, a male classmate began
harassing Susan, largely at the encouragement of
his grandfather.3 The daily harassment
culminated one day when the male classmate
followed Susan into the girl’s bathroom and
assaulted her. The school’s response was to
reprimand the classmate, and to prohibit Susan’s
further use of the girl’s bathroom. In the ensuing
media frenzy, Susan and her family were forced
to move due to continued harassment from both
students and adults alike. Although Susan
eventually won her claim of discrimination
against her former middle school, she did so
under Maine’s Human Rights law and not
pursuant to a federal cause of action.4
In recent years, however, federal agencies have
increasingly extended the scope of existing civil
rights protections to transgender individuals
through interpretive rulemaking and
enforcement.5 A 2012 ruling by the U.S. Equal
Employment Opportunity Commission (EEOC)
on the scope of “sex discrimination” under Title
VII of the Civil Rights Act of 1964 concluded
that “intentional discrimination against a
transgender individual because that person is
transgender is, by definition, discrimination
‘based on ... sex,’ and such discrimination
therefore violates Title VII.”6 The U.S.
Department of Education (ED) has similarly been
active in developing interpretive guidance
designed to protect students from gender-based
harassment, and it has furthermore shown a
willingness to enforce these new interpretations
against schools that fail to comply. Accordingly,
discrimination of transgender and gendernonconforming students has increasingly become
a central issue in education law. Some of the
most common questions that districts are
confronted with revolve around: access to
bathrooms facilities, athletic programs, dress
codes, and student records.
I.
Common Questions
Confronted By Districts
A. Access to Bathrooms
The first category, access to bathroom facilities, is
one of the most common concerns raised by
school staff. Districts are increasingly faced with
requests for access to bathroom facilities that
align with a student’s actual or perceived gender
identity. In Susan’s case, teachers and parents
worked together to make the best determination
for the student. However, also like Susan’s case,
some parents of non-transgender students may
object to this determination on the basis that
their own child’s privacy is being invaded. In
resolving these issues, advocacy groups have
recommended reaching a “safe and nonstigmatizing alternative” that alleviates the
discomfort of affected students and their
parents.7 Proposed alternative solutions include:
separate changing schedules, adding a partition
or curtain, or giving the student the choice of
using a private bathroom.8 However, it is
recommended that no student ever be required to
use a private bathroom.
B. Athletic Programs
A district’s decision to either allow or prohibit a
student from participating in gender-segregated
athletic programs based on the student’s actual or
perceived gender identity may also present a
contentious issue.9 For example, in 2014 the
Minnesota State High School League postponed
issuing a transgender-inclusive athletic policy due
to opposition from a local special interest
group.10 The policy was expected to pass in
October of 2014 until a full-page advertisement
appeared in the Minnesota Star Tribune decrying
the “end” of girls’ sports.11 The policy was
eventually released in December; however, it
requires that students provide some measure of
“proof” of the student’s “sincerely held genderrelated identity.”12 Similarly, in early 2014 the
Virginia High School League, which oversees
athletic programs at 313 public high schools in
Virginia, unanimously approved a new policy
governing the inclusion of transgender athletes in
school sports programs.13 In order to participate,
the student must have undergone sex
reassignment surgery and hormonal therapy to
“minimize gender-related advantages in sports
competition.”14
D. FERPA
Finally, some schools have voiced concern over
student records, privacy, and relevant Family
Educational Rights and Privacy Act (FERPA)
requirements. Under FERPA, current and former
students may request that their student records
be amended if the records are “inaccurate,
misleading, or in violation of the student’s
rights of privacy.”18 Thus, under federal law, a
transgender student may seek to amend his or
her student records so that the gender listed
corresponds to the student’s current gender
identity. However, these requests are not always
granted because FERPA ultimately leaves it to the
school district to “decide whether to amend the
records as requested within a reasonable time
after [the district] receives the request.” 19 Due to
this statutory discretion, civil rights organizations
have urged schools to develop policies that
respect the privacy rights of transgender students
by accommodating these FERPA requests.20 They
argue that districts that refuse to grant these
requests may open themselves to Title IX
discrimination investigations by ED given the
Department’s recent guidelines on student
rights.21 As a result, districts may be unsure of the
proper course of action.22
C. Dress Codes
Although one might assume that strict genderbased dress codes are largely the hallmark of a
sectarian education, the truth is that nearly half
of the nation’s public schools institute some type
of school uniform or formal dress code policy.15
In fact, the number of schools with dress code
policies has more than doubled since 2000.16
Consequently, many schools are confronted with
requests from students and parents for exceptions
that respect the actual or perceived gender
identity of individual students. While some
schools have steadfastly refused to accommodate
the requests, many districts have supported their
students’ decisions. Moreover, the student’s
classmates have overwhelmingly supported their
transgendered peers. Just this year, transgender
students from traditionally conservative states
across the country were voted kings and queens
of their school’s homecoming and prom.17
Unfortunately, the means to navigate these
concerns, as well as any issues of liability, will
remain unclear until Congress is able to revisit
federal statutes, and, in particular, Title IX.
Furthermore, despite recent federal agency
interpretations, state protection from
discrimination can vary from state to state
depending on the actions of state legislatures and
local school districts. Accordingly, this article
presents an introduction to the patchwork of
protection for transgender students that currently
exists on federal, state and local levels.
II.
Gender Identity &
Expression under Federal
Law
Within the context of education, federal agencies
and transgender rights organizations have
pointed to provisions of Title IX of the
2
Education Amendments Act of 1972 as evidence
of anti-discrimination protection for transgender
and gender-nonconforming students.23 Title IX
provides that “[n]o person in the United States
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…”24 Although “sex” is not defined in
the statute, federal agencies operating under
various administrations have issued guidance
documents that have indicated a willingness to
expand the scope of “sex” under Title IX.
administration’s response to the efforts of Rep.
