Virginia Board of Education
James Monroe Building
101 N. 14th Street, 25th Floor
Richmond, VA 23219
Re: Comments on Revised Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools
Dear Sir/Madam:
Founding Freedoms Law Center (“FFLC”) is a public interest law firm headquartered in Richmond, Virginia. FFLC and its parent, The Family Foundation of Virginia (“TFF”), have supporters in most Virginia cities and counties. FFLC makes these comments on behalf of itself as well as its supporters.
On February 3, 2021, FFLC filed extensive comments on a proposed policy for the treatment of “transgender” students in Virginia’s public schools. In those comments, FFLC showed that the 2021 policy was fatally flawed because, among other reasons, it ignored parental rights, a right deemed “fundamental” by the United States Supreme Court, the Virginia Supreme Court, and the Virginia legislature. These comments were ignored by the Virginia Department of Education in 2021. But, as previously noted by others, elections have consequences, and one of the consequences of the last statewide election is a new administration that recognizes the fundamental rights of parents to control the education and upbringing of their children. The new policy (“2022 policy”) corrects many of the legal flaws present in the 2021 policy.
The importance of parental rights was recognized by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 65-66 (2000). In Troxel, Justice O’Connor for a plurality of the United States Supreme Court reiterated the following principles that have guided the rights of parents over the education of their children for the past 100 years.
The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interferences with certain fundamental rights and liberty interests.
The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents “to establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child resides first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id. at 166.
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. . . . In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
The 2021 Model Policies adopted by the Virginia Department of Education (“VDOE”) violated these fundamental rights of parents by circumventing parental involvement in a pivotal decision affecting their minor children's care, health, education, and future. The 2021 Model Policies enabled minor children, of any age, to transition socially to a different gender identity at school without parental notice or consent,
and effectively required school personnel to enable this transition. The 2021 Model Policies also discouraged personnel from communicating with parents about this potentially life-altering and dangerous choice if the parents did not agree with the child’s wishes.
The flawed 2021 Model Policies were flawed because one of the areas most needed for parental instruction and control is a child’s sexuality. The sensitivity of this area was recognized by the General Assembly in Virginia Code § 22.1-207.2, which requires schools to distribute to parents a summary of the family life curriculum (which, per Virginia Code § 22.1-207.1 includes human sexuality, human reproduction, dating violence and sexually transmitted diseases), permits parents to review this curriculum, requires the school to give notice that parents “have the right to excuse their child from all or part of family life education instruction,” and encourages parents to provide “guidance and involvement in the instruction of the students.” This statute is, quite frankly, an excellent model for VDOE to follow with respect to self-identifying “transgender” students, and we are grateful that the VDOE in its newly proposed 2022 Model Policies has recognized this.
The 2021Model Policies similarly violated the rights of Virginia parents under Virginia Code § 1-240.1. This law states in full: “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” (Emphasis added). The note for this statute states that “it is the expressed intent of the General Assembly that this act codify the opinion of the Supreme Court of Virginia in L.F. v. Breit, . . . as it relates to parental rights.” The Virginia Supreme Court’s discussion of parental rights states:
The relationship between a parent and child is a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment. . . . Indeed, the Supreme Court of the United States has characterized a parent's right to raise his or her child as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel, 530 U.S. at 65. Any statute that seeks to interfere with a parent's fundamental rights survives constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest. McCabe v. Commonwealth, 274 Va. 558, 563 (2007); . . .” L.F. v. Breit, 285 Va. 163, 182 (2013). (Some citations omitted).
Applying the compelling state interest test doomed the 2021 Model Policies’ attempt to keep parents uninformed of their child’s quest to self-identify as a different gender. Under this test, the Commonwealth must prove that its interest in helping a child do so is “paramount,” “of the highest order,” and “vital” compared to the interest of the parents. See Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367, 2392 (2020). The Commonwealth must also prove that there was no other narrower means to achieve the student’s altered gender identification than by withholding information and deceiving the student’s parents. The school, in such an instance, would usurp the role of the parent to become the student’s protector and guide.
The VDOE, and the school boards relying on the flawed 2021 Model Policies, simply cannot bear its legal burden when there is a violation of parental rights. This flaw, if uncorrected, could result in very large legal fees against school boards. This flaw, again, has been significantly corrected in the 2022 VDOE policy, which recognizes the fundamental rights of parents to direct the education of their children.
In short, the 2022 Model Policy is a major and needed improvement upon the fatally flawed existing Model Policy, and FFLC commends the Virginia Department of Education for its work in correcting them.
Sincerely,
/s/ James A. Davids, J.D., Ph.D.
General Counsel