Amicus Curiae Brief — Parents Protecting Our Children, UA, Petitioner v. Eau Claire Area School District, Wisconsin, et al.

Supreme Court briefJul 8, 2024

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No. 23-1280

In the

Supreme Court of the United States

PARENTS PROTECTING OUR CHILDREN, UA,

Petitioner,

EAU CLAIRE AREA SCHOOL DISTRICT,

WISCONSIN; TIM NORDIN; LORI BICA;

MARQUELL JOHNSON; PHIL LYONS;

JOSHUA CLEMENTS; STEPHANIE FARRAR;

ERICA ZERR; and MICHAEL JOHNSON,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF OF AMICI CURIAE ETHICS AND

RELIGIOUS LIBERTY COMMISSION OF THE

SOUTHERN BAPTIST CONVENTION,

CONCERNED WOMEN FOR AMERICA, PACIFIC

JUSTICE INSTITUTE, and NATIONAL LEGAL

FOUNDATION

in Support of the Petitioner

Steven W. Fitschen

James A. Davids

National Legal Foundation

524 Johnston Road

Chesapeake, Va. 23322

(757) 463-6133

sfitschen@nationallegal

foundation.org

Frederick W. Claybrook, Jr.

(Counsel of Record)

Claybrook LLC

655 15th St., NW, Ste. 425

Washington, D.C. 20005

(301) 622-0360

rick@claybrooklaw.com

Counsel for Amici Curiae

(i)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENTS OF INTEREST ................................. 1

SUMMARY OF ARGUMENT .................................. 33

ARGUMENT ............................................................... 3

The Seventh Circuit’s Ruling Is in Conflict

with the Fifth Circuit’s Recent Decision

Granting Standing to a Parent to Challenge

Governmental Policies of Keeping Secret from

Him What Governmental Agents May Do

with His Minor Children.................................. 3

II.

Parents Involved Is Only One in a Line of This

Court’s Decisions That Confirm That Parents

Have Standing to Complain of Any School

Policy to Which Their Children Are Subject,

Whether or Not Its Application Can Be

Avoided or Is Currently Being Applied

Against Their Children .................................. 88

III. The Seventh Circuit’s Sole Reliance on

Clapper Was Misplaced ................................. 10

CONCLUSION.......................................................... 12

( ii )

TABLE OF AUTHORITIES

Cases

Armstrong v. Davis, 275 F.3d 849

(9th Cir. 2001)........................................................ 12

Carney v. Adams, 592 U.S. 53 (2020)......................... 9

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ...................................... 3, 10-12

Deanda v. Becerra, 96 F.4th 750

(5th Cir. 2024)....................................................... 3-7

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 8-9

Espinoza v. Mont. Dep’t of Rev., 591 U.S. 464

(2020) ....................................................................... 4

Gill v. Whitford, 585 U.S. 48 (2018) .......................... 9

John and Jane Parents 1 v. Montgomery

Cnty. Sch. Bd., 78 F.4th 622 (4th Cir. 2023) ........ 10

Lee v. Weisman, 505 U.S. 577 (1992) ......................... 8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................... 9, 11

Marsh v. Chambers, 463 U.S. 783 (1983) .................. 9

Parents Defending Educ. v. Linn Mar Cmty. Sch.

Dist., 83 F.4th 658 (8th Cir. 2023) ........................ 12

( iii )

Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701 (2007) ......................... 8,10

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1928)............ 5

Santa Fe Ind. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ................................................. 8

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ................................................. 8

