Transgender Youth Under the Trump Administration in Higher Education

By: LeeAnne Pedrick

Trump’s election and presidency have brought about monumental changes to the nation, including the LGBTQ+ and transgender communities.  What seemed like indefinite protections for this underrepresented group from the Obama administration in terms of gender expression quickly turned political under Trump’s America.

Title IX is a policy from the United States Department of Education that protects all students, regardless of sex, from discrimination under any educational program that receives federal funding.  This policy expands its scope by applying to almost all schools, both private and public because almost all schools receive federal funding in some way.  This was a monumental protection for all students in these programs, both secondary and post-secondary, against all sex-discrimination complaints.

After this was revised in 2015, the US Department of Education Civil Rights Division added guidance to Title IX protection written in letter format and titled “Dear Colleague” regarding protections for transgender students. This letter created guidelines to the already existing law by expanding the terminology to gender identity, rather than just sex (organs you are born with), as well as using the correct pronouns (he/him/his, she/her/hers, or they/them).  Additionally, it requires these same schools under Title IX, to respect and legitimize the gender identity the student identifies with, regardless of if it matches the sex they were born with.  This is important because the legal name of a student often does not align with their gender identity, making it harder for them to freely express who they are. This letter allows for students to feel comfortable and safe in their education to freely identify with who they are.  The most significant protection outlined in this letter is the permission of transgender students to freely use the locker rooms, shower facilities, housing, bathrooms, sports teams, etc. that align with their gender identity rather than the sex they were born with. This letter allowed for more consistent protection for transgender students that align with the purpose of Title IX.

Trump quickly reversed the effects of “Dear Colleague” within the first few months of his presidency.  In February of 2017, the Department of Education issued a response “Dear Colleague” in which it submitted regulations to completely reverse the effects of Obama’s “Dear Colleague.” This new letter alleges that the Obama Administration’s letter lacked any sort of legal analysis or evidence that it was consistently aligned with the meaning and purpose of Title IX in the first place. Trump’s letter states that this original sweeping guideline took the role of state and local governments by creating policy on a subject matter that is usually left up to lower levels of government. The combination of the lack of legal analysis and the litigation that has arisen over the first “Dear Colleague” gives reason for its rescission. However, the new “Dear Colleague” assures that there will still be protections in place for transgender students.

While neither “Dear Colleague” constitutes law, both have had significant impacts on education and protection for transgender students.  After Trump’s “Dear Colleague,” schools have felt more relieved of the pressure to adhere to what might not gain the popular vote in allowing transgender students to use the bathrooms and locker rooms of their choice. Despite this setback for the federal protection of transgender individuals, fifteen states have explicit protection for transgender students and other states have legislation being created to meet the same goal.

For awhile it seemed like the Supreme Court would offer a more definitive solution.  In the case of G.G. v. Gloucester County School Board, a transgender teen was using the men’s bathroom which matched his gender identity until parents complained. He was then barred from doing so. He filed suit asking for a preliminary injunction to require the school to allow him to use the correct bathroom. This case was granted writ at the Supreme Court but was never heard because of Trump’s repeal of the original “Dear Colleague.” What could have been the answer for transgender students looking for consistency under the law for proper protection against discrimination quickly was shot down with the same type of regulation offered in “Dear Colleague” under Obama.

Neither Trump nor other branches have issued any more guidelines nor has there been any federal legislation on the matter. It is likely that the future for transgender students’ protection in education will rest on state and local legislators who choose to implement more explicit policy.

Newsweek–Trump Administration Bans Memos Obama Used to Allow Transgender Students to Utilize Bathrooms of Choice–17 November 2017

POLITICO–Obama-era School Sexual Assault Policy Rescinded–22 September 2017

ACLU–G.G. v. Gloucester County School Board–6 March 2017

The Washington Post–Trump Administration Rolls Back Protections for Transgender Students–22 February 2017

United States Department of Education–Dear Colleague Letter of Transgender Students— 13 May 2016

United States Department of Education–Title IX and Sex Discrimination–April 2015

About the author:

LeeAnne Pedrick is a 2L at SUCOL. She is currently a student-attorney for the Low Income Taxpayer Clinic as well as the Treasurer for the Tax Law Society. LeeAnne hopes to be a tax attorney one day.

Charter Schools: Future of Education or Failing Children?

