meaningful fact. >> can that be taken into account? that like privacy strips but what they can do it is stop this didn't entirely. >> can you develop the title blankley? claman? >> absolutely. it covers entirely that it would prohibit separate

restrooms for separate dormitories. >> what concerns me a little bit is not to be ambiguous. to give a line of questions which restroom does the individual use? >> , your honor that is a great question. >> we would like to hear period answer -- ruth like to hear your answer because then it goes the other way. >> than that depends on the condition. that is an accurate .9 of the uterus transplants for women.

the gender identity it isn't like the categories of male and female to correspond with internal organs or chromosomes estimate the question is i think it will reduce that consistent with the gender identity within all aspects of their lives but again it is important to remember the structure of title ix is that congress wants to make the distinctions because the sponsor said when they ask what about restrooms they did not say don't worry they said the agency can use

those at their discretion. that entire statute is structured over what sports teams can day tryout for for those segregated restrooms in the courts don't way of their own of the football teams that these are agency policy making questions in the branch and congress can overrule the agency but even if the new deference applies he interpreted the plaintext of a different exception that allows schools to use dop from trying out all contact sports and the judge said no interpret that narrowly and it allows women to be prohibited from trying out so once you're on the

team they will discriminate against you then in the baseline is prohibited unless there is permission and with that the you can have a separate restrooms and then another set. the two things that doesn't address but not let transgendered people use them it didn't say where the transgendered% should go. >> relate this to the locker room situation. is in the policy and in the regulation that says you can have separate locker rooms

based on sex. >> intersects or transgendered? >> either one. >> they would go to with the locker consistent with their gender identity. >> s.a. identify as a female ever go to the female locker room even though they have the genitalia of a male? >> but that is also because the courts understand there is a law of privacy protection in the locker room senator i have been a locker rooms my whole life you have open showers and open spaces. >> but not at this high-school you have a

separate shower changing areas and that is part of the virginia department of guidelines how they should be set up so it is important for the policy-making questions the locker rooms are different that these are addressed in different ways. >> peas are logically different questions stick without locker room hypothetical if a person had neil jedi terna -- genitalia they should be allowed in the fee the locker room? -- the male locker room? that is because because

there is the psychological they both make up the sex and gender. as the person that identifies with that arrangement but with some people that is not so so there is that disparity soda order to give your answer you pick the psychological so pick the anatomical. and then to say since he is anatomically mail he should go to the male locker room. >> under that regulation. having given the all interpretation. >> on this base the regulation does not answer that.

>> and with that fiscal criteria ahead to determine which locker room they go to. >> the question. >> but we still need to go. before they got a totally wrong regional make that assessment unless it is which way they're supposed to go. >> but the reality is across the country it is consistent with their gender identity nobody knows the trans gender in many circumstances if they go from male to female there often viewed the male anatomy and is shameful. that is not something bad they want a sense of privacy

as well. >> and there is a divergence in petraeus gender trial with one gender or one sex in the versions creates the problem and then to say that the schools should be focusing on psychological as opposed to the physical anatomy and i am just wondering what gives you the basis of that interpretation as opposed to the schools interpretation? >> but as a result of hormones their physiological

differences. >> so to be one sex that identifies with the other? >> that psychological definition. >> so it is very much affected by a their hormones so that is a real live physical component so what gives me the right to say they should use gender identity? what basis do i have for saying that? that is the department of education based on expert agency status the policy-making entity, a democratically accountable branch in if anybody disagrees they can file a rulemaking petition for. >> i have the rule that says

the recipient may provide separate toilet locker room and shower facilities based on sex provided for student of one should be comparable to students provided for the other and that is the regulation so that regulation says the school to make a decision based on sex and have separate facilities but here we have a complex word with both the physical and the psychological when it's different than i don't think the statute address that. >> you are right the statute doesn't. as you said to equally viable alternatives.

