What the Constitution Says About Parents, Public Schools, and Students' Gender, and What it Doesn't (Yet)

[An expanded version of a piece which appeared in the Wichita Eagle and elsewhere on February 27, 2024.]

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler--arguably the best-known journalist in Wichita, Kansas’s largest city-- picked a fight with Kansas’s Attorney General Kris Kobach--arguably the best-known politician in the whole state--over essentially this exact problem, and Kobach--who, despite his protestations, has never been retiring when it comes to defending his beliefs--picked back. Both of them drag multiple ancillary issues into their argument, but let’s focus on the legal heart of their dispute, and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies which allegedly require teachers of students who identify as trans or non-binary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents' right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights. (In response, two school districts publicly changed their policies, while four others continued to defend them.)

With the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: while a bill was proposed in the Kansas legislature last year that would have extended parental rights in this exact context, it lacked the support to make it out of committee, and as a result, these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: what is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century (and most of which rested upon substantive definitions of "privacy" as central to personal "liberty," a claim which Dodd v. Jackson Women's Health Organization, the anti-Roe v. Wade decision, may have unintentionally (?) declared invalid, interestingly enough) have established that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns, and privacy. Moreover, other cases insist that parents have to demonstrate a harm which “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies which had been locally and legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point—a 2022 federal district court decision which forbade Geary County’s USD 475 from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’s Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

So ultimately, what is being fought about is unsettled law. I suspect that Kobach, ultimately, will end up being found correct, or at least mostly correct, in his interpretation by the Supreme Court--partly because of the contemporary dominance socially conservative justices enjoy on the Court, but also partly because some of these policies can be legitimately interpreted as requiring public school teachers to purposefully hide information from or even lie to parents, and the case law supporting parental rights, stretching back long before the current make-up of the Supreme Court, will make that possibility very difficult to uphold. But in any case, for now Kobach's his letter reflects broad cultural assumptions rather than controlling constitutional principles. So round one, I think, has goes to Lefler.

Friendly Disagreements with Justice Stegall (A Continuing Series)

[This is an expanded version of a column of mine making the rounds here in Kansas; as usual, I pretentiously felt I needed more space to make my point entirely. Mea culpa.]

Kansas Supreme Court Justice Caleb Stegall and I have known each other for going on 20 years. We're not close friends; I think we’ve met in person four times at most. But all through those years--particularly in the early ones, before I found a permanent place here at Friends University and he found a permanent place on Kansas's highest court--we regularly shared ideas, and argued about ideas, and not-infrequently fiercely disagreed with each others' ideas. Thanks to all these online interactions we’ve come to know each other and, I think, like each other, despite our deep disagreements, perhaps because we can also see in each other some foundational beliefs and loves we share. I look back on the appreciation I wrote on him eight years ago, when Governor Brownback appointed him to his current position, and I don't think I'd change a word.

All of this is just to that when Caleb made the news recently for a letter he wrote to several faculty at KU Law, his alma mater, stating that he would not continue on as an adjunct teacher there, I was surprised. I wanted to understand his reasons for cutting those particular ties--and now, having read the letter, I think I do. As usual, though, I have questions about it, and a disagreement or two as well.

Two years ago, Caleb did another surprising thing: he publicly rebuked leading members of the Kansas Republican party--which he is a longtime member of--for orchestrating a successful vote against Carl Folsom III, a lawyer with a long career as a public defender on the state and federal level, whom Governor Laura Kelly had nominated to the Kansas Court of Appeals. It was, of course, just a partisan, party-line vote, but GOP leaders had claimed justification because Folsom had, as was his job, defended people charged with various crimes, some of them pretty horrible ones, and that was used to smear the nominee. This frustrated Stegall, and he called out those Republicans for failing to honor “the ideal of a public-spirited, deliberative, and reasoned engagement with others.” 

Now, my philosophical understanding of that ideal isn’t exactly the same as Caleb’s; as I've written before, classical liberal notions of open discussion depend, among other things, upon a degree of civic friendship, which in turn depend upon the maintenance of norms which many people today, for many different reasons (technological as well as ideological, historical as well as cultural), may rightly feel to have been rendered moot, over perhaps even entirely (or perhaps even justifiably) overturned. Much of our divergence here is likely reflective of what Caleb asserted in his letter as the imperative of "privileging individual character and merit above group characteristics"; leftist and communitarian that I am, I'm much more willing than he to consider how norms may be tied up with structural, collective, and historical realities which must be considered whenever one makes judgments in reference to individual rights or claims.  But whatever those particular philosophical disagreements, the liberal ideal he defends remains one which I--as a college professor and occasional pundit whose whole career is dependent upon communication, discussion, and engagement--I have great respect for as a crucial component of our civil society. And regardless, I admire how that ideal has guided Caleb's thoughts and actions over the years as well. 

