Below is my column in USA Today on the latest decision against parental rights by the United States Court of Appeals for the First Circuit in Foote v. Feliciano. The fight over parental rights could become the defining issue for many in the coming years. It is also a type of cultural war over what many of us view as a natural right over the raising of our children.
Here is the column:
In her celebrated book “Red Scarf Girl,” author Ji-li Jiang recounts growing up during the Cultural Revolution in China. She and millions of others had to choose between obeying the country’s communist government or obeying her parents.
“’Now, you have to choose between two roads,’ ” Jiang wrote. “Thin-Face looked straight into my eyes. ‘You can break with your family and follow Chairman Mao, or you can follow your father and become an enemy of the people.’”
Thankfully, we are constitutionally and culturally protected against such authoritarianism. Yet, we are experiencing our own type of cultural revolution as parents and schools collide over the education of our children.
Court refuses to recognize parents’ rights
A recent legal decision captured this growing divide. The U.S. Court of Appeals for the 1st Circuit ruled last month that parents had no protected right to be informed when their children change their gender identity in public school.
In Foote v. Feliciano, Marissa Silvestri and Stephen Foote sued Baird Middle School in Ludlow, Massachusetts, after they learned that school administrators did not inform them that their 11-year-old child had self declared as “genderqueer” and that teachers and staff were using a new name and new pronouns for the student.
The parents were initially told only that their child was experiencing mental health difficulties, including depression. Silvestri said they would seek mental health support for their child and asked that administrators “not have any private conversations with (the Student) in regards to this matter.”
The parents later learned that the school’s staff had continued to meet with their child without their knowledge, implemented the change in gender identity and took active measures not to reveal the change to them (including using the student’s birth name in communications with the parents). The school, without the parents’ knowledge, arranged for changes in everything from the use of male bathrooms to the exclusive use of the child’s new name in class.
The district court in Massachusetts denied the parents a trial and granted a summary dismissal in favor of the schools.
A panel of three federal judges agreed and rejected any due process claim of parents to be informed, let alone to control, such decisions for an 11-year-old child.
Court says educators, not parents, are ‘experts’ on children
In a truly Orwellian line, the judges declared, “As per our understanding of Supreme Court precedent, our pluralistic society assigns those curricular and administrative decisions to the expertise of school officials, charged with the responsibility of educating children.”
Most of us must have missed that memo. Few would believe that sending our children to a public school means we have transferred the most fundamental parental rights to “experts” on rearing our children.
We understand that schools need to maintain certain standards and conduct. However, changing the gender of a child is a bit more weighty than requiring a school uniform or stipulating nutritional choices in school lunches.
The Due Process Clause of the 14th Amendment guarantees citizens that no state shall “deprive any person of life, liberty, or property, without due process of law.” There is no part of our lives more valuable to most of us than our children.
I remember when we had our first child and were escorted out of the hospital by a nurse. After helping my wife into the car, I turned around and was handed a swaddled bundle with a baby inside.
The nurse then walked away as I stood there in a moment of utter panic. We were given a small human being at the curbside with the level of preparation of a Starbucks latte. I stood there looking at my son Ben with the same level of confidence that I would have had if handed a small nuclear device and then tasked with defusing it. You soon realize that you are all in.
The only thing you have at that moment is the only thing you truly need. They have you. Every part of you. Our children had us at hello. The moment that bundle was put in my arms, I changed. I was a dad and all of the prior priorities in my life suddenly became irrelevant.
No one told me at the hospital carport that he was ours until he is old enough to be turned over to the expertise of public school officials.
The fact is, by the time our kids go to school, we are the experts of that child. While teachers clearly have important training and expertise, they do not know that child. Not really.
They were not there to perform monster inspections at 3 a.m. or to wrestle with a goat who decided to eat his favorite blankie at a petting zoo. They do not know that look when he is panicked or that curious smile when he is near tears. These experts took Child Development 101. We have a Ph.D. in our kids, a developmental dissertation on late-night fevers, sibling fights and orthodontic bills.
This is not to say that teachers have no responsibility for children. In too many cases, children can be abused or they may be unable to express themselves to their parents on issues like gender identity. Schools have a right to confirm that a child’s mental health issues are being addressed. However, absent evidence of abuse, the parents must be informed and make decisions on such treatment.
Parents have the natural right to control the upbringing of our kids
The Foote case comes at a time when parents are becoming more alarmed and more active in education. The response from some school boards, teachers and politicians has been strikingly hostile and territorial.
In 2023, Rachel Wall, a now former school board member in Marion, Iowa, posted on Facebook: “The purpose of a public ed is to not teach kids what the parents want. It is to teach them what society needs them to know. The client is not the parent, but the community.”
In 2022, state Rep. Lee Snodgrass, D-Wis., tweeted: “If parents want to ‘have a say’ in their child’s education, they should home school or pay for private school tuition out of their family budget.”
Faced with declining educational achievement and rising social agendas, many families are leaving public schools and others are demanding school choice in the form of vouchers.
At the same time, there is growing support for a Parents Bill of Rights. The Trump administration can work with Congress to condition federal funding on schools’ respect for parental rights, even if the courts do not protect such rights.
In the meantime, Foote should be appealed to the Supreme Court, which can reinforce the constitutional protection afforded to parents.
A century ago, the nation’s highest court ruled in Pierce v. Society of Sisters that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
In its 2000 Troxel v. Granville decision, the court recognized “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
There is no greater natural right than the right to control the upbringing of our children. This right was not granted to us by the grace of the state. It rests with us as human beings. It is part of a panoply of natural rights embraced by the framers − a commitment made nearly 250 years ago in our Declaration of Independence.
Progressives’ shock over the results of the last election could prove a prelude to what is coming if they continue down this road. There is no more powerful identity than that of a parent. When you mess with our children, all other issues instantly become trivial. It is not just partisan. It is primal.
Many politicians are terrified of defying the far-left teachers unions. They and these “experts” have no inkling of what is coming.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
One day, this sort of crap is going to wind up with some teachers and principals getting shot. I hope that I can be on the jury of whoever does this. No way I am convicting them.
