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School Policy Requiring Students to "Respect" "a Student's Gender Identity" Is Unconstitutionally Vague
From Parents Defending Education v. Linn Mar Community School Dist., decided Sept. 29 by the Eighth Circuit (Judge Steven Colloton, joined by Judges Duane Benton and Jane Kelly):
The disputed policy is entitled "Administrative Regulations Regarding Transgender and Students Nonconforming to Gender Role Stereotypes." The policy was adopted in April 2022 as Board Policy 504.13-R. The policy sets forth regulations for the District that "address the needs of transgender students, gender-expansive students, nonbinary, 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] is headed "Names and Pronouns." The policy provides that a student has "the right to be addressed by a name and pronoun that corresponds to their gender identity." The fourth and final paragraph under this heading states that "[a]n intentional and/or persistent refusal by staff or students to respect a student's gender identity is a violation of school board policies," including "anti-bullying" and "anti-harassment" policies. The policy defines "gender identity" as "[a] person's deeply-held sense or psychological knowledge of their own gender." A student who violates the policy "shall be disciplined by appropriate measures, which may include suspension and expulsion." …
The challenged policy provides that an "intentional and/or persistent refusal … to respect a student's gender identity" is a violation of school board policies and subject to discipline. Parents Defending argues that the policy's requirement that a child "respect a student's gender identity" violates the First Amendment on several grounds.
We conclude that Parents Defending is likely to succeed on its claim that this portion of the policy is void for vagueness. A governmental policy is unconstitutionally vague if it fails to "provide adequate notice of the proscribed conduct" and lends "itself to arbitrary enforcement."
School disciplinary rules need not be as detailed as a criminal code that imposes criminal sanctions. But when a school policy reaches speech protected by the First Amendment, the vagueness doctrine "demands a greater degree of specificity than in other contexts." As such, "while a lesser standard of scrutiny is appropriate because of the public school setting, a proportionately greater level of scrutiny is required because the regulation reaches the exercise of free speech."
The District's policy does not provide adequate notice of what conduct is prohibited, because it fails to define the term "respect." As the district court acknowledged, "respect" has various meanings. Because the policy does not define or limit the term, it could cover any speech about gender identity that a school administrator deems "disrespectful" of another student's gender identity. A student thus cannot know whether he is violating the policy when he expresses discomfort about sharing a bathroom with someone who is transgender, argues that biological sex is immutable during a debate in social studies class, or expresses an opinion about the participation of transgender students on single-sex athletic teams.
The District asserts that "respect" requires only the use of a student's preferred name and pronouns, and does not prohibit "general opinions" about gender identity. The district court concluded that the policy "appears" to be so limited, because the paragraph regarding refusal to "respect a student's gender identity" is set forth at the end of a section headed "Names and Pronouns."
We are not convinced that a student may rest assured that the policy is as narrow as the District asserts in litigation. Even assuming for the sake of analysis that the District could dictate a student's use of names and pronouns, the plain meaning of the policy is not so limited. The policy threatens discipline for a refusal to "respect a student's gender identity," not for a refusal to respect a student's preferred name or pronoun. The term "gender identity" is defined as "[a] person's deeply-held sense or psychological knowledge of their own gender"—a capacious concept that likely goes well beyond a name and a pronoun. That a defined term is used under a section heading does not change the meaning of the defined term.
The lack of clarity also makes the policy susceptible to arbitrary enforcement. The undefined term "respect" leaves the policy open to unpredictable interpretations, and creates a substantial risk that school administrators may arbitrarily enforce the policy. Without meaningful guidance, District officials are left to determine on an "ad hoc and subjective basis" what speech is "disrespectful" and subject to discipline, and what speech is acceptable.
For these reasons, we conclude that Parents Defending is likely to succeed on the merits of its First Amendment challenge to [this] portion of the policy …. Due to the vagueness of the policy, the case is remanded with directions to grant a preliminary injunction against enforcement of the portion of the policy prohibiting an intentional or persistent refusal "to respect a student's gender identity."
Judge Jane 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 listener." However, I write separately because the gravamen of this case is not the regulation of speech that is merely disagreeable or offensive to some listener. What is before the court are Linn-Mar Community School District's efforts to abide by the requirements imposed on it by federal and state law.
Title IX bars sex-based discrimination in public schools… Deliberate indifference to known acts of harassment can also "amount[ ] to an intentional violation of Title IX … when the harasser is a student rather than a teacher."
As part of their bar on sex-based discrimination, federal anti-discrimination statutes prohibit discrimination on the basis of gender identity…. The Iowa Civil Rights Act is even more explicit in prohibiting discrimination on the basis of gender identity.