Barney Frank to pass the Employment NonDiscrimination Act (ENDA).30 ENDA marked
the Lesbian, Gay, Bisexual, and Transgender
(LGBT) community’s efforts to create stand-alone
legislation aimed at employment discrimination
on the basis of sexual orientation and gender
identity.31 Unfortunately, these efforts were met
with a threat of presidential veto issued by the
White House in 2007, which stated that the
“[Bush] Administration strongly opposes any
attempt to weaken [the Defense of Marriage Act],
which is vital to defending the sanctity of
marriage” and that ENDA might violate states’
rights under the Eleventh Amendment.32
The first such interpretative step occurred in
1997 during the Clinton Administration, which
issued a policy guidance document through ED’s
Office for Civil Rights (OCR) specifically
addressing the issue of sexual orientation
discrimination. The 1997 Sexual Harassment
Guidance stated that while Title IX did not
expressly prohibit discrimination on the basis of
sexual orientation, sexual harassment of gay or
lesbian students could potentially violate Title
IX.25 On January 19, 2001 — the day before
George W. Bush was officially sworn into office —
OCR released a revised version of the 1997
guidance. The 2001 Revised Sexual Harassment
Guidance went a step further than its previous
iteration and included language expressly
addressing “sex-stereotyping.”26 The 2001
guidance provided that, “it can be discrimination
on the basis of sex to harass a student on the
basis of the victim's failure to conform to
stereotyped notions of masculinity and
femininity.”27
Under the Obama Administration, OCR took up
the issue of Title IX protection once again and
issued a 2011 Dear Colleague Letter (DCL)
supplementing the 2001 Revised Sexual Harassment
Guidance document.33 The 2011 DCL provided
further guidance on proactive steps that schools
should take in response to complaints of sexual
violence, as well as examples of remedies and
enforcement strategies that OCR may use to
respond to schools that fail to comply with the
new guidelines. In 2014, the Obama
Administration followed up on its 2011 DCL
with further clarification of ED’s interpretation
of prohibited conduct under Title IX in its
Questions and Answers on Title IX and Sexual
Violence.34 Reiterating the Clinton
Administration’s expansion of “sex
discrimination,” this new document provides
expressly that “Title IX’s sex discrimination
prohibition extends to claims of discrimination
based on gender identity or failure to conform to
stereotypical notions of masculinity or femininity
and OCR accepts such complaints for
investigation.”35 OCR has made good on its
promise to investigate gender identity
discrimination in recent years; an issue addressed
later in this article.
Under the Bush administration, expansion of the
scope of Title IX lost its early momentum as
gender identity issues took a backseat to other
priorities, namely reauthorization of the
Elementary and Secondary Education Act.28
Some have posited that the Bush
Administration’s silence regarding gender and
sex-based civil rights was due to a federalist
inclination towards promoting states’ rights.29
Regardless of intent, the Bush Administration
appeared unwilling to continue the debate;
evidence of which can be found in the
III.
State and Local Response
Because of the potentially transient nature of
agency interpretive guidelines, the scope of
federal protection under Title IX may depend
3
largely on which party occupies the oval office. As
a result, individual states have taken it upon
themselves to enact legislation designed to
prohibit discrimination on the basis of actual or
perceived gender identity or expression. As of
2012, only sixteen states and the District of
Columbia had enacted laws that specifically
protect individuals on the basis of gender identity
or expression.36 They include: California,
Colorado, Connecticut, Hawaii, Illinois, Iowa,
Maine, Massachusetts, Minnesota, Nevada, New
Jersey, New Mexico, Oregon, Rhode Island,
Vermont, and Washington.37 Of these states, all
have expressly extended protection to students,
with the exception of Hawaii and Nevada.38 One
such state, California, recently made headlines
when it successfully passed AB 1266 which
amended the state’s education code to include
language that requires schools to permit
transgender students to participate in sexsegregated programs and use facilities consistent
with the student’s gender identity, “irrespective of
the gender listed on the pupil’s records.”39
substantiating proof; 2) students
should be addressed by their
preferred name and the pronoun
that corresponds to their gender
identity; 3) students must be
allowed to use the bathroom
facility that corresponds to their
gender identity; 4) students
should be allowed to dress in
accordance with their gender
identity; and 5) non-transgender
students concerned about
violations of their privacy or
religious beliefs should also be
accommodated.41
Other school districts have voluntarily chosen to
amend their anti-discrimination policies to
include gender identity protection because no
clear guidance has been established at the state
level. Kentucky’s legislature, for example, has not
explicitly addressed discrimination against
transgender students in its public schools. Yet in
June of 2014, the school council at Atherton
High School (AHS) in Jefferson County,
Kentucky, passed a revised version of its
accessibility guide that extended specific coverage
to transgender students.42 Modeled on a policy
released by the Los Angeles Unified School
District (LAUSD),43 AHS’s “School Space” policy
states that:
Atherton shall not discriminate
on the use of school space as the
basis of gender identity nor
gender expression. The school
shall accept the gender identity
that each student asserts. There
is no medical or mental health
diagnosis or treatment threshold
that students must meet in order
to have their gender identity
recognized and respected. The
assertion may be evidenced by an
expressed desire to be
consistently recognized by their
gender identity. Students ready
to socially transition may initiate
a process with the school
administration to change their
Although more and more states have taken the
initiative to protect transgender and gendernonconforming individuals from discrimination
in the absence of Congressional action, school
districts play a pivotal role in the actual
implementation of new anti-discrimination
provisions. As an example, following the passage
of California’s law, school districts across the
state were charged with developing policies that
reflected the expanded scope of sex
discrimination. The California School Boards
Association responded by issuing a policy brief
outlining the scope of the new legislation and
advising that districts adopt policies and
regulations that “prohibit harassment and
discrimination against transgender and gendernonconforming students, address appropriate
accommodations, establish consequences for
those who harass or discriminate against students
and set a tone that allows students to feel safe to
report harassment.”40 Among the articulated
recommendations are:
1) districts should accept a
student’s assertion of his or her
gender identity and not require
4
IV.
name, pronoun, attire, and
access to preferred activities and
facilities. Each student has a
unique process for transitioning.