Floyd – you are absolutely correct. Do not F#$K with other people kids. It is VERY dangerous.
It is dangerous for neighbors, for schools, for courts.
This si a very stupid decision – it is not only fighting constitutional rights – it is fighting the laws of nature.
Had something like this had happened to one of my kids, I know me well enough to know that I would have given some people a good thrashing.
I can certainly appreciate your sentiment, but I hope it does not come to that.
I’m inclined to agree with the adage that people get the government they deserve. Maybe if We The People ever get as interested in the who, what, how and why of government, as we are in the NFL, our next tee time, keeping up with the Kardashians, and the next episode of the bold and the beautiful, some positive change may occur.
I’m not holding my breath.
-John Underwood
Tyler, TX
“The fact is, by the time our kids go to school, we are the experts of that child. While teachers clearly have important training and expertise, they do not know that child. Not really.
They were not there to perform monster inspections at 3 a.m. or to wrestle with a goat who decided to eat his favorite blankie at a petting zoo. They do not know that look when he is panicked or that curious smile when he is near tears. These experts took Child Development 101. We have a Ph.D. in our kids, a developmental dissertation on late-night fevers, sibling fights and orthodontic bills.”
*************************
Judging by the outcomes we’re seeing, they’re not even experts at education. If these libs truly want a real revolution on their hands complete with the inevitable bloodletting, they’ll keep messing with people’s kids. No earthly judge or sounder of judges will ever change that.
It does not matter what your level of expertise is – if you do not have “skin in the game:” you will make poorer decisions than those with less expertise who do.
The types of parents who put up a fit when the schools don’t tell them this are the same ones who would abuse their children if they found out they were LGBT. Safety of children should always win over “parental rights”. Also I reject the notion of strong parental rights. Children are not property and are owed their own rights.
The court was right in this case.
Did Randi Weingarten pay you to write that nonsense?
– John Underwood
Tyler, TX
You can beleive whatever you want – you can reject notions as you wish.
Mama Bear will protect her child from predators – You are idiotically CHOOSING to be one of the predators.
I would suggest that you Prey that parents choose to move to other states or charter school their kids to prevail over YOUR idiocy.
Because the alternative is THEY COME FOR YOU.
There are bad parents – and it is the responsibility of govenrment to address that. But experiements in state child rearing – from the Nazi’s to the USSR and CCP, as well as examples like Charles Manson in the US have FAILED universally.
Except in highly unusual circumstances that require proving parental abuse to a level requiring removing the child – and putting them into a public system that is worse than 95% of parents. Parents are in fact in control.
“The types of parents who put up a fit when the schools don’t tell them this are the same ones who would abuse their children if they found out they were LGBT.”
Logical fallacy – over generalization.
Regardless parents can throw a fit over LGBTQ claims of their parents – and if you are idiot enough to beleive that shoult result in the sate intevening – you are a moron.
The State is worse than 99.995 of the wast of parents. That is not oinion – it is reality.
I would recomend readin “weeping in the playtime of 0thers” that is a 40 year old indictment of our child welfare system from the inside by someone on the LEFT – when the left was actually rational.
Charles Manson is the product of state care of children.
A child who is removed from the care of a sexually abusive parent is MORE likely to be sexually abused in the care of the state than if left with the abusive parent.
All but the very worst parents are better tan the state.
Those religious conserative wack jobs that would send their child o reindoctrination camps if they said they were gay – have a better track record at raising kids than the state.
“Safety of children should always win over “parental rights”.”
Even if true – kids are NOT safe in the care of the state.
“Also I reject the notion of strong parental rights. Children are not property and are owed their own rights.”
ROFL.
Clearly you have never raised a child.
Regardless courts do not remove children from the care of abusive parents and set them free.
Because no toddlers do not have right and we do not put teens on the streets to do as they please.
Children have incredibly few rights – and those are univerally trumped by some other.
The only question is whether that will be the parents or the state.
We do not allow people who beleive they can fly the right to test that hypothesis – not if they are 4, not if they are 40.
a 40 year old who beleives they can fly is mentally ill, a 4 year old who beleives they can fly is an ordinary child.
A person who beleives that children have the rights of adults and that they OWN those rights is a MORON.
“The court was right in this case.”
The court was stupid, trying to fight the laws of nature and will be lucky if the results of this are not violence.
Even mother ducks will take on foxes to defend their children.
This is not a fight you can win. All that is in question is how you lose it.
Excellent article.
When the courts, schools, law even constitution are at odds with our innate values, our instincts, conflict will escalate to violence if necescary.
Missing from modern discussions on law and constitution is the critical understanding that we can write anything into our laws and constitution.
We can not construct them anyway we please and expect them to work.
The law and constitution must reflect our values – not try to change them for some sects higher purpose.
Law and constitution that expects humans to act contrary to innate values and instincts – will fail.
You can not amend the constitution to stop mama bear from defending her cubs.
Dear Mr. Turley, Once I dropped my children off at our small town public school, I had felt confident that my children would be welcomed and accepted. I still had the romantic idea that small schools cherished ALL children. I couldn’t have been more wrong. And I was sorry. Liberal practices are rampant throughout all public schools large and small. Only a small select few are encouraged to do well. One high school English teacher told my friend’s child: “You will end up bagging groceries for the rest of your life!” How terrible!! This same child has a master’s degree. These rude incursions have now morphed into the public schools working to change a child’s sexual identity. I hope the parents will win this case. There is a great testimony given before Mike Johnson’s committee by a young woman who has transitioned back to being a young woman. She gives several warnings on how damaging this philosophy is. However, the damage is done as her body is mutilated. I have to give a shout-out to GEB, Old Man from Kansas and Old Fish!! You guys are awesome. Have you given some thought to having your own podcast?
There’s a lot of money to be made in children’s books
Little Red Riding Hood meets a wolf dressed in sheep’s clothing and Hansel & Gretel just to name a few.
“Little Red Riding Hood meets a wolf dressed in sheep’s clothing”
More appropriate to the current woke public school environment would be “Little Red Riding Hood meets a wolf dressed in women’s clothing”.
