Volokh conspiracy lawyer scrgruppen
from Parents defend education against Linn Mar Community School.Decided by the Eighth Circuit on September 29 (Judge Stephen Cultton, joined by Judges Duane Benton and Gene Kelly):
The disputed policy is titled “Administrative Regulations Concerning Transgender and Nonconforming Students of Gender Roles.” This policy was adopted in April 2022 under Board Policy 504.13-R. The policy outlines district regulations that “address the needs of transgender students, gender expansive students, nonbinary students, gender nonconforming students, and students questioning their gender to ensure a safe, affirming, and healthy school environment where every student can learn effectively.” …
[One section of the policy] Under the heading “Nouns and Pronouns.” The policy states that a student has “the right to be addressed with a name and pronoun consistent with his or her gender identity.” The fourth and final paragraph under this heading states: “[a]Intentional and/or persistent refusal by staff or students to respect a student’s gender identity is a violation of School Board policies, including the “Anti-Bullying” and “Anti-Harassment” policies. The policy defines “gender identity” as “[a] A person’s deep sense or psychological knowledge of his or her gender.” A student who violates this policy “shall be disciplined through appropriate measures, which may include suspension and expulsion.” …
The challenged policy states that “intentional and/or persistent refusal…to respect a student’s gender identity” is a violation of school board policies and is subject to discipline. Parent advocates argue that the policy’s requirement that the child “respect the student’s gender identity” violates the First Amendment for several reasons.
We conclude that Parents’ Defense is likely to succeed in its claim that this part of the policy is free of ambiguity. A government policy is unconstitutionally vague if it fails to “provide adequate notice of the prohibited conduct” and “is open to arbitrary enforcement.”
School disciplinary rules do not need to be as detailed as the Criminal Code imposing criminal penalties. But when school policy amounts to free speech protected by the First Amendment, the vagueness doctrine “requires a greater degree of specificity than in other contexts.” As such, “while a lower level of scrutiny is appropriate because of the public school environment, a relatively greater level of scrutiny is required because the regulation amounts to the exercise of freedom of expression.”
The district policy does not provide adequate notice of prohibited conduct because it fails to define the term “respect.” As the district court recognized, “respect” has different meanings. Because the policy does not define or restrict the term, it can cover any speech about gender identity that a principal deems “disrespectful” to another student’s gender identity. Thus, a student cannot know whether he or she is violating the policy when he or she expresses discomfort about sharing a bathroom with a transgender person, argues that biological sex is immutable during a discussion in a social studies class, or expresses an opinion about transgender students participating in the discussion . Single-sex sports teams.
The district emphasizes that “respect” only requires the use of a student’s preferred name and pronouns, and does not prohibit “general views” about gender identity. The district court concluded that the policy “appears” to be too limited, because the paragraph regarding a refusal to “respect a student’s gender identity” is at the end of a section titled “Names and Pronouns.”
We are not convinced that a student can rest assured that the policy is as narrow as the district asserts in its lawsuits. Even if we assume, for the sake of analysis, that the district can dictate a student’s use of nouns and pronouns, the clear meaning of the policy is not so limited. The policy threatens discipline if it refuses to “respect a student’s gender identity,” not if it refuses to respect a student’s preferred name or pronoun. The term “gender identity” is defined as “[a] “A person’s deep sense or psychological knowledge of their gender” – a broad concept that potentially extends beyond noun and pronoun. The use of a defined term under the section title does not change the meaning of the defined term.
The lack of clarity also makes the policy vulnerable to arbitrary implementation. The ill-defined term “respect” leaves the policy open to unexpected interpretations, and creates a significant risk that school administrators will apply the policy arbitrarily. Without meaningful guidance, district officials are left to determine, on an ad hoc and personal basis, what speech is considered “disrespectful” and subject to discipline, and what speech is acceptable.
For these reasons, we conclude that the fathers’ defense is likely to succeed on the merits of its First Amendment challenge [this] Part of the policy…. Due to the ambiguity of the policy, the case is remanded with directions to grant a preliminary injunction against enforcement of the portion of the policy prohibiting intentional or persistent refusal to “respect a student’s gender identity.”