By: Casey Bessemer

A child miseducated is a child lost. – President John F. Kennedy

Education secretary Betsy DeVos has recently released a proposal containing eleven priorities for the public education system. Most of the priorities concern the matter of “school choice”. DeVos is most notable on this issue for pushing for legislation that would offer alternative schooling options, such as virtual schools and charter schools. There is no controversy that children learn and develop in different ways, but there is significant controversy as to which method is the best for children. Options range from boarding school to public school, and everything in between. With DeVos’s proposals and her propensity for charter schools, we could see public education transform from an open, accountable right to a closed, opaque commodity.

The proposal itself is fairly innocuous. DeVos stated that she wants parents and students to have adequate school choice and a flexible learning system, used to promote all learning options for all children. The ideas are grand and should be applauded. The country and the world will need doctors, scientists, engineers, and poets to continue onward. It is therefore undeniably important to not only secure education for children, but a quality education, so that we can have future doctors, scientists, engineer, and poets. The current public education system leaves something to be desired, and from world rankings, we can see that the U.S. is beginning to fall behind of other nations, which means there needs to be some sort of reform. As to what this reform is, is the matter of much debate. Some say to give more funding to the current system and more comprehensive assessments, others want to scrap the whole department and start anew. DeVos has an interesting theory about what would fix this: Public charter schools.

A public charter school is more or less a combination of a public school and a private school. It uses public funds (more than a private school would, but less than a public school) in order to educate children under its own curriculum, much like a private school. It is essentially a baby step towards the privatization of public education. Public charter schools are given a wider berth in terms of curriculum, testing and general philosophy than its public school counterpart. Advocates claim that public charter schools provide as good or better teachers, provide a better education, and serve all students, regardless of race, family income, or disability, all while still being responsible to the public. However, none of these things seem to be true.

Proponents of public charter schools tout the many supposed benefits. Public charter schools have set this idea of receiving a private education at a public price. Children would get the resources and needs their learning requires and parents will not have to take a second mortgage out to fund that kind of education. Public charter schools use less public funds, thereby costing the taxpayer less each year, than traditional public schools and while still being transparent. Public charter schools are here to educate, just like public schools.

But the truth is much farther from this. Public charter schools fall far from their own ideals. Despite being the claim of using less public funds, they often require adequate public money to operate. Although they would like to promote being more prepared to help children, articles indicate that virtual charter schools graduation rates are an abysmal 48% and students returning to traditional public schools after attending KIPP, a nationwide public charter school, are often a year behind. Further, public charter school teachers may or may not be qualified to teach a subject, and they do not serve students as completely as they claim. All of these problems stem from the lack of transparency inherent in the public charter school system. The schools are under no obligation to report scores or testing, or even follow an approved curriculum. They act as, using public money for private needs. Rather what we see is nothing because it is the main issue, there is a lack of transparency between what the public charter school says it does and what it actually does.

Courtesy of neaToday.

From our government, we expect a certain level of transparency and the expectation is not unfounded. People pay taxes and want to know where and on what the money is being spent. Public charter schools, by their very nature, lack of transparency so we do not know exactly who is running the school and what curriculum is being implemented. Public charter schools have almost no accountability for our public funds, have free reign to issue a less than quality education and/or a different education than specified. Teachers in public charter schools could be teaching down to a lesser standard, instead of raising the class to where they should be. The public charter schools could be implementing a religious or special interest based curriculum, much to the chagrin of parents.

Public charter schools present a problem of an unregulated public service and this problem will be a severe detriment to children. Without regulations, without having some sort of check, how can we know the quality of the education being given? They will bear the brunt of whatever educational system we choose and this decision cannot be taken lightly. DeVos’s proposals are broad and her solution is untested and unmanageable. But ultimately, beyond the legislation and the debate, the choice is the parents. They are their child’s keepers and hold the responsibility of how their child will be educated. The fear is that parent’s only options will be subpar education, and I believe that public charter schools force the parents into this choice.

For more information please see:

POLITICO–DeVos Champions Online Charter Schools, but the Results are Poor–8 October 2017

Pew Research Center–U.S. Academic Achievement Lags that of Many Other Countries— 15 February 2017

The Washington Post–Separating Fact from Fiction in 21 Claims about Charter Schools–28 February 2015

Casey Bessemer is from Jacksonville, FL and is a graduate of the College of The Holy Cross. After working for the educational non-profit City Year, he is attending SU Law in hopes of working to improve educational legislation.