>> but if you can make a distinction based on sex that would be psychological and physical there is a third category so the argument is to provide a separate facility like a unisex bathroom or locker room but i'm not sure that is what you're arguing. >> your honor if the regulation does not address it them then default is that is prohibited the inertia is sivan favor of title ix you need affirmative exception the fact that it is silent does not count against our side it cuts against the school board. >> he wouldn't argue for trans gender status

classification. why not? >> we time is expired may i? >> we didn't because trans gender status is also discrimination on the basis of sex in there is a body of precedent we don't disagree it is but a battle thank you need to have an independent class status. >> you'll have some time on rebuttal. >> may yet please the court along with my partner who was the primary author of the brief - - the brief that i will present for the school board we're here to argue the dismissal of the title line claim and the

protection claim affirming the decision to deny the injunction our position . >> that is a practical point the district court explicitly said they wanted to hear more on the equal protection claim and reserve that for trial. so you're asking us to make a ruling before they analyze the at based on that? >> i am not talking about the jurisdiction but what about the equal protection analysis that we can do just as well as a district court? >> yes, sir, because it is all intertwined of that analysis. >> i think your title of nine cases pretty clear with your injunction. >> the injunction is that it

is on both of the fact that title ix was dismissed but they did not carry the burden so that is another reason. >> so the question of the balance lionel little puzzled by the district court's decision because things were proceeding and it was changed by the policy >> it was a prohibitory introduction. >> so i am not clear on why

the balance of hardship favors your client? >> under either scenario with said injunction let the abusive discretion standard with respect to the fax so first our argument primarily was as the matter of law and on top -- title ix by getting in to the balance of hardships for the accord to say that this plaintiff is a female who has gender dysphoria condition and identifies mail with a significant distress will be for restrooms ever came up and continues to have that as it was the facts that

were in support of the plaintiff's side amounted to three paragraphs in the psychologist's report in this self-serving concern said he had been on the other hand. >> said denial of a preliminary injunction shows that? >> get all the changes the status quo. >> surely you must know. the the plaintiff had been using the restroom after they passed the resolution. >> so the denial of the preliminary injunction changes the status quo. >> it all quite understand that. i thought on the fax that

the school adopted a policy that is that challenge? and the policy is the status quo. they had in using the men's restroom in the policy is going to be in issue those using the common restrooms follow their biological and everybody else uses the other and that is a challenge. >> judge gave this is right -- a davis is right but the policy was not prompted by the lawsuit. >> it did exist before the lawsuit.

the policy is a statement of an existing situation we have female restrooms and mail restrooms and then there is a third alternative we have developed for all students and that is one of the facts of the case the policy itself does not say that but that the plaintiffs be allowed to use the boy raised restaurant at the full scope of the injunction >> but the state of affairs was before the policy of the lawsuit that the plaintiff was using the restroom but now was not using the boys restroom so what harm occurred during those seven weeks that he used it?

>> the concerns that were raised that was president in this court and of the right shoe bodily privacy but the question is if the policy in any way discriminates and we say it did not because it put people the same situation there were always in the nails in the mail at restroom the females in the female restroom. >> so what was the harm? >> the hard express there was concern expressed by the parents of students about their privacy the privacy interest was the primary concern of the school board to enforce the existing policy of boys in the boys' room grows and grows from

then adding the evidence. >> were the children of any of those affected? >> so i come back to the denial of the preliminary injunction shows in a way that it ignores the effort to address the challenge by creating the unisex private restrooms. >> adams see how it ignores that. >> if parents of certain students who were concerned the board addressed that concern with the private restrooms so many of those students that were seeking

redress now have access to the privacy that they claim that they need and want. >> i understand the court's point but the first point is whether not. >> so moved to the merits. how do you assess the district court wants to hear more about equal protection but yet denied the preliminary injunction? i am not suggesting that is inconsistent or contradictory but if the judge wants to hear more on this case but by denying their preliminary injunction the judge changed the status quo. >> at least there is a hint of the inconsistency. >> i am understand we were suggesting and what you are concerned about the question

