USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 33 of 150
violate the Constitution. Instead, a disparate impact on a group offends the Constitution when an otherwise neutral policy is motivated by “purposeful discrimination.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979); accord Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977).
The district court proclaimed that the bathroom policy was “no longer a neutral rule” because it “applies differently to transgender students” and because the School Board became “aware of the need to treat transgender students the same as other students.” But the Supreme Court has long held that “‘[d]iscriminatory purpose’ … implies more than intent as volition or intent as awareness of consequences.” Feeney, 442 U.S. at 279 (quoting United Jewish Orgs. v. Carey, 430 U.S. 144, 180 (1977) (Stewart, J., concurring in the judgment)); see also Bray, 506 U.S. at 271–72. Instead, a discriminatory purpose “implies that the decisionmaker,” in this case the School Board, “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279.
There is no evidence suggesting that the School Board enacted the bathroom policy “because of … its adverse effects upon” transgender students. See id. The district court itself noted that the School Board did not even “have transgender students in mind when it originally established separate multi-stall restrooms for boys and girls.” The policy impacts approximately 0.04 percent of the students within the School District—i.e., sixteen transgender