Number 6,
Good one!
Or, Little Red Ridding Hood meets man who thinks he is a wolf dressed in women’s clothing and goes by the pronouns she wolf.
Most politicians will contend that “children are our most precious resource,” as if they were the same thing as mineral deposits, natural gas reserves or forests. They are not. Children are the amazing and wonderful offspring of their parents, entrusted by natural law with the duties and rights of nurturing, protecting and teaching them at the early stages of life in preparation for the rigors of existence as they grow into adolescents, then adults.
Those early-existence activities are not the duties or rights of others, particularly those who consider them to be mere “resources” to be indoctrinated and exploited rather than educated. As JT insightfully points out, a child has the mother or father “at “hello” the first morning when, awakening in a crib, looks up, recognizes someone…, and breaks into a joyous smile.
JT’s assessment of the tyrannical decision of a judiciary composed of persons not previously aborted is spot-on. The Foote judicial dictate — gibberish masquerading as logic — must be appealed to the Supreme Court and by that body reversed. Otherwise, those in support of this travesty most certainly will have “no inkling of what is coming.”
By analogy, if you want to get an “inkling” of a primal reaction to a threat to a parent’s offspring, just watch what a lioness does when a salivating hyena approaches her cub…. hyena: in pace requiescat.
Question for those far more learned than me on this blog: Wasn’t there a federal law passed, in about 1974, which forbade public schools from shutting parents out of their child’s education? If so, than this issue should be moot.
Also, I’m seriously starting to wonder why we still have a Congress and President? After all, seems our government now consists of men & women in black robes and an unelected bureaucracy. What could possibly go wrong with that?
Vouchers and school choice are excellent ideas. If pubic screwels had to actually compete for education dollars, perhaps we’d get a better breed of educators, and, by extension, better students. In general, competition makes things better.
My parents are both gone now and, while I didn’t always have the greatest time growing up, I’m thankful that they were involved in my education, and I believe I’m a better person for that.
My parents, rest them, were more than involved with my education. My mother wanted to home school, but was told that was illegal, and accepted it. We were all pretty mad when we found that the way around it was to threaten suit, which pretty invariably resulted in permission.
My mother was a once and future teacher, and she gave us books and records which both taught – French, though we were also blessed with a French neighbor who also gave us lessons, state capitals, birds, Bible stories, etc.
My father taught us pronunciation, with matchbooks held lengthwise between our lips. Decision making, with picture cards we had to choose between.
School was profoundly disappointing by comparison to their tutelage.
Both were also accomplished writers, and that’s how I make my living (I’ve also published two novels).
Let no-one, ever, interfere, absent clear evidence of abuse, between child and parents.
Of course, today’s leftists are all about destroying the very idea of family, as of patriotism and religious observance. The things that give us identity.
A wise administrative assistant once told me “from the moment you know you’re expecting, someone you’ve never met is never out of your mind, not ever.” Her words made sense, sounded true. She was a young working mother with a young son. She was smart and experienced. I never forgot those words. Daunting and abstract nonetheless, they landed as a jolt of joyful surprise and anticipation. Our first child was coming. I couldn’t wait. Her words were true then and they’re true now. But the last trace of abstraction fully disappeared when our son was born 20 years ago.
Natural rights. We have them regardless of one’s religion. We are born with them regardless of how we understand or define our creator. Our country and our constitution acknowledges and protects these rights. They are protected from others acting as individuals and from all others acting in common “on our behalf” for a “common good.”
Our common good can step in when some are unwilling or unable to protect their children, or worse. But no amount of education, good intentions, resources, and bureaucratic regulation can qualify and equip us to act in common to substitute ourselves to be the parent of another’s child. No person, no board, no committee, no school can tell me to stop being my kids parent. I can’t be told to stop loving my child. Not one bit.
Those who think otherwise should seriously reflect on being a parent before becoming one.
What is wrong with Massachusetts, the home of the Salem witch trials hysteria and the Fells Acres Day Care child sexual abuse injustice? Prof. Turley makes a great case, of which there are many others, for defunding government schools and returning tax dollars to families so they can decide how the educational needs of their children are best served. BTW, did the Federal Appeals panel judges, in their decision, decide which “. . . (expert) school official (who are) charged with responsibilities of educating children” will be responsible for these children during the three month summer break when these school officials (I.e., teachers and administrators) are not working but still getting paid?
Scotus case Virginia State Board of Education v. Barnette would easily supersede this case had this court bothered looking!
The parents in that case won when the school tried to compel the child into saying the pledge of allegiance, which was against the family’s religion as they viewed it as an act of idolatry!
Thanks JT for all your hard work!
The parents of over 14,000 Cuban children didn’t want us to wear a red scarf, symbol of unwavering youthful alliance to the government. They knew we would face a choice– our parents or the government. That is why they took the harrowing decision of sending us alone out of Cuba.
Incredibly, now American parents are losing the ability to guide their children in life.
Yvonne M. Conde
Author
“Operation Pedro Pan-The Untild Exodus of 14,048 Cuban Chidren.”
Yvonne,
Thank you for making that excellent observation and for your book.
Awesome, Yvonne. So crucial. I am so glad we are all talking about it, thank you.
Excellent, excellent piece. Should be common sense, but sanity has fled the modern left. The Turley children were lucky to have such amazing parents.
The conception, care and upbringing of a child is a fundamental human right of the parents. We have determined that it is in the public interest to provide a public education available to all children. That service does in no way transfer the responsibility and authority of the child’s health and well being from the parents to the state. That a federal court found for the state and against the parents in this issue going so far as to permit hiding the actions of the state from the parents is very troubling. It is the action of an authoritarian government, not a self-governing republic. It degrades the credibility of not only the state but also the judiciary whose charge is to protect the public from an overbearing state.
(It is the action of an authoritarian government, not a self-governing republic.) Yet the prog/left refers to Trump as a dictator. What is the bible verse that tells one to not point out the splinter in someone’s eye without first noticing the log in your own, or people in glass houses etc., etc., etc.; we could go on and on since hypocrisy has been around since humanoids could think. Our job is to identify it and cancel it. I do hope our AG and our SCOTUS will tend to these transgressions of our constitution with due haste.