is whether or not of equal protection claim on title ix but our position is that all students are treated the same. there are two choices restrooms associated sec's dancing will stall trans gender is not a suspect class 98 nothing that they rely on deals with a situation similar to this. of case law deals with non conforming behavior sometimes than there is action that is undertaken like a male who was acting in a mail manner than punished but that people protection clause is not strong with a policy providing separate restrooms for all students for the governmental interest if we get past the initial point

there never was any discrimination because the same policy was an existence from the beginning boys and the boys' room and here is a third option it would be discrimination to say you cannot go into the girls' room that is consistent with price waterhouse said a fax them back would have been something we could not do so the notion of the other side that if you keep that alive and i don't think we would have had a choice you would have to allow the individual to use the girls restroom if he so chooses. >> so the notion that a wise person says biology is destiny. >> et ottman opinion on that but sex equals male and

female? >> but this is 2016. this is 2016 so the question is what is the meaning of sex in the year 2016? our position is based on the person's genitalia what they were born with. >> do you have expert evidence on the record? >> know the judge did not require you to come forward with anything? >> you have seen the record is pretty sparse. >> could you find a reputable psychologists or near a scientist or psychiatrist to support your position that in 2016 all sex is is biology?

>> we are nowhere near that in this case settled think matters and the reason is the question is whether or not this policy has implemented violates title ix or equal protection. >> if we decide that they are entitled to that change the likelihood of success? >> first of all, we would argue it is not entitled to deference the word sex is not ambiguous. >> but we might do that. >> we could still have a chance to win the case even with the deference on the basis the way that it has been interpreted is to replace the word sex with gender identity. >> but they have already done that?

>> em the prodigy of price waterhouse is well past the notion that sex is in terms of discrimination law used no more than no less of biology but i thought we were concerned about the stigmatizing to the gender roles indeed talk about bad it is impossible not to talk about gender identity. >> the point is that those cases that follow, what you're dealing with is a situation and you cannot discriminate on the basis. our situation here is a school board with children k through 12 age six through 18 that has a policy to allow girls and the girls'

room and boys in the boys' room in their wisdom to provide a third option if anybody is uncomfortable to go to read their spot does that violate equal protection or title ix? it does not. that is the most significant argument very simply is that point i don't think if you start getting into this complicated where we in 2016 that is another case down the road but today on these facts with this scenario and these concerns with adults in the workplace, the children in a school system it is much more significant than it would be and that matters. that is the best argument

coming before the court today. you may be right but the denial of the preliminary injunction was of the affirmative injunction. >> normally a party coming into district court by the time of the plaintiffs came to court to hear the district court action to state a policy but the

people all that were to be operated for a good while and i'm not sure there are any complaints to the school officials this came from the parents. but there was no incidents. no disruption. then everything changed. for the plaintiff but freddie else they remain the same in there were those two options then the plaintiff received a third option available. of course, the argument would be stronger if they had not been given a third option to say you have to go

to the girls' room. in zero 1/2 to you can't you also have this other option that remains in place that is not a substantial change from the situation. >> the you refer to that as a third option. >> i disagree as did beyond anyone if they are stigmatized. >> if they were pro transgendered use of the boys' room, and there may be a stigmatizing interest then you are a big hit or somebody of comfortable with that that could be a

potentially stigmatizing interest but we are beyond the record talking about those types of things and our point, the question is as follows tiv of equal protection. >> if there was a sex change operation will you allow them to use the boys restaurant? >> my understanding of the position, and i will read the policy, shah be limited to a corresponding biological genders is what it says so if you change or biological sex then you are allowed to use the restroom of your new biological sex that is what it seems to

suggest to me. >> minders standing is that surgery involves a series of surgeries so when does it become biological? >> i don't know the answer to that question. >> how does the policy applied to someone who was in the course of that surgical therapy? >> i don't know. >> karrubi speculating how the school board would interpret their policies. >> they did not discuss that? >> there was an expert employed there is nothing in the record a letter of is in the record but the johnston case was informative to the school board that it sound which it was legally in a solid position.

