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School districts await governor’s decision on Arkansas bathroom bill

by Josh Snyder | March 20, 2023 at 5:32 a.m.
A classroom is shown in this 2015 file photo.

While a bill that would limit transgender people from using the bathroom of their choice at public schools awaits the governor's signature, a number of school districts across the state hope such a law will guide them as they write into policy practices they have been following for years.

Many of those districts are also waiting to see if updates to federal law expected in May will clash with this bill, leaving administrators to decide whether to comply with state or federal law. Such a clash would put funding from both levels at risk.

[RELATED: Governor signs law on bathrooms]

House Bill 1156 by Rep. Mary Bentley, R-Perryville, would require public schools and open-enrollment public charter schools to prohibit people from using a multiple-occupancy restroom that does not correspond with the sex listed on their birth certificate.

The legislation also would apply to places at schools where people "may be in various stages of undress" around others, which would include locker rooms, changing rooms and shower rooms.

Students on overnight trips would have to either share sleeping quarters with one or multiple members of the same sex or be "provided single-occupancy sleeping quarters."

The bill would permit a public school student attending an overnight trip to share sleeping quarters with a member of the opposite sex if the member of the opposite sex is a member of the public school student's immediate family.

Under the bill, schools would have to provide "a reasonable accommodation" for those unwilling to use a multi-occupancy restroom or changing areas designated for the individual's sex.

Bentley told the Senate Education Committee earlier this month that the idea for the bill came from several members of the Conway School Board, which approved a similar policy in October. The representative said she wanted to create a state law that would protect school districts from lawsuits if they enacted a similar policy.

The bill passed on a vote of 77-15 in the House on Wednesday to concur with a Senate amendment. The measure has gone to the governor's desk.

Mike Hernandez, executive director of the Arkansas Association of Educational Administrators, said many district officials had been watching the progress of HB1156 with interest in hopes that it would clearly identify what policies they would need to set in place to address questions about students using bathrooms that don't correspond with their sex.

Existing policies vary widely from district to district, he said. Some administrators and school board members had been looking to similar policies in other districts when developing their own, according to Hernandez. The text of HB1156 itself was inspired by a policy approved by the Conway School Board in October.

In an emailed statement on Wednesday, Conway School District Superintendent Jeff Collum said the district hasn't had any issues with the implementation of its new policies.

"The current policies in place align with our practice that has been implemented in the district for several years now," he said. "We have had no incidences of concern brought forward to my knowledge since the implementation of these policies."

Outside of Conway, several other school districts in Arkansas already direct students who don't want to use restrooms that correspond with their sex to instead visit single-occupancy facilities, according to Hernandez.

Jonesboro School Board President Chris Harrell said in an email on Thursday that his district has followed that protocol "with great success."

Other districts, however, have taken a different approach.

Donn Mixon, an attorney who serves on retainer as legal counsel to roughly 45 districts in Arkansas, said that some of the districts he represents have allowed students to use the restrooms in which they feel the most comfortable. Mixon declined to name the districts that have followed these practices.

If Gov. Sarah Huckabee Sanders signs HB1156 into law, though, Mixon said those districts would have to change their policies.

Many school districts are ultimately waiting until the governor signs or rejects HB1156 before implementing any further changes to their policies.

According to Hernandez, the signed rule would go into effect 90 days after the end of the legislative session. Any new policies would need to be ready for the next school year, he said.

If signed, many districts will look to the Arkansas School Boards Association for guidance on making necessary changes to their policies, Hernandez said.

The School Boards Association expects to release a model policy, a sample policy that districts can adopt and edit to suit local needs, in May, said Lucas Harder, policy services director for the group.

Harder, who won't begin drafting the policy until he finishes similar work on the LEARNS Act, said that every traditional school district in the state, as well as several charter schools and educational service cooperatives, subscribes to the association's model policy service.

Work on the model policy will start with the "exact language" of the bill, and Harder said he will "to the extent possible" remain "inside the four corners" of the legislation. He will also use information provided by the staff attorney, as well as members of the staff who were once district administrators.

Harder likely won't draw input for the model policy from teachers, students or parents, he said.

"The purpose of the model policy is specifically to provide districts a starting policy that is safe, legal ground for their own policy," he said. "While we certainly try to take into account teachers, students, communities, there are always things at the local community level that we can't account for."

Much of the model will consist of an amendment to existing student code of conduct policies, as well as a new policy governing all of HB1156's Section 2, which pertains to places at schools where people "may be in various stages of undress," according to Harder.


Beyond changes to codes of conduct, some districts may undergo renovations in order to better comply with HB1156. However, Hernandez, the executive director of AAEA, said he believes most districts already have the most basic required facilities -- single-occupancy restrooms -- in place.

