Briefly Stated: September 8, 2021

September 08, 2021 8 min read
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20 States File Lawsuit Against Biden Team Over LGBTQ Shields

The Biden administration is on the firing line again (when is it ever off?)—this time from attorneys general from 20 states who want to halt directives that extend federal sex-discrimination protections to LGBTQ people, including schoolchildren.

The lawsuit filed last week in U.S. District Court in Tennessee argues that legal interpretations by the U.S. Department of Education and the Equal Employment Opportunity Commission are based on a faulty view of U.S. Supreme Court case law.

The Supreme Court ruled in June 2020 that a landmark civil rights law protects gay, lesbian, and transgender people from discrimination in employment under Title VII.

In June, the Department of Education said discrimination based on a student’s sexual orientation or gender identity will be treated as a violation of Title IX, which protects against sex discrimination in education. A legal analysis by the department concluded there is “no persuasive or well-founded basis” to treat education differently from employment.

Also in June, the EEOC released guidance about what could constitute discrimination against LGBTQ people and advised the public about how to file a complaint.

With its guidance, the Biden administration in part took a stand against laws and proposals in a growing number of states that forbid transgender girls from participating on female sports teams. The state attorneys general contend that the authority over such policies “properly belongs to Congress, the States, and the people.”

In adddition to Tennessee’s, the plaintiffs are the attorneys general from Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

The lawsuit asks a judge to rule that Title IX and Title VII don’t prohibit schools and employers from having showers, locker rooms, restrooms, and other living facilities separated by “biological sex”; do not require employers, employees, or students to use a transgender person’s preferred pronouns; don’t outlaw separating school sports teams by “biological sex”; and don’t ban workplace dress codes based on “biological sex.”

Only Half of Parents Plan to Have Children Vaccinated Against COVID-19, Poll Finds

Parents are deeply divided on their intentions to vaccinate their children against COVID-19 and on their support of school mask mandates.

Those are two key findings from the Education Next survey of public opinion on education policy, which is published by the Education Next Institute and the Program on Education Policy and Governance at the Harvard Kennedy School.

The survey also found a drop in public support for education policy reform proposals across the board—whether the policies were backed by those on the right or those on the left. For example, support for free public college dropped from 2019 to 2021, but so did support for school vouchers.

“While the pandemic has created space for innovation, it is not clear that it has created broad demand for change. And so those who see this as an opportunity to rethink education policy or practice will still need to convince the public that that’s the right way forward,” said Martin West, the academic dean and a professor at the Harvard Graduate School of Education and the editor-in-chief of Education Next.

Just about half the parents surveyed, 51 percent, said they would “probably” or “definitely” vaccinate their child. About a third, 34 percent, said they probably or definitely would not. Fifteen percent are undecided.

The rates varied across party lines, with more Democratic parents saying they would get their children vaccinated.

When it comes to other COVID safety precautions, parents are similarly split. Forty-seven percent support mask mandates in schools, while 35 percent oppose them. Republicans were more likely to oppose them.

Opinion on mask-wearing also differs by race. Sixty-nine percent of Black adults, 59 percent of Hispanic adults, and 33 percent of white adults approve of mask mandates.

The past year has brought many anecdotal reports of parents pulling their children out of traditional public schools in favor of private schools that offer more opportunity for in-person learning. Still, the poll found that the proportion of students attending traditional public schools has returned to spring 2020 levels, after taking a dip earlier during the pandemic.

Masks, Distancing, Testing—Mitigation Measures Show Promise of Working for Nation’s Schools

Things may look bleak as the country continues its war against COVID-19, but now and again, some bright spots pop up.

Federal officials, for instance, are offering new hope for the safety of U.S. schoolchildren threatened by the coronavirus.

The Biden administration says half the nation’s adolescents ages 12-17 have gotten at least their first COVID-19 vaccine, and the inoculation rate among teenagers is growing faster than any other age group.

“We have now hit a major milestone,” White House coronavirus coordinator Jeff Zients told reporters at a briefing late last month. “This is critical progress as millions of kids head back to school.”

