The U.S. Supreme Court on Tuesday takes up a high-profile set of cases that has attracted keen attention among educators: whether the main federal employment-discrimination law protects workers on the basis of sexual orientation or transgender status.
The cases, being argued early in the court’s term that opens Oct. 7, are important to the education community not only because school districts and colleges tend to be large employers, but also because they touch on and may influence questions that have been particularly salient in the schools, such as the right of transgender students to use restrooms and locker rooms that align with their gender identity.
The employment cases come in a term that also features several other cases of interest to educators:
• In Espinoza v. Montana Department of Revenue (Case No. 18-1195), the court will decide whether a state constitutional provision barring government aid to religion violates the federal free exercise of religion rights of parents who want to use scholarships resulting from a tuition tax credit at a religious school. Education Week previewed the case recently, and arguments are likely in January.
• In November, the justices take up several consolidated cases involving the legality of the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals program. The program, begun under President Barack Obama, provides relief from deportation to some 800,000 undocumented young people, allowing them to work or attend school. The lead case is Department of Homeland Security v. Regents of the University of California (No. 18-587).
• On Oct. 17, the court will consider a set of consolidated cases over the legal status of appointments to a federal Financial Oversight and Management Board for Puerto Rico. The board was created in 2016 to try to deal with $74 billion in bond debt and $49 billion in unfunded pension liabilities, including for Puerto Rico’s retired teachers. Some bondholders sued over whether board members were properly appointed. If the court agrees that they were not, that would put many of the board’s decisions at risk of being overturned. The lead case is Financial Management and Oversight Board for Puerto Rico v. Aurelius Investment LLC (No. 18-1334).
Title VII Cases
In the case involving LBGT rights, the justices on Oct. 7 will hear one hour of argument over whether the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 encompasses sexual orientation.
The two consolidated cases that raise that question are Bostock v. Clayton County, Ga. (No. 17-1618) and Altitude Express Inc. v. Zarda (No. 17-1623). The two federal appeals courts that ruled in those cases came down on different sides of whether Title VII covers sexual orientation.
The court will also hear one hour in R.G & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), in which the justices will decide whether Title VII prohibits discrimination against transgender people based on their status as transgender or based on sex stereotyping.
“It will be huge for the LGBTQ community to have protection ... from employment discrimination, which pretty much remains a problem to this day,” said Paul M. Smith, a part-time professor at Georgetown University Law Center who has argued in favor of LGBT rights before the justices.
Four years ago, the American Federation of Teachers and the National Education Association joined a friend-of-the-court brief in support of same-sex marriage, but school board and administrator groups sat on the sidelines. In Obergefell v. Hodges, the court ruled 5-4 that same-sex marriages were protected by the U.S. Constitution.
In the Title VII cases, the AFT and NEA have filed a brief in support of interpreting the federal law to cover LGBT and transgender workers. This time they have been joined by the National School Boards Association and AASA, the School Superintendents Association.
“NEA and AFT represent the interests of educators and school staff (labor), and NSBA and AASA the interests of school boards and superintendents (management),” the brief says. “But [all four groups] are united in seeking to ensure that the educational mission of our schools is fulfilled. That result is best achieved when employment decisions for teachers and school staff focus on merit—their ability to educate children—rather than irrelevant characteristics.”
The brief supports a broad reading of Title VII to cover sexual orientation and transgender status.
“Protecting educators from discrimination according to Title VII’s plain text helps create a powerful and effective educational workforce, and school environment, that benefits the education of all students,” the education groups’ brief says.
The “plain text” argument is not based on specific language regarding sexual orientation or transgender status in Title VII, which most legal experts agree was not on the minds of Congress when it passed the law in 1964. Rather, the employees and their allies argue that the phrase “because of sex” in the statute is properly read to cover those categories.
The employers in the cases before the justices take a different view.
“What the case comes down to is whether Americans will be able to rely on the law the way it was written and understood at the time of enactment, or whether instead the judicial branch has the ability to rewrite a law in accordance with its policy preferences, the way it thinks the law should be applied today,” said John J. Bursch, the vice president of appellate advocacy and senior counsel for Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that is defending a Michigan funeral home that dismissed a transgender employee.
Among the briefs filed in support of the employers is one signed by a group called Students and Parents for Privacy, which grew out of a transgender restroom controversy in a suburban Chicago school district, one of many across the nation in recent years.
If the justices were to adopt the view that Title VII covered transgender status, that would implicate Title IX of the Education Amendments of 1972, which bars discrimination “based on sex” in federally funded schools, the brief says.
The group says the ruling will be felt in classrooms as well as in high school and women’s sports. “If ‘sex’ is redefined to include one’s personal preference of their sex, there can be no meaningful distinction drawn between the Title VII and Title IX contexts,” the brief says. “Already, throughout the country, biologically male athletes are speeding past and out-performing their female counterparts.”
Whatever the outcome of the Title VII cases before the Supreme Court, it seems likely the decision will be felt in the schools and the long-running controversies in that arena will not be fully settled by it.
A version of this news article first appeared in The School Law Blog.