Wednesday, October 26, 2022

Opposition to Governor Youngkin"s Misguided "Model" Policies for Treatment of Transgender Students

These are the comments that I submitted to the Department of Education in opposition to the dangerously flawed and harmful Model Policies proposed by Governor Youngkin and his allies:

I write to state my opposition to implementation and enforcement of the misguided Virginia Department of Education’s (VDOE) 2022 Model Policies for the Treatment of Transgender Students in Public Elementary and Secondary Schools.

 I personally subscribe to the comments opposing these harmful proposals submitted by Equality Virginia and by the ACLU of Virginia. The 2022 Model Policies are not evidence-based as required by law, and it is clear that their implementation in Virginia schools will cause harm to transgender students who are already vulnerable to bullying and abuse. Moreover, the provisions in the guidelines that will require schools to “out” nonbinary and trans students to their parents will exacerbate the disproportionate representation of these children among homeless youth and among those caught up in the juvenile criminal legal system in significant part because of family abandonment.

 There is no serious question among reasonable attorneys that these guidelines, if implemented by any school division, would place that school division in jeopardy of a successful lawsuit brought to enforce Title IX of the Education Amendments of 1972, which the 4th Circuit has recognized prohibits discrimination based on gender identity in federally funded school programs, and to protect trans and nonbinary students from discrimination in violation of the equal protection clause of the U.S. Constitution.

 In addition, there is a significant legal question whether the legislature and the Department of Education have the authority under the Virginia Constitution to dictate how local school divisions operate on a day-to-day basis, including how they treat students in their classrooms. The Virginia Constitution approved by the voters in November 1970, which became effective July 1, 1971, reflects a delicate balance unique to Virginia in terms of how our public education system is to be administered.

 Having weathered massive resistance in which local school divisions shut down public schools to avoid integration, Virginians were determined not to allow any students to be deprived of the right to a free, public education again. The Constitution Virginia voters approved in 1970 stated unequivocally that all children have a right to a free public education of high quality.

 The Constitution then went on to apportion the power and responsibility to deliver that education among state and local actors:  the state Board of Education (given authority to prescribe “standards of quality” and charged with “general supervision of the public school system” as a whole), the legislature (charged with funding the standards prescribed by the State Board), local governments (charged with funding their portion of the costs), and local school boards (charged with the day to day supervision of the schools in their jurisdiction). The Constitution also provides for the appointment of a state superintendent by the Governor but specifies no role for a “Department of Education” or the Governor.

 The Virginia Code provides: “There shall be a system of free public elementary and secondary schools established and maintained as provided in this title and administered by the Board of Education, the Superintendent of Public Instruction, division superintendents and school boards.” Again, no mention of the Education Department or the Governor. Moreover, the Virginia Code only invests the Board of Education with the power to adopt regulations to fulfill its supervisory responsibilities.  While the Virginia General Assembly did pass a law requiring the Department of Education to develop model policies regarding the treatment of transgender students, such policies are not regulations and do not have the force of law. Moreover, one can legitimately ask whether the General Assembly had the authority under the carefully balanced constitutional scheme to dictate any requirements for the supervision of the day-to-day operation of local schools.

 If, however, the legislature’s instruction does have the force of law, it remains clear that the 2022 Model Policies are in violation of that law in that they are not a reflection of “evidence-based, best practices,” but rather directly contradict them.

 A final note. Virginia children must present a birth certificate to enroll in school. Virginia allows transgender people to amend their birth certificate to reflect their true gender identity. When the birth certificate changes, it states the person’s legal sex. Nonetheless, the 2022 Model Guidelines purport to require a school division to take certain actions based on a student’s “biological sex” rather than their established legal sex. What right does any school division have to look behind the birth certificate presented by the student? The question is how will they determine “biological sex” as required by the 2022 Model Policies if they are not going to rely on a student's birth certificate? Are they going to subject every child to a physical examination?

For all these reasons, I strongly oppose implementation and enforcement of the 2022 Model Guidelines and ask that the 2021 Model Guidelines which were evidence-based and reflected best practices be recommended for adoption by local school divisions instead.

