The Real Flashpoint In Virginia's New Transgender Guidelines For Schools? Teacher Rights. Part 2 of 2.

This should be about freedom, not concealment

In Part 1 we talked about the crux issue in the new Virginia transgender guidelines for schools (that a lot of people are dancing around). Is it OK for schools to conceal gender transitions from parents or is that the only way to be affirming for LGBT kids? Outside of exceptional circumstances concealing things from parents and guardians seems untenable and problematic. Some disagree.

That fight is obscuring a more consequential and unsettled question the guidelines point up: What free speech rights do teachers enjoy when it comes to names and pronouns?

The Guidelines Create Two Rights and Point Up an Unsettled One

The model guidelines establish two parallel rights. This is all outlined under Section D, below. If you want your child to be called by a name or pronoun that doesn't correspond with their student record and biologic sex, you have to notify the school in writing. On the other hand, if you don't want your child called by a name or pronoun that does not correspond with their student record and biologic sex then that parental right is respected, too. It seems untenable to have one of these rights without the other, the guidance includes both.

This is what is being called outing, but in practice it means if a student wants their public school to do something contrary to their parent's wishes then unless they are 18 or emancipated the parents have to be involved. There is no affirmative duty to report, but schools can't conceal what they are doing. Legally, whether you like it or not, we are talking about minors here, who don't enjoy the rights you may think they do, even as adolescents. There is a note about that in the first post. (You can also get your student's official records changed, that's also covered by Grimm, but because these are legal records it requires more documentation than just a note to school).

I should note that the polling on parent views here might not be what you think (or what I figured before this question was polled more). Fewer than four in ten parents think teachers should be required to use preferred pronouns. That makes my own view on this, just call people what they want to be called, a minority opinion. This is an example of the work advocates have to do if freedom is going to mean something. The focus on keeping things from parents is not making that work any easier.

As you can see, the guidance also contains an exception (Part 6) stating that teachers and students can't be required to use pronouns or names that violate their constitutional rights. It doesn't lay out those rights because it remains uncertain what those rights are in public K-12 settings. The Washington Post editorial board's hypothetical about teachers belittling students wouldn't fly under this policy regardless of what a court says on the First Amendment question. In more than a few parts of the proposed guidance anti-harassment and bullying language is laid out. That's not protected speech in schools. The Post's example illustrates how the real issues are being buried under an avalanche of hyperbole.

This question about teachers' rights in K-12 schools was already in play regardless of the 2021 Virginia election, this guidance, the previous guidance, or the underlying law. It seems like an issue that will ultimately be resolved in federal court. There are at least two cases here in Virginia that bear watching — in West Point and in Loudoun — about whether school districts can compel teachers to use names and pronouns. The facts in the Loudoun case are especially straightforward and not in dispute. The teachers in question don't want to follow the division's pronoun policy. The school division lost in court - correctly in my view and under established precedent - when it tried to discipline the named teacher in the lawsuit for exercising his First Amendment rights at a public meeting. The underlying issue - do teachers have to adhere to the school system's policy - is still pending. (Because his punishment was thrown out it's raised some understandable confusion about where courts have landed on this question.)

I don't have all the fillings, but here, included in the ACLU's amicus, is the basic argument for the school divisions being able to require pronoun use. Here's the argument for the teacher in the West Point case. Both are worth reading and present different views about how an issue like this should be decided. Again, keep an eye on that Loudoun case.

Teachers have diminished free speech rights in school as a condition of employment; that's well established by the courts. But they don't lose all their rights. It's why a teacher can be disciplined for using a racial slur, indoctrinating students, or simply not teaching the established curriculum. And it's why teachers can, as in the Loudoun case, speak in public on issues of interest to the community without retaliation. This is also essentially the standard established in Pickering and Garcetti.

I'm someone who sees the First Amendment broadly and as instrumental to progress. For instance, when a teacher gets fired for telling her students she supported a protest (this happened), that seems like a problem to me. Coercing students to protest? Well, that would also be a problem. And while some out-of-school conduct can bear on a teacher’s job, I think we should tread extremely lightly around speech and expression issues where the government is concerned. But government speech is not citizen speech, and a school district's decisions and policies regarding an issue like this seem like government speech, which can be appropriately compelled in some circumstances. As a practical matter, creating a right for teachers to opt-out on policies like this is a Pandora’s box in a setting like a public school division.

Out in the world, if someone doesn’t call you what you want to be called, that’s their right — albeit poor manners — and you can exit. Kids are compelled to be in public schools. I would argue that this means they’re owed extra deference, including on things like how they’re addressed. So call kids what they want to be called — or, if they are minors, what their parents want them to be called. Education is in no small part about helping people find out who they are and who they can be — so how one prefers to be addressed is part and parcel of that work.

So that’s a long way of saying I recognize the pluralistic tensions in the public square on a question like this, but come down that parents’ rights trump teachers’ rights inside a public school in instances like this. It follows, then, that a division policy requiring names and pronouns in accordance with parent preferences is a valid one. In Virginia, under this guidance, you could not have the inverse policy, where parents’ wishes are not respected. My opinion doesn’t matter, though; a court will decide. And in Kennedy this past summer, the court found that schools couldn’t keep a public school coach from engaging in a personal religious observance.

Others disagree with my take, and the lines are weird even by our distorted education politics standards. Conservatives who are not generally champions of teachers’ rights suddenly sound like Randi Weingarten at a rave. Some conservatives thrill to any discussion of parents’ rights but get mealymouthed when the right in question is calling students different names or pronouns if that is what their parents want. Progressives, meanwhile, who usually think absolutely any teacher’s right, no matter how absurd, is a good one, now think teachers who decline to use different names or pronouns should be put in the stocks. Fifty-six percent of Democrats say teachers should be fired for not using pronouns. I’m pretty sure that’s more than say they should be let go because their students aren’t learning. It’s all awkward for the teachers’ unions.

All Over But For The Lawyers

Bathroom policy is mostly settled in Virginia. Locker rooms less so but there again parental views are probably not what you heard on Twitter. Schools can’t conceal information from parents under a bunch of precedents and laws (nationally and in Virginia), so that’s over, except for the lawyers and potentially catastrophic politics. Sports policies, insofar as elite competitive sports are concerned, remain contested. And if you think Virginia’s previous sports policy was good for kids or inclusive, I can’t believe you have actually read that, either — it requires that high school students take hormones or even undergo surgery in order to compete. It was, understandably, unpopular among advocates for transgender youth - something most of the chattering class seems not to realize. It will take a lot of thoughtful work to figure out how to balance inclusion, safety, and fairness at different levels of athletic competition and across different sports. Right now, it’s mostly politics.

Returning to where we started, what are the relevant constitutional rights? Beats me. Whatever the courts decide will have broader ramifications for our schools and will leave many disappointed. This could end up spurring more school choice if we end up with a situation incompatible with pluralism or it might continue to fuel culture-war friction in the schools. Everyone strenuously arguing that teachers have rights here should think about the downstream effects beyond the pronoun debate and on different issues that arise in schools and don't all run in one direction politically. Everyone arguing that schools should conceal gender transitions from parents might do some thinking, too, about where that leads public schools, and, more important, the effects on LGBT youth.