So how does ideal come into play with his decision to end his teaching association with KU Law? On my reading, it turns on his concern that his old stomping grounds have shown “an institutional failure to cultivate the norms, habits, and skills necessary to the task of lawyering.” The precipitating cause of this concern of Caleb's was what he called the “bullying” response made by of certain members of the KU Law community (specifically, those associated with the school's Diversity, Equity, Inclusion, and Belonging Committee) when the conservative KU Law Federalist Society invited a speaker from the controversial Alliance Defending Freedom to campus. The bullying he mentions included calling student leaders of the club into a meeting to warn them against the invitation, and those students being subsequently labeled as facilitating hate speech by the aforementioned committee. (The speaking event went forward as planned, by the way, with accompanying protests; everyone's First Amendment rights were fully respected, or at least so it appears.)

Now in light of prioritizing engagement, Caleb is plainly correct that, like them or hate them, the ideas promulgated by ADF—which generally frame almost any advance in LGBTQ rights as an attack on religious freedom (consider the role they played in pushing forward a current lawsuit over the supposed potential interference which a Colorado law poses to those who do not wish to acknowledge the legality of same-sex marriage)—have long been present throughout Kansas’s legal environment, including at events sponsored by the Kansas Bar Association. Hence, discouraging students from confronting certain ideas—even those which, as Stegall admits, may be seen as “existentially threatening”—is probably not the best way to prepare Kansas’s future lawyers. Quoting Professor Richard Levy, a longtime KU Law faculty member, Stegall rightly makes the point that “if lawyers cannot talk to each other about difficult subjects on which they disagree, how can we expect anyone too?” That position seems consistent to me.

But I'm not sure how to square that consistency with his decision to separate himself from KU Law. I suppose that if in his considered judgment his alma mater really has caved into a kind of "authoritarianism" which threatens to "cripple a person's ability to critically engage with ideas or people with whom they disagree," then it might not be unreasonable to speak out against those developments by way of withdrawing from the institution. Perhaps we could understand that as a form of protest, or as the posing of a countervailing power as a way to pushing KU Law's leadership to take corrective action. (Caleb perhaps implies this, when he wrote in his letter that he is acting on this matter with a consciousness of others who may feel the same disgruntlement as he, but lack the "authority or security to speak up"--something which, as a state supreme court justice, he obviously is in full possession of.)  But still, in our present moment, it seems to me that remaining present exactly so as to continue to engage, as a colleague and friend, with those whom one disagrees—including disagreements over how to respond to the way some at KU Law may have dealt with an ideological disagreement!--is vital.

Last year, Caleb gave a wonderful address--which he quoted from in his letter to KU--that addressed in part the fact that the law can never be entirely disentangled from the arguments over the ethical concerns and procedural outcomes which always surround it. After sharing an old Jewish parable, he concluded that, in the midst of these quandaries, “heaven smiles mischievously down on us”--then added, “we can smile back, if we have the stomach for it.” It's entirely possible to read this passage--and I suspect this was Caleb's intention--as suggesting a criticism of KU for lacking the stomach to deal with serious, even "existential," disagreements. But by the same token, that line could be understood as a petard upon which Caleb has hung his own arguments. 

To be sure, every person’s stomach for dealing with disagreement is going to be different, and to repeat what I said above, I can certainly see withdrawing in the face of a disagreement as sometimes a productive way of engaging with it. It's not like anyone, I suspect, can entirely refuse to ever draw lines in the sand which they will never cross, or will always withdraw to one side of. So I take seriously Caleb’s reasoning for drawing his line here; I'm not in a position to say he did wrong, and I'm not in agreement with those with condescending takes on my friend's decision. But still, I must admit: it just doesn’t seem consistent to me with his own best arguments; it's not entirely like the smart and gleeful debater I've known over the years. No doubt, this will be something we can continue to disagree about as well.

Why I have a Pro-Choice Sign in my Front Yard (Even Though I Don't Call Myself That)

[The publication Current asked me to write up my thoughts about abortion; I ended up writing nearly 3000 words. A much, much shortened version of the essay below is available on their website this morning, but if you want to read the full thing, go for it. Cross-posted to By Common Consent.]

