Yesterday, as you’re probably aware, the Youngkin administration came out with its so-called “Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools.” Among other things, the document stated the following:
“The Department is mindful of constitutional protections that prohibit governmental entities from requiring individuals to adhere to or adopt a particular ideological belief. The First Amendment of the U.S. Constitution guarantees religious freedom and prohibits the government from compelling speech in some contexts.
The Department embarked on a thorough review of the Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools (the “2021 Model Policies”), adopted on March 4, 2021. The 2021 Model Policies promoted a specific viewpoint aimed at achieving cultural and social transformation in schools. The 2021 Model Policies also disregarded the rights of parents and ignored other legal and constitutional principles that significantly impact how schools educate students, including transgender students. With the publication of these 2023 Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (the “2023 Model Policies”), the Department hereby withdraws the 2021 Model Policies, which shall have no further force and effect.”
In response, the Virginia Education Association (VEA) put out a statement which blasted Youngkin, stating: “Even for a Governor who has made his name out of manufacturing political outrage on the backs of hardworking teachers and innocent students, the intentional targeting of LGBTQ+ students in such a blatant and crass manner in the name of ‘parental rights’ is an outrageous affront to decency.” The VEA continued:
“All school boards and superintendents should remember that no schools are required to implement this administration-crafted policy and should think twice before considering this politically divisive debate and exposing themselves to extensive legal liability. If implemented, these policies would no doubt threaten the safety and well-being of LGBTQ+ students, open the door for bullying, and set back their recent civil rights gains in Virginia. This policy targets a student group already facing significant barriers, offers no measurable benefit, and is simply cruel. These students deserve the freedom to express their authentic selves, free of harassment. Governor Youngkin and Superintendent of Public Instruction Dr. Lisa Coons should be ashamed of themselves for allowing such a mean-spirited document to become the official guidance from the Commonwealth. History will not reflect kindly on this opportunistic and discriminatory decision.”
Strong stuff, although as the saying goes, “no lies detected” in anything the VEA said.
So earlier today, I had a chance to interview former VA Secretary of Education Atif Qarni and get his thoughts on these new “model policies.” Not surprisingly, former Secretary Qarni had a LOT to say, none of it positive, about what the Youngkin administration is doing on this specifically, and on public education in general. See below for highlights from our conversation, edited for clarity/length (and bolding added for emphasis).
- Background: According to Qarni, the 2021 “model policies” put together by Gov. Northam’s Department of Education folks were in response to a law passed by the legislature in 2020 directing them to do this. “It was a long process, and the policies were designed with a lot of input from…all kinds of stakeholders.”
- Former VA Secretary of Education Atif Qarni: These are MODEL policies, so individual school districts “don’t have to adopt them.” Instead, they are guidelines. “There are 132 school divisions…about two dozen school divisions prior to the 2021 policy was developed were already engaged in conversations, and some of them had non-discrimination policies regarding how transgender students…bathrooms…some of this was already happening at the local divisions…So even the 2021 policies…not every division implemented it as is – some adopted components, some adopted it as-is, some flat-out rejected, some didn’t debate it at all….There is no constitutional requirement for local divisions to adopt anything from the 2023 model policy; they can ignore it, just as they could have ignored the 2021 model policy…it’s their choice…They can ignore it, they don’t have to talk about the issue at all…they’re not required to do anything with it.”
- Qarni doesn’t think people are “overreacting” because some of the more right-wing school divisions/localities could adopt these new model policies, hurting transgender students, who are on an “island by themselves” with “no support system because culturally it’s not an affirming and welcoming environment for them.” In contrast, Qarni believes that “divisions like Arlington, Fairfax Loudoun, Prince William, they are becoming more and more welcoming, inclusive and affirming…[so] I worry less about the students there.”
- Regarding the Youngkin administration stating that the 2021 model policies are now withdrawn and “shall have no further force and effect,” Qarni said “there is no legal force and effect…the 2021 model policies…only about a dozen or so school divisions actually fully entertained them and adopted them.” “Neither the ’21 or the ’23 policies have the legal backing to force these school divisions to adopt them.” So the Youngkin claim about “no further force and effect” is “completely hogwash,” in Qarni’s view. “There was not a legal mandate before and there is not a legal mandate now.”
- As for the Youngkin administration’s claim that the “2021 Model Policies also disregarded the rights of parents and ignored other legal and constitutional principles,” Qarni said that, “according to the [legal] experts [who vetted the 2021 Model Policies]…there was NOTHING unconstitutional about it.” “There are many laws, cases and precedents that are tied to HIPAA protections of children if there is evidence that a child can reasonably [demonstrate] that they are going to be abused or disowned [if they come out], their privacy can be protected.” Also, “these cases are rare and normally when kids are going through this transition, it’s around middle school time…or there might be cases where they’re 16 or 17 and they’re close to this arbitrary age of 18 that we have set legally, where there are serious reasons for them to transition but their families are really being challenging and difficult, and they want to withold information for [the kids’] safety…It was really a safety issue…I firmly believe we have legal backing…to protect children’s privacy…I think parents should be involved in every scenario…but in very rare situations where a parent is really really abusive of their child, the school does have an obligation to protect them…and the legal authority to provide help.“
- The “most problematic point of the 2023 policies is that…if a child wants to use a restroom facility, great, they can do that, let their parents know…but at the same time they say that somehow that notification has to go to other parents? So if there are parents of children who are not transgendered…the school is required to now tell me that if there is another child that is transgendered and that child is going to be using the same bathroom facility or locker room as my child, I need to know that so I can opt my child out. That is particularly problematic…I think that could be legally challenged, because that could be a HIPAA violation right there….I think it is breaking the law…the [transgender child’s] name is going to get out, the children know who that student is, so I think you’re violating the privacy of students.”