Uniform Law Commission Authors Update Uniform Parentage Act

By: Joseph Railey

When a child is born to different-sex adults, we have legal ways to determine who the child’s parents are. Obviously, determining who is a child’s mother is easy, absent adoption or surrogacy she is the woman who gave birth to the child. In many cases determining a father is also easy as the law presumes that a married woman’s husband is the child’s father and if the woman is unmarried she can bring a paternity suit against a suspected “father.” In the wake of the Supreme Court’s landmark marriage equality ruling in Obergefell v. Hodges, these laws encountered a problem. Because of their gendered construction, how does the law determine who the legal parents of a child born to same-sex couples are? Following Obergefell, the Uniform Law Commission set out to answer these questions by revising the Uniform Parentage Act (UPA).

First passed in 1973, the Uniform Parentage Act seeks to create a uniform legal system for determining parent-child relationships. Prior to this year, the Act had been amended a few times, most recently in 2002. The 2017 UPA amendments create a paradigm that is constitutional in light of the Supreme Court’s decisions in Obergefell and in Pavan v. Smith earlier this year.

Among the most significant changes in the 2017 UPA is the inclusion of gender-neutral language such that the act applies equally to fathers and mothers. This is made abundantly clear in § 107 which states, “To the extent practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [act] applicable to a mother-child relationship applies to a father-child relationship.” Apart from this provision, many of the operative sections of the UPA are now also written gender neutral. Section 204 (which deals with the marital presumption of parentage) now refers to “an individual and the woman who gave birth to a child” rather than gendered terms like a “woman and her husband” in determining if a marital presumption applies. Similar gender-neutral language is applied throughout the revised UPA.

While these changes sound insignificant, their impact is anything but. In the wake of nationwide marriage equality, there have been a significant number of paternity and custody suits involving children of same-sex couples. Some of these cases, like McLaughlin v. Jones in Arizona, involved arguments based in large part on the gendered language in the statute. In McLaughlin, following the deterioration of her marriage with her partner, Kimberly, the birth mother of a male child, argued that her former partner had no parental rights over her child because the plain language of Arizona’s marital presumption statute referred to “paternity” and “males.” At the outset of their opinion, the Arizona Supreme Court stated that “a man is presumed to be a legal parent if his wife gives birth to a child during the marriage. We here consider whether this presumption applies to similarly situated women in same-sex marriages.” Based on Pavan and Obergefell, the Arizona court determined that the presumption applied equally to same-sex couples.

Celebrations outside the Supreme Court in Washington, D.C. after the decision of Obergefell v. Hodges. Courtesy of Church Militant.

The 2017 UPA has yet to be adopted by any state. However, the Act is significant as it furthers the best interest of children born to same-sex parents by seeking to guarantee their right to a relationship with both of their parents. While states like Arizona have reached this conclusion through the judiciary, that process is not short (McLaughlin, for example, started in 2013). The revised UPA provides a way for states to avoid lengthy and complex litigation while protecting a child’s interest in having a legal relationship with both parents.

For more information please see:

McLaughlin v. Jones, 401 P.3d 492 (Ariz. 2017).

Oberegefell v. Hodges, 135 S. Ct. 2584 (2015).

Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curium).

Unif. Parentage Act (Unif. Law Comm’n 2017).

About the author:

Joe is a third-year law student at Syracuse University College of Law. He is an Executive Editor on the Syracuse Law Review and a member of the Moot Court Honor Society. Joe is interested in LGBTQ rights, civil rights litigation, and immigration law.

Students Remain Vulnerable to Ongoing Sexual Assault by Educators Due to Lack of Effective and Uniform Procedures in Screening and Reporting by Schools

By: Nico Zulli
Editor-In-Chief

Every 98 seconds someone in the U.S. is sexually assaulted. That means every single day more than 570 people experience sexual violence in this country.

Many of these crimes of sexual violence are committed in schools – and many of these victims are children.

According to a January 2014 report from the Government Accountability Office, the failure of U.S. schools to protect students from sexual abuse by school personnel is a story of district cover-ups, lack of training, incomplete teacher background checks and little guidance from the U.S. Department of Education.

The overarching issue is that our nation’s K-12 schools collectively lack a uniform, systemic approach to preventing and reporting educator sexual abuse of students. The best available study, reported by the American Association of University Women in 2000, suggests that about 10 percent of students suffer some form of sexual abuse during their school careers by a teacher or school employee.

Still today, the Departments of Justice, Education, and Health and Human Services cannot agree on whose domain educator sexual misconduct falls into. Moreover, no one has ever designed a nationwide study for the expressed purpose of measuring the prevalence of sexual abuse by educators.

