The Ultimate Solution to Public School Transgender Bathroom Chaos

Walter Weber
Walter Weber is senior counsel for the American Center for Law and Justice.

The recent directive by the Obama Administration that all public schools must provide transgender access — a directive that would allow any boy into girls' shower facilities, locker rooms, and restrooms — has stirred considerable parental and political resistance nationwide.

It is, however, but the latest in an ongoing series of provocations connected to public schools.

Over the past hundred years, controversy has arisen over whether public schools should have prayer or Bible readings, reject or exclude from school libraries certain controversial books, teach evolution or intelligent design, include school-based clinics, feature graphic sex education (and at what ages), adopt certain perspectives on American history, and use books that positively portray same-sex marriage or abortion.

The root of the problem is the fact that public schools are run by government agencies — they are, in fact, government schools. And anything the government controls necessarily becomes politicized.

As the Supreme Court observed, "Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing." West Virginia Board of Education v. Barnette (1943).

In theory, "state-operated schools may not be enclaves of totalitarianism." Tinker v. Des Moines Indep. Community Sch. Dist. (1969).

But in practice, the relevant government authorities — whether the local school board, the state educational authorities, or federal education bureaucrats — will dictate what is "in" and what is "out".

Those who disagree have no power to order a curricular or administrative modification; at best, they can try to persuade the reigning authorities.

This is not just a problem of creeping Leftist control of education. Controversial choices will vary from one administration to the next, from one issue to the next, and from one geographic locale to the next. That means that parents across the political spectrum have a stake in resisting the politicization of state schools. But what is the solution?

The answer: school choice.

If parents are free to remove their children from a school that, in their view, has chosen an unwise path, then families will not be captive to the latest (or local) education fad or ukase.

School choice is genuine diversity in action. School choice is thus the remedy to coercive uniformity.

"As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be," noted the Supreme Court in Barnette.

Letting parents choose their own program neutralizes the pressure from all sides to make the government schools the instrument of particular ideologies. If families can freely take their children elsewhere, public schools will have an incentive to teach what will attract students, rather than what they can get away with forcing on captive children.

The key, however, is that families must be able to "freely" take their children elsewhere. School choice is largely illusory if parents are technically free to place their children in a private school, but must pay considerable sums of money to do so. That is school choice for some, not for all.

Real school choice levels the playing field, removes the state school monopoly on taxpayer funds, and thus empower all parents, rich and poor, to enjoy the benefits of market competition for their children's educational programs.

The battle over the Obama Administration's transgender shower and bathroom directive happens to be the current white-hot controversy. But for parents to win not just this battle, but the larger war, requires genuine school choice.

Walter M. Weber is Senior Counsel for the American Center for Law & Justice (ACLJ), which focuses on constitutional law.

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