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The Supreme Court, Federalism, and Limited Government


The Supreme Court has agreed to hear the case of whether a biological female who identifies as a male can use the boys’ restroom in a Virginia high school.

Parties who are not satisfied with the decision of a U.S. Court of Appeals (or a state supreme court if it is deemed a constitutional issue) can petition the U.S. Supreme Court to hear their case by means of a writ of certiorari: a request that the Supreme Court order a lower court to send up the record of the case for review. According to official Supreme Court procedures,

The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.

Of the more than 7,000 cases that it is asked to review each year, the Court generally accepts between 100 and 150 of them. Four of the nine Supreme Court justices must vote to accept a case. The case at hand — Gloucester County School Board v. G.G. — will be heard sometime next year. By the time the Court issues its decision, the student (Gavin Grimm) — now a high-school senior — will probably have graduated, but the case will certainly be used to resolve similar disputes across the country.

The student in question was allowed to use the boys’ bathroom for several weeks in 2014 until some students and parents complained. The local school board then enacted a policy requiring students to use the bathroom corresponding to their biological sex. Students with “gender identity issues” would be allowed to use private, single-stall bathrooms. Although a federal district court ordered the school to accommodate the student, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of the student on the basis of an “administrative interpretation” of Title IX of the Education Amendments of 1972 in an informal, unpublished letter written by a low-level bureaucrat in the Department of Education’s Office of Civil Rights.

Not at issue in this case when it comes before the Supreme Court are two important principles that would solve the “gender identity” conundrum in schools across the country: federalism and limited government

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As explained by James Madison in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about thirty enumerated congressional powers listed throughout the Constitution. Everything else is reserved to the states just as Madison says — even without the addition of the Tenth Amendment.

The Constitution nowhere authorizes the federal government to have anything to do with education or even mentions education. Under the American federal system of government, if there are to be public schools, they must be totally and completely under the authority of state governments — all of which currently have provisions in their constitutions for the operation of K-12 schools, colleges, and universities in their state.

That means that on the federal level, there should be no Elementary and Secondary Education Act, no Title IX, no Higher Education Act, no Common Core, no Pell Grants, no student loans, no teacher-certification standards, no school accreditation, no No Child Left Behind Act, no school breakfast or lunch programs, no Head Start funding, no bilingual-education mandates, no teacher-education requirements, no vouchers, no busing mandates, no Education for All Handicapped Children Act, no standardized-testing requirements, no special-education mandates, no math and science initiatives, no diversity mandates, no Race to the Top funds, no research grants, no regulations, and no funding. And of course, there should be no Office of Civil Rights in the Department of Education because there should be no Department of Education in the first place.

It doesn’t matter what one believes about the merits of public education. The Constitution is clear: the federal government should have nothing to do with schools, colleges, universities, or the education of any adults or their children.

The second principle is that of limited government. Just because public education on the state level — even it were free in every way from federal government funding, control, and oversight — is constitutional, it doesn’t follow that it is the proper role of government to provide it or fund it.

It is an illegitimate purpose of government to have anything to do with the education of anyone’s children. It is not the proper role of government to educate children or to fund children’s education. And it is certainly not the proper role of government to force Americans to pay for the education of their children or the children of other Americans in a public school.

It is the responsibility of parents to educate their children. How they choose to do that is entirely up to them, but public schooling shouldn’t be an option any more than public clothing, public haircuts, or public bicycles should be an option when a child needs new clothes, a haircut, or a bicycle.

Education is a service — just like having your car repaired or your house painted. If you can’t or simply don’t want to repair your car or paint your house, then you hire someone else to do it. Likewise, if you can’t or simply don’t want to educate yourself or your children, then you hire someone else to do it.

All schools should be private schools that are privately funded. It doesn’t matter if they are secular, pagan, religious, ethnic, classical, home, bilingual, or LGBT — as long as they are privately operated and privately funded.

It would then be up to each school to institute its own bathroom policy. Some schools may restrict students to restrooms corresponding to their biological sex. Some may allow students to use the restroom of the sex they identify with. Others may provide male, female, and “other” restrooms. Parents or students who didn’t like the policy could enroll their children in another school, home-school, or hire a tutor. And the same goes for other school-related issues such as dress codes, use of electronic devices, sex education, religious instruction, prayer and Bible reading, the teaching of evolution, head coverings, and lunch menus. That would eliminate controversy and lawsuits.

The possibilities are endless with a free market in education. And with a real free market in education, government at all levels would have no control or oversight over education. That means no mandatory-attendance laws, teacher certification, minimum standards, testing requirements, or regulation of schools.

Just don’t look for any discussion of federalism or limited government when Gloucester County School Board v. G.G. is considered by the Supreme Court.

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