It’s Not Business as Usual, Governor, and Never Really Was

President Obama’s “guidance letter” asserting the U.S. Department of Education’s view that the word “sex” in Title IX includes gender identity has caused a firestorm in Tennessee. Gov. Haslam issued a rather tepid statement on Monday to which some legislators responded with the idea of a special session. The Governor’s response to that idea was, “Just exactly what are we trying to do, because currently no one is being sued?” Well, that’s not necessarily true anymore. So what’s next?

The Governor’s statement is not necessarily true anymore, because yesterday the Obama administration’s non-governmental enforcement arm, the ACLU, filed a complaint with the U.S. Department of Education asking it to investigate Sumner County’s school system for violations of Title IX. Why? Because it does not allow a boy who identifies as a girl to use the girl’s bathroom. And what does the ACLU cite as grounds for this Title IX violation? The Obama “guidance letter,” of course.

The Governor had previously said that “there’s nothing new” in the “guidance letter” and that schools should just keep on doing what they were doing. Well, obviously, the ACLU had a different interpretation of the Obama “guidance letter,” as did most legislators who were asking him to make it clear that the state would back up the local schools if they were sued.

Well, the Governor grossly miscalculated—not just because of the complaint filed yesterday, but because there has, indeed, been “something new” since the day the Obama letter was issued.

The “something new” that the Governor overlooked is that, as of last Friday, school districts had another factor to add into their locker room shower policy deliberations: “What do we make of the Obama ‘guidance letter’? Might an enforcement action follow? Will the ACLU use the ‘guidance letter’ as leverage in the threat of a lawsuit if we don’t let boys in the girl’s locker room shower?”

The reference in the “guidance letter” to the “condition” upon which schools take Title IX money was a shot across the bow of every school system in the state. The potential of losing perhaps hundreds of thousands of dollars cannot be ignored by local schools as easily as the Governor seemed to think.

School boards needed to know if the state was going to “have their back” if they continued to designate bathrooms and locker room showers based on biology rather than psychology and the feds or the ACLU came after them. The Governor did not ever say that, and that is why some legislators started talking about a special session.

Legislators, naturally protective of their local school systems, wondered what would happen if the feds began an enforcement action against their school. Would the state step in and defend them? Sure didn’t sound like it based on what was coming out of the Governor’s office and the office of the Attorney General.

Legislators knew that if the state was not willing to take on the federal government, then local school districts would be sitting ducks. And yesterday the ACLU, as should have been expected, fired a shot at the “duck” swimming in Sumner County.

That complaint, though, was why a growing number of legislators were talking about a special session prior to yesterday—to provide the kind of leadership that had been missing, to let their local school boards know they can keep doing what they are doing with the confidence that the state “has their back” if they do and they won’t fight alone.

Of course, that was the thinking before yesterday. Now, with the complaint going before the Obama administration and not an “independent” federal judge, can anyone really doubt that the Department of Education will not find a violation of federal law? For goodness sakes, they just sued North Carolina for the same thing Sumner County is doing!

Real leadership would put a stop to a foregone conclusion type of investigation by finding a way to sue the Department of Education. And if we were smart, we’d sue in the more friendly confines of the federal district court in East Tennessee.

If that means we need a new law to ensure such a suit can be brought, then so be it. It’s time for some real leadership and maybe the Legislature can provide it.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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