>>, your honor, two important points i want to clear up is the notion that we have no idea what these complaints were there ever been shown are described were to was for the court so looking at the school board meetings the vast majority of complaints were about people worried in the hypothetical future a boy could pretend to go into the girl to go into the locker room so the notion that they were coming from boys who were uncomfortable with the plaintiff is not in evidence the second point that goes to the issue if the school board knew for some of the harder line questions some of the scandals by a administrators on the ground to did not see a problem and

what the school board did was make a categorical rule to say regardless of the situation on the ground school administrators never have the power to do anything of what they said it wasn't like step-by-step incremental approach did not come to say pass a new policy they should all use a restroom consistent with identity no exception. the school board. >> well today that the principle is the ceo and everything you read from public education the principal had the situation under control in the school operating as it appears in the record in a great way

and so there was this top-down inquisitions comes along to disrupt with the principle was managing in a very humane way. it is ironic. >> i agree that the principal sponsor of the policy was clear that said it isn't about disruption the students are mature enough to handle it it is solely a privacy issue. so there wasn't actually a crisis on the ground or a mass walkout. id was working until the school board became involved so with the school giving the extra privacy options they announced that six days before the second school board meetings away couldn't oppose anyone that might understanding is they were hoping that would have half the problem but six days later after parent after

parent after random community person tried to put the board out of office by three votes then now was a five / one vote sova gave the alternative arrangements a chance they'd jump to of billion within six days before they're even installed and if you look at the board meeting it was never about the plaintiff it was always about this will open a door to a future sexual predator than the hypothetical concerns we know from a the amicus brief across the country that never actually materialized and no one is saying that there is plenty of room for policies or a confirmation

of gender identity the plaintiff had a letter from his doctor and nobody is suggesting a top-down solutions and the other way education and to offer guidance but the district court ruled the regulations mean that the plaintiff automatically loses patty wiens title ix means to be treated differently on the basis of sex and there isn't an exception that authorizes this certainly there is room for additional guidance for the policies in school boards to look bad as well. >> very briefly title ix is broader than title seven and schools have us special place for trans gender students and we do know that a denial of equal education has lifelong consequences

that can be far worse than denial of that child so where it cuts into our benefit not there's but if you have any further questions that is all i have for today period

>> we think back to the tiny were eighth grade teacher what do remember? >> the students who thought they could do anything in the world was a very idealistic teacher's free

and still the right values and ideas and knowledge at the age of 10 or 11 bebel do wonderful things. >> we have multiple subjects of history and geography for math and science was shared with another teacher. >> and we had good students. >> it was at the marcus garvey school it was a private school in the '70s and located a few blocks away from crenshaw boulevard >> who was marcus garvey? he was to begin by birth and he simply believes he wanted to uplift people of african descent they had to believe in themselves with that economical approach.

if they let get galvanizing millions in the caribbean. . . >> i was on the continental airline flight from lake charles to los angeles. >> what kind of neighborhood did you go up in and what you remember about your schooling there. i know you went to a community college what you remember from your early days in school?