The school shall customize
support to optimize each
student’s integration.44
Judicial and Agency
Enforcement
Although no federal case law exists that
definitively addresses gender identity
discrimination under Title IX, courts and state
civil rights commissions have increasingly favored
a finding of sex discrimination on the basis of
gender stereotyping or failure to accommodate.
In Susan’s case, the Supreme Judicial Court of
Maine ultimately concluded that the school’s
failure to continue to accommodate Susan’s
gender identity constituted sexual orientation
discrimination in violation of the Maine Human
Rights Act (MHRA).46 The court noted that
Susan was treated differently from other students
“solely because of her status as a transgender girl,”
a type of discrimination forbidden by the
MHRA.47 In reaching its conclusion, the court
cautioned that its “opinion must not be read to
require schools to permit students casual access
to any bathroom of their choice.”48 Rather, under
the circumstances, evidence had “clearly
established that [Susan’s] psychological well-being
and educational success depend[ed] upon being
permitted to use the communal bathroom
consistent with her gender identity.”49
Similarly, the Model District Policy on Transgender
and Gender Nonconforming Students released by the
Gay, Lesbian and Straight Education Network
(GLSEN) provides model language that
individual districts may use in revising their own
policies.45 Much like the recommendations of the
California School Boards Association, GLSEN’s
model policy language provides, generally, that:
(1) School districts should not
require proof of medical
treatment before respecting
a student’s actual or
perceived gender identity or
expression;
(2) Complaints alleging
discrimination or
harassment on the basis of
perceived or actual gender
identity should be taken
seriously and handled in the
same manner as other
bullying, harassment and
discrimination complaints;
(3) School staff should not
disclose a student’s
transgender status unless
required to by law, or if
specifically authorized by the
student and his or her
parents;
(4) Students should be referred
to by the name and pronoun
appropriate to that student’s
gender identity, student files
should also be appropriately
updated; and,
(5) Students should be given
access to the restrooms and
changing facilities that
correspond to their gender
identity or expression.
Similarly, in an unreported opinion issued by the
Superior Court of Massachusetts, a fifteen-year
old transgender student expressing herself as
female brought an action against her school
seeking an injunction prohibiting the school
from discriminating on the bases of sex, gender
and free expression.50 When the student began
expressing her female gender identity in the
seventh grade, the school principal would
regularly send the student home if the student
arrived at school wearing girls’ clothing.51 Due to
her forced absences, the student was required to
repeat the eighth grade. Relying on the weight of
federal case law “recogniz[ing] the impropriety of
discriminating against a person for failure to
conform with the norms of their biological
gender,”52 the court concluded that the student
was likely to establish her claims of
discrimination. Like the Maine Supreme Court’s
conclusion in Susan’s case, the Superior Court of
Massachusetts noted that because the “plaintiff
5
identifies with the female gender, the right
question is whether a female student would be
disciplined for wearing items of clothes plaintiff
chooses to wear.”53
The district argued further that the purpose of
segregating the student was to protect her from
potential harassment or bullying. The
Commission ultimately held that “sex” and
“gender” are often used interchangeably and that
evidence demonstrated that the student was a
girl, regardless of her initial assigned gender.55
Furthermore, the Commission held that the
purpose of Title IX, and relevant OCR
interpretations, “is not to penalize the student
who was harassed, rather the appropriate steps
include taking disciplinary action against the
alleged harasser.”56 Accordingly, the district’s
“responsibility in preventing harassment is to
respond to individual incidents of misconduct,
not to hinder students’ access to services or
facilities.”57
Outside of formal judicial proceedings,
discrimination complaints have also come before
state human rights commissions. In June 2013,
the Colorado Division of Civil Rights issued a
probable cause determination in favor of a sixyear-old transgender girl against her public
elementary school for unlawful discrimination
under the Colorado Anti-Discrimination Act and
regulations promulgated by the Colorado Civil
Rights Commission.54 Although assigned male at
birth, the student had expressed her female
gender identity as early as eighteen months old.
Upon entering kindergarten, the student was
enrolled as a boy and was referred to as a boy by
both her teachers and classmates. After a number
of incidents in which teachers forced the student
to conform to a male gender identity, the
student’s parents met with district staff to discuss
steps towards recognizing the student’s female
gender identity. According to the parents, district
staff was initially supportive and soon after the
meeting, teachers began referring to the student
as a girl.
While transgender students have found some
measure of relief from discrimination through
the courts, there have also been a number of
settlements in recent years arising from OCR
investigations of gender identity discrimination
complaints. Most recently, OCR announced a
resolution agreement entered into with
California’s Downey Unified School District to
resolve a complaint of harassment and
discrimination of a transgender student.58 The
complaint alleged that the school district failed to
respond to reports that the student was subjected
to sexual and gender-based peer harassment, and
that school staff had disciplined her for wearing
make-up and suggested that she transfer to
another school. Among the terms of the
voluntary agreement, the district agreed to: (1)
remove all disciplinary actions against the student
for the relevant period of time; (2) revise district
policies and handbooks to ensure that all
students are provided equitable access to
education and student activities regardless of
gender identity or expression; and (3) conduct
mandatory training for school employees on the
duty to investigate and report instances of gender
discrimination and harassment.59
Prior to the start of first grade, the parents
contacted the school once again to discuss access
to bathroom facilities. The district referred the
matter to its attorney, and teachers allowed the
student to use the girl’s bathroom until a final
decision was issued. During this interim period,
the student used the girl’s bathroom without
incident. Later that year, a school administrator
became aware of the student’s use of the
bathroom and immediately informed the student
and her parents that she would have to either use
the boy’s bathroom or a private staff bathroom.