Couple of thoughts… “Foote should be appealed to the Supreme Court, which can reinforce the constitutional protection afforded to parents.” But does the Court now have the Will to do that? And, “Many politicians are terrified of defying the far-left teachers unions.” I disagree – politicians only fear losing the union’s campaign donations.
Turley did not touch on the law until the end. For most of his article his remarks reflected the visceral, instincts of parents.
You ask if the court has the will ? Courts may be intimidated by teachers – but they should be terrified of mama bear.
Turley didn’t touch on the law a whole lot because the court specifically cited ample precedent including Supreme court cases pointing out why the parent’s arguments were not sufficient to claim the school did something wrong. He cited one case,
“In its 2000 Troxel v. Granville decision, the court recognized “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
The court mentioned this case and went deeper into it than Turley and it explains why Turley reverts to the “natural rights” argument instead of the acutal law.
This is what the court said regarding that case,
They broke it down into three issues and all of them showed why the parents were not going to be successful if the case went to trial.
“Here, the Parents argue that Ludlow’s conduct restricted their substantive due process rights in three ways: (1) Ludlow performed “medical treatment” on the Student through accepting the Student’s social transition without parental consent; (2) Ludlow facilitated the Student’s social transition to alternate genders via curricular and administrative decisions without parental consent; and (3) Ludlow implemented the Protocol, which deprived the Parents of information about the Student’s expression of gender. We address each in turn, evaluating whether the Parents’ claims are plausibly alleged in line with the broad principles set forth by the Supreme Court’s substantive due process canon.”
They were very thorough and used clear precedent to explain their ruling.
Medical Treatment
“We begin with the Parents’ allegation that Ludlow’s conduct restricted their fundamental right to direct medical treatment for their child. To repeat, parents do have a “fundamental right to make decisions concerning the care, custody, and control of” their children. Troxel, 530 U.S. at 72. That right includes the parental right “to seek and follow medical advice” concerning one’s children. Parham v. J.R., 442 U.S. 584, 602 (1979). Ludlow, the Parents allege, “socially transitioned” their child to a new gender identity by accommodating their child’s request to use a new name and pronouns at school. And, the Parents contend, because “‘social transitioning’ . . . is recognized as a medical/mental health treatment for children with gender dysphoria,” Ludlow was “implementing a psychosocial treatment” on their child. The Parents conclude that, because Ludlow educators performed a “psychosocial treatment” without parental knowledge or consent, Ludlow usurped the Parents’ fundamental right to direct medical treatment for their child.
The district court dismissed this claim (Count II) because the Parents provided only “conclusory statements describing the use of preferred names and pronouns as mental health treatment.” Foote, 2022 WL 18356421, at *5. The Parents, for example, failed to allege that Ludlow’s use of the Student’s requested pronouns involved a “treatment plan” of any sort. Id. The district court, setting aside the conclusory allegations in the Parents’ complaint, held that the Parents had not adequately pled that Ludlow “usurped their right to make medical and mental health treatment decisions for their children.” Id.”
https://casetext.com/case/foote-v-ludlow-sch-comm
George – you entirely missed the point
Turley did not touch on law until the end – because as I noted – law and constitution itself MUST rest in reality.
Those of you on the left constantly think you get to try to remake humanity by force of law.
You do not. Humans change – and then laws and constitution change to reflect that.
Change in humans is driven by evolutionary processes – what works and what does not.
Humans do not actually get to decide what works and what does not – nature does.
Reality does.
Human law and constitutions will FAIL if at odds with nature.
Again something those of you on the left fail to grasp.
Our law, our social contract, protect individual rights and free will, because 300,000 years of experience shows us that alternatives do not work.
What are often called conservative principles – limited govenrment, the primacy of individual rights are not just fanciful ideas that our founders wrote into our constitution, they are a system that thousands of years of trial and error found works netter than anything tried prior.
Turley did not cite the law and constitution – though contra your idiocy and as numberous people on this blog have noted – those oppose the 1st circuit decision,. because the 1st circuit violated something more fundimental than the constitution.
Again, your fallback into “natural right” arguments is a deflection on the reality that the law ultimately prevails here. Not “feelings” and assumptions of what ‘ought’ to be.
You assert that the 1st circuit violated something that it cannot violate. It asserted the law. Not what you or Turley feel should be the law. That’s why Turley didn’t try to make an argument using the law, the one that matters in court.
As the court noted, the constitution does not obligate a school to assist parents in the upbringing of their children. The school is not preventing parents from that endeavor one bit. Parent’s in this case are demanding the school assist them supporting their choice despite what the child prefers. That’s not their job.
“Humans do not actually get to decide what works and what does not – nature does.
Reality does.”
Nope, Humans actually get to decide what works and what doesn’t. Humans make it work when they want to.
But again, this is about what the law says including Supreme court precedent. Not what you or anyone else feels it ought to be because it’s ‘natural’
George – the court erred – you are just making excuses. As the court is.
You cite the opinion, But you fail to grasp that the court reasoned in error.
We can debate the words of the opinion – but ultimately they matter little.
The court can not even through correct reasoning – much less fallacious reasoning overcome reality.
There are excellent legal reasons this court erred – and Turley and others have pinted them out.
But the most important reason is not the law or constitution, but the underlying reality that the law and constitution MUST reflect or they fail.
There is no right or legitimate power excercised here by the state – by the school – there is by the parents.
For over 300,000 years human parents have cared for their children. Before that for billions of years various animals have cared for their kids. Public schools are a modern invention – they exist as an aide to parents – they have no right to exist independent of the needs and wants of parents.
If your childs school is acting against the parents wishes – the parent can remove the child from the school. they can move to another state or country. They can homeschool their child in most of the country, charter or cyber charter in most of the rest. They can vote out the school board. Ultimately they can change the courts and constitution if need be.
The schools powers to engage in the idiocy in this case rest solely on the parents choosing not to act to thwart the school.
Most of the time most parents are not likely to move to another state over minor issues regarding how the school teaches their kids.
