USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 26 of 80
The dissent’s newfound view that the policy does not “exist” also ignores the extensive work the District Court undertook to clarify the policy at issue. The court documented, for instance, that it had been “repeatedly told that it was an unwritten policy that prohibited [Mr. Adams] from using the boys’ bathroom,” and, in order to hold the School Board liable, the court needed to know if the Board stood behind that unwritten policy as its official policy. R. Doc. 198 at 8. For that reason, the District Court requested that the chair of the School Board appear in court, and asked him: “Is the rule that prohibits Drew Adams from using the boys’ bathrooms at Nease High School the official policy of The School Board of St. Johns County, Florida?” Id. at 11–12. The School Board chair responded, “Yes, it is, Your Honor.” Id. at 12; see also id. at 82 (the District Court noting “the school board has today, in open court, adopted” the unwritten policy).[1] Rather
- ↑ The School Board confirmed that the policy separates students solely on the basis of information provided at the time of their enrollment. One discussion between the District Court and Terry Harmon, counsel for the School Board, is particularly instructive:
District Court: “I thought that when [previous witnesses] were asked what the reason for the policy was, I thought they cited things like safety, privacy.”
Counsel: “The unwritten policy … has to do with a boy and what bathroom a boy can use and a girl and what bathroom a girl can use.”
District Court: “[I]f you’re saying the whole policy is boys have to use the boys’ restroom and girls have to use the girls’ restroom, the
enrolling students. Is that not true? And that that would also be evaluated as part of the policy?” School District: “Your Honor, I’m not certain on that point. I’m not certain if that was part of the record or not.” Chief Judge Pryor: “At trial Frank Upchurch testified, I thought, in addition to the birth certificates, that the School Board also uses the state-mandated physical examination. You don’t recall that?” School District: “No, Your Honor, I don’t recall that.”).
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