The parents subsequently filed a complaint
alleging gender discrimination.
In its defense, the district argued that state laws
only prohibit discrimination on the basis of
“sex,” and not “gender,” and consequently the
school was not discriminating against the student
because her student records listed her as male.
V.
Conclusion
As we mark the 60th anniversary of Brown v.
Board of Education, we are reminded of the
6
victories against discrimination that have been
won, and the battles that continue to be fought.
Despite the unfortunately variegated state of
express prohibitions on gender identity
discrimination in our public schools, most
educators can agree that districts are obligated to
keep students safe and focused on learning.
Accordingly, school administrators should be
aware of the momentum towards a broader
understanding of gender-based anti-
discrimination laws and should ensure that their
school policies adequately protect all students
from discrimination, harassment and bullying. As
the Court noted in Brown, “[i]t is doubtful that
any child may reasonably be expected to succeed
in life if he is denied the opportunity of an
education. Such an opportunity, where the state
has undertaken to provide it, is a right which
must be made available to all on equal terms.”60
1
“Susan” was the name used by the Maine Supreme Judicial Court to protect the actual identity of the
minor child. Doe v. Reg'l Sch. Unit 26, 2014 ME 11, 86 A.3d 600 (Me. 2014).
2
“[G]ender dysphoria … is the medical term for psychological distress resulting from having a gender
identity different from the sex that one was assigned at birth.” Id. at ¶6, 86 A.3d 600, 602; Protecting Students
with Disabilities – Section 504 FAQ, U.S. DEP’T OF EDUC., available at
http://www2.ed.gov/about/offices/list/ocr/504faq.html (“Section 504 regulations require a school district
to provide a ‘free appropriate public education’ (FAPE) to each qualified student with a disability who is in
the school district's jurisdiction, regardless of the nature or severity of the disability. Under Section 504,
FAPE consists of the provision of regular or special education and related aids and services designed to
meet the student's individual educational needs as adequately as the needs of nondisabled students are
met.”).
3
In response to the Maine Human Rights Commission’s ruling, the grandfather of the student who
assaulted Susan stated “[i]t ticks me right off … [l]ittle boys do not belong in the little girls room, and vice
versa … this isn’t right.” Abigail Curtis, State rules in favor of young transgender, BANGOR DAILY NEWS (June
30, 2009) http://bangordailynews.com/2009/06/30/politics/state-rules-in-favor-of-young-transgender.
4
For a summary of the case, see NSBA’s Legal Clips article: Maine Supreme Judicial Court rules in favor of
transgender student on bathroom issue, NSBA LEGAL CLIPS (Feb. 6, 2014),
http://legalclips.nsba.org/2014/02/06/maine-supreme-judicial-court-rules-in-favor-of-transgender-studenton-bathroom-issue.
5
Given the breadth of terminology used in this article, and those cited as support, it is helpful to establish
some common definitions. Please note, however, that covered terms should not be used for the purpose of
labeling students, rather “a good general guideline is to employ those terms which the students use to
describe themselves.” Model District Policy on Transgender and Gender Nonconforming Students: Model Languages,
Commentary & Resources, GAY, LESBIAN & STRAIGHT EDUCATION CENTER, *1 (2014),
http://www.glsen.org/sites/default/files/Trans_ModelPolicy_2014.pdf [hereinafter “GLSEN Model
Policy”]. “Gender Identity” refers to “[a] person’s deeply held sense or psychological knowledge of their own
gender.” Id. at *2. “Gender Expression” is “[t]he manner in which a person represents or expresses gender
to others, often through behavior, clothing, hairstyles, activities, voice or mannerism.” Id. “Transgender” is
“[a]n adjective describing a person whose gender identity or expression is different from that traditionally
associated with an assigned sex at birth.” Id. “Transition” is “the process in which a person goes from living
and identifying as one gender to living and identifying as another.” Id. “Gender nonconforming” refers to
“people whose gender expression differs from stereotypical expectations, such as ‘feminine’ boys,
‘masculine’ girls, and those who are perceived as androgynous.” Id.
7
6
Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995, at *11 (Apr. 20, 2012). In reaching its
conclusion, the EEOC based its reasoning on the Supreme Court’s holding in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), in which six Justices of the Court “agreed that Title VII barred ‘not just
discrimination because of biological sex, but also gender stereotyping--failing to act and appear according to
expectations defined by gender.’” Macy, 2012 WL 1435995, at *5; see also Josh Eidelson, Most Americans
Think It's Illegal to Fire Someone for Being Gay. They're Wrong, BLOOMBERG BUSINESSWEEK (June 26, 2014),
http://www.businessweek.com/articles/2014-06-23/discrimination-at-work-is-it-legal-to-fire-someone-forbeing-gay.
7
GLSEN Model Policy at 6, supra note 5.
8
Id. at 6–7.
9
Hayley Fox, A $37,000 Newspaper Ad Just Attacked Transgender Athletes, TAKEPART (Sept. 30, 2014),
http://www.takepart.com/feature/2014/09/30/how-37000-minnesota-newspaper-ad-attacked-transgenderyouth-who-just-want-play. Although outside of the realm of K-12 education, the National Collegiate Athletic
Association (NCAA) has been vocal on the issue of creating fully inclusive collegiate athletic programs and
has called on universities and colleges to “proactively adopt policies and best practices that provide equal
opportunities for transgender students to participate on sports teams.” NCAA Inclusion of Transgender
Student-Athletes, NCAA, *5 (Aug. 2011), available at
http://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf.