Relevant here, Iowa law additionally bars 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 within Iowa's anti-bullying statute, "that a safe and civil school environment is necessary for students to learn and achieve at high academic levels. Harassing and bullying behavior can seriously disrupt the ability of school employees to maintain a safe and civil environment, and the ability of students to learn and succeed." The statute defines "harassment" and "bullying" "to mean any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that 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 substantially detrimental effect on the student's physical or mental health.
(3) Has the effect of substantially interfering with a student's academic performance.
(4) Has the effect of substantially interfering with the student's ability to participate in or benefit from the services, activities, or privileges provided by a school.}
The statute lists "gender identity" as a "trait or characteristic of the student." …
One step the District has taken to meet its responsibilities under both federal and state law is to adopt Board Policies 103.1 and 103.1-R, which are anti-bullying and anti-harassment policies and regulations. Board Policy 103.1 was adopted by the District in 2007, and it bans "repeated or potentially repeated acts" or "ongoing conduct toward an individual based on any trait or characteristic of the individual which creates an objectively hostile school environment that," for example, "[h]as a substantial detrimental effect on the individual's physical or mental health." See Board Policy 103.1. This Policy explicitly includes "gender identity" as a "trait or characteristic," and thus explicitly bans bullying and harassment on the basis of gender identity.
The District was also responding to legislative mandates when it promulgated Board Policies 504.13 and 504.13-R. The Superintendent of the District explained that "[i]n order to meet the District's obligations under federal and state law … the District has provided … support and accommodations relating to gender identity." And Board Policies 504.13 and 504.13-R clarify and refine how to protect students from bullying, harassment, and discrimination on the basis of their gender identity. For example, in the portion now challenged on First Amendment grounds, Board Policy 504.13-R recognizes the right of "every student" "to be addressed by a name and pronoun that corresponds to their gender identity." … It also lays out steps that schools and administrators must follow to secure equal rights for all District students, including the prohibition against discrimination by way of repeated or intentional misgendering.
Nevertheless, I concur in the outcome of this case. The constitutional problem with Board Policy 504.13-R is that it proscribes acts or conduct that intentionally or persistently do not "respect a student's gender identity," and fails to provide meaningful guidance as to what falls within the scope of the word "respect." In doing so, Board Policy 504.13-R is likely too vague about what speech it proscribes, making it potentially susceptible to 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 about issues related to gender identity or "merely offensive" speech. It does not. Rather, Board Policy 504.13-R seeks to "ensure a safe, affirming, and healthy school environment" where every student, including those of all gender identities, "can learn effectively." The District may have used language that is insufficiently tailored to its effort to achieve this goal. But the goal itself is not only appropriately inclusive and well within the scope of the District's educational mission. It is mandated by law.
Cameron Thomas Norris argued for appellant; Alan R. Ostergren, John Michael Connolly, and James Hasson were also on appellant's brief.
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There is an assumption that not using a preferred pronoun falls afoul of the four pronged test of a hostile environment. I would like to see the evidence for this. In addition to the word, “respect” being too vague, the definition of “hostile” seems too vague as well. Hostile cannot simply mean one doesn’t like or agree. It has to have an objectively bad outcome that specifically harmed a person bringing suit.
Otherwise, it is effectively defined by the most hypersensitive people.
If that were the case, sure. In practice, shitty kids rag on others viciously and repeatedly.
I agree someone shouldn’t be forced, by government, to adopt social or cultural changes. But just stop being nasty, is that too much to ask?
The meme is this is some re-education camp to force you to say there are 5 lights. In practice, kids ragging on other kids.
“Hey Jerk-face, want a knuckle sandwich? You gonna eat this? (Crushes my PBJ into a brownish/purple goo)Why are you hitting yourself? quit hitting yourself!,”
Yeah, 6th grade was pretty bad, and that was just the ride to school with my sister, (OK, 2 grades older, I wasn’t getting bullied by a 4th grader at least) the Girls at school were even worse!
Frank
I agree someone shouldn’t be forced, by government, to adopt social or cultural changes.
And yet that’s exactly what’s at issue.
But just stop being nasty, is that too much to ask?
Refusing to take part in someone else’s delusion isn’t “being nasty”.
“someone else’s delusion”
Keep in mind that often it’s not the kid’s fault. Someone may be feeding the delusions, and maybe the kid is being abused and exploited by groomers of some variety.
But only a few very specific types of this behavior are to be punished? Only for the benefit of the special people, with the rules weaponized against anyone not so special.
Okay why wouldn’t it be hostile to the person upon whom is being demanded that they ignore reality? If a 30 year old man who demands to be treated like an underage girl specifically that the justice system apply the romeo and juliet clause to him when he rapes an underage girl and they refuse aren’t they also being hostile?
Always great to encounter pointers on “ignoring reality” from the side of the aisle favoring silly superstition and old-timey bigotry.
As always, when constitutional standards like vagueness are applied to controversial matters, consistent principles should be followed and the controversial nature of the subject-matter should not alter the outcome.