- To what extent have transgender kids in schools even been a problem (if at all) in Virginia? According to Qarni, “no this is NOT a problem…I know ZERO cases where a transgender student assaulted another student in a restroom or in a locker room…Have boys assaulted other boys in locker rooms?…Yes….There are fights all the time, there are sexual assaults. But I know ZERO cases where a transgender student…[sexually] assaulted another student.”
- Regarding Section H of Youngkin’s new “Model Guidelines,” which state, “For any athletic program or activity that is separated by sex, the appropriate
participation of students shall be determined by sex rather than gender or gender
identity,” Qarni said: “it doesn’t make any sense…because the Department of Education actually has no legal authority over sports.”
- On the part of Youngkin’s new “Model Guidelines” which talk about how “the First Amendment guarantees religious freedom and prohibits compelling others to affirm ideas that may be contrary to their personal religious beliefs,” Qarni said: “The way it’s written is that, if I’m a teacher…and I have certain religious beliefs, and a child tells me that the teacher should use a certain pronoun – whether their parent is accepting of it or not – I don’t have to call them by the pronoun they requested. So I think that’s definitely contradictory to creating an inclusive and affirming environment for all children…A child’s parents might be completely accepting…but a teacher…can not abide by that request…using their religion as an excuse…That’s a clear violation of separation of church and state.”
- So what is this all about, really? Why is Youngkin doing this? Qarni: “I think that this is something that resonates with certain segments of the population…I’m actually driving to meet with a couple faith leaders…I’m just going to be frank…as society is becoming more and more affirming and inclusive, some folks have a problem with it…They feel that somehow their child is going to be converted to being gay or trans…It’s unfortunate that some people feel that way…Parents by nature…it’s a human instinct to protect your children from ‘the other’…So the bigger problem here is the ‘otherizing’ of vulnerable and marginalized groups, instead of really trying to understand…I want to encourage two things to anyone – Republican, Democrat, whoever – is first look at this through a civil rights and a human rights perspective, because this is a human rights issue that is really trying to get at the heart of…protecting children who are vulnerable…bullied…often on an island by themselves. And #2, just have an open dialogue…about tough issues…[people] buy into this misinformation that’s portrayed on Fox News…There’s a lot of people whose thinking and education on this topic is not evolved, so give them some grace and listen to them so you can educate them. Because I do feel that we can win the hearts and minds of people with facts and humanity, I still believe that.”
- Interestingly, the public comments on Youngkin’s proposed model policies were overwhelmingly against them. Qarni: “He’s just flat-out ignoring [the comments]…in their minds, they’re ignoring it because it just doesn’t jibe with his political beliefs and his party’s…so he’s flat-out ignoring it…And there are some genuine fears of the other, whether it’s people of different racial backgrounds or…the queer community…so they’re…spreading misinformation…just like the Loudoun case…it was a completely false narrative and lie…it was NOT a transgender kid…It was a boy, a rapist and a sodomist who needed to be kicked out of school and he needed help so he doesn’t hurt other children…That was a predator. But to create this lie that that kid was a transgender student to attack the queer community is just repulsive, it’s just gross. But they did that, and unfortunately, to this day, people believe that…”
- Youngkin also recently removed suicide prevention resources for LGBTQ kids. Is this part of a pattern? Qarni: “This is really about attacking civil rights.” And “it’s not a good environment [for teachers],” and “that’s why a lot of teachers are leaving the profession; we have a lot of teacher shortages…with proper training,” which includes how to deal with children from different backgrounds, “what are my blind spots,” etc. “And that training itself is being compromised.” “It took many years to create a culture that is more affirming for children to feel safe and seen and protected; that is definitely being compromised.”
- Does this all undermine public education? Qarni: “It does…It [also undermines our democracy. The point I want to hit home is this is [not just about public education]…this is a template to undermine our democratic values…to undermine our democracy…Everything is interconnected; they want an America that is not inclusive, that is only focused on taking care of x number of people, because they feel that there is not enough love and resources for everyone. Even though they talk about religion being loving and inclusive for everyone, they weaponize religion…You remember the Salem witch trials? This is no different…I’ve been having discussions with Muslim faith leaders and they’re falling into this trap too…I’m so disappointed…I was so disgusted when I saw what happened in Montgomery County where a bunch of Muslims came out based on misinformation, I think that was repulsive…There’s a lot of misinformation, and [Republicans] are trying to drive a wedge purposely to peel off some votes…”
- Qarni: “I don’t understand how protecting children and human beings can be against any good faith out there. If that is truly the case and Islam and Judaism and Christianity and Hinduism, if they teach that we’re not going to be loving and accepting of every human being, then I don’t want anything to do with that faith…Faith leaders can’t sit on the sidelines…If you are observing bullying and you’re bystanders, you’re equally guilty…if there’s bullying that’s happening against the queer community because they’re standing on the sidelines while these right-wing nut jobs are carrying out these vicious attacks against vulnerable people, they’re equally responsible in my opinion.”