Last week, the San Diego American Civil Liberties Union (ACLU) filed a lawsuit to force a local charter school, e3 Civic High School, to provide public data about its refusal to admit a transgender student. This lawsuit gives a glimpse into a possible future where charter schools flourish under Trump’s pick for the Department of Education, Betsy DeVos, who has made no secret of wanting to dismantle public education and replace it with charters and private school vouchers.
Nicole Velazquez, a 15-year-old transgender student, tried to transfer to e3 Civic High School (e3) in October 2015. The school occupies the top two floors of San Diego’s gorgeous central library and cost $30 million of tax-funded bond money to build. The inception of the school came with the all-too-familiar refrain that the San Diego public schools were inadequate.
According to the ACLU’s complaint, Velazquez had been admitted to the school prior to transitioning, but initially chose to attend a different one. When she reapplied, post-transition, she was denied admission and told she would be placed on a waiting list for an open spot, even though the school was 70 students below enrollment capacity at the time. The ACLU’s complaint also alleges that a non-transgender student was admitted shortly thereafter.
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Each state sets its own rules that charter schools must follow. In California, charter schools are required to follow the state’s anti-discrimination laws, and those laws specifically prohibit discrimination on the basis of gender or gender identity.
In April 2016, the ACLU filed a complaint with e3 about its refusal to admit Velazquez.
The school says it didn’t deny Velazquez admission on the basis of her being transgender. Instead, e3 said the refusal was due to the fact that its enrollment was much lower than it had previously projected.
The complicated rules—or lack thereof—surrounding charter school enrollment policies are one of the big problems with charter schools. They’re not obliged to admit everyone and their enrollment processes, while theoretically transparent, are in reality awfully opaque. Here is the school’s explanation of what happened according to the ACLU’s lawsuit:
When Ms. Velazquez applied to e3, the school was not accepting new students. Your assertion that e3 was 70 students under its enrollment capacity at the time of Ms. Velazquez’ application has no bearing on the issue. Although e3 had hoped to enroll more students at the commencement of the school year, when it failed to meet its enrollment target, it made adjustments in staffing levels to account for the decrease in projected state attendance revenue. A hiring freeze was put in place and eight positions were never filled. In addition, one teacher was laid off on October 15, 2015. Thereafter, e3 adjusted the master schedule, collapsed classes, changed teaching assignments, and reassigned students to different classes in order to balance class sizes. During this period of transition, e3 did not admit any new students and, instead, placed all applicants on grade-level waiting lists until classes stabilized. This was the case for all applicants, regardless of their gender identity or any other protected characteristic.
This response may be entirely true, but even if it were, it is no comfort. Functionally, the charter school denied admission to a transgender student and then, when called out on it, explained that yes, it wasn’t at capacity, but it was denying students admission anyway because it was more economically and infrastructurally appealing to do so. Public schools, of course, have no such ability to manipulate their enrollment and must accept everyone. When charter schools are allowed to create enrollment targets and then change those targets on the fly, it makes it very easy to use that murky, ever-shifting process to discriminate.
Part of the reason it may seem difficult to give this school the benefit of the doubt is that this isn’t the first time that e3 has discriminated against LGBTQ students. In 2014, the ACLU had to intervene when the school refused to approve, without onerous additional conditions, a gay-straight alliance (GSA) student club. According to the ACLU, e3 Executive Director Dr. Helen Griffith, the same official responsible for denying admission to Velazquez, tried to unlawfully interfere with the club’s creation.
The school has had ample opportunity to support its explanation that the denial of admission to Velazquez wasn’t because she is transgender. ACLU’s data request in August 2016 asked the school for more information about the hiring freeze, the claim the school wasn’t accepting new students, the decrease in state revenue, and other relevant background. The ACLU is entitled to this information under California’s version of the Freedom of Information Act: Charter schools, like all other public institutions in California, are obliged to provide public data. A failure to do so is against the law. Since the school won’t answer the ACLU’s data practices request, there is no way to verify its assertion that it wasn’t discriminating when it denied admission to Velazquez. Because of this, the ACLU now has to go to court to force e3 to follow the law and provide the data. That data could help answer the question of whether the school illegally discriminated against Velazquez.
Sadly, not every student, transgender or otherwise, who is impermissibly denied admission to a charter school can have the ACLU step in on their behalf. But vulnerable students are going to need a champion now more than ever. President-elect Donald Trump’s pick for Secretary of Education, Betsy DeVos, is a “school choice” proponent who has played a large role in Michigan’s charter school movement. (Michigan’s charter schools are some of the least-regulated in the country and many are extremely low-performing.) DeVos’ family’s charitable foundations have also donated millions to Focus on the Family, which virulently opposes LGBTQ rights and supports so-called “conversion therapy.”
This apparent combination of utter disregard for regulation, a disdain for public schools, and an anti-LGBTQ worldview is a completely toxic mix. It’s one that ensures many more students like Nicole Velazquez may be denied admission to a charter school based on who they are, while at the same time institutional commitment to public schools dwindles. The ACLU is going to have its work cut out for it, and not just in San Diego.