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ........ 4, 6-7

Stark v. Wickard, 321 U.S. 288 (1944) ....................... 9

TransUnion L.L.C. v. Ramirez,

594 U.S. 413 (2021) ................................................. 4

Troxel v. Granville, 530 U.S. 57 (2000) ...................... 4

United States v. Hays, 515 U.S. 737 (1995) ............... 9

Wallace v. Jaffree, 472 U.S. 38 (1985)........................ 9

Warth v. Seldin, 422 U.S. 490 (1975) ...................... 4-5

Wash. v. Glucksberg, 521 U.S. 702 (1997) ................. 4

STATEMENTS OF INTEREST 1

The Ethics and Religious Liberty

Commission (ERLC) is the moral concerns and

public policy entity of the Southern Baptist

Convention (“SBC”), the nation’s largest Protestant

denomination, with approximately 13 million

members in more than 45,000 churches and

congregations. The ERLC is charged by the SBC with

addressing public policy affecting such issues as

religious liberty, marriage and family, the sanctity of

human life, and ethics. The SBC in its 2024 annual

meeting passed a resolution regarding parental rights

that encourages “the state to partner with, rather

than act contrary to, the family unit, enacting

legislation that protects and upholds parental rights,

ensuring that parents have the freedom to make

decisions regarding the upbringing, education, and

healthcare of their children without undue

interference, recognizing that parents are the primary

arbiters of a child’s moral and spiritual formation.”

Concerned Women for America (CWA) is

the largest public policy organization for women in

the United States, with approximately half a million

supporters from all 50 States. Through its grassroots

organization, CWA encourages policies that

1 No counsel for any party authored this brief in whole

or in part. No person or entity other than amici and

their counsel made a monetary contribution intended

to fund the preparation or submission of this brief.

Timely notice was given to all parties.

strengthen women and families and advocates for the

traditional virtues that are central to America’s

cultural health and welfare. CWA actively promotes

legislation, education, and policymaking consistent

with its philosophy. Its members are people whose

voices are often overlooked—everyday American

women whose views are not represented by the

powerful elite.

The Pacific Justice Institute (PJI) is a nonprofit legal organization established under section

501(c)(3) of the Internal Revenue Code. Since its

founding in 1997, PJI has advised and represented in

court and administrative proceedings thousands of

individuals, businesses, and religious institutions,

particularly in the realm of First Amendment and

parental rights. PJI often represents teachers,

parents, and their children to vindicate their

constitutional rights in public schools. As such, PJI

has a strong interest in the development of the law in

this area.

The National Legal Foundation (NLF) is a

public interest law firm dedicated to the defense of

fundamental parental rights and First Amendment

liberties, including the freedoms of speech, assembly,

and religion. The NLF and its donors and supporters,

in particular those from Wisconsin, are vitally

concerned with the outcome of this case because of its

effect on the fundamental rights of parents and their

minor children.

SUMMARY OF ARGUMENT

The Seventh Circuit’s decision deserves

plenary consideration by this Court, if not summary

reversal. That court’s ruling that parents do not have

standing to complain of a school policy that targets

them for secrecy not only violates common sense and

this Court’s precedents but is in conflict with the Fifth

Circuit’s recent decision finding that a father has

standing to complain of a policy that keeps what the

government may do to his minor children secret from

him. The one decision on which the Seventh Circuit

relied, Clapper v. Amnesty Int’l USA, 568 U.S. 398

(2013), is so different on its facts as to prove, rather

than disprove, that the Plaintiff-Parents here have

standing.

ARGUMENT

The petition amply shows the importance of

this case and why it is critical that this Court resolve

the standing issue before more children and their

parents are affected. This brief in support touches on

three complementary issues that the petition does

not discuss in detail.

The Seventh Circuit’s Ruling Is in Conflict

with the Fifth Circuit’s Recent Decision

Granting Standing to a Parent to Challenge

Governmental Policies of Keeping Secret

from Him What Governmental Agents May

Do with His Minor Children

In Deanda v. Becerra, 96 F.4th 750 (5th Cir.

2024), a father challenged the federal government’s

regulatory guidance under Title X that grantee clinics

were not allowed to inform parents that the clinics

were providing contraceptives to the parents’ minor

children. The father complained that this violated his

statutory and constitutional rights to provide consent

for any such distribution to his minor daughters. The

Fifth Circuit found he had standing.

