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Education board attacks parents’ rights

William Wagner

The Michigan State Board of Education seeks to socially transform the state’s public schools with its unconstitutional guidance on transgender students.

The board intends to proceed even though constitutional lawyers and scholars say the board’s proposal exposes local school districts to expensive civil rights litigation. As currently written it violates due process and other fundamental constitutional rights, including the right of parents to direct and control the upbringing of their children.

The board’s proposed policy calls for the adoption, implementation and enforcement of “policies protecting students from harassment, violence, and discrimination based on their ... perceived sexual orientation, gender identity, and/or gender expression.” This violates procedural due process requirements of the 14th Amendment by failing to provide fair notice of the conduct it proposes to prohibit.

The 14th Amendment of the U.S. Constitution provides that state governments must not “deprive any person of life, liberty, or property, without due process of law.” Due process requires, at a minimum, notice of what a government policy prohibits. In this way, the rule of law provides predictability for individuals in their personal and professional behavior.

This failure to provide the public with adequate notice of the kind of conduct that is prohibited by the law creates an impossibly precarious proposition for students and faculty attempting to discern what constitutes prohibited conduct. Because accusers with political agendas often use ambiguity in the policy to decide, after the fact, what the policy prohibits, the possibility of facing oppressive government action is always unpredictable.

Here the policy is violated subsequent to the actor’s action, (i.e., after another subsequently “perceives” the conduct as prohibited). When policy prevents notice of what constitutes prohibited conduct, as it does here, accusers (and sympathetic authorities) arbitrarily define the prohibited conduct after the commission of the act.

Thus, the “conduct” prohibited by the proposed provision wholly depends (at best) on the whim of an accuser’s personal feelings —rather than on a clearly expressed rule of law articulated in the language of the provision.

The proposed policy also decimates constitutionally protected parental rights. The policy provides that the parents of the child must not be notified when a child manufactures a new gender identity, often with the counseling of school officials. Both Michigan law and the Supreme Court of the United States hold that parental rights are “fundamental.” The fundamental rights standard preserves a fit parent’s freedom to control and direct the upbringing of their children, including in the educational sphere. Michigan law specifically states that public schools “serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians.”

It is clear that the board’s proposal to punish without due process and to exclude parents from matters central to the upbringing of their children are unconstitutional abuses of government power.

William Wagner is president of the Great Lakes Justice Center.