10
Michael O’Keeffe, LGBT Sports Coalition condemns Minnesota newspaper for anti-trans athlete ad, N.Y. DAILY
NEWS (Dec. 1, 2014), http://www.nydailynews.com/blogs/iteam/ad-suggests-trans-athletes-threaten-privacysafety-blog-entry-1.2029275.
11
Id.; Minnesota To Allow Transgender High School Athletes To Play On Boys Or Girls Team, INQUISITR (Dec. 1,
2014), http://www.inquisitr.com/1648089/minnesota-to-allow-transgender-high-school-athletes-to-play-onboys-or-girls-teams.
12
Transgender Participation in MSHSL Activities, MINN. STATE HIGH SCH. LEAGUE (Dec. 4, 2014), available at
http://www.mshsl.org/mshsl/ParticipationInMSHSLActivities12_4_14.pdf.
13
Eric Kolenich, VHSL approves participation for transgender athletes, RICHMOND TIMES-DISPATCH (Feb, 21,
2014), http://www.timesdispatch.com/news/latest-news/vhsl-approves-participation-for-transgenderathletes/article_6bd2e1da-99b3-11e3-88ac-001a4bcf6878.html.
14
Id.; see also NCAA Inclusion of Transgender Student-Athletes, NCAA, 7 (Aug. 2011), available at
http://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf (citing the concern of
“unfair competitive advantage” as one of the most common reasons for resistance to the participation of
transgender athletes, the NCAA has stated that this concern is unfounded, as it is premised on oldfashioned stereotypes of athleticism).
15
Lands’ End School Uniforms and National Association of Elementary School Principals
2013 State of School Uniforms Survey Report, NAT’L ASS’N OF ELEMENTARY SCH. PRINCIPLES (July 2013),
http://www.naesp.org/national-survey-school-leaders-reveals-2013-school-uniform-trends.
16
Id.
17
Mitch Kellaway, 11 Transgender Kings and Queens Who Ruled the School, ADVOCATE.COM (Sept. 30, 2014),
http://www.advocate.com/politics/transgender/2014/09/30/10-transgender-kings-and-queens-who-ruledschool.
18
34 C.F.R. § 99.7(a)(2)(ii).
19
34 C.F.R. § 99.20(b). For a helpful FAQ on FERPA and student rights see Know Your Rights: A
Transgender Advocate’s Guide to Updating and Amending School Records, LAMBDA LEGAL (last visited Nov. 24,
2014) http://www.lambdalegal.org/know-your-rights/transgender/ferpa-faq [hereinafter “Transgender
Advocate’s Guide”].
20
Transgender Advocate’s Guide, supra note 19.
21
Id.
8
22
Matthew Ell, Old Student New Name: Should School Districts Change Records of Transgender Former Students?,
INQUIRY & ANALYSIS (Apr. 2011), http://electronicschool.com/SchoolLaw/COSA/Search/AllCOSAdocuments/Old-Student-New-Name.html.
23
See GLSEN Model Policy at 3, supra note 5; Questions and Answers on Title IX and Sexual Violence, U.S.
DEP’T OF EDUC. (April 2014), available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-titleix.pdf [hereinafter “2014 Title IX Questions and Answers”].
24
20 U.S.C. § 1681 (emphasis added).
25
Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third
Parties, 62 Fed. Reg. 12,034, 12,039 (March 13, 1997).
26
REVISED SEXUAL HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL
EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES, U.S. DEP’T OF EDUC., v, 3 (Jan. 2001), available
at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf (stating that “hostility based on sex or sexstereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a
school must respond, if it rises to a level that denies or limits a student’s ability to participate in or benefit
from the educational program.”).
27
Id. at v (emphasis added).
28
See Frederick M. Hess & Patrick J. McGuinn, JUDGING BUSH, GEORGE W. BUSH’S EDUCATION LEGACY,
THE TWO FACES OF NO CHILD LEFT BEHIND, 157 (Robert Maranto, Tom Lansford, and Jeremy Johnson
eds., 2009), available at www.aei.org/wp-content/uploads/2011/10/24119.pdf.
29
Ron Weich et al., The Bush Administration Takes Aim: Civil Rights Under Attack, LEADERSHIP CONFERENCE
ON CIVIL RIGHTS EDUC. FUND, 4 (April 2003), available at
http://www.civilrights.org/publications/reports/taking_aim/bush_takes_aim.pdf.
30
Although various versions of ENDA have been introduced over many congressional sessions, express
provisions covering gender identity were not included until 2007. See Employment Non-Discrimination Act
of 2007, H.R. 3685, 110th Cong, (2007); see also 153 Cong. Rec. H26919 (2007) (statement of Rep. Frank)
(copy of statement on file with National School Boards Association).
31
Through the passage of express federal protection, LGBT rights supporters sought to remove the power of
employment protection from the hands of the judiciary in interpreting the scope of Title VII’s “sex”
protection. Furthermore, it was believed that stand alone legislation would be easier to pass than amending
the Civil Rights Act, which had proved difficult in the past.
32
Statement of Administration Policy on H.R. 3685 – Employment Non-Discrimination Act, EXEC. OFFICE
OF THE PRESIDENT (Oct. 23, 2007), available at
http://oldsite.alliancedefensefund.org/userdocs/WhiteHouseENDAStatement.pdf.
33
Dear Colleague Letter: Sexual Violence, U.S. DEP’T OF EDUC., n. 9 (April 4, 2011), available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (stating that “Title IX also
prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a
sexual nature.”) (emphasis added).
34
See 2014 Title IX Questions and Answers, supra note 23.