Mixon, the attorney, said he believes the biggest obstacle to renovating or creating new facilities will not be money, but time. Supply-chain issues and procedural hurdles are likely to hinder efforts to renovate or construct additional facilities.

Harder said some school districts may not know what renovations they will have to undergo until they start working to make accommodations in compliance with the legislation.

As a result, facility changes are unlikely to happen before the start of the 2023-2024 school year.

"I don't see any district having the time to do it," he said.

While the Clarendon School District can open the single-occupancy bathroom in their teachers' lounge to students, Superintendent Lee Vent said they will likely have to modify their school structure to provide additional restrooms outside of the lounge.

Vent said that supply-chain issues have already been a problem for the district.

"We've been working on HVAC improvements and that's taking quite a while," he said. "The construction industry has really slowed those down."

Mixon said districts have asked few questions about necessary policy changes surrounding overnight trips.

Under HB1156, students on overnight trips would have to either share sleeping quarters with one or multiple members of the same sex or be "provided single-occupancy sleeping quarters."

According to Mixon, the law may only result in "a few more rooms" being reserved for trips.

Most overnight school trips involve athletics teams, Mixon said. Districts have asked the attorney on several occasions about how to handle overnight trips involving a male coach and a female sports team.

However, questions about overnight stays involving transgender students have rarely, if ever, come up for him.

"This has not been an issue, or at least we have not been told about any issues," he said.

While HB1156 states that students are prohibited from using bathrooms that don't correspond with the sex listed on their birth certificate, Hernandez said he hasn't heard about districts planning to require students to produce their birth certificates as proof of sex.

Vent, the Clarendon superintendent, said on Thursday that his schools wouldn't want to get into a policing situation, but that the law may require them to do so.

"If it's ever a question [of proving sex], we would," he said.

Concord School District Superintendent Travis Fletcher said his district already requires enrolling students to provide copies of their birth certificates, however.


Revised regulations for Title IX expected to be released in May could substantially affect the implementation of HB1156, if it is signed into law.

Title IX is a federal civil rights law that "prohibits discrimination on the basis of sex in education programs and activities," according to the U.S. Department of Education.

Harder said the revisions will likely incorporate elements of Title VII. According to the Equal Employment Opportunity Commission, Title VII "prohibits discrimination against transgender individuals based on gender stereotyping."

Such a prohibition could put districts following the new state law in conflict with federal regulations, according to Harder.

This could in turn place districts in jeopardy of losing federal funding.

While a majority of districts' funds come from state or local sources, Harder estimated that as much as 20% of a given district's funding could be at risk. Such a loss could affect schools' child nutrition and special education programs, for instance.

Fletcher, Concord School District superintendent, said he is concerned about the risk of losing such money. His district receives Title I funding from the federal government, for instance.

"To me, losing federal funds is probably not an option," he said.

Vent echoed Fletcher's concerns. The Clarendon district will have to address the discrepancy should it present itself, he said.

"I've always been taught that federal law always supersedes state law," he said.

According to Vent, his district doesn't "have any of that kind of money to waste."

Hernandez acknowledged district administrators' concerns over the potential conflict. He said that when state and federal laws clash, administrators are often uncomfortable deciding how their districts should respond.

"We learned about that with covid-19," he said.

The Association of Educational Administrators tries to work with districts in those circumstances to prevent them from being in violation of the law at either level. Hernandez said the association will also work with state officials to figure out how best to avoid conflict.

Fletcher said he expects somebody will challenge HB1156 with a lawsuit if the bill becomes law and the expected Title IX revisions are released.

"I think you're going to run into that with a lot of laws that are new," he said. "I think you're going to see challenges on a lot of that stuff."

Tennessee, Oklahoma and Alabama already have laws similar to HB1156 in place. In Tennessee, advocacy group Human Rights Campaign filed a lawsuit against the state in August 2022. A news release from the Human Rights Campaign accuses Tennessee of violating Title IX.

A request for comment from the organization about whether it plans any lawsuit against Arkansas wasn't immediately provided.

At least 12 other states have bills similar to HB1156 moving through their legislatures: Arizona, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Minnesota, Nebraska, North Dakota, Oklahoma and Texas.

Information for this article was provided by Will Langhorne and Michael R. Wickline of the Arkansas Democrat-Gazette.

  photo  This map of the United States shows states with legislation that limits students' access to bathrooms of their choice. States in blue have laws in place, while states in orange, including Arkansas, have a bill or bills moving through their legislatures. (Arkansas Democrat-Gazette graphic)

Print Headline: Restroom bill poised to mold school policy


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