There are sometimes steep costs associated with bucking the state.
But that does not alter one iota that Parents can do so.
“George – the court erred – you are just making excuses. As the court is.
You cite the opinion, But you fail to grasp that the court reasoned in error.”
Again, as Turley did, you do not explain how exaclty the court erred. They cited precedent,even from the supreme court.
You keep falling back on the “natural rights” argument. An argument that is merely a deflection from the merits of what the law says and doesn’t say against the parent’s claims.
“But the most important reason is not the law or constitution, but the underlying reality that the law and constitution MUST reflect or they fail.“
It is the law and the constitution that are important. Here you are trying to dismiss the fact that the constitution and the law does not support the parent’s challenges and claims. You’re dismissing the law because you don’t really have a legal argument except to invoke “natural law” which is highly subjective and not specific to the claims made by the parents.
You know that the law requires certain claims and challenges to meet specific tests and requirements to be able to argue that the school was wrong, their policies were wrong, and their claim that the school medically treated their child. None of the challenges and claims met those specific requirements and the court detailed exactly why.
For example, the parents argued that upon their child wanting to identify as different sex a librarian offered a book touching on LGBTQ. The parent’s claimed the librarian coerced their child into her decision by offering the material. But the court correctly pointed out that simply offering the book is coercion. Just as it would a child showing interest in bricks and the librarian offering a book on bricklaying that the child will suddenly be coerced into becoming a mason. It’s nonsense.
The court also noted the school didn’t prevent the parent’s from teaching their child or choosing the upgringing of the child. The due process clause applies when the government (school) restricts a parents ability to choose their child’s upbrining. Not telling them their child wanted to be addressed differently is not a prohibition on that right. The school is not obligated to assist parents on the upgringing of their child.
The parent’s always have the choice to home school or go to private school. The parents weren’t forced to choose public school. That’s the premise of the court’s opinion.
“Natural rights” arguments are irrelevant to the case. Especially when they are based on the parent’s claims and the constitution and the law.
Natural rights arguments are ALWAYS relevant – systems of law and govenrment that are at odds with natural rights do not endure.
While I – and Turley can tear giant holes in this decision based on ACTAUL constitutional law, what is most interesting about Turley’s article is that he went DEEPER – he went to philosophy of law or the foundations of law.
Thecnically that is not as strong an argument in court – but it is a far stronger law in reality – and outside of this idiotic decision -courts USUALLY grasp that.
Your and the 1st circuts arguments – their minutae their reading of prcendent. no matter how sound it might be – and frankly it is not.
Will STILL fail if it is at odds with Natual Law.
We can debate what natural law is. But the debate is not that relevant – Natural law comes from nature – the nature of human beings in most cases. We can be wrong about what it is. but that does not change its existance and its primacy.
There is no successful society in existance that has placed the state above parents with respect to child rearing.
There have been modern attempts to establish community or state primacy over parents.
They have all FAILED.
In the real world rights regarding children are vested with their parents.
The state is subordinate. We allow the state to interfere in the rights of parents ONLY in rare instances where grevious harm will occur. Bad parenting is NOT enough. Your LGBTQ values do NOT trump the rights of parents – even if parents were actually wrong.
They have to be greviously wrong in ways that we are not even close to in this case.
You and the 1st circuit want to try differently – have fun. Liek all similar attempts before – you will fail and people will suffer.
A is A, Reality exists – no matter how good you think your argumnets to the contrary.
in the long run natural law prevails – because you can not legislate against nature.
“You don’t know which way the wind blows
So how can you plan tomorrow”
George – you can usually tell that courts are going off the rails when they fixate on meaningless minutia
While the core issue here is parental rights and goes millions of miles beyond LGBTQ idiocy.
The FACT is that it is NOT the right of a 4yr old or an eleven year old or a 16yr old to decide their sex or gender or really much of anything else. They acquire the right to do so as an adult. Not before.
Parents are the primary decsionmakers over children – and we do not interfere in that EXCEPT in very narrow instances where the parents have failed BADLY.
All parents make mistakes. But we do NOT have a better way to raise kids.
Rights are sacred to libertarians like myself – they should be very near inviolable.
But even the most libertarian understand that all humans do not have the same rights.
The rights of children are far more limited than those of adults. ARe you honestly trying to argue that Children should be entirely free to make whatever decisions they want regarding their lives ? If a 4 yr old beleives they can fly – are they free to jump off the garage ?
Or can their parents stop them ? Beyond children we have people with mental health issues, and adults whose compency has declined.
These are very very difficult areas to deal with – and we pretty universally get them wrong.
REgardless, it is a FACT that children, the mentally ill and the mentally incompetent have less rights than competent adults – even if finding the right boundaries is a very messy and error prone process.
Human sexual preferences are on a spectrum and distribute on a bell curve – though that is probably a 3 dimensional curve.
Regardless approximately 95% of humans MUST fall within a small portion of that spectrum or humans would cease to exist.
The percent of biologically intersex people is miniscule. 99.997 % of people are purely biologically male or female – even among interesex humans – most are STILL are male or female. Courts or the left can not change the reality that we are born male or female.
it is NOT a prefernece – it is biology and it is a law of nature. Tiny deviations because nature is not quite perfect do not change that.
The survival of the species REQUIRES this is the case.
Some larger portion of people have sexual preferences that deviate from the norms. Some of these are harmless, some are not.
Some people are sexually attracted to children. We have correctly decided that is wrong and made it illegal.
Some people are sexually attracted to the same sex – for much of human existance that has been illegal or frowned upon.
Among other reasons because it is a threat to the survival of the species.
Most of us have some attraction to both sexes. but far more to one than another.
In the US in the present we have decided that ADULTS are free to act on same sex attraction – with the same constrants as adults have acting on opposite sex attraction.
I would note that is a modern legal decision – and could easily change in the future. Declining birth rates pose a serious threat.
China has gone from the one child policy to heavily encouraging parents to have multiple children.
The next step is FORCE, I do not know how China is on Gay and Trans – but I have little doubt that all too soon it will be draconian.
As nations accross the world have growing problems with population decline – nations do not survive steady declines in population.