I am skeptical that this is unconstitutionally vague under general principles used in less controversial contexts. School discipline codes and also codes of conduct at public meetings have long been full of general adjectives like “orderly,” “respectful,” and so forth, and these types of rules have not been facially struck down for vagueness en masse, even if they have sometimes been found to violate the First Amendment in particular applications.
I think the Court here was obligated to look for cases where similar language was used in similar contexts, even if regarding very different subject matters. This opinion simply didn’t do so. While it cited a single case with a general standard for evaluating school rules under the First Amendment, It didn’t recognize the similarity between the language used for these particular rules and language used in other school discipline contexts. It didn’t bring in other specific cases. It offered an opinion on the rules as if their controversial subject-matter made them sui generis and entitled it to opine on a clean slate.
The First Amendment may provide other defenses against claims that one is e.g. required to use or avoid a particular pronoun. But such a First Amendment defense has nothing to do with vagueness.
Unlike the “void for vagueness” rule under the Due Process Clauses, vagueness regarding the First Amendment is broader. Vagueness that “chills” free speech (people may be fearful of speaking on a subject even though it would be protected speech) violates the right to free speech. That’s what, IMO, the Eighth Circuit was ruling in this case.
But the 8th Circuit flatly ignored the Supreme Court’s explicit admonition in Beth El School District v. Fraser that vagueness standards for school rules about student speech are a lot less demanding than vagueness standards for criminal prosecutions about speech. In defiance of Fraser, it cited a case holding a criminal law unconstitutionally vague (Grayned v. City of Rockport) as the main basis for its result.
In defiance of Fraser, it cited a case holding a criminal law unconstitutionally vague (Grayned v. City of Rockport) as the main basis for its result.
As I already pointed out…no, the decision did not cite Grayned as the “main basis for its result”. It cited Grayned as a precedent for the idea that vague language invites arbitrary enforcement/application, and did so with regard to a single brief, three sentence paragraph, out of nearly 11 pages of analysis, including several other citations supporting that analysis. Calling that the “main basis” for the decision is either disingenuous or profoundly stupid…or both.
This is why I keep asking you if you bother to read what you’re commenting on.
Agreed. See, e.g. anti-“bullying” policies.
All of your points about vagueness were addressed by the text of the decision as quoted, which you…yet again…appear to have not read before rushing to comment.
Not so. I read it, and it didn’t. The opinion cited two cases for the essential elements of its merits decision. It cited Stephenson v. Davidson County School District for the proposition that vagueness applies to school rules. But in that case, the District’s attempt to discipline Bryanna Stephenson for having a tattoo that the District simply asserted, without evidence, was a gang symbol. The facts are nothing like this case. It cited Grayned v. City of Rockport for the proposition that the term “respectful” is vague. But Grayned not only said no such thing, it wasn’t even a school discipline case. Grayned was a criminal case in which a group picketing outside a school were prosecuted for disrupting the school. The Supreme Court said that in the context of a criminal prosecution, there was no clear standard for what constituted a disruption.
But it’s well established that school discipline rules don’t have to be as clear as criminal statutes. To give just one example, the Supreme Court said so very clearly in Bethel School District No. 403 v. Fraser (“Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary ruless need not be as detailed as a criminal code that imposes criminal sanctions.”)
In applying a standard taken from a case involving a criminal prosecution directly to a school disipline context, the 8th Circuit flatly ignored Fraser’s explicit admonition not to do this. And, as I said, the 8th Circuit never cited a single school discipline case with even remotely relevant language in the rules.
Sir, you have repeatedly simply claimed I never read the underlying case and have no clue what I’m talking about. Sir, simply saying that’s so, again and again, doesn’t make it so.
Have you ever considered reading the case yourself and perhaps even reading what I wrote before responding? Didn’t think so. Far too much effort.
I think the 8th Circuit’s essential mistake was to use Grayned, a criminal prosecution of picketers for allegedly “disrupting” a school which found the standard for “disrupting” unconstitutionally vague, as the standard for vagueness for school rules against “disrupting” in a school discipline setting. Fraser said, very clearly and explicitly, that the two are different.
I think that’s a trenchant criticism.
At the same time, maybe the issue here isn’t so much school/non-school as educational/political? I.e., the school can write fairly vague rules for school disciplinary issues, but not for issues that are closer to the political category? Because that would be in a sense consistent with Tinker and Fraser and the other school speech cases– Vietnam War protests can’t be defined as “disruptive”, but talking about sex in a school assembly can. The basic notion is that when schools are banning black armbands, it is taking a political position rather than educating.
And then the question would be whether something like this is educational or political. Which is a tough question- but seems to me to be the one that should be asked.
The opinion cited two cases for the essential elements of its merits decision.
.
It cited Stephenson v. Davidson County School District for the proposition that vagueness applies to school rules.
