The new U.S. Supreme Court term could be a big one for transgender issues, the E-rate program, and other education topics.
The court, for the term opening Oct. 7, has already agreed to hear a major case about whether states may bar medical treatments such as puberty blockers and hormone therapy if they are meant to help transgender minors transition to a gender identity that is inconsistent with their sex assigned at birth.
That case by itself has huge implications for the thousands of transgender young people in the 24 states that have similar laws. And the Supreme Court outcome in the case may have both legal and symbolic implications for the kinds of transgender-rights issues arising in the nation’s schools.
Some of those school issues are presented more directly in appeals pending at the court, such as whether transgender girls may participate in girls’ school sports, whether schools must apprise parents any time their child is dealing with gender identity, and how schools may teach about sexual orientation and gender identity.
“There are a ton of cases percolating” on transgender rights, said Katie Eyer, a law professor at Rutgers University who follows such cases.
Meanwhile, there are other cases in the new term being watched by educators and school law advocates.
For instance, it could be a big term for the federal E-rate program that subsidizes school telecommunications services. The court is hearing arguments in a case in which Wisconsin school districts were allegedly overcharged under the program by a telecommunications company. And the court could take up an even bigger case in which a federal appeals court struck down the entire mechanism for the Universal Service Fund, which funds the E-rate program.
The court will also hear cases about state and federal efforts to protect the nation’s youth from such dangers as sexually explicit websites and e-cigarettes.
And the justices will continue to consider adding other education cases to their docket this term. One of the most prominent involves the effort in Oklahoma to authorize a Roman Catholic charter school that would maintain a religious curriculum but be underwritten by the state.
Court to review cases involving transgender medical care for kids
Here are some of the cases of interest to educators that will, or may, come before the justices in the new term.
In the Tennessee transgender case, United States v. Skrmetti, the statute declares that the state has an “interest in encouraging minors to appreciate their sex” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.”
The law was challenged on behalf of three transgender teenagers who must now travel out of state for gender-affirming care. They and their parents challenged the law as a violation of the 14th Amendment’s equal-protection clause, as well as on the basis of the parents’ rights to direct the medical care of their children.
The Biden administration intervened in the case in support of the plaintiffs.
A federal district court blocked the law, but the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, reinstated it. The appeals court rejected the plaintiffs’ claim that transgender status was a form of “suspect classification”—an insular, discrete minority for which any laws harming them would be subject to a higher level of constitutional scrutiny.
Instead, the court upheld the Tennessee ban on certain transgender care under a “rational basis” test, meaning the law was rationally related to the state’s interest in taking a cautious approach to “irreversible” medical treatments of minors. (The 6th Circuit decision also encompassed a similar Kentucky ban, though only the Tennessee law is before the Supreme Court.)
The high court took up only the Biden administration’s appeal raising the equal-protection question and whether the state law should be subject to heightened constitutional scrutiny. It did not take up the appeal by the American Civil Liberties Union that also raised the parents’ rights claim.
Still, the case will be an important test on an issue roiling much of the nation.
“This is really the court’s first opportunity to address the rights of transgender people under the equal-protection clause,” said Eyer, the Rutgers law professor.
Decisions could affect transgender student access to restrooms and participation in school sports
The resolution of that equal-protection scrutiny question alone could be important for some school transgender issues, as some controversies over restrooms, locker rooms, and athletic participation have raised equal-protection claims. Some cases in this area, though, are also brought under Title IX of the Education Amendments of 1972, the federal law that bars sex discrimination in federally funded programs.
“I think we can expect the resolution of this case at SCOTUS to have an impact beyond the health-care context,” said Chase Strangio, the ACLU’s deputy director for transgender justice. “All of this is very much in play.”
There are several petitions for review pending before the court, meaning they are awaiting a decision on whether the justices will take them up. One major one is West Virginia v. B.P.J., in which the state is seeking to reinstate its law barring transgender females from girls’ and women’s athletic teams. The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled for a middle school transgender girl who challenged the law on her Title IX claim and revived her equal-protection claim for further proceedings.
In Parents Protecting Our Children v. Eau Claire Area School District, a parents group objects to a Wisconsin district’s policy that the parents characterize as allowing educators to help foster students’ gender transitions without informing the parents. (The school district says that is a mischaracterization). Lower courts said the parents lacked standing because none of their children was undergoing gender transitions nor had any been injured by the purported policies.
In Mahmoud v. Taylor, another group of parents is challenging a Maryland school district’s policy preventing parents from opting their children out of LGBTQ+ inclusive “storybooks” used in the English/language arts curriculum in its elementary schools. The policy was challenged by Roman Catholic, Muslim, and Ukrainian Orthodox parents on free exercise of religion and parents’ rights grounds, but the 4th Circuit upheld a district court’s denial of an injunction blocking the policy.