 

Monday, April 11, 2022

A Personal Aside -- Lessons Learned -- In Honor of Rebecca Jeffers Guthrie (July 21, 1925 to April 11, 2005)

 

Lessons Taught; Lessons Learned

Reflections of a Daughter

Presented April 15, 2005, at the Celebration of Life for Rebecca Jeffers Guthrie by Claire Guthrie GastaƱaga with able assistance from her buddy, Peter Blair Guthrie

My mom was her own woman. 

She came from strong stock … not a  magnolia in any sense of the word, but down to earth and forged from Wheeling steel. 

My mom was extraordinarily talented. 

She could draw and paint. 

She played the piano by ear. 

And, she loved to sing.

But, most of all my mom was “real.”

Her greatest talent was her common sense.

My mom was about “not sweating the small stuff” long before anyone wrote a book advising others to adopt her natural way of being in the world. 

I learned a lot about life and people from my mom.

Here are just some of the lessons I think she taught us along the way…

First, about being a “housewife” and mother:

My mother showed us that there’s always room for one more; advance reservations were never required at our house.

  • She might have planned dinner for 8, but, if 19 people showed up, she rolled with it. 
  • Our house was always a place where anyone could show up unannounced and feel welcome.
  •  Our house was the place we all gathered as generations of children and teens under the protective wing of Mrs. G, Mama G, Zama Mama, the Bupster.
  •  Our house was the house where a little blood on the carpet after a fierce knee football game would hardly be noticed.
  • Our house was a house where you could bring home a guy you thought you liked and fifteen minutes later you’d find the guy and your mom out on the deck, talking in Spanish about skinny-dipping.

My mother exemplified the difference between gourmet cooks and good cooks. 

  • Gourmet cooks slave for hours to produce a meal presented elegantly that is full of subtle flavors.
  • Good cooks can make dinner in 15 minutes from whatever happens to be in your fridge at the time. 
  • My mom was a good cook. 
  • Grandchildren and generals alike loved mom’s chicken and dumplings.

 My mother understood her role as a parent.  Her favorite warning was, “Don’t think that you can get away with anything, because, whatever it is you’re planning, I’ve already done it.”

  • If you snuck in the basement door thinking that you’d gotten away with violating the curfew, you’d be likely to find mom asleep in your bed.
  •  If you said for the third time you were late because you went to see Dr. Zhivago (and it was a lie), you’d find out that she went to the matinee that afternoon and had some pretty picky questions about the plot.           

My mother also offered lots of lessons about what it takes to be a good person:

 She taught us that every person deserves your respect.

  •  Treat everyone like you would want to be treated, whether she’s the waitress, your secretary, or the president of the United States.
  •  Meet intolerance with tolerance. 
  •  Be fearless about confronting injustice or discrimination where you see it.
  •  All I have to do is look out at the cross cultural extended American family gathered here to know she lived this lesson well.

Mom made sure that we understood that big kids take care of the little kids.

  • Taught in the microcosm of our family … when we were growing up, the 3 big kids always had one of the 3 little kids as their buddy … Pete was my buddy then.  Today, he’s my buddy.
  • The larger lesson was that if you are strong enough, rich enough, able enough to help someone weaker, poorer or less able, you have a solemn duty to do it.

 Mom worked hard to keep us from getting too big for our britches.

  • Your father may be wearing four stars, but in the dispensary what counts is how sick you are. 
  •  Just because there is a formal dining room in the general’s quarters doesn’t mean that you get to sit in it and be served breakfast.

She was determined not to let anyone take themselves too seriously.

  • If you were visiting a family, like ours, that dressed out of the dryer, you couldn’t get upset if everyone in the family ended up wearing your underwear.

Finally, my mother was clear that the only thing that matters ultimately is what you think of yourself … not what others think of you.

 If the Japanese brass are coming to dinner at Camp Zama, serve fried chicken and sweet potato pie fixed by Junious Spot because that’s who you are;

 don’t try to be something that you aren’t… you’ll only end up serving bad Japanese food.

 My mother looked at me once and said… “why do you spend so much time worrying about what others think? You are who you are, if you don't love yourself no one else can.”

 Like most of us, my mother wasn’t always good about following her own advice. 