Countries even races collapse. There are 1.6B hanh chinese right now – several demographers are predicting the extincition of hanh chinese by 2100 absent a radical change.
Forget religious or moral issues – you can expect that abortion and alternate sexualities will be made illegal by much of the world over the next couple of decades – for their survival.
And I would note – that these changes could EASILY come from the LEFT.
One of the problems with an ideology that makes up moral principles as it goes, is there is no foundation, and what was dogma in one decade could be immoral in the next.
The 60’s Berkeley free speech movement was far left.
The anti-war movement through to the early 20th centry was primarily left and libertarian.
Now the same people protesting vietnam or Iraq or blood for oil are now demanding that we fight a proxy war with Putin – when China and Iran are far more destabalizing forces.
Regardless my point is that those of you on the left have absolutely no moral foundations.
And what you beleive today could easily be what you hate tomorrow
In a couple of decades it could be the Right and certainly will be libertarians defending gays against a left that beleives they must be eliminate for the greater good.
And this is also what is wrong with your 1st circuit citations in this case – it is called directed reasoning.
It iw hat happens when you have no foundational principles.
It becomes easy to reason to ANY conclusion you want. .
There is not an argument or debate that I can not take either side of and run rings arround most of you left wing nuts – your logical skills and reasoning suck. You are poor at making your own arguments. Regardless every position in the world has pros and cons to it.
We had slavery for most of human existance – yet most people in this country would tell you it is obviously wrong.
How was it possible for 300,000 years for people to argue for a position that is so obviously morally wrong to those of us today ?
One of the reasons is that the concept of free will, of individual liberty are all relatively modern. Free will first shows up in Genesis about 5,000 years ago. The evolution of individual liberty is only a few hundred years ago.
An existential threat to a race, a country humanity will cause radical changes to our perception of “the common good”.
Any sytem of values government that does not rest on a stronger foundation will be blown away.
This is a part of what Adam’s meant when he said that we had a constitution for a christian nation that it was suitable for no other.
Humans are not governable without strong moreal foundations based on something less shakey than ideology or “the common good”.
Protocol
“We come now to the Parents’ challenge to Ludlow’s nondisclosure Protocol. As alleged by the Parents’ complaint, the Protocol provides that “parents are not to be informed of their child’s transgender status and gender-affirming social transition to a discordant gender identity unless the child, of any age, consents.” The Protocol, the Parents argue, restricted their right to direct their child’s upbringing in that it deceived them and, in doing so, deprived them of information about the Student. But, as we’ll unpack, the Parents’ challenge here fails.
For starters, Ludlow’s Protocol of deference to a student’s decision about whether to disclose their gender identity to their parents lacks the “coercive” or “restraining” conduct that other courts have found to restrict parental rights in this context. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 934 (3d Cir. 2011) (quoting Anspach ex rel. Anspach v. City of Phila., Dep’t of Pub. Health, 503 F.3d 256, 266 (3d Cir. 2007)). In Arnold v. Board of Education of Escambia County, for example, the Eleventh Circuit held that school officials violated parental rights by coercing a minor into having an abortion and concealing the decision from her parents. 880 F.2d 305, 312-13 (11th Cir. 1989), overruled on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intel. and Coordination Unit, 507 U.S. 163 (1993). There, a school counselor demanded that the student have an abortion, and school officials provided the money and transportation necessary for the procedure. Id. at 309, 313. And, unlike Ludlow’s deference to the Student, school officials in Arnold “coerced the minors to refrain from consulting with their parents.” Id. at 312.
Here, by contrast, there are no allegations of coercive conduct towards the Student. The Parents object to Ludlow employees sharing resources about gender expression and to the messages from Counselor Foley to the Student asking if the Parents and the Parents’ counselor were providing adequate care for the Student. But providing educational resources about LGBTQ-related issues to a child who has shown interest imposes no more compulsion to identify as genderqueer than providing a book about brick laying could coerce a student into becoming a mason. See Anspach, 503 F.3d at 266 (rejecting assertion that “the atmosphere at the Center was sufficiently coercive”). Nor are the chat messages coercive, even when viewed in a light most favorable to the Parents. Those messages cannot reasonably be viewed as strongarm statements; rather, they are essentially questions from a school counselor trying to assess the well-being of a student.
The Parents, however, also claim that Ludlow “deliberately deceive[d] parents . . . by continuing to refer to their child by [their] birth name and pronouns in the presence of the parents, [while using] the child’s preferred alternative name and pronouns at all other times.” Viewed in the light most favorable to the Parents, this allegation arguably challenges a restraining act by Ludlow — that is, deceptive communication to the Parents about a child’s expression of gender in school. Cf. Snyder, 650 F.3d at 934 (noting that “manipulative” conduct by the government could interfere with parental rights under the Due Process Clause (quoting Anspach, 503 F.3d at 265)).
This theory of affirmative misrepresentation is unavailing here. The complaint contains only general allegations that, under the Protocol, Ludlow educators were directed to “intentionally misinform[] and lie[]” to the Parents about the Student’s requested name and pronouns. But, and as the Parents contradictorily state in their complaint, when a teacher mailed a card to the Student at home, it was addressed to “R.F.”, the Student’s newly identified name, not “B.F.,” the Student’s assigned-at-birth name. And no allegation suggests that, when the Parents tried to speak with school officials about the Student, the officials misrepresented the name the Student had chosen for in-school use. Rather, the officials (beyond Manchester’s communications with the Parents) just declined to discuss the Student’s gender identity issues with the Parents.
Beyond this theory of affirmative deception, the Parents also mount a challenge to the withholding of information about a student’s expression of gender while at school. But this nondisclosure angle similarly does not state a constitutional deprivation. That is because it is clear to us from precedent that in attempting to establish a constitutional deprivation of this sort, it is not enough for the Parents to allege that the nondisclosure Protocol makes their parenting more challenging. The guarantee of substantive due process limits “the State’s power to act” by forbidding governments from “depriv[ing] individuals of life, liberty, or property without ‘due process of law.'” See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989) (rejecting substantive due process claim based on social workers’ failure to protect a child from abuse). Yet the Supreme Court has made clear that the Due Process Clause “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” Id.
