A Fascinating Case on the Subject of Kids & Privacy
One of the issues that can be endlessly fascinating is America’s struggle to figure out what is private and what is not. The 1st Circuit Court of Appeals decision in Foote v. Ludlow (Mass.) School Committee decided on February 18 digs deep into this. The facts themselves illustrate just how complex school life has become.
Our plaintiffs are the parents of two 12 year old children attending 6th grade in a Massachusetts public school. In 2012, the Commonwealth of Massachusetts passed legislation holding that students could not be discriminated against on the basis of gender identity. Mass. Gen Leg. Chapter 6, section 75.
In December 2020 one of the Foote children asked to meet with a teacher. During the conversation the child (born as a female) indicated she (the opinion resorts to using the term “they”) was depressed and anxious. After conferring with colleagues, the teacher contacted the student’s parents to report this conversation. The parents responded positively to this outreach and indicated that they would be seeking professional guidance for the child. All good so far, but with a twist. The parents asked that while they addressed the matter, the school step back from engaging with the student concerning those anxieties.
In late February, the student sent an email to her teacher and her guidance counselor reporting that she was “genderqueer.” In addition, the child adopted a new first name and indicated the pronoun “it” should be used when referenced in school materials. The school accepted this decision and did not report it to the parents. And it seems the child did not inform these status changes to “its” parents telling, the school it would deal with the parents. So we have both the parents and the child asking for privacy to be respected.
The school did as requested. The child has a new identity in school but the records to the outside world reflect the former identity. Curiously, the child’s sibling is reported in the appellate case to be struggling with similar gender identity issues, but that child is not part of the federal court cases.
At some time after the Massachusetts law was changed, the state education department issued guidelines related to management of gender identity. The school district’s actions were in accordance with these non-mandatory guidelines. Essentially, the guidelines say the student decides gender and the school adapts.
As one might suspect, the word got out to the parents about the change in gender and identity not long after the child made the change. The parents saw this as a breach of their instructions to stand back while they addressed the issue through counseling. Meanwhile the school counselor communicated with the child about whether the child was seeing a therapist and how the change in identity was progressing. The general philosophy here seems to be that the school saw its responsibility was to support the child even if the child’s conduct differed with the perceived wishes of the parents.
So, we can guess what happened next. The parents sued in federal court asserting a violation of the federal civil rights law, specifically 42 U.S.C. 1983. Specifically, they asserted that the school’s conduct in recording the child’s name and gender change was an interference with their right to raise their child and to make health related decisions affecting the child.
The trial court ruled that the conduct of the school did not invade the parents’ child management domain. There were no medical decisions involved and the approach of the school was not tortious. The parents appealed.
The 1st Circuit acknowledges that the 14th Amendment affords parents the right to make decisions related to the care, custody and control of their children. They also concluded that the parents were acting in support of protecting such rights under Troxell v. Granville, 530 U.S. at 67. But next the Circuit Court asks: “Did the school’s conduct effectively deprive the parents of control in a constitutionally meaningful way?
Starting with medical authority, the appellate court finds that accepting the child’s identity choices and asking about the child’s self-reported anxiety were not medical treatment in any meaningful sense. Next the parents allege that in asking students to identify their self-chosen pronouns in the schoolwork they submit, the school was appropriating control over their children. This also was rejected by the 1st Circuit. The school did not enforce the child’s selection of gender. It responded to the child’s selection. These are school policies intended to respond to school issues that arise in educating children and not efforts to promote a particular course of conduct. The Court refers to Parker v. Hurley, 514 F.3d 87 (1st Cir 2008) where it was decided that parents have no right to regulate what books are available in school libraries under a child privacy theory.
The final theory is that the parents were deprived of control because they never consented to conversations between the child and various school staff related to gender identity. The Court responds that if the school could be shown to have promoted gender or name change, there might be a colorable claim for relief. But here, the school used procedures it adopted under the aegis of the state law to adapt to children who want to change their identity.
In another twist, the school referred to the child by the child’s name preference in school but continued to use the child’s [parent] given name when communicating with the parents. The parents alleged this to be deceptive. The Court concluded that it is one thing for state agencies to deceive parents about the conduct of their children but it is not the state’s responsibility to sponsor or initiate communication between parents and children. Anspach ex rel. Anspach v. City of Philadelphia, 503 F.3d 256 (3rd Cir. 2007; childing seeking emergency birth control ). Doe ex rel. Doe v. Boyertown School District, 897 F.3d 518 (3rd Cir 2018).
The dismissal of the case was affirmed in one of the most lucidly written decisions this writer has ever read. Meanwhile, the drama of the case cannot be ignored. In a matter involving two troubled 12 year olds, two parents in pain and a school district we see no fewer than 13 law firms that filed briefs in on behalf of a constellation of “interested parties.” It is troubling to this writer that we live in a day when six graders are struggling with an issue as complex and incendiary as gender identity. But as I read the opinion, I was struck by the challenge faced by teachers and counselors. A child who is undeniably in emotional pain reaches out. Then, she consents to you contacting her parents about that pain. The parents respond: “Thanks, we got it covered so stay away from this.” Then the same child circles back and says “I want to be identified as a different person.” What do we want our schools to do, especially in a world where teen suicide has become a part of our everyday world? And while appellate lawyers throw thunderbolts of rhetoric concerning the rights of parents to raise their children versus the rights of public agencies to managing their affairs, at the bottom of the well are two kids in pain.