First, the Fifth Circuit noted that the father

alleged a sufficient injury because the federal

guidance deprived him of a statutory right that was

more than a “bare procedural violation.” Id. at 756,

citing Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016);

Warth v. Seldin, 422 U.S. 490, 500 (1975). In making

that analysis, the Fifth Circuit applied this Court’s

instruction to determine whether the claimed injuries

bore “a close relationship to harms traditionally

recognized as providing a basis for lawsuits in

American courts.” 96 F.4th at 757-58, quoting

TransUnion L.L.C. v. Ramirez, 594 U.S. 413, 425

(2021). It noted this Court’s instruction that

“intangible” harms can also be “concrete” for standing

purposes and that parental rights such as those

advanced by the father (and by the Petitioner-Parents

here) “have perennially been honored by American

courts.” 96 F.4th at 758 , citing Espinoza v. Mont.

Dep’t of Rev., 591 U.S. 464, 486 (2020); Troxel v.

Granville, 530 U.S. 57, 66 (2000) (plurality op.); Wash.

v. Glucksberg, 521 U.S. 702, 720 (1997). Whether

grounded in a statute or the Constitution, the notice

and consent rights of parents with respect to sexual

treatment of their minor children is of a substantial

and concrete nature. 2

Second, the Fifth Circuit batted away the

government’s objection that the father had not alleged

that his minor daughters had obtained or tried to

obtain (or were likely to obtain) contraceptives from a

Title X provider. The court remarked, “That is a

puzzling argument. A key goal of the Secretary’s

policy is to get contraceptives into children’s hands

without their parents knowing.” 96 F.4th at 759

(italics in original). It then provided this example

showing the illogic of the suggestion, an example well

fitted to this case:

[I]magine two dads. One dad’s daughter

gets the Pill from a Title X clinic [in the

present case, gender transition counseling

from the school], and the dad never finds

out. According to the Secretary [here, the

school board], he has no standing to sue.

The other dad finds out. According to the

Secretary [school board], he can sue. That

makes little sense. Parents’ standing to

sue should not depend on whether the

Secretary [school board] has successfully

kept them in the dark about their

children’s sex lives.

2 The Fifth Circuit also noted that the Texas statute

providing for parental notice and consent allowed

parents to sue to vindicate those rights. 96 F.4th at

756-57. The federal counterpart here is 42 U.S.C. §

1983. See also Warth, 422 U.S. at 501 (citing Pierce v.

Soc’y of Sisters, 268 U.S. 510 (1928), for the

proposition that parental rights protected by the

Constitution imply a right of action).

Id. The Fifth Circuit then continued to explain that a

parent’s immediate injury of the deprivation of his

notice and consent rights alone confers standing:

any

event,

the

Secretary

misunderstands the claimed injury.

Deanda asserts injury to his state-secured

parental rights to notice and consent.

Contrary to the Secretary’s argument,

that injury is not “premised on [his] minor

children’s

receiving

family-planning

services.” It is premised on the Secretary’s

express goal of overriding Deanda’s

parental rights under Texas law. The

attempted erasure of those rights is

“sufficient . . . to constitute [an] injury in

fact,” without Deanda’s needing to “allege

any additional harm beyond the one [he]

has identified.” Spokeo, 578 U.S. at 342

(citations omitted); see also Warth, 422

U.S. at 500 (“The actual or threatened

injury required by Art[icle] III may exist

solely by virtue of ‘statutes creating legal

rights, the invasion of which creates

standing[.]’”) (emphasis added) (citations

omitted)). To be sure, if one of Deanda’s

daughters did get contraceptives from a

Title X provider without his knowing, that

would also injure Deanda. But it would

mean Deanda had been injured not once

but twice—once by the Secretary’s

nullifying his parental rights and a second

time by the Secretary’s succeeding in

delivering birth control to Deanda’s

daughter behind his back.