>> guest: i came of age in the 1970s in los angeles. my area off of -- avenue. there are transplants from louisiana, arkansas and texas. many of them were part of post-world war ii boom. those were african americans who lost several states. they moved to los angeles to get a good job and good benefits. crop with my stepdad as well was a member of a union first 47 years. in my neighborhood hard-working people who wanted to see their children to radically different economically than they did. >> c-span: can you remember the first time you actually started learning something and the teacher that taught you that or with your parents must work. >> guest: parents were the first ones were my teacher and still the idea that learning is important. but learning came in two different phases. i got a great memory of my

fourth grade teacher, sister therese. i went to catholic school for grades from grades one through 12. she is still alive and in her legacy started a scholarship at an all girls catholic school in california called st. mary's. she was an art teacher. she instilled the idea that you could use art to change your life. i remember her reading great looks prayed my real learning. came at the community college level. i finished high school less than a cell stellar student. but he much at the age of 20 i needed a grasp on how to read and rights. i had my epiphany and decided to dedicate my life to education. >> c-span: el camino community college located where? >> guest: in los angeles. it is one of over 100 community community colleges that we have in california. it was a great starting point for me. again i was not prepared to go into a four-year institution. i did not have the grades, not the test scores and more partly i do not have money. so i spent three years at el

camino college. ranging from elaine moore who is my counselor to several others who played a tremendous role in shaping me. they were the ones who said, just because you arrived here in one condition in no way means the next 50 years a real life needs to be the same. a big proponent of the roll trait clinic colleges can play. >> c-span: why didn't you get good grades? >> guest: to be honest i did defy things in high school. i chased women, drink beer, smoke marijuana, played football and avoided homework. none of -- i was on the athletic track. it was always a dual track system, even today. even today. as long as i play football well and was not in trouble i was passed along. my sr. senior year i was injured in an accident and

i was 2 inches from being crippled for life. then i realized that i guess there was a different compact. so my social compact ended and i had to to create a new one. >> c-span: how did you have that accident? >> c-span: a six whip for sophomore ramp headfirst into my left knee. i heard a crack and by the time i open my eyes i was lying on my back and was rushed to the hospital and was given the bad news that while i was 2 inches from being crippled for life, i would be able to walk again. but my football season was over and i thought my life was over at that time. >> c-span: how long did it take you to mend and chicken shirt direction? >> guest: the physical men took about three minutes.

'basic english and math courses and move towards advanced courses as the years went by. >> c-span: when you got your associates to degree you went to howard in washington. what did you major in and why? >> c-span: i arrived to howard with an associate of arts degree in business. my goal was to get a degree in business and to work for ibm. so younger people would try to figure out why not apple. and and we know that did not exist. but after taking one course in philosophy i decided to change my major. so i double majored in philosophy and an apology because i was interested in how ideas make sense and how they matter. and then use anthropology more as a tool of social science. >> c-span: along the way you are naming teachers. what was that that you recognized as good in a teacher? what did they do that made a difference for you? >> guest: they actually spoke to the student, me in particular on where i was at that point. they excited me about learning. they had high expectation which

we know from research that is important for both teachers and parents to raise it expectations for their students. they do not give up on me. >> c-span: when you taught fifth grade what kind of techniques did you use to get kids attention? >> guest: day one and let them know that i was glad to be their teacher. i was glad they were in my classroom. every day we would try to say something good at the end of the day. what we learned in class was affirmation at at the end of the day. we had field trips there to a museum or two maybe a conference. there are things inside the classroom and outside the classroom to really complement the learning experience. i can say that i am still in contact with a few of my students. impact, the mom and sister of one of my favorite students, brian lawrence students, brian lawrence will also graduate from howard, and they are proud of a young

daughter. so i am glad to see that is still in play. >> c-span: what you're did you teach with great? >> guest: 1991-1992. >> c-span: when did you go to harvard to get a masters degree and what did you get it in? >> guest: arrived in cambridge in 1994. i earned a masters earned a masters degree with a focus on education policy. i was interested in trying to figure out from a macro standpoint how we can use public policy as a tool to close achievement and also open doors of opportunity for students. i enjoyed my time there. >> c-span: today you are doing what? >> guest: today i am a resident fellow at the american enterprise institute in washington d.c. for over 75 years aei has been committed to freedom, opportunity, and the, and the role of free market values and civilized society. i'm glad to be there because i get get a chance to talk about education, entrepreneurship and the role of

education in civil society. >> c-span: what were or are the politics of your parents? >> guest: my mom and dad are were both democrats. my realization of what a democrat was was in 1978 when voters passed proposition 13. that pretty much changed property taxes in california and how they were used to fund schools. i remember my parents same wow, the republicans have passed proposition 13. i said what's republican? they face the republican support rich people and those ideas and democrats support working-class people. >> c-span: did you start thinking the same thing? >> guest: i was a democrat for most of my life up until the mid-1992. then i decided to switch to the republican party. >> c-span: what was it that made you switch? >> guest: fifth-grade teacher again in los angeles.

