In Foote v. Ludlow, the US Court of Appeals for the 1st Circuit determined that the state's interest in providing a "safe and inclusive" learning environment for students did not infringe upon parental rights and satisfied the lowest tier of judicial review.

In the case, parents of a middle school girl challenged Baird Middle School in Ludlow, Massachusetts, over its policy of hiding minor students' "gender identity" information from their parents simply on a student's say-so.

To date, more than 12 million American school students are now enrolled in schools that have express gender confidentiality policies, making the battle to protect parents' primary authority in the upbringing of their children even more daunting.

In this case, the parents wrote to the school explaining that their daughter was gender confused but under professional care for that condition. They instructed the school that no one should communicate with her about the subject. One would think that would have settled the matter and the school would have honored the parents' request. However, their daughter told school officials that she considered herself "genderqueer," wanted to use another name, and didn't want her parents to know.

Rather than contacting the parents or honoring their very clear requests, the school deferred to the girl's wishes. Only when one of the teachers inadvertently slipped up by telling her parents that their daughter was being called by a different name at school did the parents once again have the chance to strenuously direct the school principal and superintendent not to discuss such matters with her.

Their wishes were ignored again.

To add insult to injury, school officials asked the young girl if her parents "were providing [her] with appropriate care," if she was comfortable discussing issues with the non-school counselor chosen by her parents, and what bathroom she would like to use. This occurred by text, in online chat rooms, and in closed-door conversations without the parents' consent or presence.

Like so many others, the parents in Foote v. Ludlow asserted that by concealing their child's gender identity information, the school had interfered with their right to direct their child's upbringing under the due process clause of the US Constitution's 14th Amendment.

While judicial recognition of the parental right is more than 100 years old, dating to the Supreme Court's 1923 ruling in Meyer v. Nebraska, there are categories of educational decisions in which parents do not have a constitutional interest, such as the development of curriculum or a school's administrative policies like a dress code or use of school facilities. But gender identity—how a child chooses to identify or express herself—is a matter that goes to the heart of parenting, as one federal court has held.

Not so with the 1st Circuit in Foote v. Ludlow.

The court got much of the legal analysis right until the very end of its opinion, when things went very, very wrong.

The court accurately determined that school confidentiality policies function like exercises of "legislative" (rather than "executive") governmental authority. In other words, Baird Middle School's policy was more akin to something like legislation—a law or policy applicable to all students—as opposed to an exercise of "executive" authority—the singular conduct of one teacher, for example. That matters because it determines which standard of judicial review should apply and what legal threshold the parents need to meet for their claim to succeed.

By (correctly) determining that the policy was "legislative" in nature, court noted that the parents had to show that the government school had interfered with a "fundamental right:" here, the right to direct the care, upbringing, health, and education of their minor child. This, too, was the correct analysis.

Considering the fact that the Supreme Court in Troxel v. Granville noted in 2000 that the parental right is "perhaps the oldest of the fundamental liberty interests recognized by this Court," this calculous should have been an easy one.

For the 1st Circuit, it apparently wasn't.

The Foote v. Ludlow court determined that the school had not infringed upon that fundamental parental right because the gender confidentiality policy was more administrative in nature, designed to create a welcoming learning environment for all students. In that way, parents had no say within the context of school administration, bathroom assignments, or pronoun use.

In other words, the parents' right to direct the upbringing of their child and direct government officials to respect their right to take care of their child's mental and emotional health was akin, to school officials, a dress code or some other purely administrative rule.

The court wrote:

[T]he Parents are challenging how Baird Middle School chooses to maintain what it considers a desirable and fruitful pedagogical environment. ... Because public schools need not offer students an educational experience tailored to the preferences of their parents ... the Due Process Clause gives the Parents no right to veto the curricular and administrative decisions identified in the complaint.

The court went on to further limit the parents' right to be involved with their own minor daughter's education by reasoning:

Parents remain free to strive to mold their child according to the Parents' own beliefs, whether through direct conversations, private educational institutions, religious programming, homeschooling, or other influential tools. ... Outside school, parents can obtain information about their children's relationship to gender in many ways, including communicating with their children and making meaningful observations of the universe of circumstances that influence their children's preferences, such as in clothing, extracurricular activities, movies, television, music, internet activity, and more.

In this jaw-droppingly cavalier discourse, the court seems to be saying: Public schools are parent-free zones. And by the way, maybe you should just pay closer attention to what your child is doing.

In the end, the court concluded that the school had no "duty" to assist parents in the exercise of their fundamental right by informing them of their daughter's gender identity information. In applying the lowest tier of judicial scrutiny to determine the constitutionality of the school's actions, it found that under "rational basis" judicial review, the school's policy was rationally related to the legitimate objective of "promoting a safe and inclusive environment for students."

This case—like two others before it—will likely be appealed to the US Supreme Court. After declining to consider two previous cases this term challenging public school gender secrecy policies (originating in the 4th and 7th Circuit Courts of Appeal), the justices may not be able to put off consideration of how far the parental right extends for much longer. Subscribe for free to Breaking Christian News here

Sarah Parshall Perry is a senior legal fellow in The Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies.

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