 But, her life, and your presence to celebrate it, proves one truth that is absolute:

 Love is infinite. 

 The more you give away, the more you get back.  

I know that my mother would want each of us to take some of the good karma present here today and give it away to others as we go forward from today with her as our ever-present guide.

Tuesday, February 22, 2022

Governing Access to the Ballot Box -- Presentation to Encore Learning, February 21, 2022

 

Today, as we celebrate “Presidents’ Day,” we must talk of justice. Justice in our schools, justice on our streets, justice in our jails and prisons, and, yes, justice at the ballot box.

And, we must begin any talk of justice at the ballot box by recognizing the injustice of Virginia’s history of overt, substantial and violent discrimination against Black voters, as a group and individually, and the efforts to govern access to the ballot box by people determined to prevent civic participation by Black Virginians.

Virginia has a long and sad history of using every means available to deny its minority citizens the right to participate in the political process and to vote.  Following the Civil War, for three decades Virginia’s constitution provided for universal suffrage for men, and Virginia sent an African American to Congress in the last decade of the 19th Century.  At the turn of the century, however, Virginia joined other southern states in a concerted effort to disenfranchise Black voters.   

Those leading the rewrite of our constitution at the turn of the century said explicitly that their “paramount concern” was the disenfranchisement of African American voters. A subcommittee studying repeal of some of poll tax in the forties said:

When the 1901 Convention decided on the present voting qualifications, the reason which seems to have prevailed with a majority of members was the belief that [Black people] had to be excluded from suffrage.[1]

In accordance with this belief, the 1902 Constitution conditioned voter registration on the payment of a poll tax, the unaided completion of a written application, and the ability to answer questions regarding an individual’s “qualifications” as an elector. [2] Enabling law gave registrars unfettered discretion in judging whether an individual was qualified to vote, and some registrars frankly admitted that they acted “on general principle never to register [a Black person] or a Republican.”[3]   In Virginia, the effect of the constitutional provisions was to reduce the Black electorate from 147,000 to 21,000.”[4] 

This same opposition to Black voter participation was also cited by the subcommittee as a reason for Virginia’s vote against ratifying the women’s suffrage amendment which our legislation didn’t vote to “ratify” until 1953, long after it had taken effect.

Despite Martin Luther King’s entreaties in 1957 to “give us the ballot”, the poll tax remained in Virginia until abolished in federal elections by the Twenty-Fourth Amendment to the federal Constitution and invalidated in state elections by passage of the Voting Rights Act of 1965 (over the vigorous opposition of Virginia representatives, including then chair of the House Rules Committee, Howard W. Smith, “who called it an ‘unconstitutional’ vendetta against the former Confederate states”).[5] 

Unfortunately, passage of the Voting Rights Act did not end formal efforts to suppress Black political influence in Virginia. Our legislature has tried residency certificates, multi-member districts, and various districting plans, up to and including the 2010 Congressional plan declared unconstitutional, that “cracked,” “stacked” and “packed” Black voters to reduce their growing political strength.  An issue today is whether the Virginia House should run in the new Census informed districts just approved in 2022 and, then, again, in 2023 as happened after the 1980 Census and redistricting cycle.

Felony disenfranchisement laws, codified post-Reconstruction, which explicitly targeted African-American to diminish their electoral strength lingered while these other efforts to suppress the Black vote were swept aside in legal challenges.[6] The felony disenfranchisement provision is entrenched in Jim Crow era racially discriminatory laws and policies.[7] Like poll taxes, literacy tests, grandfather clauses, all-white primaries, felony disfranchisement laws were intentionally manipulated during Reconstruction to exclude African-Americans from the political process in Virginia and their impact continues to this day.