35
Id. at 5; see also Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and
Extracurricular Activities. U.S. DEP’T EDUC. (Dec. 2014), available at
http://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf (stating that “[a]ll
students, including transgender students and students who do not conform to sex stereotypes, are protected
from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender
students consistent with their gender identity in all aspects of the planning, implementation, enrollment,
operation, and evaluation of single-sex classes.”).
36
Grant Bowers & Wendy Lopez, Which Way to the Restroom: Respecting the Rights of Transgender Youth in the
School System, NATIONAL SCHOOL BOARDS ASSOCIATION COUNCIL OF SCHOOL ATTORNEYS (2012),
9
http://www.nsba.org/sites/default/files/reports/Respecting%20the%20Rights%20of%20Transgender%20
Youth%20and%20appendices.pdf.
37
Id. at 4.
38
Id.
39
CAL. EDUC. CODE § 221.5(f) (West 2014); see California law guarantees transgender students access to all sexsegregated school programs and facilities, NSBA LEGAL CLIPS (Aug. 22, 2013),
http://legalclips.nsba.org/2013/08/22/california-law-guarantees-transgender-students-access-to-all-sexsegregated-school-programs-and-facilities; Parker Marie Molloy, California's School Success and Opportunity Act
(AB1266) Will Save Lives, HUFFINGTON POST (Aug. 21, 2013), http://www.huffingtonpost.com/parkermarie-molloy/californias-school-success-and-opportunity-act-_b_3786798.html.
40
Providing a Safe, Nondiscriminatory School Environment for Transgender and Gender Nonconforming Students,
CAL. SCH. BD. ASS’N, 3 (Feb. 2014),
http://www.csba.org/GovernanceAndPolicyResources/DistrictPolicyServices/~/media/CSBA/Files/Gover
nanceResources/PolicyNews_Briefs/Transgender/201402_PBNonDiscriminationGender.ashx.
41
Id. at 3–4.
42
See Kentucky high school allows transgender student to use girls facilities amid controversy, NSBA LEGAL CLIPS
(May 15, 2014) http://legalclips.nsba.org/2014/05/15/kentucky-high-school-allows-transgender-student-touse-girls-facilities-amid-controversy.
43
Transgender Students - Ensuring Equity and Nondiscrimination, L.A. UNIFIED SCH. DIST., BUL-6224.0 (Feb. 7,
2014), available at
http://notebook.lausd.net/pls/ptl/docs/PAGE/CA_LAUSD/FLDR_ORGANIZATIONS/STUDENT_H
EALTH_HUMAN_SERVICES/SHHS/HUMAN_RELATIONS_HOME_PAGE/HUMAN_RELATIONS
_BULLETINS_MEMOS/BUL-6224.0%20-%20TRANSGENDER%20POLICY%20BULLETIN%2002-0314_0.PDF.
44
School Space Policy #500, ATHERTON HIGH SCH., available at
http://www.jefferson.k12.ky.us/schools/high/atherton/SBDMDocuments/Policy%20500%20Draft%20Los%20Angeles%20Unified%20School%20District%20Revised%20Model.pdf.
45
See GLSEN Model Policy, supra note 5.
46
Doe v. Reg'l Sch. Unit 26, 2014 ME 11, ¶ 24, 86 A.3d 600, 607 (Me. 2014).
47
Id. at ¶ 22 (emphasis added).
48
Id. at ¶ 24.
49
Id.
50
Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000), aff'd sub nom.
Doe v. Brockton Sch. Comm., 2000-J-638, 2000 WL 33342399 (Mass. App. Ct. Nov. 30, 2000).
51
Id. at *1.
52
Id. at *6.
53
Id.
54
Mathis v. Fountain-Fort Carson Sch. Dist. #8, Charge No. P20130034X (Colo. Div. Civil Rights June 2013),
available at http://www.transgenderlegal.org/media/uploads/doc_529.pdf.
55
Id. at *7.
56
Id. at *8.
57
Id.
58
Resolution Agreement: Downey Unified School District, U.S. DEP’T OF EDUC. (Oct. 8, 2014), available at
http://www2.ed.gov/documents/press-releases/downey-school-district-agreement.pdf.
59
Id.
60
Brown v. Bd. of Educ. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 493 (1954) supplemented sub nom. Brown
v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955) (emphasis added).
10
ADVOCATES OR EMPLOYEES: FIRST AMENDMENT CLAIMS
BROUGHT BY SPECIAL EDUCATION TEACHERS
Randall C. Farmer and William P. Miles, of Gregory, Doyle, Calhoun, & Rogers, LLC
A noticeable surge in First Amendment claims brought by individuals serving special education students
raises one overarching question: Are the special education teachers advocating for services for their students
entitled to First Amendment protection for their speech? An analysis of their claims in three (3) federal
circuits reveals that federal courts are treating such claims as being employee speech not protected under
the First Amendment. Yet such claims by employees have increased recently.
To understand why, it is necessary to briefly review Garcetti v. Ceballos, which is a landmark decision in the
area of public employee First Amendment rights.1
First Amendment Retaliation Claims under Garcetti
In Garcetti, the Supreme Court reversed the Ninth Circuit’s decision in a case involving a First Amendment
retaliation claim brought by deputy district attorney, Richard Ceballos. Mr. Ceballos had written a
disposition memorandum explaining his concerns regarding alleged inaccuracies in an affidavit used to
obtain a search warrant in a pending criminal case. He was subsequently called as a witness by defense
counsel and relayed his observations about the affidavit in a hearing on a defense motion. In the aftermath
of these events, Mr. Ceballos claimed that he was subjected to a series of retaliatory employment actions.
For one, he was transferred to another courthouse and, for another, he was denied a promotion. Mr.