Justice Gene Kelly joined the opinion, but added a concurrence of her own
I agree that schools are limited in their ability to regulate speech that is “merely offensive to some listeners.” However, I write separately because the seriousness of this situation is not the regulation of speech that is merely unacceptable or offensive to some listeners. What is before the court are the Linn-Mar Community School District’s efforts to comply with the requirements imposed on it under federal and state law.
Title IX prohibits discrimination on the basis of sex in public schools… Deliberate indifference to known acts of harassment may also “amount to the level of[ ] to a willful violation of Title IX… when the harasser is a student and not a teacher.”
As part of prohibiting sex discrimination, federal anti-discrimination laws prohibit discrimination based on gender identity. Iowa’s civil rights law is even clearer in prohibiting discrimination based on gender identity.
Relevant here, Iowa law also prohibits school employees, volunteers, and students in Iowa schools from engaging in harassing or bullying behavior. This law is based on the General Assembly’s finding, codified under Iowa’s anti-bullying statute, “that a safe and civil school environment is essential for students to learn and achieve at high academic levels. Bullying and bullying behavior can seriously disrupt the ability of school personnel to To maintain a safe and civil environment, and the ability of students to learn and succeed.” The law defines “harassment” and “bullying” to mean any electronic, written, verbal, or physical act or conduct toward a student that is based on any actual or perceived trait or characteristic of the student that creates an objectively hostile school environment. Who meets one or more of [several] conditions.”
{These conditions are:
(1) Places the student in reasonable fear of harm to the student’s person or property.
(2) Has a significantly adverse effect on the student’s physical or mental health.
(3) It has a significant interfering effect on the student’s academic performance.
(4) Has the effect of significantly interfering with the student’s ability to participate in or benefit from the services, activities, or benefits provided by the school.}
The law lists “gender identity” as “a characteristic or characteristic of the student.” …
One step the district has taken to fulfill its responsibilities under federal and state law is to adopt Board Policies 103.1 and 103.1-R, anti-bullying and harassment policies and regulations. Board Policy 103.1 was adopted by the district in 2007, and prohibits “repeated or likely to be repeated acts” or “persistent conduct toward any individual based on any trait or characteristic of the individual that creates an objectively hostile school environment, e.g.[h]“As a significant adverse effect on an individual’s physical or mental health.” be seen Board Policy 103.1. This policy explicitly includes “gender identity” as a “trait or characteristic” and thus expressly prohibits bullying and harassment based on gender identity.
The District was also responding to legislative mandates when it issued Board Policies 504.13 and 504.13-R. The governor of the region explained that:[i]In order to fulfill the District’s obligations under federal and state law…the District provided…support and accommodations related to gender identity. “Board Policy 504.13 and 504.13-R clarify and revise how students are protected from bullying, harassment, and discrimination. For example, in the part that has now been challenged on First Amendment grounds, Board Policy 504.13-R recognizes the right of “every student” to To be addressed by a name and pronoun consistent with his or her gender identity.”…It also specifies steps schools and administrators must take to ensure equal rights for all district students, including prohibiting discrimination by repeated or intentional misrepresentation.
However, I agree with the outcome of this case. The constitutional problem with Board Policy 504.13-R is that it prohibits acts or conduct that are not committed intentionally or persistently.”respect Student gender identity,” and fails to provide meaningful guidance on what falls within the scope of the word “respect.” In doing so, Board Policy 504.13-R is likely to be too vague about the speech it prohibits, leaving it vulnerable to abuse. Arbitrary enforcement.
But it is important to note that the problem with Board Policy 504.13-R is not that it seeks to regulate opinions on issues related to gender identity or “just offensive” speech. It didn’t happen. Instead, Board Policy 504.13-R seeks to “ensure a safe, affirming, and healthy school environment” where every student, including all gender identities, can “learn effectively.” The district may have used language that is not adequately tailored to its efforts to achieve this goal. But the goal itself is not only appropriately comprehensive and within the scope of the district’s educational mission. It is required by law.
Cameron Thomas Norris defended the appellant; Alan R. Ostergren, John Michael Connolly, and James Hasson were also on appellant’s note.