we had the riots after the rodney king issue. for about a week of school was closed. i attended a number of meetings in the community to figure out what we are going to duke to rebuild what people called south-central los angeles. that term is more had more symbiotic practicality than usefulness. i was going to certain meetings and hearing that we would need to invest in billions of dollars. that we would need to radically change how we look at the workforce. but i did not hear two things. i did not hear the role that education and how it would be delivered differently would make a difference. i did not see how the role of entrepreneurship, free free market values were going to play. after some soul searching and tough conversations with my parents, i decided to switch my affiliation and have been a republican since 1992. >> c-span: what impacted that have on your parents? >> guest: they were shocked. in some ways they were whispering to people that i was a republican now.

but 20 plus years later, dad has passed, mom is still alive. still an interesting part of the conversation when obama was elected president of the united states. >> c-span: did you vote for him? >> guest: neu did not. >> c-span: did you get kickback from your friends? >> guest: absolutely. my wife is a democrat in law professor. she she works for the clinton administration and the administration. so it said -- i was waiting to see a shirt that said my dad isn't saying he voted for mckay. so would people asked, what you tell your children when you have an opportunity to vote for the first black president of the united states, that you do not make history. not make history. i said in fact i did make history.

when i have an opportunity to vote for the first black president of the united states, i would like to have it someone who is qualified for the job. i think president obama has done a great job great job in many areas but i think mccain and mitt romney would have done a better job. >> c-span: hears president obama using a phrase that you write about, let's watch this. >> must while making sure that we are giving every one of our children the best possible education. the best possible education is the single most important factor in determining whether they succeed. it is also what will determine whether we will succeed. it is the key to opportunity. it is a civil rights issue of our time. >> c-span: the civil rights issue of our time, do you agree? >> guest: i agree that education of civil rights significance. when you you think in 2016 was 62 years removed from brown versus board of education a decision that fundamentally

changed how education would be delivered. i think we are a better nation in 2016 that we were 1954 because of brown. but the challenges that when when you make everything a civil rights issue it comes with it's a civil right -- which includes more bureaucracy, avastin fusion of cash but not necessarily a link to performance. also a big push to try to compartmentalize how we deliver things. i think it is important. i think it is often overused by the left and the right. >> c-span: the title was the chief of education in the state of virginia. >> guest: secretary of education in virginia. >> c-span: how did that happen? >> guest: i received a phone call from governor mcdonald and he said he was looking for someone who is a nontraditional candidate. i was surely one. someone who has some experience to in school choice but also believe that public school still matter.

i remind people that the majority of our children today, 50,000,000, will receive an education in a traditional public school. we have to make sure those schools work. at the same work. at the same time we have to have options in place. i interviewed for the job. he offered and i accepted. >> c-span: how long did you stay? >> guest: i was there for the 2010 - 2011 session and then moved to florida. >> c-span: was expected of you a mistake? >> guest: one was to implement the governor's education agenda agenda which was brought. at the higher education level we signed into law top jobs for the 21st century legislation. we had a commission for higher education. over 25 people on the commission. the goal was to say that if we are going going to invest in additional $100 million into higher education in the commonwealth. we have to change the way we deliver education and expect more for the dollars that we are getting. we have people in in the public schools, private schools, one of our colleges, community community colleges and are for-profit colleges who all contributed and played a role in