Illinois district decides not to rescind settlement agreement with OCR over transgender student’s access to girls’ locker room facilities

The Chicago Tribune reports that Palatine-Schaumburg High School District has decided against rescinding its settlement agreement with the U.S. Department of Education’s Office for Civil Rights (OCR) after receiving a letter from OCR. “We never expected to be back here tonight, mere days after hundreds of hours invested in listening, discussing and debating an important issue for our district and its students,” said

PSHSD211 board President Mucia Burke. She called the outcome “the best course of action for the student while balancing the needs of all the teenage students in our district.”School District officials had maintained that the agreement did not represent a district-wide policy and only applied to the student in question. Earlier Monday, the district released a letter from OCR in which officials agreed that the settlement’s provision on locker room access applies to only one student. Local and federal officials also have disagreed on whether the student, who was born male but identifies as female, would be required to use a private area of the locker room to change and shower.

The two parties appeared to have reached a solution last week when the board approved the settlement, but that seemed in jeopardy after the district and federal officials expounded on how the agreement would be implemented. “The agreement provisions specific to locker room access apply only to Student A, and the District’s agreement to provide Student A access to locker rooms is based on the student’s representation that she will change in private changing stations,” Catherine Lhamon, the Education Department’s assistant secretary for civil rights, wrote in a one-paragraph letter to a district attorney.

In an interview last week, Lhamon said it was “facially inconsistent with the terms of the agreement” for the district to contend the policy did not apply district wide. “The law already is that this district and any other district cannot discriminate on the basis of sex,” she said.

In an email Monday afternoon, an Education Department spokeswoman said, “The letter is consistent with what we’ve said about the resolution agreement.” Both sides appeared mollified with the understanding that while the locker room provisions apply only to the student who filed the complaint, the settlement’s other terms do not.

Ed Yohnka, the spokesman for the American Civil Liberties Union of Illinois, which is representing the student, said he expected federal officials to “implement the agreement with vigor.” “We find it impossible that the OCR would allow the district to allow access to our client, while they don’t defend a Student B, or Student C,” Yohnka said.

Last month’s finding that the district had violated Title IX, the federal law that bans discrimination on the basis of sex, in the case of a transgender student was the first of its kind. The district was given 30 days to reach an agreement or risk having its federal educational funding suspended or terminated, as well as face possible litigation.

A decision to revoke the settlement would be extremely rare, particularly at the K-12 level. Last year, education officials found Tufts University in breach after officials there backed out of an agreement to resolve a Title IX violation surrounding sexual assault and harassment issues. Less than two weeks later, in a message to the community, the university president cited a meeting with Lhamon in the school’s decision to reaffirm the agreement.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.