The Stafford County School Board has waived attorney–client privilege and released the legal opinions it received last year before approving new nondiscrimination policies that add sexual orientation and gender identity to protected categories.
The legal opinions by attorneys Pakapon Phinyowattanachip of Richmond and Jennifer Parrish of Fredericksburg are now available at the School Board’s BoardDocs website.
In general, both opinions find the School Board has legal authority to add sexual orientation and gender identity as protected categories and that legal justification—based on Title IX of the Educational Amendments, Title VI of the Civil Rights Act and the Equal Protection Clause of the 14th Amendment—can be argued for adopting the expanded policies.
However, Parrish recommended in her Aug. 15 legal analysis the board not adopt the expanded policies “at this time” because, “the law is unsettled in this area, there is no legal mandate to do so, and because the School Board could open itself up to additional liability by voluntarily obligating itself to protect classes of persons not currently required to be protected by state or federal law.”
Parrish continued that “regardless of the state of the law,” schools “continue to have the obligation to ensure that all students are able to learn and thrive in a safe environment, including LGBTQ students.”
The board voted last year, by a narrow margin, against releasing the legal opinions.
Rock Hill District representative Patricia Healy and Hartwood District representative Holly Hazard requested the issue be brought back before the board—which includes new members Susan Randall of the George Washington District and Griffis–Widewater representative Elizabeth Warner—at Tuesday’s meeting.
Randall joined Healy, Hazard and Aquia representative Irene Hollerback—the three members who voted against the expanded nondiscrimination policies last year—to approve the release of the legal opinions. Warner joined Falmouth representative Sarah Chase and Garrisonville representative Pamela Yeung, who supported the expanded policies, in voting against release.
Parrish’s opinion addressed specific questions posed by the board members following a July board meeting.
Answering some of the questions, she stated the expanded policy does not “necessarily” mean students of any age can choose what bathroom or locker room to use, and that she is not aware of any lawsuits that have been successful in obtaining a judgment of unconstitutional conduct against a school division for allowing transgender students to use bathrooms corresponding to their gender identity.
She said the Aug. 9 ruling by the U.S. District Court in the Eastern District of Virginia in favor of Gavin Grimm, a transgender male student who claimed the Gloucester County School Board violated his rights by issuing a policy preventing him from using male restroom facilities, should “give school divisions pause before they institute policies that specifically mandate that students use the bathroom and locker room facilities based on their biological gender.”
Parrish said in her opinion that instead, potential lawsuits would more likely stem from claims that the board violated its own policy, should a person feel prevented from using the restroom or locker room of their choice.
“It is important to note, however, that the claims being made for discrimination under the various constitutional and federal statute reasons may continue to be made whether or not the School Board passes these revised policies,” the opinion continues.
Parrish said she expects the U.S. Supreme Court to rule on the issue and set legal precedent “in the next one to two years.”
Parrish recommended in her opinion that the division “make and enforce specific regulations, or at least school-wide consistent procedures, on the bathroom and locker room access based upon gender identity.”
Superintendent Scott Kizner said Wednesday the division has developed regulations to work with individual families who bring forward a need for accommodation or think a student has been treated unfairly.
“The consistency is that each family will meet with the principal or his/her designee to determine what is the right course of action based on the unique circumstances,” he said.
Before the expanded nondiscrimination policies were passed, he said, school administration was not required to work with families or staff to accommodate those not in the protected categories.
On Tuesday, after the vote to release the legal opinions, Kizner said he hopes the board and community can now move forward. He said bringing up the issue again is reopening a “wound” for “children and parents who spent months crying in front of us about being bullied.”
“You adopted this policy in September. It is the middle of January,” Kizner said. “We gave comfort to parents, comfort to students. I was at one of the high schools where kids came up and thanked me—and thanked you, honestly—for passing the [expanded nondiscrimination] policy. So I hope it ends right here. Let’s move on and focus on children and the budget.”