President Barack Obama recently sent a directive to public schools around the country to let students use restrooms according to their gender identities. While this directive is not legally binding, the threat of potential civil rights lawsuits and loss of federal funding for Title IX looms large.
This is not the first time public schools have been the battleground for cultural change: think Brown v. Board of Education and the forced integration of Central High School in Little Rock, Ark., in 1957. Nine black honor students had to be escorted by U.S. Army soldiers as they went from class to class the entire year.
After the first black student graduated, the next push was to integrate the elementary schools. Districts across the South closed schools. White children were enrolled in private schools while poor black children had nowhere to go.
Schools also were inflection points of First Amendment freedom of speech issues during the Vietnam War in the 1960s. In the 1969 Tinker v. Des Moines School District case, two students were expelled for wearing anti-Vietnam War armbands. The Supreme Court found in a 7-2 decision that the students did indeed have free speech rights to peacefully and silently protest the war.
This decision caused a cascade of Supreme Court landmark decisions about how much free speech students have. In one local case – Bethel School District v. Fraser – Matthew Fraser used sexual innuendo to nominate another student for student body vice president in front of an assembly of 600 students. The assembly erupted in shouting and catcalls. Fraser was suspended for three days for his offensive language. His family sued. In 1986, in a 7-2 decision, the Supreme Court found for the school district, arguing that there are limits to free speech for minors so that school officials can maintain order.
A similar series of landmark Supreme Court cases came as a result of students testing their Fourth Amendment rights to protection from unreasonable searches and seizures. In New Jersey v. TLO, a 14-year-old girl student was caught smoking in the school restroom. The vice principal searched her purse over her objections and found cigarettes, marijuana, as well as drug paraphernalia and a list of customers. A New Jersey court found her guilty of delinquency. Her family sued, and in 1985, the Supreme Court held, in a 6-3 vote, that the school district was within its rights to search her purse, based upon what it called “reasonable suspicion” in order for the school to maintain discipline and order.
Later, seventh-grader James Acton refused to take random drug tests to play football. His parents sued. In 1995, in a 6-3 decision, the Court again upheld the school district in Vernonia School District v. Acton, saying school districts have the right to protect students from dangers created from impaired capacity and to protect students from educational disruptions.
In the 2009 Safford United School District v. Redding case, the Court ruled 8-1 that school district officials had overstepped their bounds when they strip-searched 13-year-old Savanna Redding in search of drugs in her underwear. This was a clear violation of Fourth Amendment’s protections from unreasonable searches and seizures.
For more than 50 years public schools across the nation became battlegrounds in struggles between the need to educate students and right to equal protection under the law, the limits of free speech, and the right to privacy under the First, Fourth and 14th amendments.
Now, President Obama’s directive has just started another round of disruptive court challenges in these bathroom wars over gender identity. These will probably continue for the next decade, costing millions, if not billions, of dollars in court costs and school restroom remodeling to satisfy all parties.
During the 50-year period I described, schools were forced to spend a great deal of time and effort finding the balance in setting disciplinary boundaries. Disruptions due to these decisions made it much more difficult to educate America’s children. In some of these cases, the disruptions were worth it. In others, not so much. Children being children, they will test all behavioral boundary changes.
While these are important constitutional issues, do we need to start another round of disruptions with the education of our children becoming “collateral damage”?
American culture is often schizophrenic: on one hand we strive to protect individual rights, while schools bear the burden for solving all of society’s social ills. At the same time, schools are severely criticized for not properly educating the nation’s children.
Isn’t it time for us, for our presidents, and for our governments to do a cost/benefit analysis before they start tinkering with cultural change in the nation’s schools?