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Board member urges bathroom-privacy policy as attorneys warn Fourth Circuit precedent governs
Summary
At a May 4 work session, a Cabarrus County Board of Education member urged the board to draft a bathroom and locker-room privacy policy after students raised concerns; district attorneys told the board a Fourth Circuit ruling currently controls and that the U.S. Supreme Court might resolve uncertainties this summer.
Melanie Freeman, a board member, urged her colleagues to draft a policy protecting privacy in bathrooms and locker rooms after female students appealed to the board that they felt unsafe and that their privacy had been violated. "I'm asking for the board to draft such a policy because it's the right thing to do," Freeman said, invoking personal and constitutional concerns.
Board members then asked for legal advice. Two district attorneys — Ashley Leonard and William Eisenhower — told the board that existing federal appeals-court precedent governs the district's obligations. Eisenhower said the Fourth Circuit decision referenced in the meeting (referred to in the transcript as the "Grama" decision) is the controlling authority for North Carolina and that only the U.S. Supreme Court could change that precedent. "That that is binding law until the US Supreme Court does something," Eisenhower said.
Attorneys cautioned that what a local board could enforce depends on the precise wording of any policy. "It all depends on what the policy itself says," one attorney told the board, noting the need to consider Fourth Circuit precedent, any state decisions, and guidance from the State Board of Education or the North Carolina Department of Public Instruction before adopting an enforceable local rule.
Board members pressed whether a locally adopted policy would be enforceable or expose officials to personal liability. Attorneys answered that liability and enforceability hinge on specifics: a challenge could argue the board enacted a policy contrary to binding law, and courts would consider the board's knowledge of the law when assessing legal risk.
Several board members requested further engagement with state legislators. Catherine Moore asked that the board invite the district's four state legislators to the May 11 meeting for an update on pending bills, including House Bill 791 and Senate Bill 516 (the meeting record identified the bills as the "Women's Safety and Protection Act").
The board did not adopt any new policy at the meeting. Members and counsel said they would continue to monitor developments, including a potentially dispositive U.S. Supreme Court ruling expected this summer, and to provide updated advice once that guidance is available.
