News Law and Policy

Nevada School District Agrees to Address Lack of Athletic Opportunities for Girls

Jessica Mason Pieklo

Nevada's largest public school district has resolved a civil rights complaint that it was discriminating against girls by failing to provide equal opportunities in athletics.

In 2010 Clark County, Nevada, the largest public school district in the state, faced allegations that it was failing to provide the educational opportunities required by law for girls enrolled in its high schools. Now, thanks to an investigation by the Department of Education’s Office for Civil Rights (OCR), that should change.

The Clark County School District is among 12 public school districts across the country, including Chicago Public Schools and Houston Public Schools, to have a double-digit disparity between the percentage of girls who are students and girls who participate in sports. According to a 2010 complaint filed with the OCR by the National Women’s Law Center (NWLC), that disparity means girls in the state are not receiving equal opportunities to play sports, in violation of Title IX, which prohibits sex discrimination in federally funded schools.

The complaint prompted an investigation in the Clark County district by the OCR, which revealed district-wide disparities of 2 to 22 percentage points between girls’ enrollment and the share of athletic participation opportunities provided to them in the district’s 36 schools. Based on the information provided by the district, girls were underrepresented in the interscholastic athletics program at all but one of the high schools for which the district provided enrollment and athletic participation data for the 2009-10 school year. These gaps amount to a total of more than 2,600 lost opportunities for female students. Based on those findings, the Clark County district agreed to change its policies to provide those opportunities.

“The resolution of this complaint confirms the Center’s conclusion that the schools’ own data demonstrate widespread disparities in athletic opportunities,” NWLC Co-President Marcia D. Greenberger said in a statement. “This decision sends a clear message that the district must do more to provide girls equal chances to reap the valuable benefits of playing sports that extend far beyond the playing field. Numerous studies show that girls who participate in sports attain higher academic achievement, experience lower teenage pregnancy rates and have overall better health. The Center’s findings and OCR’s investigation underscore the urgency of treating girls fairly and putting these schools on the path toward compliance with Title IX.”

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Under this agreement with OCR, the Clark County district will conduct a comprehensive assessment by September 30 to determine whether female students have unmet athletics interests. The assessment will include a survey of all high school and eighth-grade female students. The district is required to provide its findings to OCR and to outline the additional athletic opportunities that it will offer its female students to ensure a level playing field.

Presuming the OCR approves of the district’s plan, it will then begin the task of implementing it.

Title IX has been instrumental in the fight for equal opportunity, yet 41 years after its enactment cases like this represent just the tip of the iceberg in getting at systemic inequalities in educational opportunities.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.

News Law and Policy

Virginia School Board Asks Supreme Court to Step In on Trans Rights

Jessica Mason Pieklo

Attorneys representing a Virginia school board want the Supreme Court to block the Obama administration's efforts at protecting transgender students.

Lawyers for a Virginia school district, according to a Tuesday filing, will ask the Supreme Court to intervene in the case of a transgender student who has sued for the right to use school bathrooms consistent with his gender identity.

The case involves Gavin Grimm, a transgender student who sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender.” Grimm’s attorneys argue that the rule, which effectively expels transgender students from communal restrooms and requires them to use “alternative” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy, but the lower court refused, ruling the school board’s policy did not violate the ban on sex discrimination in Title IX. The lower court also ruled the privacy interests of other students outweighed potential harm to Grimm in using a different bathroom. Grimm’s attorneys appealed.

In the interim, the Obama administration stepped in filing an appellate brief on Grimm’s behalf and arguing the Department of Education’s official position was that Title IX protected Grimm’s rights to use a restroom consistent with his gender identity. And in April, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Grimm, holding “the [Education] Department’s interpretation of its own regulation … as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case.”

The full panel of judges for the Fourth Circuit refused in May to rehear the case, leaving in place the original order.

The petition to be filed with the Roberts Court asks the justices to re-examine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent states federal agencies like the Department of Education have substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX.

Earlier this term the Court turned away a similar challenge to the Department of Education’s interpretation of its regulations with regards to student loan financing.

According to attorneys for the school board, the Roberts Court must take up the Grimm case because the fight over transgender student bathroom access “raises fundamental issues of bodily privacy rights” in addition to serious questions about agency authority and constitutional separation of powers.

The petition will also ask the Roberts Court to issue a stay of the Fourth Circuit decision.

Attorneys representing Grimm will have an opportunity to respond to the filing. Given the Roberts’ Court current calendar, should the Court agree to take the case, the earliest it would hear arguments is next year.