Id. The application here is four-square: PetitionerParents are injured immediately by their parental

notice and approval rights being violated by the school

district’s preclusion policy. They do not have to allege

an additional injury.

Third, the Fifth Circuit rejected the

government’s argument that the father’s complaint

was too generalized because, if he had standing, a host

of other parents did as well. After quoting Spokeo for

the “fact that an injury may be suffered by a large

number of people does not of itself make that injury a

nonjusticiable generalized grievance,” 578 U.S. at 339

n.7, the Fifth Circuit remarked, “The Secretary’s

policy is to spend millions to get contraceptives to

minors without telling their parents. It should not

come as a shock that there could be a correspondingly

large number of parents who can challenge it in

court.” Id. at 760. The same reasoning applies in this

case. The fact that the school district’s policy targets

all parents does not mean that the only parents who

have standing are those few who can prove the policy

has been applied against them in a specific case or

that they are more likely than most to experience such

additional injury.

The Seventh Circuit’s ruling below is in direct

conflict with the Fifth Circuit’s ruling and reasoning

in Deanda. This independently supports the grant of

the petition.

II.

Parents Involved Is Only One in a Line of

This Court’s Decisions That Confirm That

Parents Have Standing to Complain of

Any School Policy to Which Their

Children Are Subject, Whether or Not Its

Application Can Be Avoided or Is

Currently Being Applied Against Their

Children

This case is controlled by Parents Involved in

Community Schools v. Seattle School District No. 1,

551 U.S. 701 (2007), as the petition amply

demonstrates. But that decision is only one of those

from this Court that confirms, in an unbroken line,

that parents have standing to complain of a school

policy to which their children are subject, even before

it is applied against their child and even though its

application can be avoided.

In Lee v. Weisman,, this Court found parents

had standing to challenge a graduation ceremony

prayer, even though the student was not compelled to

attend graduation or to pray the prayer herself. 505

U.S. 577, 584 (1992). In School District of Abington

Township v. Schempp, , this Court allowed parents to

complain of Bible readings in class, even though the

policy allowed children to absent themselves if they

did not wish to hear them. 374 U.S. 203, 224 n.9

(1963). This principle is so well established that, in

many other cases, the standing of parents to challenge

school policies is simply assumed and goes

unremarked upon. See, e.g., Santa Fe Ind. Sch. Dist.

v. Doe, 530 U.S. 290 (2000) (assuming standing of

parents to challenge school policy when their children

were students); Edwards v. Aguillard, 482 U.S. 578,

584 (1987) (same); Wallace v. Jaffree, 472 U.S. 38

(1985) (same).

The same principle plays out in non-school

situations as well. For example, in Marsh v.

Chambers, this Court found a legislator had standing

to challenge the practice of opening sessions in prayer,

even though he could have avoided being present

during the prayers. 463 U.S. 783, 786 n.4 (1983). And

in its gerrymandering cases, this Court has

recognized the “right to vote” as an individual right

and has applied the same standing rule, whether the

reason for the gerrymandering was racial or

otherwise: if the Plaintiff lives in the affected district,

he has standing now, no matter the outcome of future

elections. E.g., Gill v. Whitford, 585 U.S. 48, 65-66

(2018) (political); United States v. Hays, 515 U.S. 737,

744-45 (1995) (race).

The distinction that this Court has repeatedly

drawn is between cases brought to vindicate a

generalized grievance in the “public interest in proper

administration of the laws” versus claims “of

infringement of individual rights . . . by the exertion

of unauthorized administrative power,” the latter

being the type of cases for which Congress established

Article III courts. Lujan v. Defenders of Wildlife, 504

U.S. 555, 577 (1992) (quoting Stark v. Wickard, 321

U.S. 288, 309-10 (1944)). This action is brought by

parents already exercising their caretaking

responsibilities for their school-age children, and so

they have particularized and concrete interests at

stake. Cf. Carney v. Adams, 592 U.S. 53 (2020)

(finding no standing when plaintiff was not ready to

assume the duties of the challenged provision). Thus,

they have standing. 3

III.