According to a Brennan Center Report on Racism and Felony Disenfranchisement, “before the Civil War, most states already had some form of disenfranchisement on the books, but these new laws were significantly broader, imposing disenfranchisement as a consequence for all felonies, rather than only a few select crimes. In rapid succession between 1865 and 1880, at least 13 states — more than a third of the country’s 38 states — enacted broad felony disenfranchisement laws. Once these broad disenfranchisement laws were on the books, racist politicians could also enforce them in a deliberately discriminatory manner.” [8]

For example, in 1876 Virginia broadened its felony disenfranchisement law to encompass petty theft, or “petit larceny,” a crime of which white politicians believed Black citizens could be easily convicted. The next year, the legislature passed a law requiring that lists of voters convicted of any of the new, broader array of disenfranchising crimes be delivered to county registrars. Applied “almost exclusively to the detriment of African American voters,” the law facilitated racist politicians’ attempts to selectively enforce disenfranchisement. “We publish elsewhere a list of negroes convicted of petit larceny,” a Richmond-based newspaper advertised several years later, advising that “Democratic challengers should examine it carefully.”[9]

Virginia remains one of the worst states in the nation for felony disenfranchisement. Only Virginia and one other state permanently disenfranchise a person convicted of a felony unless an individual governor chooses to restore their right to vote.

In its 2020 Locked Out report, The Sentencing Project reported that the disenfranchisement rate for all Virginians is 6% percent, as more than 366,000 people cannot vote.  52% of those people are estimated to be African Americans. The result is that today, nearly 16% percent of African-Americans in Virginia are permanently banned from voting unless an individual Governor chooses to reenfranchise them. The increased racialization and felonization of the criminal legal system and the longer sentences resulting from the 85% mandatory minimum in the 1995 “no parole” law, have increased the adverse impact of felony disenfranchisement on Black Virginians.

The last two Virginia governors have restored the rights of more than 200,000 persons.

Nonetheless, there is a disturbing reality attendant to the increase in mass incarceration and longer sentences after enactment of the “no parole” law in 1995. These developments have had a disproportionate impact on people of color. Given the increasing numbers of people convicted of felonies and the racism inherent in the criminal legal system, it is now clear that we will not truly purge the intentional racism of the felon disenfranchisement provision in our constitution until we amend the constitution to delete it. 

Data released by then Governor McAuliffe in 2016 show that, because of the racially defined consequences of mass incarceration and the longer sentences being served by the more recently convicted, the majority of the people whose rights he restored were white (51.5%), while a majority of those continuing to be disenfranchised are Black (52%).  So, because of age, the date of conviction, and the length of time since a person’s sentence was completed, the more aggressive a governor is in addressing the voting rights of those currently disenfranchised the larger the percentage of those remaining disenfranchised will be African American.

So, what’s the solution? There is only one -- amending our Virginia Constitution to remove a lingering vestige of the Jim Crow era and bring true universal suffrage to all Virginians.  

That’s why Senator Mamie Locke introduced SJR1 which would remove the limits on voting from our Virginia constitution and guarantee the right to vote to every Virginian over 18, a right that cannot be abridged by law.  It is the right thing to do, and it is now the right time to do it.

The amendment would suspend the right to vote while serving time in jail or prison on a felony conviction but would not require formal process to restore it. 

It would also eliminate language that disenfranchises unfairly many people with autism and other intellectual and developmental disabilities.

SJR 1 passed last year and has passed the Senate this year.  As of today, February 21, 2022, it is pending in the House of Delegates (where an identical House measure has already been killed by six people in a House subcommittee).

If adopted by the House, SJR1 and its accompanying “ballot bill” that defines how the resolution would be implemented would allow the question of amending our constitution to be placed on the ballot in fall of 2022 for a vote by all Virginians.

In addition, as of today, February 21, 2022, there are a number of bills that passed the House and are now pending in the Senate Privileges and Election Committee that would roll back measures passed in the last couple of years that have expanded ballot access across the Commonwealth:

Reinstitute photo ID, HB46 and HB 1090

Reduce in-person absentee from 45 days, HB39 (14), HB46(21)

Stronger witness requirements for absentee ballots, HB177

Eliminate permanent absentee list, HB175, HB196

No drop off boxes for absentee ballots, HB34, HB175

Repeal same day registration (2022 effective), HB185

Reinstitute election day deadline for absentee ballots, HB956

It is time to give Virginians the right to approve the inclusion of a right to vote in our Constitution. We must stop all efforts to repeal advances in making the ballot box more accessible (as shown by the record turnout in the 2021 election cycle).

