Argument Flashcards
legal cases and factual materials not cited by either party
Amici’s brief discusses a federal district court’s opinions in Kluge v. Brownsburg Cmty. Sch. Corp., No. 19-CV-2462 (S.D. Ind.), which addresses many of the same claims presented here. The brief also introduces the Brief of Amici Curiae Medical, Public Health, & Mental Health Orgs. that was relied on heavily by the Fourth Circuit in its decision in Grimm v. Gloucester County School Board, which held that a school’s discriminatory policy for transgender students violated Title IX and the Equal Protection Clause
Intro Free Speech
Plaintiffs’ use of students’ pronouns is curricular speech, and where the school board has adopted a policy requiring use of transgender students’ pronouns in support of legitimate pedagogical concerns—concerns that Amici outline in Part I of the brief—Plaintiffs’ speech is not protected.
Intro Free Exercise
The Nondiscrimination Policy is neutral and generally applicable, so it does not violate Plaintiff’s free exercise rights, and even under VA’s statutory free exercise protection, it serves a compelling interest in protecting the welfare and educational interests of transgender and gender expansive students, as detailed in Amici’s brief.
Intro Due Process
Amici’s brief also aids this Court in addressing Plaintiffs’ due process claims, in part by addressing some of this Court’s questions from the prior hearing, in particular explaining why the policy does not benefit transgender and gender expansive students over other students, but instead ensures that all students are equally addressed consistent with their gender identity.
Amici
Equality Loudoun, Equality Virginia, Side by Side, He, She, Ze and We
Most important Am.Jur. § 3 factor
is “the usefulness of information and argument presented by the amicus curiae to the court.”
Jones v. Caldwell discussion of the Am.Jur. factors
only 1) defines amici as those who participate in a judicial proceeding to assist the court by giving information (4 Am. Jur. 2d, Amicus Curiae § 4); and 2) explains that “[a]ppearance as an amicus curia is a matter of privilege and may be granted where the party has no right to intervene.”
Facts of Jones v. Caldwell
In Jones, the alleged amici were seeking to avoid becoming a party to the proceedings, as the court was considering a Motion for Interpleader filed by Defendants. The court held the alleged amici had a direct interest in the settlement proceedings at issue in the case, so participation as amici would not be appropriate, and the alleged amici in Jones had earlier asked for a stay in the litigation based on their direct financial interest
Gender dysphoria definition
“a condition that is characterized by debilitating distress and anxiety resulting from the incongruence between an individual’s gender identity and birth-assigned sex.”
Harms of prejudice and discrimination to trans students
1) exacerbate gender dysphoria; 2) expose transgender individuals to harassment and abuse; 3) stigmatize transgender students; and 4) harm adolescent social and emotion development, with lifelong repercussions
Nondiscrimination Policy applies equally because…
First, the policy simply doesn’t apply to any declaration of name/pronouns—it is limited to names and pronouns connected to students’ gender identity. Second, the policy requires the student’s gender identity to be consistently asserted. This does not give transgender or gender-expansive students the right to arbitrarily change their names or pronouns, it puts them on equal footing with other students who already expect that school staff with address them consistently with their gender identity.
Does Amici need to be disinterested?
“there is certainly no requirement that amici be totally disinterested” and courts consider “the strength of the information and argument presented by the potential amicus curiae’s interests.”
Boring holding
a teacher’s curricular speech is not speech by a private citizen on a matter of public concern as a matter of law
curricular speech definition
is “school-sponsored expression bearing the imprimatur of the school,” “supervised by faculty members and designed to impart particular knowledge to the students.” Lee
Curricular speech: what kind of message?
school should be able to control classroom speech that imparts particular knowledge or “convey a specific message or information to students.” It doesn’t matter if the message relates to the topic of instruction, “but could instead constitute information on social or moral values that the teacher believes the students should learn or be exposed to.”
Defendant’s interest in Nondiscrimination Policy
“providing an equitable, safe and inclusive learning environment” for all students at Loudoun County schools
Examples of implications of Pls’ free speech argument
A teacher could advocate to students that they should use illegal drugs, because the teacher believes that drug use leads to enlightenment; a teacher could refuse to teach about the 19th Amendment, because they don’t believe that women should have the right to vote; a geography teacher could insist on teaching that the Earth is flat.
Hazelwood standard
schools do not offend the First Amendment by exercising control over school-sponsored speech “so long as their actions are reasonably related to legitimate pedagogical concerns”
Church of the Lukumi neutrality standard
“the object of a law is to infringe upon or restrict practices because of their religious motivation”
Va. Code § 57-2.02(E)
statute cannot be applied to prevent a governmental entity from “maintaining health, safety, security or discipline.”