Ceballos claimed this was in retaliation for his exercise of his First Amendment rights, and he initiated a
claim under 42 U.S.C. §1983.
In Garcetti, Mr. Ceballos undisputedly acted pursuant to his official duties as a deputy district attorney.
The Court held that the First Amendment does not prohibit managerial discipline based on an employee’s
expressions made pursuant to official responsibilities. The rationale for this decision was as follows:
Employers have heightened interests in controlling speech made by an employee in his or her
professional capacity. Official communications have official consequences, creating a need for
substantive consistency and clarity. Supervisors must ensure that their employees’ official
communications are accurate, demonstrate sound judgment, and promote the employer’s mission.2
In his dissent, Justice Souter raised the question of whether the Garcetti analysis applied to teachers in
public school classrooms.3 In response to Justice Souter’s concerns, the Majority responded as follows:
There is some argument that expression related to academic scholarship or classroom instruction
implicates additional constitutional interests that are not fully accounted for by this Court’s
customary employee-speech jurisprudence. We need not, and for that reason do not, decide
whether the analysis we conduct today would apply in the same manner to a case involving speech
related to scholarship or teaching.4
While Justice Souter’s dissent has received significant attention in law review articles, it has not been an
issue for the district courts.
First Amendment Speech Analysis
Pursuant to the court’s ruling, in Burns v. Warden, USP Beaumont, to survive summary judgment on their
First Amendment retaliation claims, plaintiffs – as public employees – must demonstrate the following
three elements: (1) their speech was constitutionally protected; (2) the defendants’ retaliatory conduct
adversely affected the protected speech; and (3) there was a causal relationship between the retaliatory
action and the adverse effect on speech5.
According to the court in Aikins v. Fulton County, if plaintiffs can satisfy these elements, the burden shifts to
defendants to prove they would have made the same adverse employment decision absent the employee's
speech6.
Several circuits engage in a contextual examination of the alleged protected speech paying close attention to
the audience of the speech and if the speech was made within the chain of command.
Research Summary
In reviewing the reported cases on Westlaw using the search terms “special education” and “first
amendment,” there appears a significant increase in First Amendment cases involving special education
services in school districts. The Eleventh Circuit experienced a 500% increase in Westlaw reported cases;
the Seventh Circuit saw a 25% increase; and the Ninth Circuit saw a 200% increase. None of the postGarcetti cases in the Seventh, Ninth or Eleventh Circuits contained any mention or analysis of Justice
Souter’s dissent in Garcetti regarding the exception to academic freedom.
11th Circuit
6 cases
7th Circuit
5 cases
9th Circuit
4 cases
1 case
4 cases
2 cases
5/5 dismissed; 3 cases
dismissed on
summary judgment; 2
by motion to dismiss
3/5; 3 cases dismissed
on a motion for
summary judgment; 2
denied summary
judgment
# of special
education cases
dismissed (19972005)
1/1 case
2/4 cases; 2 cases
survived a motion to
dismiss
% increase
300%
25%
3/4 of the cases
dismissed at summary
judgment. In the
fourth case, the judge
denied the school
district’s motion to
dismiss in that case is
currently pending.
0/2 Both cases
survived summary
judgment and 1
resulted in a
significant jury
verdict.
200%
# of 1st Amendment
cases involving
special education
teachers (2006-2014)
# of 1st Amendment
cases involving
special education
teachers (1997-2005)
# of special
education cases
dismissed (20062014)
12
Eleventh Circuit: Speech Made in the Workplace and Pursuant to Job Duties
Equals Dismissal
Soon after 2006, the Eleventh Circuit Court of Appeals, in D’Angelo v. Sch. Bd., interpreted Garcetti by
reviewing the official responsibilities of the public employee and deemphasizing the location of the speech
or any particularized review of specific job duties.7 However, the Eleventh Circuit then refined its Garcetti
analysis in 2009. In Abdur-Rahman v. Walker, the Eleventh Circuit emphasized that “[t]he controlling factor”
in Garcetti was that Ceballos' statements were made pursuant to his job duties.8 While still eschewing any
review of a job description, the Circuit Court found that the Supreme Court defined speech made pursuant
to an employee's job duties as “speech that owes its existence to a public employee's professional
responsibilities” and a product that “the employer itself has commissioned or created.”9
Hence, the Eleventh Circuit cases involving the dismissal of the special education teacher’s First
Amendment claim can be broadly classified into those decisions that follow the original Eleventh Circuit
articulation of Garcetti as set forth in D’Angelo in 2007 and those occurring after 2009 that follow AbdurRahman. As for the D’Angelo approach, the district court, in Miller v. Houston Co. Bd. of Educ., found that a
student teacher, who was terminated from an internship program with a school, failed to establish any First
Amendment claim because her complaints about non-compliance with Individual Education Plans (“IEPs”)
were made pursuant to her official duties.10
For the Abdur-Rahman approach, the district court in Mattix v. DeKalb Co. Sch. Dist. granted the school
district’s motion to dismiss the special education teacher’s complaint, which contained a claim for
retaliation under the First Amendment. 11 In Mattix, the special education teacher claimed that she was
terminated after she complained about a paraprofessional being reassigned from her classroom, her grades
being disregarded, and speaking out about diminished instructional time. The district court granted the
motion to dismiss on the basis of Garcetti and Abdur-Rahman, finding that the alleged speech occurred in the
workplace and concerned the subject matter of the teacher’s job.12
Seventh Circuit
Of the five (5) cases since Garcetti, three (3) district courts in the Seventh Circuit have granted summary
