Wrong Foote Forward: First Circuit Tramples Parental Rights

Over the last decade, many parents have been complaining about the fact that public schools see it as their job to help children—even as young as four or five—to exhibit as transgender, with neither the parents’ knowledge nor consent. Urban schools in particular have put policies in place, either formally or informally, to hide from parents gender transformations at school if the child requests that the parents be kept in the dark. Schools justify these policies based on the notions that schools should be a “safe space” for children and that home might not be safe if parents do not support their child transitioning. Parents Defending Education maintains a running list of such policies, and it currently finds them in over 1,000 school districts in 37 states and DC enrolling over 12 million children altogether. Under some policies, school officials up the ante on the charade by reverting to the child’s given names and pronouns when communicating with the parents.

Surprisingly, these policies have not gotten much attention at the federal appellate court level. When district courts have ruled in favor of parents, for example in a District of Kansas case and in a Southern District of California case, the school districts have not appealed. When parents have lost, for example in Parents v. Montgomery County Board of Education, they have proceeded to circuit court, but those courts to date have dodged addressing the merits. The Fourth Circuit (over a dissent) and the Seventh Circuit have both held, counterintuitively, that parents do not have standing to complain that schools would keep things secret from them when they don’t know for sure if the schools have kept things secret from them. Justice Alito, joined by Justice Thomas, dissented from denial of certiorari in the Seventh Circuit case. They noted that there was nothing “speculative” about the parents’ complaint since it concerned an existing school district policy. They speculated that the circuit courts were using gatekeeping principles to avoid addressing the merits of this important issue.

Last week, the First Circuit in Foote v. Ludlow School Committee became the first federal court of appeals to step into the substantive terrain that its sister courts have so far avoided. Unfortunately, in their per curiam decision (the tone of which was jarringly colloquial for an issue of this magnitude), the judges stubbed their collective toe.

Foote involved parents who clearly had standing: they wrote to the school explaining that their middle-school daughter was under professional care for her gender confusion and instructing that no one at the school should communicate with her about the subject. Nonetheless, a few months later, their daughter told school officials that she considered herself “genderqueer” and that she wanted to use another name and not only feminine pronouns. She also said she didn’t want her parents to know. The school stepped right up and honored the daughter’s requests, instead of those of her parents. One teacher stumbled by letting slip to the parents that their daughter was being called by a different name at school. The parents again repeated their direction to the school principal and superintendent, but the school continued down the gender transitioning path with the child. The school officials refused to talk about the matter with the parents.

The First Circuit admitted that the Supreme Court has repeatedly recognized parents’ rights and responsibilities to direct the care, upbringing, and education of their children as a liberty interest protected by the Due Process Clause of the Fourteenth Amendment, and that this includes the right to make decisions about mental health treatment. But the First Circuit found that right was of no avail to the Foote parents. The court reasoned that schools take over for parents when their children are on school grounds and that school authorities can substitute their own judgment for that of parents, even when what they do on campus has repercussions at home (the First Circuit gave no weight to these repercussions).

The First Circuit admitted that parents may direct the medical care, including mental health care, of their children. It could hardly have done otherwise considering the Supreme Court’s ruling to that effect in Parham v. J.R. But even though the Footes’ daughter was undergoing medical care for her gender dysphoria under her parents’ direction, the First Circuit said the counseling and encouragement the school provided her was not mental health care. After all, it reasoned, the school is not a clinic, and the school counselors and teachers are not nurses or doctors. One might think that compounded the problem, but for the First Circuit it just meant that the school was not interfering with the daughter’s parent-directed treatment.

The First Circuit admitted that parents may direct the upbringing of their children. It could hardly have done otherwise considering the Supreme Court’s recognition in Troxel v. Granville that the right to do so is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” But individual parents do not have the right to insist on the administrative rules by which a school is run, such as when school starts and the dress code. So the First Circuit simply called the gender policy “administrative” and gave the school district a pass. But this re-christening approach sweeps too broadly. After all, public schools operated successfully for over a century without any gender transition policies, and the naming of children is not a school responsibility but a parental one.

The First Circuit admitted that schools shouldn’t lie to parents. It could hardly have done otherwise considering the Supreme Court’s century-old holding from Pierce v. Society of Sisters that parents have a fundamental right to decide where to send their children to school. Parents need accurate information to make an informed decision. But the First Circuit found that the school district in Foote circumnavigated around this problem. When a teacher slipped by using the assumed name of the child in a note to the parents and the parents asked school administrators if they were following the parents’ earlier directive, the administrators didn’t lie in the court’s view—they just refused to talk about it. It makes one wonder if the judges would let their own minor children get away with that sort of evasion.

The First Circuit smoothed over all of this by finding that nobody at school forced the young lady to announce she was genderqueer; they just gave her information about LGBT issues after she expressed struggles with depression, insecurity, low self-esteem, poor self-image, and a perceived lack of popularity. To the First Circuit, this no more directed her to exhibit as another gender than providing a child a book about bricklaying would direct her to become a mason. After all, the school didn’t stop her parents from espousing their own views to her at home or from seeing her own mental health professional. The Fourth Circuit reasoned similarly in Mahmoud v. McKnight when it rejected a Free Exercise Clause challenge to a school district’s refusal to tell parents when they would be teaching their children LGBTQ+ lessons and what materials they would use; the Supreme Court has accepted that case (now Mahmoud v. Taylor) for review. Hopefully, the Court’s decision, expected by the end of June, will shed some light on the path rather than cloud it further.

The First Circuit stumbled badly. Parents are primarily responsible for their children’s physical and mental health, and they have the right to make decisions for their children—unimpeded by the public schools—concerning matters of lifelong importance such as gender identity. Nor is a student’s gender identity a subject primarily administrative or requiring a uniform rule in order for the school to accomplish its mission. Parents have a right to know what is going on at school. School officials dissembling and withholding information from parents is inconsistent with parental rights and responsibilities, and it hampers parents’ informed exercise of their rights.

Sometimes easy cases make bad law, too.