In a variation of the theme, another case raises free speech issues on behalf of a Massachusetts middle school student who was barred by school administrators from wearing a T-shirt that said, “There Are Only Two Genders.” The U.S. Court of Appeals for the 1st Circuit, in Boston, agreed with the district that the T-shirt was potentially demeaning to transgender students. The case is L.M. v. Town of Middleborough.
Gender identity is also at the center of the controversy over the U.S. Department of Education’s Title IX rule, and the Supreme Court over the summer essentially declined to get involved at an early stage in lawsuits over the rule. Those cases could return to the court this term depending on how fast lower courts rule.
Funding of E-rate program may face high court scrutiny
The case the court has already agreed to hear, Wisconsin Bell Inc. v. United States ex rel. Heath, involves a Wisconsin telecom provider facing a civil trial under a federal fraud statute for allegedly overcharging schools under the subsidy program.
In 2023, some 1,600 telecom providers nationwide performed $2.46 billion worth of reimbursable work for the 132,000 schools and libraries enrolled in the federal E-rate program, court papers say.
The legal question in this case is whether the E-rate is sufficiently tied to the federal government to come under the False Claims Act, a Civil War-era statute designed to root out fraud in federal contracting. A private whistleblower alleges that Wisconsin Bell overcharged schools for digital phone lines and other services. The company denies the allegations, and it has put its bets on arguments that the False Claims Act does not apply to the private money that telecom providers contribute to the Universal Service Fund.
On Sept. 30, the Biden administration asked the high court to take up an even bigger case involving the Universal Service Fund. The administration appealed a July ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that the USF’s funding mechanism was unconstitutional. The decision has caused alarm in the school tech community and uncertainty about the future of E-rate subsidies for schools. The challengers of the funding mechanism quickly agreed that the high court should take up the issue. The case is Federal Communications Commission v. Consumers’ Research.
Pornography and vaping cases raise important legal questions
The court will hear a case about one state’s law requiring age verification for anyone accessing certain websites offering sexual material harmful to minors, as well as another about federal denial of authorization to market flavored e-cigarettes because of their harm to youths.
In Free Speech Coalition v. Paxton, the justices will take up a 2023 Texas law that requires age-verification, typically by requiring users to upload identification, on websites in which more than one-third of the content is deemed to be sexual material harmful to minors. The law was challenged as infringing on the free-speech rights of adults, but the 5th Circuit upheld the law.
Of particular interest to educators are arguments from book publishers and other opponents of the Texas law who suggest the online restriction holds implications for efforts in that state and others to restrict school and library books deemed sexually explicit or otherwise harmful to minors.
“Attempts to restrict books and other materials in the name of protecting minors—materials that are constitutionally protected for older minors and adults—abound” and would be bolstered if the Texas online law is upheld, says a friend-of-the-court brief by the Association of American Publishers and other groups.
In Food and Drug Administration v. Wages and White Lion Investments, the court is considering the FDA’s denial of applications to market e-cigarettes with candy, fruit, and other enticing flavors, with the agency concluding they risk attracting youths to eventually using tobacco. The 5th Circuit set aside several of the denials.
Briefs in the case supporting the Food and Drug Administration argue that e-cigarette use among youth has declined in recent years, but that some 2.1 million high school and middle school students use such products.
“Of these young e-cigarette users, 25.2 percent reported using these products daily, and a staggering 89.4 percent reported using flavored e-cigarettes,” says a friend-of-the-court brief led by Massachusetts in support of the FDA.
Big cases on selective-admissions policies and a religious charter school might also get attention
The court will continue to add to its docket for cases to be decided this term. Among the other big pending cases are ones involving school diversity in selective-admissions schools and religious school charters.
In Boston Parent Coalition v. School Committee for Boston, opponents are challenging selective-admissions policies for Boston’s “exam schools,” which they say target some racial groups for fewer slots despite being racially neutral on their face.
The 1st Circuit upheld one such policy in 2023, ruling that it passes muster even under the Supreme Court’s decision that year ending affirmative action in higher education as it had been practiced for some 50 years.
Opponents of the Boston policy hope the court will take up their case, but just last term, the justices declined to review a Virginia school district’s diversity admissions policy for a selective magnet school. And the Boston school system argues in a brief that the specific policy at issue in the case was in effect for only one year.
Another big issue is expected to arrive at the court by Oct. 7 in the form of appeals from both the Oklahoma charter school agency and the sponsors of a proposed Catholic charter school in the state. They will appeal a June decision of the Oklahoma supreme court that such a religiously-based public charter school would violate both the state and federal constitutions.