Meanwhile, new studies from California provide more evidence that schools can open safely if they do the right things and highlight the danger of failing to follow proper precautions.

A study of COVID-19 cases from the winter pandemic peak in Los Angeles County found that case rates among children and adolescents were about 3½ times lower than in the general community when schools followed federal guidance on mask-wearing, physical distancing, testing, and other mitigation measures.

But another study from Marin County found that a single unvaccinated teacher who came back to school two days after showing symptoms and read to her class without wearing a mask led to 26 other infections in May, before the highly contagious Delta variant ran wild.

“Most of the places where we are seeing surges and outbreaks are in places that are not implementing our current guidance,” said Dr. Rochelle Walensky, the director of the Centers for Disease Control and Prevention, who discussed the studies at a briefing.

More than 3,100 active coronavirus cases have been reported in Arkansas public schools among students and employees, and most youths are enrolled in districts that require masks. The mandates emerged after a judge temporarily blocked a state law that banned mask mandates in the state, which ranks fifth nationally for new virus cases per capita, according to Johns Hopkins University researchers.

About 1,100 people are dying daily of COVID-19 in the United States, the most since mid-March, according to Johns Hopkins.

OCR Probes States Banning Mask Mandates in Schools

The U.S. Department of Education launched investigations last week into five states that prohibit schools from setting universal mask mandates, setting the stage for potential enforcement actions as the Biden administration spars with Republican governors over COVID-19 precautions.

The investigations by the agency’s office for civil rights will determine whether those policies—in Iowa, Oklahoma, South Carolina, Tennessee, and Utah—threaten education access for students with disabilities and health vulnerabilities who do not feel safe attending school in person without virus-mitigation strategies recommended by the Centers for Disease Control and Prevention.

The targeted investigations will determine whether the states’ policies are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, under which schools are required to provide a free and adequate public education to students with disabilities.

Such investigations carry the implied threat of the suspension of federal funding, but they are often resolved through voluntary resolution agreements between the Education Department and the party being investigated before the process is complete.

The department did not launch similar investigations in other states that have prohibited schools from setting universal mask requirements— Arizona, Arkansas, Florida, and Texas—because they have suspended enforcement of their policies voluntarily or as the result of court action, but it said it would continue to monitor those areas.

Oklahoma schools chief Joy Hofmeister said that her state would “fully cooperate” with federal officials and that she is “not surprised” by the investigation. The state’s law “is preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in person,” she said.

Court Backs Teacher Who Disputed LGBTQ Policy

Teachers can speak up—in certain circumstances and if their sentiments don’t cause too much of a distraction.

That’s the upshot of a ruling last week by the Virginia supreme court. It upheld an injunction ordering the reinstatement, on free-speech grounds, of a teacher who was suspended after opposing at a school board meeting a proposed policy requiring respect for transgender students.

The state high court ruled in favor of Tanner Cross, an elementary physical education teacher in the Loudoun County school system.

He spoke at a May 25 school board meeting against a then-proposed—and since adopted—policy that, among other things, requires staff members to use the chosen names and pronouns of transgender students.

“I’m a teacher but I serve God first,” Cross said as a public speaker at the meeting. “And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion.”

The next day, the district put Cross on administrative leave with pay and limited his access to school events, asserting that his comments had a “disruptive impact” on his elementary school, such as complaints and requests from parents that Cross have no contact with their children.

A state trial judge in June issued a temporary injunction in favor of the teacher, citing a 1968 Supreme Court decision, Pickering v. Board of Education of Township High School District 205, holding that a teacher’s speech on a matter of public concern is protected under the First Amendment if it outweighs the employer’s interests in workplace efficiency and lack of disruption.

The state high court upheld the lower court’s injunction in favor of the teacher. The court said it had to apply a “difficult” balancing of the teacher’s interest in speaking on a public matter and the school board’s interest in efficiency.

Evie Blad, Senior Staff Writer; Sarah Schwartz, Staff Writer; Mark Walsh, Contributing Writer; The Associated Press, Wire Service; and Tribune News Service contributed to this article.
A version of this article appeared in the September 08, 2021 edition of Education Week as Briefly Stated: Stories You May Have Missed


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