That sign is in our front yard, signalling our support for defeating the "Value Them Both" amendment on the ballot here in Kansas this August. If the amendment referendum succeeds, it would overturn a state supreme court decision which determined that the Kansas state constitution guarantees at least minimal abortion rights to Kansas women, thus allowing Kansans opposed to abortion rights to follow our neighboring states of Oklahoma and Missouri and push for a total abortion ban. The sign thus betokens a "pro-choice" position, even though I've never called myself that and think the language of individual "choice" when it comes to abortion is part of the whole problem. So why am I, some who was raised in a politically conservative (but not, as I later came to see, particularly ideological) Mormon home and thoroughly absorbed the repugnance of abortion which was communicated to me, taking this position all these years later? Well, that's a story, mostly having to do with what my wife and four daughters have taught me along the way.

When I say "repugnance," I really mean it. While my parents were never activists and anti-abortion literature didn't litter our home, the moral and even visual revulsion to the practice of abortion was invoked anytime the topic came up (which, in the late 1970s and early 1980s, during the death-rattle years of the Equal Rights Amendment--my church having played a major role in sealing its fate--was not infrequently). I can still call up in my memory a feverish image that somehow made its way into my brain when I was still a child: that of an abortion doctor plunging a huge butcher knife into a woman’s vagina, murdering the child in her womb. (I should note that the fact that some zealous opponents of abortion rights might point to procedures used in incredibly rare late-term abortions to insist upon the basic accuracy of that nightmarish image from decades ago has no effect on my thinking today; what I find most repugnant in 2022 is very different than it once was.)

Was it all just moral revulsion and distaste? No, there was some actual doctrine taught as well (emphasis on "some"). Mormon leaders over the decades have made multiple, if not numerous, statements regarding abortion, with some stipulating that “life begins when two germ cells unite to become one cell, bringing together twenty-three chromosomes from both the father and from the mother”--which would seem to suggest that Mormon doctrine teaches that life begins at the creation of human zygote--and others stipulating that a woman’s “right to choose what will or will not happen to her body” is fundamentally limited if “she behaves in such a way that a human fetus is conceived”--which would seem to suggest, in light of the previous declaration, that any sexual activity which results in the creation of a cell-multiplying zygote entails a mother’s complete responsibility to preserve that cell-multiplying life. In practice, however, none of these teachings were ever politically deployed throughout Mormonism in a theologically rigorous or ecclesiastically consistent way (which is not to say there haven’t been attempts to do so). In general though, the unarticulated presumption seems to have been (and still seems to be) that stating officially that “elective abortion for personal or social convenience is contrary to the will and the commandments of God” is sufficient, with no further elaboration or explanation regarding public matters being necessary. Repugnance at the idea of extinguishing “a cherished newborn baby,” complete with “beautiful eyes” and “little fingers” was perhaps assumed to do the rest.

It certainly did for me, for many years. The change in my opinions didn’t come at once, my movement away from being “pro-life” (a phrase I don’t remember particularly liking even in my most ardent phases) was a long process. Well into my 30s and 40s, articulating a set of reasons that could make sense of my youthful revulsion--even as I grew into a fuller understanding of the deep complexities of human sexuality, science, and sociality—remained hugely important to me, thus leading me blog about abortion and related topics repeatedly, in perhaps some increasingly strained ways.

During these years, for reasons that are probably similar to those of nearly every person who comes to think differently about the faith of their youth as they grow older, I became more and more doubtful that the statements of Mormon leaders, when not explicitly grounded in the scriptural canon, were necessarily the word of God and thus normative. For related reasons over the same time span, I came to recognize the scriptures as exceptionally complicated and thus not well-served by the proof-texts, just-so-stories, and tidy logical conclusions so unfortunately common in Mormondom (and pretty much every other Christian domination as well, to be fair), especially in regards to complicated claims regarding the pre-natal beginnings of meaningful life. And finally, officially non-Mormon (though unofficially, many conservative Mormon leaders and thinkers had been borrowing them for years) anti-abortion arguments, such as those dependent upon a religious invocation of natural law, became increasingly implausible to me; for example, I found the teleological demand to view a human zygote which may or may not implant itself in a woman’s uterine wall as equal in every way to a newborn baby simply unpersuasive, philosophically speaking. So what coherent articulation of anti-abortion belief did that leave me with, if I wasn’t to simply dismiss my original revulsions and intuitions as bankrupt, but neither found them well served by the simplistic affirmations of my leaders or many other anti-abortion thinkers? Well, one grounded in my long-standing contempt for philosophical individualism and capitalist commodification. Abortion, I came to believe, was a moral evil not primarily because of its harm to human lives (since 99% of abortions in the United States take place months before the life of the fetus in question stops being a matter of mere scientific principle and instead becomes an actionable reality), but rather because it was rooted in a socially harmful, choice-centric sense of disposability: a disconnect from both the anthropological fact and the civic ideal that our social relationships form a connection (as Edmund Burke said) between the living and the dead and the not yet born. Stanley Hauerwas’s essay “Abortion, Theologically Understood,” though I do not agree with all of it, made this point better than I ever could:

If you want to know who is destroying the babies of this country through abortion, look at privatization, which is learned in the economic arena. Under the veil of American privatization, we are encouraging people to believe in the same way that Andrew Carnegie believed. He thought that he had a right to his steel mills. In the same sense, people think that they have a right to their bodies. The body is then a piece of property in a capitalist sense. Unfortunately, that is antithetical to the way we Christians think that we have to share as members of the same body of Christ. So, you cannot separate these issues. If you think that you can be very concerned about abortion and not concerned about the privatization of American life generally, you are making a mistake.

I look today at the 15-year-old essay where I quoted Hauerwas, and I think the perspective it articulated (a perspective I tend to call “left conservative”) remains mostly sound. And yet I want to take much of it back nonetheless, because the animating force behind it—the admittedly simplistic yet still meaningful repugnance I felt when I first learned what abortion meant—has become deeply entwined other, more complicated and, I think, more mature intuitions. I’m particularly bothered by the way, in 2007, when our oldest daughter wasn’t yet 10 years old, I could write that those who defend abortion rights as necessary to the sexual freedom essential to individual personhood, who think it a matter of right to “enjoy sex without their futures or thoughts or relationships being messed up by any communitarian crap in any way, clearly have only ever had sex on the starship Enterprise's Holodeck.” I see the point I was trying to make in those passages, but still, that’s a sentence that could have only been written by a man woefully uninformed about the complications of sexual identity and expression, especially as experienced by women, one of whom he was married to and four of whom he was raising to adulthood. I hope I’ve repented of that presumption.

To be very plain: I now realize that to accept, even just implicitly, the notion that insofar as abortion is concerned there are only two types of pregnancies--those which result from violence, in which case abortion ought to be guaranteed to the violated woman, and those which didn’t result from violence, in which case abortion ought to be treated a perilous choice that needs to be weighed against principles of social responsibility and connection and regulated by the state accordingly--is really stupid, even if a coherent point can be found within it. Why is it really stupid? Because it’s a binary, and binaries practically always fail. Maybe that 16-year-old teen-ager’s, or that divorced woman’s, or that 42-year-old mother’s, sexual decisions were made entirely without violence. But were they made entirely without social pressure? Without religious expectations? Without bad information? Without forced compromises? Without conflicting socio-economic and cultural demands? As I’ve grown older, and watched my daughters grow and move into adulthood, and watched as my wife and I have moved into middle-age, the pressing and often painful complexities of marriage, sex, love, risk, desire, and children, the confusions and justifications and fears which attend all of them (as well as, of course, the many joys and surprises they bring), have simply become enormous to me. Add to that concerns about money, concerns about extended family, concerns about health (both mental and physical), and maybe most importantly, concerns about all the innumerable little assumptions and (mis)understandings amidst the ones we love which we navigate day after day after day. The result of all this is a heaviness—the same sort of heaviness I can remember feeling when I held our firstborn daughter, and felt the enormity which my wife and I had taken responsibility for.

Does that responsibility carry any kind of moral obligation to it? Of course it does! But that obligation cannot be extricated from all the other obligations that come with the complex existences we are all heirs to. Eventually, there came a point when I realized that the repugnance I feel at abortion is more than matched by my repugnance at the prospect that someone with the power of the state (and here I remember Elizabeth Bruenig’s sharp observation from several years ago: “penalty seems to be the only way those operating under the ‘pro-life’ banner feel comfortable expressing their commitment to life”) could approach any woman who has come to a moment of heavy decision-making regarding abortion in the midst of all of the above, looked her in the eye, and say: sorry, but we’ve decided that this choice should not be available to you.

So my intuitive sense of the wrongness of abortion hasn’t changed; that repugnance is still there, and it still guides my thinking. But it is no longer a solitary or supreme guide; there are too many other potential harms, manifest in too many other ways, for me to accept any longer that a pregnancy, insofar as the responsibility to the potential life which it may result in is concerned, is always of only two possible sorts. Between violent rape at one end, and mere (though is it ever actually “mere”?) convenience at the other, there is an immense amount of very murky road. Do my critical views about that individualistic, privatized, choice-centric mentality which treat all the connections in our lives as disposable still matter? Absolutely they do. But mostly today, they lead to me focus ever more on the response that millions of women have screamed, and continue to scream, at anti-abortion politicians who insist upon inserting their concerns into an enormously difficult and private decision, but whose concerns lead them to do exactly nothing in terms of compassionately responding to the enormous weight that women as human beings who can become pregnant and give birth experience every single day of their lives. What about supporting those connections? What about health care? What about maternal leave? What about reproductive assistance generally? What about educational and social and care-giving support? (Carolyn Homer’s list of what the “pro-life” label ought to include is an excellent rundown.) Again, while I do not agree with every implication of her language, the Catholic writer Leah Libresco Sargeant’s comments in The New York Times last week speak truthfully, I think:

Ruth Bader Ginsburg….made the case that abortion is really the price of admission to society we demand of women. And I think she's factually right. That's what we ask of women. We don't support women when they're pregnant, even with wanted pregnancies. We don't support parents nationwide. We place heavy burdens on parents who are most vulnerable. TANF, which is support for needy families, has been hollowed out. The child allowance didn't make it to parents who were the poorest. So it's true, you can look around and say, our culture has no room for the vulnerable. It doesn't have room for babies who are vulnerable, and it doesn't have room for women who are vulnerable. So abortion is a crutch that lets us navigate that hatred of dependence that's pervasive in our culture.

And now, millions of people who have worked very hard for decades on behalf of a simplistic defense of the unborn have kicked away that crutch. Bad decision, I say; very bad, all the way down.

Which is why, here at the end (for now, anyway) of this ongoing argument I've been with myself (and others) for years, we have the aforementioned sign in our front yard. The argument over abortion in the U.S., thanks to Roe v. Wade, Casey v. Planned Parenthood, and other Supreme Court cases, has for a half-century been utterly entwined with—and often served as a proxy for—debates over judicial power and the meaning of democracy. I have strong opinions about both of those debates, both nationally and in the context of our state constitution, and given that I have a profound distaste for undemocratically allowing unelected judges to make policy for the people, one might wonder why, all arguments over abortion aside, I don’t see Dobbs v. Jackson Women’s Health as a good decision, or Hodes & Nauser v. Schmidt (which articulated a very broad—much too broad, I think, especially given how many Republican politicians hypocritically misused it to justify opposition to vaccination policies during the pandemic—right to “bodily integrity” and thus abortion here in Kansas) as a bad one. The answer, of course, in line with everything I’ve written thus far, is that nothing happens without a surrounding context which weighs upon one’s choices.

I’ll freely admit that if Dobbs really does turn out, in the years to come, to have been just the first step in the expression of the Supreme Court’s determination to no longer involve itself in not just abortion legislation, but voter rights legislation, gerrymandering legislation, health care legislation, gun control legislation, etc., the time may come when I'll eat crow and call this a good decision, at least constitutionally speaking, because the ending of undemocratic judicial rule over the people's elected representatives will turn out to have been a very, very good thing. However, given that the Supreme Court involved itself in New York's century-old and widely supported gun laws literally just the day before Dobbs was handed down, I see no reason to believe the Court is suddenly turning away from screwing with democratically determined legislation. Rather, I conclude—as I think any remotely well-informed observer also must—that the Republican majority on the Court has, with Dobbs, achieved a long-standing and carefully developed (and financially well-supported) political aim, nothing more. That is an aim that will hurt women whose lives I want to make easier; preserving Hodes here in Kansas is, I think, not nearly as much a perhaps unavoidable concession to the individualistic, choice-centric assumptions of our current social order as it is an embrace of showing mutualist support to women who, in the absence of a radical change in the direction of solidarity and equality our economy and culture, are now facing potentially grave harms in their navigation of the heavy choices of family and health and life. (Also, please note that, despite claims to the contrary, Hodes has not “radically changed and expanded the landscape of abortion in Kansas,” unless you think that “landscape” is defined entirely by the ability to the state to be able to ban one particular rare second-trimester abortion procedure or impose prohibitively burdensome abortion clinic requirements; moreover, keep in mind that does the “Value Them Both” amendment really doesn’t appear to do anything of specific value for women’s choices at all anyway). Thus I say, to any Kansan who reads this: vote on no on August 2, please!

Abortion is, I believe, often (if not always and in every way) an evil. I also believe there are lots of evils in this world, some actual and some potential. Telling a pregnant person who might have to tragically confront--in all their diverse physical and economic and familial and occupational and religious and mental situations--a hideously difficult route through all these diverse evils (both real and potential) that they no longer have, and never should have had, a political or legal promise that one particular route will be available to them, no matter what their circumstances or what the science of what’s going on (or not yet going on, or no longer going on) inside their bodies at any point along their pregnancy, is simply repugnant to me. So yes, I changed my mind since I was a boy. If I was able to do so regarding same-sex marriage, I can do it regarding the necessity of abortion rights too.