Sixth Circuit orders rehearing in Ohio schools pronoun case
Case: Parents Defending Education v. Olentangy Local School District.
Compelling pronouns and allowing boys in girls spaces and sports teams in K-12 public schools; is the pendulum starting to swing back?
Last week, the Sixth Circuit vacated its previous majority opinion and issued an order for a rehearing in the case of Parents Defending Education v. Olentangy Local School District.
A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Under Sixth Circuit Rule 35(b), “[a] decision to grant rehearing en banc vacates the previous opinion and judgment of the court, stays the mandate, and restores the case on the docket as a pending appeal.”
A majority on that court would be 15 or more as there are currently 30 judges on the Sixth Circuit.
The case involves a set of school board policies that plaintiffs argue amounted to compelled speech by forcing students and staff to use "preferred pronouns."
The previous majority opinion repeatedly likened using the wrong pronouns to racial epithets or hateful symbols already barred by the school district's policies while arguing schools have "more leeway" in applying policies on speech.
The Sixth Circuit received the case after an appeal of a ruling by Chief Judge Algenon Marbley of the U.S. Southern District of Ohio which said Parents for Defending Education's case "has failed to establish a substantial likelihood of success on its First Amendment claim."
The judge also wrote schools "are permitted to proscribe speech..."
While schoolchildren do not wholly "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969), kindergarten through 12th grade ("K-12") educators nevertheless retain "comprehensive authority … consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Thus, public schools are permitted to proscribe student speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."
Marbley also denied the application of well-established legal precedent that parents have a right to the upbringing of their children under the Fourteenth Amendment.
Nor do the likely merits of the Fourteenth Amendment [parental rights] claim favor PDE. The fundamental right of parents to direct the care, upbringing, and education of their children does not encompass a right "generally to direct how a public school teaches their child" or how the school disciplines their child. {There is nothing in the Policies that suggests that they prohibit parents from discussing gender identity issues with their children, or reach in some other way into the privacy of families' homes. Nor is there any suggestion that the Policies extend to speech unrelated to school, school activities, or fellow students.} This Court, mindful that "[b]y and large, public education in our Nation is committed to the control of state and local authorities," declines PDE's invitation to second-guess Defendants' efforts to combat harassment in the Olentangy Local School District….
Alliance for Defending Freedom became involved in the case in support of Parents Defending Education's request for reversal of Marbley's ruling.
"Policies that compel the use of pronouns inconsistent with sex
coerce students and educators into speaking contrary to their deeply
held beliefs," ADF wrote in its amicus brief supporting a rehearing. "Forced affirmation inflicts “additional damage” over forced silence."
PDE also sued Linn Mar Community School district over a similar policy that includes compelled pronoun usage and won, with the Eight Circuit calling the policy "vague" and unconstitutional.
More To The Story
School districts adopting anti-bullying policies or provisions to codes of conduct that include compelled use of "preferred pronoun" usage has grown, but has often gone unnoticed by parents and the public due to vague language used like that in the Linn Mar Community Schools case.
These policy changes mainly stem from President Biden and Vice President Harris' changes to Title IX, the civil rights law protecting women's rights in education settings.
Under the Biden-Harris changes to Title IX, sex is redefined by adding "gender identity" as a protected class. In doing so, the rule change further opened the door for males to access female spaces and play on female sports teams.
Per the "fact sheet" published by the U.S. Department of Education, “The rule prohibits discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in federally funded education programs, applying the reasoning of the Supreme Court’s ruling in Bostock v. Clayton County."
Wake County Public Schools, North Carolina's largest district, adopted such policies in July of this year. I reported extensively on this move for the North State Journal, in a nutshell, here's what happened:
The board changed its discrimination and bullying policy with a provision that made it sexual harassment for anyone failing to use preferred pronouns or misgendering someone, as well as any segregation by sex of shared spaces like bathrooms, locker rooms, or field trip hotel rooms based on biological sex.
The vote was 7-2 with the only two Republican identifying members voting against it.
The majority on the board used the Biden-Harris administration's Title IX changes as legal cover to alter its policies despite federal courts blocking those changes in 26 states.
The board has yet to acknowledge that the Title IX changes remain blocked after the U.S. Supreme Court denied the Biden-Harris administration's request to lift the injunctions in an Aug. 16 order in the case of the U.S. Dept. of Education v. Louisiana et. al.
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