judgment to the school district defendant. In those cases, the district courts twice dismissed the special
education employee’s First Amendment claim. In Koehn v. Tobias the court dismissed the teacher’s claim on
the basis that the majority of speech in question was made within the employee’s job duties and not merely
because it concerned their job duties.13 However, in Crumpley v. Rich Township High School District II 227
and Diadenko v. Folino, the district court dismissed the claims, even if the employee was not speaking within
his or her job duties, for lack of causation.14
The district courts have also denied summary judgment to the defendant school district in two cases. In
Dochette v. Lake Tomahawk Joint Sch. Dist., the district court found that the school psychologist’s statement to
police was protected by the First Amendment because she was complaining about another special education
teacher’s contact with a student, which was not made pursuant to her job duties as a psychologist.15 In
Blazquez v. Board of Education of the City of Chicago, the district court denied the motion for summary
judgment on the official basis that the special education teacher’s complaint to her supervisors about fraud,
waste and abuse were matters of public concern.16
13
Ninth Circuit
The Ninth Circuit Court of Appeals has adopted a five-step sequential inquiry for determining whether a
public employer unlawfully retaliated against an employee under the First Amendment: (1) whether
plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public
employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse
employment action; (4) whether the state had an adequate justification for treating the employee differently
from other members of the general public; and (5) whether the state would have taken the adverse
employment action even absent the protected speech.17
As to prong number (2), which relates to the Garcetti analysis, the Ninth Circuit has clarified that
“[s]tatements are made in the speaker’s capacity as a citizen if the speaker had no official duty to make the
questions statements, or if the speech was not the product of performing the tasks the employee was paid to
perform.”18
As to the Ninth Circuit’s application of the Garcetti analysis to special education teacher, the Circuit’s
decision in Coomes v. Edmonds School District is enlightening.19 In that case, the plaintiff, a teacher for
students with Emotional/Behavioral Disorders, alleged that the school district retaliated against her because
she reported concerns about the services her students were receiving to her union representative and to her
local and district administrators. In an attempt to avoid the Garcetti analysis, the plaintiff argued that her
duties “did not include battling with district representatives over the special education rights of her
students.”20 The Ninth Circuit did not accept her argument. Instead, it found that her concerns were
simply an expression of her “professional opinions about the appropriate management of a program in
which she played a leadership role.”21 Special education teachers were similarly unsuccessful in other
cases.22
In another case, a teacher who complained to her state senator that—among many other things—the rights
of children with special needs were being violated was able to escape the Garcetti analysis, but she
nevertheless lost at summary judgment because the Court found that she had failed to establish that her
speech was the substantial or motivating factor for her termination.23
In the only Westlaw reported post-Garcetti case to survive a dispositive motion from a school district, the
district court denied a motion to dismiss on non-Garcetti grounds.24
Conclusion
As discussed above, although more special education teachers are filing First Amendment Retaliation
claims, they are not having success because of the significant hurdle that the Garcetti case places upon them.
In light of these trends, these teachers may focus their efforts on other causes of action such as claims under
the Americans with Disabilities Act or state whistleblower laws where they might be able to avoid the
Garcetti-type analysis.
1
Garcetti v. Ceballos, 547 U.S. 410 (2006).
Id. at 422-423.
3
Id. at 438-449.
4
Id.at 425.
5
Burns v. Warden, USP Beaumont, 482 F. App’x 414,416-417 (11th Cir. 2012).
6
Akins v. Fulton County, 420 F.3d 1293, 1305 (11th Cir. 2005).
2
14
7
D’Angelo v. Sch. Bd., 497 F.3d 1203, 1211 (11th Cir. 2007).
8
Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir. 2009).
9
Id. at 1283.
10
Miller v. Houston Co. Bd. of Educ., No. 1:06-cv-940-MEF., 2008 WL 696874 (M.D. Ala. March 13, 2008).
11
Mattix v. DeKalb Co. Sch. Dist., No. 1:13-CV-2501-RWS, 2014 WL 3579416 *3 (N.D. Ga. July 18, 2014).
12
See also Proper v. Calhoun Co. Sch. Bd., No. 5:10-cv-287-RS-EMT, 2011 WL 3608678 (N.D. Fla. August 12,
2011) (Court determined if speech was made pursuant to official duties).
13
Koehn v. Tobias, No. 3:2012-cv-5032, 2014 WL 4095593 (N.D. Ill. August 19, 2014).
14
Crumpley v. Rich Township High School District II 227, No. 08 C 3467, 2009 WL 2986374 (N.D. Ill.
September 15, 2009) (No evidence that school board knew of protected speech when dismissal decision was
made); Diadenko v. Folino, 890 F. Supp. 2d 975 (N.D. Ill. 2012) (Summary judgment due to lack of
causation).
15
Douchette v. Lake Tomahawk Joint Sch. Distr., No. 3:07-cv-00292-bbc, 2008 WL 2412988 (W.D. Wis. June
12, 2008).
16
Blazquez v. Board of Education of the City of Chicago, No. 5-CV-4389, 2007 WL 2410369 (N.D. Ill. August
20. 2007).
17
Eng v. Cooley, 552 F .3d 1062, 1070 (9th Cir. 2009).
18
Id.
19
Coomes v. Edmonds School District, No. 2:12-cv-00319, 2013 WL 3294393 (9th Cir. June 28, 2013).
20
Id. at *1.
21
Id. at 6.
22
See Hodge v. Oakland Unified School District, No. C 09-04719 RS, 2012 WL 1933678 ( N.D. Cal. May 29,
2012) (Granting summary judgment on retaliation claim brought by plaintiff who taught autistic children
because her alleged periodic notification of teachers and administrators of deficiencies in the special
education program were within her job duties).
23
Capo v. Port Angeles School District, No. 3:07-cv-05685, 2009 WL 413498 (W.D. Wash. February 18, 2009).
24
Houston v. Yoncalla School District, No. 6:13-CV-01318-AA, 2014 WL 3514984 (D. Or. July 11, 2014). 15