As other circuits have concluded, this limiting principle applies to parental rights. See, e.g., Anspach, 503 F.3d at 262; Doe v. Irwin, 615 F.2d 1162, 1168 (6th Cir. 1980). In Anspach, the parents of a sixteen-year-old girl sued a city-run health center that provided their daughter with emergency contraception medication, alleging that the facility violated their substantive due process right to family relations. 503 F.3d at 259-61. The center, according to the parents, not only “failed to encourage [the minor] to consult with her parents before deciding whether to take emergency contraception,” but even “intended to influence [the minor] to refrain from discussing with her parents her possible pregnancy.” Id. at 262. And, more broadly, the parents alleged “that the [c]enter’s policies were aimed at preventing parents from learning of their minor daughter’s possible pregnancies.” Id. at 261.
The Third Circuit rejected the parents’ claim because there is no “constitutional obligation on state actors to contact parents of a minor or to encourage minors to contact their parents.” Id. at 262. In elaborating, the court observed that the “real problem” alleged by the parents was “not that the state actors interfered with the [plaintiffs] as parents; rather, it [wa]s that the state actors did not assist [the plaintiffs] as parents or affirmatively foster the parent/child relationship.” Id. at 266.
A cognizable parental rights claim under the Due Process Clause, the Third Circuit explained, generally requires restraining conduct by the government, not mere nondisclosure of information.
https://casetext.com/case/foote-v-ludlow-sch-comm
“2) Curricular and Administrative Decisions
The Parents also claim that the actions of Ludlow’s teachers and staff restricted their parental rights by “facilitat[ing]” the Student’s gender-affirming social transition. They cite librarian Funke’s request that students state their pronouns as part of an academic, biographic video assignment, the teachers’ use of the Student’s requested name and pronouns at school, counselor Foley’s permitting the Student to use the bathroom of their choice, and Foley’s discussion of gender identity-related concerns with the Student. The Parents allege that these actions, taken without their knowledge or consent, restricted their fundamental right to direct the upbringing of their child.
The measures the Parents cite, however, all involve decisions by Ludlow’s staff about how to reasonably meet diverse student needs within the school setting. The Supreme Court has never suggested that parents have the right to control a school’s curricular or administrative decisions. Rather, the Court’s parental rights cases more essentially provide “that the state cannot prevent parents from choosing a specific educational program.” Parker v. Hurley, 514 F.3d 87, 101 (1st Cir. 2008) (quoting Brown v. Hot, Sexy &Safer Prods., Inc., 68 F.3d 525, 533 (1st Cir. 1995), abrogated on other grounds by DePoutot, 424 F.3d at 118 n.4). Meyer, for example, struck down a Nebraska statute prohibiting the teaching of foreign languages in part because the law interfered with the parental right to procure such instruction for their children. See 262 U.S. at 401. And Pierce invalidated an Oregon law requiring parents to send their children to public school between the ages of eight and sixteen. See 268 U.S. at 534-35. In both cases, the state had barred parents from enrolling their children in a particular educational track. Yet neither Meyer nor Pierce undermines “the state’s power to prescribe a curriculum for institutions which it supports.” Meyer, 262 U.S. at 402; see also Pierce, 268 U.S. at 534 (“No question is raised concerning the power of the state reasonably to regulate all schools . . . [and] to require . . . that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”).
We have consistently applied these principles in rejecting parental control over curricular and administrative decisions. In Parker, for example, the plaintiff parents claimed a right to “be given prior notice by the school and the opportunity to exempt their young children from exposure to books they f[ound] religiously repugnant.” 514 F.3d at 90. Two books at issue “portray[ed] diverse families, including families in which both parents [were] of the same gender,” while another book “depict[ed] and celebrate[d] a gay marriage.” Id. In rejecting the parents’ substantive due process claim, we noted that no federal court had ever held that the Due Process Clause “permitted parents to demand an exemption for their children from exposure to certain books used in public schools.” Id. at 102. We concluded that, once parents choose to send their children to public school, “they do not have a constitutional right to ‘direct how a public school teaches their child.'” Id. (quoting Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005)).”
https://casetext.com/case/foote-v-ludlow-sch-comm
When you mess with our children, all other issues instantly become trivial. It is not just passionate. It is primal.
This is perhaps my favorite post by our host. He exudes his intense defense of the parent’s natural rights. There is no equivocation. As collegial as he routinely is on any number of topics, on this, I see him going all Rambo on any threat. I would love to see more of this primal side of JT when he opines on threats to all natural rights. After all, the entire purpose for any government and the law is to the security of those rights.
Completely agree, Olly. It’s refreshing to see at least one topic where Professor isn’t squishy.
Squishy. JAFO, that’s appropriate. I would not be surprised though, if we soon see more of the primal side of JT on other issues. Squishy would be a reasonable approach if he was intent on not offending his Democratic party. The reality is he cannot offend those of that party, because the majority of them are of a political cult that has hijacked that party.
I agree. We identify the protect of a mother for a child as a maternal instinct – it is more than a right – it is primal, innate.
almost all animals protect their young.
This is not a societal duty, it is the individual duty of parents. It is not the department of Bear Education that protects cubs, it is mama bear.
and you do not mess with mama bear.
Get between an animal and their young and the mama will unleash all the violence they can muster with no concern for themselves to protect their young.
The stupidity of the left in messing with what is not merely a fundimental right but a natural instinct is beyond comprehension.
Turley cited a few supreme court cases that were at odds with this decision. But lets presume there were none. The constitution is not a collection of random constructions that magic has made the supreme law of the land. It is the supreme law of the land because it is a reflection of our core values and principles.
If as this court beleives – the constitution does not protect the rights of parents over the priviledges of purple haired 20 somethings with nose rings whose limited expertise in children comes from out failed public education system. Then the court places the government at odds with the primal instincts of parents. And like the person who has gotten between mama bear and her cubs – a world of hurt is coming their way.
John Say,
Great comment.
