After receiving more than 11,000 public comments on a proposed anti-discrimination Regulation 225 in late 2017, the Delaware Department of Education has rewritten and shortened the proposal to include more parental notice and fewer school requirements.
The record is now open for public comments until July 6.
In 2017, Gov. John Carney personally ordered the Department of Education to update Delaware’s one-paragraph policy that prohibits discrimination for all public schoolchildren on the basis of any legally protected characteristic, including race and gender identity.
“It is critical that all schools in Delaware be welcoming, inclusive places where students and staff members alike can flourish. Every student should be able to learn, achieve and grow without unlawful discrimination,” Carney’s memo said.
The new five-page proposal replaces the seven-page draft from November 2017, which generally prohibited discrimination in any program receiving DOE funds or approval. The regulations, once adopted, carry the same weight as a law. If approved, the updated regulation would be implemented on Jan 1, 2019, and be printed in school handbooks the following autumn, for the 2019-2020 school year.
The new version of the proposed regulation prohibits discrimination based on protected characteristics, including “race, ethnicity, color, religion, national origin, sex, gender, sexual orientation, genetic information, marital status, disability, age, gender identity or expression or other characteristic protected by state or federal law.”
But, in contrast with its first iteration, if minors want to change any protected characteristic in their school profile, their parents will have to be notified.
“A school shall request permission from the parent or legal guardian before accommodating a request by a minor student that the school take action to recognize a change in any Protected Characteristic [including gender and race]. … If the student does not permit the school to request permission from the parent or legal guardian, then the request to take action shall not be accepted,” the proposed regulation states.
The change addressed concerns from many of those who opposed the first draft of the regulation, arguing that it undermined parental authority over children.
While the proposed regulation would ensure that parents are notified, it does not specifically state that parental permission must be obtained, only “requested.”
The text still encourages schools to look out for these potentially vulnerable students: “Prior to requesting such permission, to safeguard the health, safety and well-being of the student, the school shall discuss with the student the permission process and, based on its discussions with the student, assess the degree to which the parent or legal guardian is aware of the change to the protected characteristic.”
The initial 2017 proposal allowed students enrolled in Delaware public schools to self-identify their gender or race, and there was a loophole that would allow the school to accept such changes without parental permission.
Under that original proposal, schools could request permission from the parent or legal guardian, or they could consult with the students to determine how aware or supportive the guardian would be, and “take into consideration the safety, health and well-being of the student in deciding whether to request permission from the parent or legal guardian.”
Restrooms and sports teams are also addressed in the revamp. The new regulation removes its initial requirements in those areas. Instead, it merely states that “school districts and charter schools shall comply with Delaware Interscholastic Athletic Association (DIAA) regulations and policies regarding equal athletic opportunities for all students.”
Schools will only change students’ legal names when approved by court order. Students can request that a “preferred name,” such as a nickname, be included in the school records system. The proposal no longer suggests that a school request permission from the parent or legal guardian before a preferred name is chosen. Graduation diplomas will continue to be printed with legal names.
The State also backed off from requiring mandatory language in school policies that address discriminatory behavior. Instead, the new proposal suggests that school districts “seek to prohibit” discrimination, including discriminatory acts such as “disallowing a student’s access to locker rooms or bathrooms on the basis of the student’s gender identity or expression.”
In a final note, the proposal suggests “Schools are encouraged to work with transgender students and their families to determine how to best provide access to bathrooms and locker rooms,” such as: a private bathroom at the nurse’s office; single-stall bathrooms; free access to their gender-identified bathroom; or even a different schedule to use locker rooms separately from their peers. “Such opportunities and accommodations should be open to any student to promote a safe and comfortable environment for everyone.”
The ACLU of Delaware has already criticized the concessions in the new proposal, with ACLU of Delaware Executive Director Kathleen MacRae arguing that the changes “will sacrifice the interests of some of Delaware’s most vulnerable young people in order to appease adults who do not believe in protecting the civil rights of people who are transgender. … Students who are transgender will not be treated consistent with their core identity or accommodated in any way unless the school requests permission from a parent or guardian.”
She said ignorance, and even bigotry, about transgender people led to those changes, when “transgender students are already at risk of violence in schools and family rejection. … Students should not be forced to choose between abuse at home or basic dignity at school — such as being called by appropriate gender pronouns or being able to use facilities that match who they are.”
She also scolded the authors of the revised proposal for deleting the model policy that encouraged reporting of discriminatory activities.
Concerns from 2017
Many people complained that the 2017 amendment would reduce parental rights by potentially keeping secrets from parents.
Though Delaware law since 2013 has prohibited discrimination on the basis of actual or perceived gender identity in employment, housing, public accommodations and other areas, some comments on the proposed education policy also personally attacked the idea of gender dysphoria, or differing identities of race or gender.
In 2017, the Indian River School District’s Board of Education had officially opposed the draft proposal for several reasons, including what board members said was the potential for building conflict between students and parents; the potential for lawsuit surrounding bathroom and locker room access; the construction costs associated with installing new facilities; and the potential for safety violations if the schools couldn’t scrutinize “whether the self-identified gender is legitimate or based on clinical consultation or treatment,” or could potentially be a ruse to gain entry to private parts of the school.
Public comments being accepted again
“Secretary [Susan] Bunting thanks those who shared their feedback during the first formal comment period and encourages the public to again share comments by July 6. All comments received will be posted online after the public comment period ends,” according to a June DOE press release.
Details are online at www.doe.k12.de.us/antidiscrimination. People can read the new proposal — both compared to the existing one-paragraph policy and compared to the 2017 proposal.
The revised proposed 225 Prohibition of Discrimination Regulation was published in the Delaware Register of Regulations for June.
To be considered as part of the public record, comments must either be submitted via email to DOEregulations.firstname.lastname@example.org or via mail to: Attn. Tina Shockley, Department of Education; 401 Federal St., Ste. 2; Dover, DE 19901. Comments submitted to other email addresses will not be accepted. Comments must be received by Friday, July 6.
By Laura Walter