On February 24, 2020, Jonathan Vogel appeared on Fox 46 Charlotte’s “Good Day Charlotte” morning news program. Vogel asserted that Charlotte-Mecklenburg Schools (CMS) should have provided notice to parents/guardians of the controversial student survey on gender identity and sexual orientation with an opportunity to opt out of the survey.

Responding to the uproar from parents and county residents, CMS Superintendent Earnest Winston told local media on February 25 that there is a “human resources investigation” underway into who was responsible for putting the three questions regarding gender identity and sexual orientation on the student survey. Winston stated he was concerned about the way in which he was informed (or perhaps not informed) about the addition of the three questions.

While Winston’s commencement of an investigation by his human resources department deserves praise, it does not go nearly far enough. Instead, the Charlotte-Mecklenburg Board of Education, to which Winston reports, should immediately commission an independent internal investigation into the matter.

An independent internal investigation would examine, among other questions:

Internal Process 

• What was the purpose of including the questions in the survey?
• How were the responses to those questions to be used?
• Who was involved with proposing the addition of the questions and moving the proposal through CMS?
• What, if any, involvement did the General Counsel and legal department have in the process?
• What, if any, involvement did Winston have in the process?
• Why were conflicting Facebook posts about the controversy made by CMS and Winston himself on Saturday, February 22?

Parents/Guardians Rights

• Were parents/guardians provided notice of the addition of the questions and an opportunity to have their children opt out of answering those questions?
• Were parents/guardians advised that the survey was voluntary? Was it actually voluntary for students?
• Were the surveys anonymous or were student identification numbers associated with survey responses?

Potential Legal Exposure

• What federal and state laws, if any, were violated as a result of the administration of the survey? 

• The federal constitutional right in the First Amendment to not be compelled to give private speech? 
• The federal constitutional right to privacy recognized by the Supreme Court? 
• The federal Protection of Pupils Rights Amendment of 1978 (“No student shall be required, as part of any applicable program, to submit to a survey…that reveals information concerning…sex behavior or attitudes.”)? 
• The state law claim for invasion of privacy?
• The state law claim for negligent infliction of emotional distress?
• What is the level of litigation risk and financial exposure, if any, that the Board has now incurred as a result of CMS administering the survey?

Remedial Measures 

• What remedial measures, if any, should be taken?
  • Should there be new policies from the Board on student privacy?
  • Should CMS be restructured, including the direct reports to Winston?
  • Should there be additional training at CMS on student privacy and legal requirements?

An independent internal investigation is needed for three reasons:

First, as the result of a series of sudden resignations by high-priced predecessors to Winston in the recent past (Clayton Wilcox in 2019 and Health Morrison in 2014), the reasons for which the Board has refused to share with the public despite the legal authority to do so where it is essential to maintaining the integrity of the Board, CMS families are understandably distrustful and will not likely be satisfied with the results of an investigation conducted by CMS itself.

Second, the conflicting Facebook posts out of CMS related to the purpose of the survey indicate that there is a significant disconnect at high levels of CMS with respect to something as simple as describing the purpose of the additional questions on gender identity and sexual orientation. Despite Winston’s claims, Title IX, a federal, non-discrimination law that prohibits recipients of federal funds from discriminating on the basis of sex in education programs and activities, does not additionally cover discrimination on the basis of gender identity or sexual orientation. 

And third, while an investigation conducted by human resources at CMS could be useful in determining whether internal personnel rules were violated, the Board must additionally examine whether federal and state laws were violated and how to address the potential legal exposure.

Jonathan A. Vogel, a former deputy general counsel with the U.S. Department of Education and a former federal prosecutor, is the managing attorney of Vogel Law Firm PLLC, an education law firm focused on legal issues that arise in K-12, higher education, and student loans.