Boyertown compelling governmental interest findings
Schools have a “compelling interest in protecting the physical and psychological well-being of minors.” Discrimination at school creates particularly severe risks for transgender students because “[m]istreatment of transgender students can exacerbate gender dysphoria, lead to negative educational outcomes, and precipitate self-injurious behavior.” In short, “[w]hen transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated.”
due process standard
1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; and 2) authorizes or encourages arbitrary and discriminatory conduct
Nondiscrimination Policy triggers to avoid trapping staff
First, a student or parent must request the use of a name or pronouns that are consistent with their gender identity—teachers do not need to divine on their own that a student is gender expansive. Second, the policy prohibits staff from intentionally and persistently using the wrong name and pronouns, not “inadvertent slips.”
due process standard for proscribed conduct
court must measure the proscribed conduct by the “common understanding and practices”
Model Policies’ definition of gender expansive
Terms that convey a wider, more inclusive range of gender identity and/or expression than typically associated with the social construct of a binary (two discrete and opposite categories of male and female) gender system
due process standard for crafting civil statutes
Courts require a lower degree of precision in crafting civil statutes, Manning v. Caldwell, 930 F.3d 264, 272 (4th Cir. 2019), particularly for school administrators who have “greater leeway when crafting school policy than legislatures.” Hardwick ex. rel. Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013)
Hardwick facts
Upheld dress code challenge on vagueness grounds by student who was prohibited from wearing clothing displaying the confederate flag. Policy prohibited offensive language, and obscene or derogatory symbols—student argued it wasn’t clear that the flag was prohibited under the dress code, but the court held that she had been informed on multiple occasions that it was prohibited, and the school officials had therefore interpreted the dress code for her and she couldn’t claim to be unaware.
Model Policies sincerity standard
school administrators may consider whether there has been “uniform assertion of such an identity, indication that the identity is sincerely held as part of the student’s core identity, or that the student is not asserting such an identity for an improper purpose.” The fact that students do not need to present medical or legal documents still requires “more than a casual declaration of gender identity.”
Bostock on sex discrimination and gender identity discrimination
“[T]o discriminate against [people] for being . . . transgender, the employer must intentionally discriminate against individual men and women in part because of sex.”
Facts about sexual assault
First, the assault occurred in May; the Nondiscrimination Policy was not approved until August, so the policy was not even in place when the assault occurred.
Second, reports about the gender identity of the student who committed the assault are all from third parties, and the most credible sources indicate that the student was not transgender or gender expansive. 1) email from Superintendent Ziegler describes the assailant as a “male student.” 2) Superintendent explained that comments to school board because he thought the question was about incidents involving transgender and gender-fluid students.
Other Am.Jur. § 3 factors
“whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts or data that are not to be found in the parties’ briefs,” as well as “the strength of the information and argument presented by the potential amicus curiae’s interests.”
Pickering-Connick standard
balance “‘the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”
Garcetti standard
“when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Smith standard
no free exercise right to act in violation of a neutral and generally applicable laws, if no facts showing that it targeted or otherwise was motivated by an animus toward any particular religion or religious belief
Va. Code § 57-2.02(B) standard
Cannot burden religious exercise unless policy is “(i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.”
Equality Loudoun
nonprofit organization that advocates, educates, defends, and builds community to support lesbian, gay, bisexual, transgender, and queer (“LGBTQ+ ”) equality in Loudoun County (and advocated for passage of Nondiscrimination Policy)
Equality Virginia
leading advocacy organization in Virginia seeking equality for LGBTQ people
Side by Side
largest and oldest organization in Virginia serving LGBTQ+ youth
He She Ze and We
statewide nonprofit organization that provides peer to peer support for caregivers of transgender and non-binary youth
ACLU & ACLU of VA
defend the principles of liberty and equality embodied in the Constitution, and advocate for First Amendment liberties as well as equal rights for LGBTQ people
Treating students consistently with their gender identity is …
crucial for their mental health and wellbeing, has been shown to reduce the amount of harassment they face in school, and in turn improves their academic performance
gender identity
a ‘deeply felt, inherent sense’ of their gender
Social gender transition
to steps that transgender individuals take to present themselves as being the gender they most strongly identify with (name, pronouns, clothing, sex-segregated spaces)
treatment protocols for gender dysphoria
“provide that transgender individuals should live all aspects of their life in the gender with which they identify” AAP Amicus
study on proper pronoun use …
improved their mental health–led to a fifty-six percent decrease in suicide attempts and a twenty-nine percent decrease in suicidal thoughts (Br. of Amici Curiae Nat’l Medical & Mental Health Orgs. in Meriwether )
Stat of transgender students who report being bullied and harassed by students, teachers, and staff at their school
one third
percent of transgender students leave school early because of harassment
15%
percent of transgender individuals who were harassed or bullied by teachers in either K-12 schools or higher educational settings who attempt suicide
59%–percent rose dramatically when teachers were the reported perpetrators of bullying and harassment
Merriam-Webster dictionary on they
that “they has been in consistent use as a singular pronoun since the late 1300s”
Lee standard
“when a First Amendment free speech dispute involves a teacher-employee who is speaking within the classroom, the determination of whether her speech involves a matter of public concern is dependent on whether or not the speech is curricular.”
Plaintiffs’ accommodation is not narrowly tailored because…
“Not only would” Plaintiffs’ proposal “not serve the compelling interest that the School District has identified here, it would significantly undermine it.” Boyertown
