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SBE Draft Statement and Guidance on LGBTQ Matters: What You Should Know

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, March 30, 2016

There has been a significant amount of confusion regarding the State Board of Education Draft Statement and Guidance on Safe and Supportive Learning Environments for Lesbian, Gay, Bisexual, Transgender and Questioning Students. Let’s clear some of that up:

The Draft Statement and Guidance document is a DRAFT recommended guideline that a district may refer to, or even adopt as policy, at its discretion. As has been covered in this space several times previously, many school districts throughout the state have been requesting guidance in dealing with this very sensitive issue. The Draft Statement, created by MDE’s School Health and Safety Programs Unit, attempts to provide said guidance. However, if eventually approved by the State Board of Education it will not become “law” or “mandatory policy” and every district will be free to use it, or not, to whatever extent they feel is appropriate for their community. That being said, the Legal Department here at MASB believes that it is imperative for all public school leaders to have a full grasp of some other very important considerations.

Statement From Michigan Department of Education

In response to questions and concerns, the State Board of Education wants to provide clarification regarding a Draft Guidance document on Safe and Supportive Learning Environments for Lesbian, Gay, Bisexual, Transgender and Questioning Students that currently is out for public comment.

  1. A number of school districts asked the State Board of Education for guidance on how to address circumstances where transgender students and their parents express how the students were being marginalized, excluded and discriminated against.
  2. A work group was formed by the State Board to develop a Guidance document for local school districts. This work group consisted of parents, teachers, students, administrators, social workers, psychologists, local school board members, attorneys and other stakeholders.
  3. Draft Guidance was developed by this work group for the State Board to consider adopting, to provide assistance to local school districts that may be faced with these circumstances. This Guidance would not be required to be adopted by any local school district, it merely offers options for districts to consider, if they so choose.
     
  4. As with all State Board of Education guidance, this would not be mandatory for local school districts to adopt. Local school districts each would decide to do what they believe is appropriate and helpful for all of their students.
     
  5. The Draft Guidance was presented at a public meeting of the State Board of Education on March 8. That Draft Guidance now is open for public comment. Each member of the Legislature was sent notice on March 17 of this public comment opportunity, with a link to the Draft Guidance document. 
     
  6. The State Board welcomes public input as it will continue to deliberate on providing guidance and assistance for school districts wanting to ensure the safety and inclusion of all of its students.

Persons wanting to provide their input on the Draft Guidance can do so through May 11 (deadline recently extended) at www.everyvoicecountsmi.org.

“We want to be very thoughtful in this discussion, hear all of the input, clarify any misconceptions, and modify the guidance to meet the needs of educators, parents and students in creating safe and effective learning environments for all children—including LGBTQ school children.” said State Board of Education President John C. Austin.

The Department of Justice’s Office of Civil Rights is tasked with enforcing five federal civil rights laws that prohibit discrimination on the basis of several factors, including race, sex, disability and so forth. Attorneys for OCR have determined that one of those laws, Title IX, which prohibits discrimination on the basis of sex and gender, wholly applies to discrimination on the basis of gender identity, gender expression and transgender/gender-nonconforming status. Attempts have been made to overturn OCR’s interpretation of Title IX, but these have not been successful.

Federal law demands that board policies must provide Title IX protections. Hence, while it is not mandatory that schools adopt the aforementioned Draft Statement and Guidance specifically as written, there is a very real and compelling argument to be made that schools must interpret or enforce their Title IX policies to prohibit discrimination on the basis of biological sex, gender identity, gender expression, transgender and gender-nonconforming status.

OCR has the power to deny federal educational funds to any entity that is found to violate Title IX. In our current funding climate, the loss of federal education funds would, obviously, be a devastating blow to all but a handful of Michigan districts. When OCR investigates a civil rights complaint they do not consider the moral or ethical stance of certain community members, or local politicians, as mitigating factors. Likewise, a district facing an OCR investigation should not expect any financial support from the Legislature, the state or MDE.

One of the most likely civil rights complaints that will be filed against a school district by a transgender student will consist of allegations that the student was subject to bullying and harassment that school officials were aware of but took inadequate steps to address. In such cases, one of the very first inquiries OCR will make will concern your district’s Title IX policy language or the administrative rules that serve to interpret and enforce that language. By examining past OCR investigations from around the country concerning transgender rights, we learn that districts lacking explicit policy protections (via either board policy or administrative rule) for transgender/gender-nonconforming students are universally required to adopt such policies as part of their OCR settlement. Likewise, from a practical standpoint, it is infinitely more difficult to convince an OCR investigator that the district took the student’s complaint seriously if a policy that explicitly protects such students does not exist.

From a legal perspective, it is important for all of our members to be aware of the possible ramifications of an OCR investigation and understand that while everyone is free to take a moral, religious or political stand on this issue, any decision to wholly reject such policy changes may carry some very real financial consequences for your district, as well as generally undesirable media coverage.

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