But in that case, the District’s attempt to discipline Bryanna Stephenson for having a tattoo that the District simply asserted, without evidence, was a gang symbol. The facts are nothing like this case.
And you think that somehow means that a case that applied the vagueness doctrine to a school rule doesn’t support idea that the the vagueness doctrine is applicable to school rules?
It cited Grayned v. City of Rockport for the proposition that the term “respectful” is vague. But Grayned not only said no such thing, it wasn’t even a school discipline case.
The Court’s citation of Grayned was not with regard specifically to the word “respectful”, but to the principle that it was too vague and invited arbitrary enforcement, similar to the phrase “tends to disturb” in the Rockford ordinance. That it was a criminal case in no way lessens that point.
Have you ever considered reading the case yourself and perhaps even reading what I wrote before responding? Didn’t think so. Far too much effort.
I read both before responding. But at least you got the “Didn’t think” part right.
You, on the other hand, have a long track record of long-winded diatribes that make it clear that you didn’t read either what you’re responding to, or citing as a reference.
We have children with the right to demand they be addressed with the correct pronoun while Israeli babies are beheaded — and I think folks have their priorities off a bit here.
That said, I demand to be addressed as “Your Royal Highness”….
In fairness, I often read your comments and think to myself, “Self, Dr. Ed has to be high again.”
So calling you “Your highness,” at a minimum, might be apt.
The correct pronoun to *address* a student with is “you”.
Fox News “1,500 Israelis Killed by Hamas” PMS-NBC/Clinton News Network/National Pubic Radio: “Israel cuts off Electricity and Water to Gaza!!” OK, I get that NBC/CNN compete in the marketplace of Idiotic Ideas but tell me again why my Tax Shekels pay for National Pubic Radio?? They don’t even have “Klick & Klack, the Tappet Brothers”(You knew it was NPR because the mechanics were Liberal MIT grads, and a caller had to ask what a “Tappet” was) or even Prairie Home Companion that was funnier less often than a Solar Eclipse (OK, I know Solar Eclipses aren’t funny, you know what I mean) even the suck-cessor “Live from Here” barely lasted longer than one of Hunter Biden’s Crack-Ho girlfriends..
Frank
“the right to be addressed by a name and pronoun that corresponds to their gender identity.”
This insanity has been reviewed and approved by the Ministry of Truth.
I’m worried that we will dilute the meaning of “right” so much that actual rights will get lost in the shuffle. It’s like referring to welfare programs as entitlements; it makes thing like VA benefits and Social Security seem less like the government fulfilling a contractual obligation and more like a charity which should be means tested.
I’m worried that we will dilute the meaning of “right” so much that actual rights will get lost in the shuffle.
“Will”? I don’t know if we can say that ship has already sailed, but it’s definitely unmoored and left the dock.
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So then why doesn’t he/she/it have to respect my use of speech?
Are we to say that as soon as you declare yourself a bisexual multi-racial X this is a sign of your incontestable sanity 🙂
Because they’re one of the special people and you are therefore second class and don’t rate any respect.
If you don’t want to be second class, you have to start to recognize the ones who would put you in second class as what they are: enemies.
This is the working out of what Alito and Thomas said would happen from gay ‘marriages”, the same thing Lincoln said about slavery : They don’t want us to admit it is legal, they demand we say it is GOOD .
The policy provides that a student has “the right to be addressed by a name and pronoun that corresponds to their gender identity.”
A right to have others speak to you in a specific way is the diametric opposite of freedom of speech. Nothing about that is vague.
Why would any population of free people allow the designation of special people with special rules to compel everyone else to special speech patterns? Obviously unnatural and alien speech patterns too — otherwise no need to compel it.
Leftists really seem to love bullying everyone in that way. It’s yet another attack on regular people.
“But the US aid given to Ukraine since February 2022 (about $77 billion), is barely a rounding error in the federal budget (approximately 0.01% of the $6.27 trillion in federal expenditures in fiscal year 2022)”
$77 Billion is not “approximately 0.01%” of 6.27 Trillion. Rather $77 Billion is approximately 1% (or rather 1.23%) of 6.27 Trillion. That is “real money” as they say. To put that in context, the US requested $177 Billion for the US Army in 2023. The spending in Ukraine Aid = 43% of the entire fiscal year spending we spend on the US’s own Army…
Asking for better bookkeeping and prioritization on those sorts of funds is not unreasonable, and may benefit the Ukraine war effort.
What I can say is that it’s quite a shame that the educational process is now overshadowed by such news, that education is already taking a back seat, it’s not cool. I understand everything, but in my time, even though there was no such technology, children studied very well, without distracting their attention to such things. It’s a good thing that at least in my time there was clevescene.com, which helped me with my writing and generally made my school and then student life much easier. So I would like to say to all those who are currently studying, pay less attention to such things, discover more and study fruitfully.