I saw a mother duck when confronted by a fox, put herself in between the fox and her ducklings, wings spread wide and quacking up a storm. It stopped for a second which gave enough time to take the shot and put the fox down.
I read your story and think “how brave”. But every mother duck would have done the same.
Your story ends with Deus et machina – the fox is shot.
But what if there was no intervention ?
The Fox might have had duck and duckling for dinner. But it might not. The fox easily – and likely would have backed down.
in nature FREQUENTLY Preditors wisely back down when a parent defends their children.
Why ? Because even when winning is certain – the potential for injury from a parent defending its children is high enough and the potentially deadly consequences of injury make moving on the safer bet.
Do not get between a mother and her babies is an ABSOLUTE natural law.
John Say,
Good point. Same fox got three of my chickens. I was keeping watch, rifle at arms length away.
My only concern or criticism is that when Professor Turley views an issue as a natural right, human right, or indispensable right, we unfortunately get very little constitutional explanation or analysis. For example, in this case he doesn’t even mention that the constitutional provision at issue is the 14th amendment due process clause.
we unfortunately get very little constitutional explanation or analysis.
Concerned Citizen, what’s unfortunate is needing an explanation or analysis. The keyword is natural. The explanation is primal. The best written explanation of it is found in our DoI, long before our constitution and its amendments. That once primal instinct to defend natural rights has been lost to it’s antithesis…attack.
a world of hurt is coming their way.
I read your comment John, and while agree with it completely, I couldn’t help but feel disappointed it even needed to be written. It’s tragic that this primal instinct to defend all of our natural rights has become paralyzed. I say paralyzed because it’s in all of us.
Imagine an expert like my son’s grade-school teacher — a 50 year-old man who dressed like a 9 year-old boy. I took my son to an emergency clinic after school over what I feared was an appendicitis, which upon close questioning turned out to be a bathroom policy meant to punish children. Oh, I raised hell. Yet, I had more trouble with him over the year. The school systems have some wonderful people, but are also filled with fools. The Colleges of Teacher prep have low, very low standards. Until colleges of education can weed out the idiots who manage to get straight ‘A’s there yet don’t know their butt from a pineapple, and then school management can discipline and, yes, even fire troubled people in the system, then I say keep these folks on a short leash.
This article fails to comport with modern thinking. Parental rights must be abolished under our prestigious, esteemed, holy, sacred, and devine Corrupt Deep State System. This is why we desperately need to combine the executive, legislative and judicial branches into one entity to be led by such praiseworthy leaders as Amy Berman Jackson, Amy Coney Barrett, Ray Epps, Jesse Furman, Leticia James, Tanya Chutkin, Arthur Engoron, and Gavin Newsom, who will preserve and protect our prestigious, esteemed, holy, sacred, and devine Corrupt Deep State System.
Beautifully written, JT.
I was wondering when you would direct a column on this subject. I read of it and then directed myself do more research. The decision of the district court and the 1st court of appeals is blatant judicial tyranny.
Over my many years I have seen many teachers and counselors and many were quite good, however I would never trust a single one of them with the all around care of either of my children or my grandchild. You are absolutely right. No person, if you are reasonable, knows your child better than you. Even as I was growing up I would talk to teachers about class material but never once talked with them about anything else out of class. That was always the province of my parents and I and my wife were the same with our children. We determined who were good teachers for our children and demanded changes when we ran into the occasional incompetent teacher or even a hostile one.
This approach in Massachusetts is almost pure Marxism or Fascism. Their concept is the state is the mother and father of the child and the parents are simply the vessel by which they are produced.
I note the judges who rendered this decision were not identified and probably with good reason. There might be an outside chance of a republican appointing these judges but I would doubt it. I would suspect possibly all have been appointed since 1992.
This decision fails legally, and as more data accumulates medically, it fails socially and psychiatrically and medically. The Cass report by the NHS in the UK, a large multi person and multi year study in the Netherlands and now the Oxford study (released in the past 1-2 months) all give the lie of the Trans stupidity. The Oxford study involved over 100,000 persons and was multi years and showed marked rises in depression and suicidal ideation in those transitioned in either sex compared to non transitioned .
That is why, in Europe, the national health plans are putting the stop to drug and surgical transition. Yet here in the States the pseudo progressive-trans lifestyle is still pushed as if totally unaware of the newer medical data.
Gender dysphoria disorder resolves in 95 % of men and 80 % of women with them simply going through puberty. Others will need psychiatric and psychological help.
In some states the fact that the school and counselors proceeded with making medical decisions (psychological and psychiatric counseling are medical ) despite being told by the parents to butt out, could land teachers and administration with assault charges and/or practicing medicine without a license or even medical malpractice. (lack of informed consent)
Massachusetts has a history of being aggressive in taking away children in the past when the state did not agree with medical decisions by the parents.
Bravo and well played. Excellent, well researched, and soundly reasoned comment. Thx.
JLM
GEB,
Excellent comment. Back when I was in school, there was a distinct line between professional and personal life. Unless a student was displaying real problems, only then is when the school got involved but that included the parents involvement.
These appellate judges have done worse than elevating child-rearing decisions to school apparatchiks. They have condoned the school’s actual duplicity against the parents! So, not only do these unelected apparatchiks have the right to undermine parents, they are encouraged to actively deceive parents about their child’s conduct and treatment while under the school’s supervision! What kind of “fiduciary” relationship could that be? Can my banker tell me I’m broke or flush when the opposite is true? Can my lawyer tell me there was no settlement offer, when she didn’t find it lucrative enough? This is stupanity (insanity and stupidity combined)!
And don’t forget to add top the list thieving, lying real estates agents: The offer is the best I’ve seen, you have to take it, prices are dropping fast. Its your only chance to sell. Ever hear that line folks?
ANONYMOUS 11:12AM-yes I have heard that before also. Just part of the learning curve. Actually maybe parents should be tougher on us as children so we won’t fall for the wolves out there on the streets. Looking back I was so naive.
DebinRye- I like your new term. I will have to remember it. Will I have a license to use it? Stupanity sounds like political party that as been in the news a lot recently, what with all their crying and screaming and waving ping pong paddles.