Please take action to support the constitutional amendment and to defeat bills that would roll back progress.

Reach out to organizations you are involved with to ask them to help protect the fundamental right to vote … the essential ticket in our democracy.

Some organizations might be hesitant, but even charities are allowed to advocate for public policy change.

The right to vote belongs to the people. Voting is the only “just basis for self-government.”[10] Voting is how we decide who governs us.

When the government denies the right to vote to anyone, it tells them they are lesser Americans. When people are told that they are less than full citizens, it hinders rehabilitation. If we want to rehabilitate people convicted of crimes, most of whom will return to their communities to be safe and productive citizens, we should encourage civic participation while incarcerated and after release. A key component of a prisoner’s rehabilitation in becoming a productive citizen is casting a ballot, the most basic building block in democratic society. 

Voting in America is an “entitlement” not a privilege.[11] The right to vote is fundamental to our democracy, and it must be treated as irrevocable. It is not a privilege like obtaining a driver’s license. The right to vote ought to be treated in the same respect as other fundamental rights in our democracy, such as freedom of religion or speech. As Professor Joshua Douglas said in writing in a Cornell Journal, the act of voting is “perhaps the most politically expressive activity” that any one individual can do in our democracy to have their voice heard to who best represents them in government.[12]

Voting is not a disposable tool for elected officials to use to decide who gets to choose them.   The right to vote should not be used at the whim of the government to reward or punish its people. The ballot box should be open and accessible, not guarded as a sacred space only open to some.

We must demand our right to vote on the constitutional amendment that would guarantee this fundamental right for all and oppose forcefully all efforts to return Virginia to a commonwealth that deprives people cavalierly of this most basic right.




[1] “Report of the Subcommittee for a Study of Constitutional Provisions Concerning Voting in Virginia,” The Poll Tax in Virginia Suffrage History:  A Premature Proposal for Reform (1941) (Institute of Government, University of Virginia 1969) at 23.

[2] Id.

[3] Id. at 27

[4] Lawson at 14-15 citing, Virginia Writer’s Project, The Negro in Virginia (Arno Press, 1969) at 240.

[5] Davidson, “The Voting Rights Act: A Brief History, Controversies in Minority Voting:  The Voting Rights Act in Perspective (Grofman and Davidson, Eds., The Brookings Institution, 1992) at 18.  See also, Lawson at 288-328 (describing legislative consideration of the Voting Rights Act including the active opposition by Virginia representatives to the provisions banning poll taxes).

 [6] Attorney General Eric Holder Delivers Remarks on Criminal Justice Reform at Georgetown University Law Center (Feb. 14, 2014), available at: https://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarkson-criminal-justice-reform-georgetown.

[7] Dale Ho, Virginia Needs to Fix Its Racist Voting Law, N.Y. Times (July 19, 2016)), available at: https://www.nytimes.com/2016/07/19/opinion/virginia-needs-to-fix-its-racist-voting-law.html

Brent Staples, The Racist Origins of Felon Disenfranchisement, N.Y. Times (Nov. 18, 2014), available at: https://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html?_r=0

[8] Kelly, Erin, Racism & Felony Disenfranchisement: An Intertwined History, Brennan Center for Justice, at 2 n.22 and 23. Available at https://www.brennancenter.org/publication/racism-felony-disenfranchisement-intertwined-history

 [9] According to the Richmond State and the Petersburg Index and Appeal, Virginia’s petty crimes provision [a law disenfranchising people for having committed various minor crimes], along with the poll tax, effected ‘almost … a political revolution’ in cutting down the Black vote. Kousser, “Undermining the First Reconstruction:  Lessons for the Second,” Controversies in Minority Voting:  The Voting Rights Act in Perspective (Grofman and Davidson, Eds., The Brookings Institution, 1992) at 35 n.31.

 [10] https://www.theatlantic.com/national/archive/2012/09/voting-right-or-privilege/262511/

[11] http://theusconstitution.org/text-history/1844/shelby-county-post-argument-commentary-voting-rights-are-american-entitlement

[12] Douglas, Joshua A., Is the Right to Vote Really Fundamental? Cornell J. Law & Policy, Vol. 18, 143 (2008).