Supreme Court refuses to hear Wisconsin case on parental rights

In December, the United States Supreme Court dismissed a petition to hear a parental rights case involving a Wisconsin school district, in which a parents group had challenged the Eau Claire school district’s gender identity policies.

The policy deems that students’ parents and guardians “are not entitled to know their kids’ identities” and must instead “earn” knowledge about their children’s gender identity plans formulated in public schools.

Justices Samuel Alito and Clarence Thomas dissented, saying the high court needs to address such issues. Justice Brett Kavanaugh also wanted the case heard. A fourth would have been sufficient for the case to be heard.

Specifically, the court denied a Writ of Certiorari filed in Parents Protecting Our Children v. Eau Claire Area School District. The Wisconsin Institute for Law & Liberty (WILL), along with America First Legal (AFL), asked for a high court review on behalf of the group of Wisconsin parents who opposed what WILL calls the school district’s secret gender transition policy. 

WILL and AFL lost on standing in lower courts and so the case was never determined on its merits.

“Dissents do not remain dissents forever, and despite this denial, the fight for parents’ rights continues in Wisconsin and across the country,” WILL deputy counsel Luke Berg said. “Thousands of school districts across our country have these policies and it has become an important part of our work at WILL. If parents cannot challenge them until after their children are harmed, they have no way to protect their kids other than pulling them from public school.” 

WILL’s case was straightforward: The parents challenged the school district’s policy to hide gender identity transitions at school from parents. 

“Our petition asks the Court to take the case to hold that when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to the policy have standing to challenge it,” WILL stated.

The dissent

In a dissent written by Alito and joined by Thomas, the justices pointed out that the case was not theoretical: “[T]he parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative.’”

For one thing, Alito wrote, the case presents a question of great and growing national importance — “whether a public school district violates parents’ ‘fundamental constitutional right to make decisions concerning the rearing of  their children, when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.’”

For another, Alito observed, more than 1,000 districts have adopted such policies, and he said the Eau Claire school district’s policy was illustrative.

“In 2021, the Eau Claire Area School District issued ‘Administrative Guidance for Gender Identity Support,’” Alito wrote. “The guidance instructs school personnel to create ‘Student Gender Support Plan[s]’ for students ‘[w]hen appropriate or necessary.’ The plans can address a student’s restroom use, participation in athletics, and ‘social, medical, surgical, and/or legal processes.’” 

What’s more, Alito continued, because “[s]ome transgender . . . students are not ‘open’ at home,” the policy contemplates circumstances under which “parents are not involved in creating” their child’s gender support plan. 

“As school personnel were told in an equity training session: ‘parents are not entitled to know their kids’ identities. That knowledge must be earned,’” he wrote in the dissent. 

“Petitioner, an association of parents whose children attend schools in the district, sued to enjoin the policy, citing their fundamental right to ‘make decisions’ concerning the upbringing of their children.”

Alito observed that the case was never argued on the merits in the lower courts because those courts concluded that the petitioner lacked standing. In other words, Alito explained, relying principally on the high court’s  decision in Clapper v. Amnesty Int’l USA, the Seventh Circuit suggested that a parent could not challenge the district’s policy unless the parent could show that his or her child is transitioning or considering a transition. 

To say it another way, the court determined that the parents did not show that the school district’s policy had actually hidden such information from them.

“But the challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the ‘identities’ of their children, especially if the school believes that the parents would not support what the school thinks is appropriate,” Alito wrote. “Thus, the parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative.’ They are merely taking the school district at its word.”

Alito said he would grant the petition so the court could address what he categorized as a questionable understanding of Clapper and related standing decisions. 

“I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions,” he wrote. “While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their ‘virtually unflagging obligation . . . to exercise the jurisdiction given them.’” 

In its own amicus brief, the Liberty Justice Center (LJC)  argued that school administrators and special interest groups were using gender identity policies like that of the Eau Claire Area School District to violate parents’ constitutional right to direct their children’s upbringing.

“By enabling children to transition at school, in secret from parents, without parental involvement, the district is effectively making a treatment decision without the legal authority to do so and without informed consent from the parents,” the brief states. 

Given the significance of changing gender identity, especially at a young age, parents “can and must” make that decision, the LJC brief continued.

“The district’s policy prevents parents from being notified of significant, life-altering events in their children’s lives,” the amicus brief states. “Such a policy runs counter to American tradition, natural law, and the constitutionally protected rights of parents to make decisions regarding their own children and substitutes untrained and unqualified teachers and school administrators for parents.”

Liberty Justice Center’s senior counsel Emily Rae said she was disappointed that the Supreme Court declined to hear such an important case.

“While this is of course not the result that parental rights advocates were hoping for, the fight is not over,” Rae said. “There are many other ongoing cases involving parents’ rights and notification policies, and I am optimistic that the court will take up one or several of these crucial cases in the coming months.”

Still, Rae said, policies that encourage school administrators to facilitate the transition of minor children, without involving or even informing their parents or guardians, are an issue of growing national importance. 

“We are proud to challenge these destructive policies and other actions by the state legislators and school boards who want to keep secrets from parents, and we will continue to stand up for parents’ rights across the country,” she said.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.