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Affluent Christian Investor | October 21, 2017

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Title IX Strikes Again: The Girls’ Locker Room Can’t Be Just For Girls Any More

(Photo by flattop341) (CC BY) (Resized/Cropped)

(Photo by flattop341) (CC BY) (Resized/Cropped)

Those of us who oppose the expansion of governmental controls often get the retort, “You’re just using a slippery slope argument; the bad consequences you foresee are extremely unlikely to happen.”

Ah, but predicted bad consequences often do happen. As evidence, I offer the following instance.

In 2013, a student in Palatine Township High School (Illinois) complained about sexual discrimination to the federal Department of Education’s Office for Civil Rights (OCR). The allegedly illegal discrimination suffered was because the school refused to allow the student, who was born male but identifies as a female, to use the girls’ locker room.

The applicable 1972 statute forbids sexual discrimination by any school or college that accepts any federal funds–but surely that couldn’t mean that a transgender girl can’t be kept from changing and showering with the girls.

Oh yes it does.

Instead of dismissing the complaint, OCR took it very seriously. Under pressure from Washington, officials in the Palatine School District offered this accommodation: The student could use the girls’ locker room, but had to change and shower behind privacy curtains.

Not good enough! The requirement of using the privacy area was discriminatory; it singled the student out; it made her feel ostracized. The ACLU attorney representing “Student A” declared, “It’s one thing to say to all the girls, ‘You can choose if you want some extra privacy, but it’s another thing to say, ‘You, and you alone must use them.’ That sends a pretty strong signal to her that she’s not accepted and the district does not see her as a girl.”

Despite the many accommodations the school had made, including allowing Student A to play on girls sports teams, Student A still wasn’t satisfied. When you have the power of the federal government behind you, why not go for everything?

Negotiations having failed, the OCR would have to decide the dispute.

After analyzing the situation, OCR sent Superintendent Daniel Cates a letter on October 28, stating that the school’s handling of the matter was in violation of Title IX: “The evidence shows that, as a result of the District’s denial of access to the girls’ locker rooms, Student A has not only received an unequal opportunity to benefit from the District’s educational program, but has also experienced an ongoing sense of isolation and ostracism throughout her enrollment at the School.”

Superintendent Cates replies that OCR’s position “is a serious overreach with precedent-setting implications.” To say the least.

The District has been given 30 days to come up with a solution that is acceptable. That can only mean caving in to Student A’s demand for unrestricted access and use of the girls’ locker room. If any of the other girls should feel any discomfort at having a transgender girl who, however sincerely, identifies as one of them unclothed in their midst, apparently they should just get over it.

What if the 30 days pass without the District kowtowing to the OCR’s idea of equality? Then the government can threaten to cut off federal funding for the district. That is how the bureaucracy’s mandarins get their way. Federal money always comes with strings attached, strings that can choke.

According to this report, the school district’s annual budget is some $240 million and it receives $6 million from the federal government to fund programs for “at risk” students. Unless Superintendent Cates gives in, his district stands to lose that money.

Whether or not school officials in one Illinois district dare to defy the feds is interesting, but beside the fundamental point. The fundamental point is that the federal government should not have the power it wields.

Read through the Constitution and see if you can find any grant of authority for any branch of the federal government to fund or control any aspect of education. You will not find such a grant. The Founders thought that education was among the many things best left, in the language of the Tenth Amendment, “to the States respectively, or to the people.”

The Founders’ division of governmental authority pretty much kept the federal camel from getting its nose under the educational tent until Sputnik spooked the country into passing The National Educational Defense Act in 1958. (For a good book debunking the notion that this law was necessary or did any good, read Michael Teitelbaum’s Falling Behind, which I reviewed here.) That mistake was then compounded enormously by the Elementary and Secondary Education Act of 1965, a big part of Lyndon Johnson’s “Great Society.” Federal spending on and administrative control over K-12 education has been growing rapidly ever since.

Public education under local control is bad enough, but the inherent problems with government schooling are made far worse when zealous and unaccountable bureaucrats in Washington get to direct school policy. Those people are usually (and not just under the Obama administration) imbued with an authoritarian/egalitarian cast of mind. They like nothing more than to officiously dictate to schools based on their interpretations of vague statutes and regulations.

If you think this kerfuffle over locker rooms is bad, consider another recent federal mandate–that school discipline be racially proportional. Unless schools can show that there is no racial “disparity” in student discipline, the Department of Education will crack down on them. (For more about that, read my Forbes piece.)

If you’re bothered by the Palatine case, think about the only real solution to the problem of federal overreach–repeal the statutes and abolish the Department of Education.


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