USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 84 of 150
important governmental objectives” and is “substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976); see also Plyler v. Doe, 457 U.S. 202, 228–29 (1982) (assuming that the state’s interest was important but holding that the challenged statute failed heightened scrutiny because the record contained no credible evidence supporting the stated governmental objective). That the School Board did not offer any such evidence, see J. Pryor Dissent at 43–51, does not mean that other governmental entities will fail to do so when defending against challenges to their policies. Indeed, the School Board’s failed evidentiary efforts here have no bearing on what another governmental entity might offer in the way of evidence to support its important interest in another case. Nor do they rule out the possibility that a governmental entity in the future might be able to show the right “fit,” Craig, 429 U.S. at 202, between its stated interest or interests and the evidence it offers to show that the challenged policy directly and substantially furthers that interest.
In short, the record in each particular case drives the equal-protection analysis. And that the School Board here utterly failed to present any non-speculative evidence to support the two particular interests it invokes does not in any way prejudice other governmental entities under equal-protection analysis in future challenges. For that reason, the concern that the Majority Opinion suggests that ruling for Adams would mean all equal-protection-based challenges to other policies involving sex-separated facilities would
