USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 60 of 80
70 (holding that a policy that “seeks to foster the opportunity” for a government objective “has a close and substantial bearing on” that objective).
Even if any doubt remained about whether the bathroom policy survives scrutiny, we must resolve that doubt in favor of the Board because the policy governs student conduct in public schools. The Supreme Court has long held that the constitutional rights of students, including “Fourteenth Amendment rights, are different in public schools than elsewhere.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995). Schools have a “custodial and tutelary” power over minor students, “permitting a degree of supervision and control that could not be exercised over free adults.” Id. at 655. For that reason, the Supreme Court has long deferred to the decisions of school districts in a variety of constitutional contexts, including when determining whether a suspicionless drug search was reasonable under the Fourth Amendment, id. at 665, whether the censorship of certain speech was acceptable under the First Amendment, Morse v. Frederick, 551 U.S. 393, 403–06, 409–410 (2007) (collecting decisions), and whether corporal punishment was cruel and unusual under the Eighth Amendment, Ingraham v. Wright, 430 U.S. 651, 681–82 (1977).
The bathroom policy falls squarely within the Board’s authority to “prescribe and control conduct” in its schools. Id. at 682 (internal quotation marks omitted). “[I]n a public school environment … the State is responsible for
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