In the News: An Abhorrent Lawsuit Seeking to Use Grades to Punish Students
Co-written with Liz Norell
Grades are in the news again, this time in a deeply insidious way. My colleague Liz Norell joins me for this post as we unpack a recently updated filing in a lawsuit before the Fifth Circuit Court of Appeals: Texas v. Cardona.
At the center of the filing are claims made by two University of Texas professors, Daniel A. Bonevac and John Hatfield, that revisions to the Department of Education’s Title IX guidance violate the Administrative Procedures Act (APA). Specifically, the filing argues that the Department of Education’s actions interpret text in ways that it was not intended, particularly related to gender identity and sexual orientation, in that it defines Title IX as prohibiting sex discrimination “on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Let’s be clear here. The plaintiffs want to eliminate the protections for LGBTQIA+ folks that the Department of Education’s revisions to Title IX have provided for. The filing itself is hard to read, but not because of its dense legalese. Instead, it’s all of the transphobia and fear-mongering that make analyzing the text a painful experience.
For this post, though, we really want to focus your attention on an argument buried deeply in the weeds of the filing. The plaintiffs—college professors, we remind you—argue that this revision to Title IX will force Texas colleges and universities to excuse absences for students who seek abortion care and to protect students who seek an abortion from discrimination, as would be the case with any other temporary medical condition protected by Title IX. Because almost all abortion care in Texas is now illegal, students seeking this kind of care would presumably need to travel out of state. As it stands right now, Title IX protects those students so that they could not be penalized by their college instructors for any missed classes for assignments.
But these two University of Texas professors don’t think that protection is valid, and they want to be able to penalize students who pursue abortion-related health care. No, your eyes do not deceive you here. They want to give these students lower grades for attendance, participation, or maybe even fail them for the course because the students are seeking out a particular kind of medical care.
Even if this were not a severe breach of students’ privacy (maybe even an actual HIPAA violation? We’ll let the lawyers hash that one out), it would only be possible to do this if instructors require a detailed excuse for every single absence from every single student they teach. Then, in addition, they would have to make a subjective decision about which excuses they felt were legitimate medical needs and which were not.
They also have pledged not to hire any teaching assistants who have sought abortions in the past, presumably to threaten career and financial obstacles that discourage abortion-seeking among graduate students—though, again, how they’ll manage that without running afoul of employment regulations is something for lawyers to sort out.
This is not what teaching is about. This has nothing to do with learning. It is as far from a kind, empathetic approach to students as we can imagine.
Two legal journalists, Mark Joseph Stern and Dahlia Lithwick of Slate.com, speculated in their June 7 Amicus podcast episode about how this filing might affect the professors’ relationships with students in ways that feel relevant to our concerns about learning.
Stern said:
“It leads to all kinds of perverse classroom dynamics where students can scramble to try to get ahead and curry favor with the professor by passing along tips or information that shows that somebody got an abortion. And the professor then can presumably launch his own investigation to uncover the truth, which could include questioning, demanding answers from the student who’s been targeted. The UT Austin system does not have any kind of clear rules that prevent professors from engaging in this kind of conduct.”
This brings us back to grades, though. Instructor-led witch hunts to find students who want or need abortion-related health care are only the first step as far as the claimants are concerned. They want to punish these students as well using the primary means available to them—grades.
Failing Our Future (out at the end of August!) outlines many of the ways that grades have historically been used as tools of injustice, inequity, stigmatization, and punishment. What we see in the argument of these UT professors is yet another example of how grades are harmful for students.
Have you heard of Project 2025? It’s the right-wing playbook for a Trump presidency, in the event that such a horror is visited upon us. Over the next month or so, I’ll be putting together a series of posts that walk step by step through the Education chapter of Project 2025 to help shed some light on what’s at stake for our students, schools, and colleges if the plan is implemented.
Stay tuned!
 | A guest post by
|