The Seventh Circuit’s Sole Reliance on

Clapper Was Misplaced

The Seventh Circuit below relied on one case to

support its conclusion that the Petitioner-Parents

lacked standing to complain: Clapper. But Clapper’s

facts are a far cry from those here, and the contrast

only confirms that these parents have standing.

Clapper is a case at one extreme of the

attenuation continuum. There, the plaintiffs

3 A Fourth Circuit majority in John and Jane Parents

1 v. Montgomery County School Board, 78 F.4th 622

(4th Cir. 2023), found, similarly to the Seventh Circuit

below, that parents did not have standing to complain

when they did not know whether the secrecy policy

was already being applied to them and their children.

The Fourth Circuit recognized that Parents Involved

was on point, except, it ruled, for the fact that the

parents were pursuing their liberty interests under

the Due Process Clause of the Fourteenth

Amendment, rather than proceeding under the Equal

Protection Clause of the amendment as in Parents

Involved. Id. at 633-35. This distinction of Parents

Involved was not only unique, it is negatived by this

Court’s precedents cited above. Moreover, as Judge

Niemeyer stated in dissent, the distinction is illogical:

“the majority’s argument suggests that injury under

the Due Process Clause yields rank to injury under

the Equal Protection Clause. This argument makes no

sense and has no basis in constitutional law.” Id. at

643 (Niemeyer, J., dissenting).

challenged the constitutionality of §1881a of the

Foreign Intelligence Surveillance Act of 1978, but

they were not foreign nationals, those targeted by the

statute. By contrast, the school privacy policy here

expressly targets parents with children in the school

system. In such a situation, this Court has instructed,

When the suit is one challenging the

legality of government action or inaction,

standing depends considerably upon

whether the plaintiff is himself an object of

the action (or forgone action) at issue. If he

is, there is ordinarily little question that

the action or inaction has caused him

injury, and that a judgment preventing or

requiring the action will redress it.

Lujan, 504 U.S. at 561-62.

Clapper also involved a highly attenuated

chain of assumptions for potential injury. The

plaintiffs there had to assume that, among the untold

number of possibilities, the government would target

foreigners with whom they communicated; it would

use FISA rather than another authority to do so; the

FISA judges would issue a warrant; the government

would succeed in intercepting the communications of

the plaintiffs’ foreign contacts; and they would be

party to the particular conversations intercepted. 568

U.S. at 410-14. This essentially made the case one to

vindicate

the

“public

interest

proper

administration of the laws,” see Lujan, 504 U.S. at

577, which this Court has been especially reluctant to

allow “in the fields of intelligence gathering and

foreign affairs.” Clapper, 568 U.S. at 409.

The present case could hardly be less alike—it

is at the opposite end of the attenuation continuum. It

deals with education, a prototypical parental and local

issue. School personnel see children five days a week,

and they need no warrant to speak with them. At

school, easy access and communication is the rule, not

the exception. And far from being an accumulation of

mere guesswork, as in Clapper, here the challenged

“course of action is within the plain text of a policy,”

establishing that “a ‘credible threat’ of enforcement

exists.” Parents Defending Educ. v. Linn Mar Cmty.

Sch. Dist., 83 F.4th 658, 667 (8th Cir.

2023); accord Armstrong v. Davis, 275 F.3d 849, 861

(9th Cir. 2001).

Clapper does not cut against these parents. A

comparison of the facts of Clapper with those here

further confirms that they have standing to complain,

and to complain now, before damage, or any further

damage, is done to their children and to their own

constitutional rights.

CONCLUSION

The decision below is wholly inconsistent with

this Court’s precedents and with that of the Fifth

Circuit in Deanda. It should be summarily reversed.

In the alternative, the petition should be granted for

plenary briefing and argument.

Respectfully submitted this

8th day of July 2024,

/s/ Frederick W. Claybrook, Jr.