Michigan State Board of Ed Wants Boys to Have Right to Share Girl’s Locker Room

The Michigan State Board of Education’s LGBTQ Agenda Ensuring Boys can Invade the Girl’s Locker Room etc…

After the Michigan State Board of Education (SBE) failed to adequately notify either the public or the legislature about its contentious LGBTQ proposal, considerable controversy erupted.  No wonder. One SBE provision provides that “[s]tudents should be allowed to use the restroom in accordance with their gender identity.” Likewise, another provision states that a “student should not be required to use a locker room that is incongruent with their gender identity.” In other words, a biological, anatomically correct male, may assert that his gender identity is female, and then proceed into the girl’s bathroom or shower.  Apparently, neither scientific truth nor the law matters here, as the SBE expressly states:

The responsibility of determining a student’s gender identity rests with the student. Outside confirmation from medical or mental health professionals, or documentation or legal changes is not needed.

Most astoundingly, the SBE provisions provide that schools are to keep all this secret from the parents of the child who manufactures a new gender identity. Parents might also be interested in knowing that the SBE standards also call for inclusion of LGBTQ topics “across the curriculum”.  Finally, for a proposal that supposedly exists to provide “safe and supportive learning environments,” another provision encourages schools “to review the computer-filtering protocol to ensure that students and other school community members can access information related to LBBTQ youth…”

Analyzing the proposed adoption of the SBE’s controversial LGBTQ policies, requires a preliminarily focus on good governance issues that the SBE activists might find inconvenient.  These vital good governance issues include, 1) the Constitutional authority relating to exercises of government power concerning academic matters in Michigan; 2) the Constitutional limits on the exercise of such government power; and 3) the importance of subsidiarity and transparency to good governance under the rule of law.

Allocation of Constitutional Authority for the Exercise of Government Power

Article VIII, section 2 of the Michigan Constitution empowers “the legislature” to maintain and support a free public elementary and secondary public school system.

Art. VIII, section 3 vests the leadership and general supervision of such public education in the State Board of Education. This includes typical executive functions (i.e., serving as the general planning and coordinating body for all public education).  Section three confirms that the role of appropriating public monies is left to the legislature by mandating that the State Board of Education merely advise the legislature as to the financial requirements connected to the Board’s planning and coordinating functions.

Thus, provisions of the Michigan Constitution make clear that it is the legislature that holds the ultimate right to allocate public education authority. While such power has, in the area of public school curricula and standards, been previously delegated by the legislature to the State Board of Education and the State Department of Education, power exercised by a prior legislator (e.g., delegating authority) cannot limit a current legislature. Thus, a current legislature is constitutionally authorized to limit or even revoke power previously delegated.  In any case, all exercises of government power, (whether by the State Legislature, the Board of Education, or the Department of Education), must not unconstitutionally interfere with constitutionally protected liberty. It is to this limitation on the exercise of government power that I now turn.

Constitutional Limits on the Exercise of Government Authority

 Both Michigan law and the Supreme Court of the United States hold that parental rights are “fundamental” rights.  Such liberty serves as a serious limitation on exercises of government power, including those exercises of power that impact the parental role in educational matters.

Under United States Supreme Court precedent, a Court applies strict scrutiny when reviewing government actions that substantially interfere with a citizen’s fundamental rights. U.S. Supreme Court case law articulating this “strict scrutiny” standard indicates:

The essence of all that has been said or written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of [a fundamental right]. – Wisconsin v. Yoder; See also Adarand v. Pena; Widmar v. Vincent; and Church of the Lukumi Babalu Aye, Inc., v. Hialeah.

The fundamental rights standard preserves a fit parent’s fundamental liberty to control and direct the upbringing of their children, including in the educational sphere – and is expressly recognized in Michigan.

People v. DeJonge, 442 Mich. 266  involved a parent’s choice, (grounded in a sincerely held religious conviction) to school their children without a certified teacher. In DeJonge the Michigan Supreme Court applied strict scrutiny to an exercise of government power, as applied to families whose religious convictions prohibit them from using certified instructors:

In sum we conclude that the historical underpinnings of the First Amendment of the United States Constitution and the case law in support of it compels the conclusion that the imposition of the certification requirement upon the DeJonges violates the Free Exercise Clause. We so conclude because we find that the certification requirement is not essential to nor is it the least restrictive means of achieving the state’s claimed interest. Thus, we reaffirm “that sphere of inviolable conscience and belief which is the mark of a free people.” We hold that the teacher certification requirement is an unconstitutional violation of the Free Exercise Clause of the First Amendment as applied to families whose religious convictions prohibit the use of certified instructors. Such families, therefore, are exempt from the dictates of the teacher certification requirement.

Moreover, in response a compulsory attendance case where the Michigan Supreme Court said parents do not have a fundamental right to control the upbringing of their children in contexts outside of exercising their Freedom of Religious conscience,[1] the Michigan legislature passed, and governor signed,  MCL 380.10 (Rights of parents and legal guardians; duties of public schools). Sec. 10 of this act expressly provides that parents do have a fundamental right to direct and control the upbringing of their children, whether or not the exercise of that right is grounded in the free exercise of religious conscience:

It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children. The public schools of this state serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians to develop the pupil’s intellectual capabilities and vocational skills in a safe and positive environment.

Thus, while Constitutional authority exists for the government of the State of Michigan to promulgate educational policy, any exercise of such power is subject to Constitutional liberty interests that limit the exercise of its power. Because all relevant elected government officials take an oath to uphold both the American and State Constitutions, they must consider the applicability of such limits in the context of whether any public policy adopting or implementing SBE Statement and Guidance violates such vital liberty interests.

Education Policy and Good Governance Under the Rule of Law

            When government promulgates education policy, an essential element to good governance under the rule of law is the principle of subsidiarity. Dictionaries define the principle of subsidiarity as the principle that decisions should always be taken at the lowest possible level or closest to where they will have their effect, for example in a local area rather than for a whole country.[2]

Education policy ought, therefore, to be addressed at the least centralized level of government, closest to where the policy will have its effect – simply because such organizational governance is more likely to result in better and more effective educational policy. Moreover, such an approach increases the likelihood of transparency in policy-making because the citizen affected is so close in proximity to the government policy-maker. It is much easier for government to exercise power without transparency when it can sneak it into law without facing an informed citizenry. When policy is promulgated into law without transparency, the government (especially in democratic republics) quickly loses the trust of the citizenry because such tactics give citizens a reason to believe that the government is hiding something — and not acting consistent with their best interest. In my view, therefore, the Michigan legislature ought to carefully evaluate the process by which special rights for the LGBTQ political community is being promulgated, as well as the various aspects of of the process that have connections with higher levels of governance, far away from where the policies will have their effect.

[1] People v. Bennett, 501 N.W.2d 106, 442 Mich. 316 (Mich. 1993)

[2] See, e.g., Cambridge Advanced Learner’s Dictionary & Thesaurus © Cambridge University Press