USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 28 of 80
See id. But the School Board’s statement that it would seek to revisit the arbitrariness of a policy if squarely confronted with it simply proves the point. A policy that fails to accomplish what it purports to do is the definition of arbitrary. See Craig, 429 U.S. at 208–09, 97 S. Ct. at 463 (“[T]he principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities concerning the [relevant] tendencies of aggregate groups.”). And an arbitrary policy that is left to the whims of the enforcer to correct is no less arbitrary. Though the School Board says it would reexamine its policy once its arbitrariness becomes overwhelmingly obvious, we also know the Board is not actively collecting the information that would allow it to make that determination. As the School District’s witness testified: “The district does not play bathroom cop.” In this case, the School District was alerted to Mr. Adams’s otherwise uneventful use of the boy’s bathroom, not because any boy or any boy’s parents complained. It only took action as a result of two unidentified female students reporting that they had seen Mr. Adams entering the boys’ restroom. But those female students were not asserting a privacy interest. Nor could they. Mr. Adams was using the boys’ bathroom and not the bathroom used by the girls. The School District even confirmed that neither of the female students expressed privacy or safety concerns. R. Doc. 162 at 16–17. Forcing students to suffer under an arbitrary policy until the School District decides, if at
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