In a recent case in Maryland, an HIV-infected school employee, Carlos Deangelo Bell, 30, has been accused of sexually victimizing, without protection, 42 male students ranging from 11 to 17 years old.

Bell is alleged to have committed these assaults between May 2015 and June 2017, while working as an instructional assistant at Benjamin Stoddert Middle School and as track coach at La Plata High School.

Bell was originally indicted on 119 counts for his alleged assaults between May 2015 and June 2017.  The indictment was updated in July 2017, and as of Monday, October 23, 2017, it has now reached 206 counts, ranging from charges of sexual abuse of a minor to child pornography.

Carlos Bell, an HIV-infected school employee, has been accused of sexually victimizing, without protection, 42 male students ranging from 11 to 17. Courtesy of WBALTV.

Notably, the investigation into Bell’s conduct was launched in December 2016 when a parent allegedly found inappropriate texts between her child and Bell. Although he was removed from his coaching and aide positions soon after the December investigation began and was directed to have no contact with the students, the Charles County Sheriff’s Office said as many as 10 middle school students were assaulted between the launch of the investigation in December 2016 and Bell’s arrest in July 2017.

The state will seek life in prison if Bell is convicted. The state attorney’s office said they were not aware of any of the victims testing positive for HIV at this time.

But, the true question is, why is the safety of children in Charles County Public School District, and every other school district for that matter, seemingly not a top priority for our federal government and its agencies?

A year-long USA Today Network investigation found:

“[E]ducation officials put children in harm’s way by covering up evidence of abuse, keeping allegations secret and making it easy for abusive teachers to find jobs elsewhere. And, as a result, school children across the nation continue to be beaten, raped and harassed by their teachers while government officials at every level stand by and do nothing.”

USA Today’s investigation revealed more than 100 teachers who lost their licenses, but are still working with children or young adults today. One of the main reasons the problem of sexual abuse of students by educators persists is due to schools’ ineffective screening procedures. Another contributing factor is the diligence of schools in reporting suspicions and incidents of sexual abuse in a timely and transparent manner. However, these factors are only issues because the government is not guiding schools and school officials to adhere to and abide by any sort of uniform screening or reporting procedures. Thus, such procedures are virtually defunct.

As the Bell case illustrates, school officials are often found behind the eight ball in reporting suspicious activity or incidents of abuse by their employees to parents. And, when school officials do disclose investigations and/or abuse scandals, the disclosure often leads to promises of tighter screening of job applicants, which is difficult to achieve without effective, uniform procedures in place.

To resolve these issues, federal watchdog agencies need to continue to challenge other departments for better dissemination of information to help schools prevent and report sexual abuse, and more vigilantly track and analyze incidents committed by school personnel. This way, not only will it reduce the likelihood that sexual predators go undetected in the hiring process, but also prevent continued attacks on students, both during and after investigations against school personnel have been launched.

Schools have the responsibility to prevent sexual abuse, but this requires full understanding and compliance with uniform requirements developed by our government, local, state, and federal, which close the gaps in the current scheme. Gaps that leave children, like those victimized by Bell, vulnerable to sexual attacks after investigations have already been launched.

Protecting students from sexual abuse by the people selected to educate their developing minds is not a choice; it’s a law. As such, schools must be guided by our government, at every level, to become better equipped to prevent and defend against the prevalence of sexual attacks on students by those they should be able to trust most.

For more information please see:

CNN – HIV-Positive School Aide Accused of Sexual Assault Faces 206 Charges– 24 October 2017

Fox News – Hiv-infected School Aid Accused of Sexually Victimizing 42 Children in Maryland —24 October 2017

USA Today – Potential Victim Count Rising in Case Against Hiv-Positive Coach Accused of Filming Sexual Assaults – 2 August 2017

WJLA – Former Md. School Coach Charged with Child Porn, Assaults on Male Students, has HIV – 7 July 2017

The Washington Post – Is Cleaning House the Best way for Schools to Deal with Sexual Abuse? – 17 February 2016

Ed Source – Schools Failing to Protect Students From Sexual Abuse by School Personnel, Federal Report Says  —5 February 2014

United States Government Accountability Office – Federal Agencies Can Better Support State Efforts to Prevent and Respond to Sexual Abuse by School Personnel —January 2014

Partnership for the Public Good – An Educational Gift: Teacher Aides in New York State —20 April 2012

Slate – How Many Kids are Sexually Abused by Their Teachers? —8 February 2012

USA Today – Teachers who Sexually Abuse Students Still Find Classroom Jobs

 

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