Public comments being accepted on anti-discrimination school regs

Date Published: 
Nov. 17, 20177

Delaware is working protect students who typically face discrimination. But proposed regulations have to get past some people who don’t believe there is a problem.

“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,” Gov. John Carney wrote in a July memo to the state’s Department of Education.

In that document, he directed the DOE to work with stakeholders to “provide clear guidance to our school districts and charter schools to prohibit unlawful discrimination in educational programs, and activities for students, on the basis of any legally protected characteristic.”

The proposed regulation prohibits discrimination based on “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.”

The 30-day public comment period runs from Nov. 1 to Dec. 4. After public comments, DOE Secretary Susan Bunting will make the final decision, possibly by January of 2018.

Regulations carry the same weight as a law, so schools would adopt their own anti-discrimination policies before the 2018-2019 school year. After the Register was published this month, DOE offered little comment, preferring to wait until the public have had their say.

The seven-page document would replace a one-paragraph Regulation 225. The current text is a simple paragraph that prohibits discrimination in any program receiving DOE funds or approval, based on many characteristics, including sex, sexual orientation, genetic information and marital status.

Learning the basics

The policy does not give definitions of each individual characteristic, though much of the public focus has been on the issue of gender identity.

Delaware Code elsewhere defines gender identity as “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.”

The Merriam-Webster dictionary describes sex as “either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male, especially on the basis of their reproductive organs and structures.” Gender is “the behavioral, cultural or psychological traits typically associated with one sex.”

Sports teams and roll call

Under the proposed policy, essentially, schools could not specifically place students in, or remove them from, any particular course or extracurricular activity on the basis of protected characteristics.

“All educational programs and activities offered by a public school shall be open and available to students regardless of protected characteristic(s), unless [it] is legally constituted as single gender or is for the purpose of assisting students with a disability.”

When it comes to separating students for sex-ed, students may “participate in the program of instruction dealing exclusively with human sexuality that is consistent with the student’s gender identity, regardless of the student’s assigned sex at birth.”

The regulation echoes Title IX’s mission for “equal athletic opportunity for male and female students to participate in intramural, club and interscholastic sports.” When contact sports are separated by gender, “A student shall have the opportunity to participate on the team that is consistent with the student’s gender identity regardless of the student’s assigned sex at birth.”

The regulation also relates to counselors and textbooks, which it says should avoid discrimination by portraying lessons and career paths in a positive way for individuals of the various protected characteristics.

Every September, thousands of Delaware children start the school year in a new classroom. Teachers may upon the first rollcall, ask “Do you have a nickname?” and scribble “Tim” “Becky” “Mandy” in the margins as the students respond. The proposed regulation takes a more official approach. Students may select a “preferred name,” which will be included in the district’s digital records.

But the preferred name will not be listed on official documentation, including diplomas, unless the student has a legal name change. Name changes will only be reflected on paperwork if they go through official channels, such as the courts, which is common for adopted children.

Later in life, after earning their diploma, adults who change their name may also request a notarized letter from DOE to reflect the change in identify (although DOE does not issue duplicate or revised diplomas).

Under the policy, all students enrolled in Delaware public schools may also self-identify their gender or race.

“A school may request permission from the parent or legal guardian of a minor student” before a student’s preferred name, gender or race is accepted, the proposed policy notes.

But districts often cite safety as the most important factor in their schools. That’s why they’re being instructed to address those student requests on a case-by-case basis.

“Prior to requesting the permission from a parent or legal guardian, the school should consult and work closely with the student to assess the degree to which, if any, the parent or legal guardian is aware of the protected characteristic and is supportive of the student, and the school shall take into consideration the safety, health and well-being of the student in deciding whether to request permission from the parent or legal guardian.”

Districts must also consider restrooms, but local school boards choose how to make that work. Each school board “shall include a provision within its anti-discrimination policy that accommodates all students and addresses student access to locker rooms and bathrooms. School Districts and Charter Schools shall work with students and families on providing access to locker rooms and bathrooms that correspond to students’ gender identity or expression.”

Local school districts must also adopt (and periodically review) an anti-discrimination policy, which includes some mandatory language. They “shall strive to prevent discrimination based upon a student’s protected characteristic(s), and … respond promptly to such discrimination when they have knowledge of its occurrence.”

Similar to anti-bullying policies, each district must include a reporting process for families who perceive discrimination in the classroom or the playground. That might include a chain-of-command for formal complaints, or just a friendly teacher who can talk through students’ informal complaints.

IRSD awaits direction

This autumn, the Anti-Discrimination Development Team held several working meetings, followed by four community conversations for public feedback across the state. The 17-member working group included students, principals, parents, board members and superintendents from across the state.

Because one meeting was held on Sussex Central High School property, some residents mistakenly believed that the Indian River School District itself had initiated the regulation.

IRSD Superintendent Mark Steele responded to that inaccuracy in an Oct. 18 Facebook Live broadcast. First, he emphasized that the regulation is coming from the governor, through DOE, and public schools must follow state regulations.

“Regardless of whatever side you take on any issue … I can tell you there’s 18 other school districts in the same boat. It is difficult,” Steele said.

After the IRSD is given a finalized regulation from the State, the Policy Committee and Board of Education will work with the community to write a plan that Steele said he hopes everyone can live with.

“We’re one district. Whatever comes our way, we’re going to deal with it,” said Steele, who encouraged people to make informed decisions. “We can do things if we work together, but you need to give us this time to work this out as a community.”

Ultimately, he said, “One thing that we prided ourselves on … is we want to make sure that our kids are all safe, receiving the best possible education they can, and we want to take down barriers to make that experience worthwhile for them. So we’re going to work to make sure that policy is one that everyone can accept.”

Across the state and country

“Our schools should be places where students are comfortable, embraced, and challenged to achieve great heights. Any practices that prevent this, whether purposeful or by accident, hinder our state’s progress,” Carney’s order states. “We have been working to eliminate discrimination in our state agencies, and my hope is that this guidance will accomplish the same for our schools.”

In the past few years, Delaware and the nation have paid more attention to transgender people, from discrimination to politics. In 2013, the Delaware General Assembly prohibited discrimination on the basis of gender identity in employment, public-works contracting, housing, equal accommodations and the insurance business.

Earlier this month, across the nation, a number of transgender men and women openly ran and won in several state, local and school board elections.

Some people were not pleased that Delaware’s proposed regulation was introduced through the governor rather than the General Assembly, especially when the General Assembly was considering submitting the exact same order to DOE.

But that legislation had only passed one chamber before the final gavel on the legislative session in July. House Joint Resolution 6 was introduced this spring and is currently sitting in the Senate Education Committee. It could still be contemplated in the second half of the session, which begins this winter.

Meanwhile, in a previous session in 2016, the Senate tabled Senate Bill 190, which would have embedded those protected characteristics in the state constitution.

In legal terms

Full details about the original memo, proposed regulation, meeting minutes and feedback are online at www.doe.k12.de.us/antidiscrimination.

The November Monthly Register of Regulations is posted online at http://regulations.delaware.gov/services/register.shtml.

Public comments may be submitted until Monday, Dec. 4:

• Email comments to DOEregulations.comment@doe.k12.de.us;

• Mail comments to Delaware Department of Education; RE: 225 Prohibition of Discrimination; 401 Federal St., Ste. 2; Dover, DE 19901