Virginia Model Policies on Protecting Students Show Differences in Constitutional Focus and Interpretation

by James C. Sherlock

There is lots of interest, and not a little headline hyperbole, concerning the change in Virginia’s model policies designed to assure all children appropriate treatment at school.

Two different world views are apparent in the titles:

  • the Northam administration’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools (Northam Model Policies) and
  • the Youngkin Administration’s Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (Youngkin Model Policies).

Both attorneys and general audiences will find interesting the way the authors of each document interpreted the United States Constitution.

Each referred to the first and 14th amendments. And Virginia laws. The differences in emphasis and interpretation were chosen to support their cases.

That is not surprising, but I think those differences make or break the case for the two policies.

I will let readers decide.

First Amendment.

  • Northam Model Policies:

The First Amendment protects freedom of speech and expression. Schools may not prevent students from expressing their identity. 

  • Youngkin Model Policies:

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 that is contrary to an individual’s personal or religious beliefs.

Fourteenth Amendment. 

  • Northam Model Policies:

Equal Protection Clause of the 14th Amendment: This clause guarantees every citizen equal protection under the law. It protects LGBTQ+ youth in schools from unfair or discriminatory school actions.  

  • Youngkin Model Policies:

The Department also fully acknowledges the rights of parents to exercise their fundamental rights granted by the Fourteenth Amendment of the U.S. Constitution to direct the care, upbringing, and education of their children.

Virginia laws.

A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.

  • Youngkin Model Policies put it front and center.

The Code of Virginia reaffirms the rights of parents to determine how their children will be raised and educated. Empowering parents is not only a fundamental right, but it is essential to improving outcomes for all children in Virginia. [Link added.]

  • But the Youngkin document failed to officially cite other “related laws” cited by the Northam policy.

Bottom line. Northam Model policies emphasized specific protections for transgender youth, and in its model policies treated those students’ rights as transcendent.

Youngkin Model Policies focused on “Privacy, Dignity, and Respect for All Students and Parents,” among whom transgender students are included.

The differences in stated interpretations of the constitution and in citations of related laws tell readers all they need to know about where the two model policies have headed.

The rest is details.

I suspect we will see these differing constitutional interpretations and “related laws” in court.