Amicus Curiae Brief — Stephen Foote, Individually and as Guardian and Next Friend of B. F. and G. F., Minors, et al., Petitioners v. Ludlow School Committee, et al.

No. 25-77

In the Supreme Court of the United States

STEPHEN FOOTE, et al.,

Petitioners,

v.

LUDLOW SCHOOL COMMITTEE, et al.,

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF AMICI CURIAE OF THE NATIONAL LEGAL

FOUNDATION, HAWAII FAMILY FORUM,

ILLINOIS FAMILY INSTITUTE, WISCONSIN

FAMILY ACTION, ETHICS AND RELIGIOUS

LIBERTY COMMISSION OF THE SOUTHERN

BAPTIST CONVENTION, CONCERNED WOMEN

FOR AMERICA, PACIFIC JUSTICE INSTITUTE,

THE FAMILY FOUNDATION,

and PROTECT OUR KIDS

In Support of the Petitioners

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 Interests ...............................................1

Summary of the Argument ......................................... 4

Argument .................................................................... 4

I.

The Petition Should Be Granted to Confirm

That the Naming of Minor Children Is a

Fundamental Parental Responsibility ................ 4

II. This Court Should Grant the Petition to Confirm

That Public Schools Have a Duty to Tell Parents

That Their Children Are Taking Other Names

and Socially Transitioning .................................. 8

III. The School Has No Legitimate Interests in

Hiding Information from Parents, Much Less

a Compelling One............................................... 17

Conclusion ................................................................. 22

ii

Table of Authorities

Cases

Alfonso v. Fernandez,

195 A.D.2d 46, 606 N.Y.S.2d 259

(N.Y. App. Div. 1993).......................................... 14

Bellotti v. Baird, 443 U.S. 622 (1979) ................. 20-21

Brokaw v. Mercer Cnty.,

235 F.3d 1000 (7th Cir. 2000) ............................. 19

Croft v. Westmoreland Cnty. Children and Youth

Servs., 103 F.3d 1123 (3d Cir. 1997) ................... 19

DeShaney v. Winnebago Cnty. Dept. of Soc. Servs.,

489 U.S. 189 (1989) .............................................. 13

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .............................................. 22

Doe v. Heck, 327 F.3d 492 (7th Cir. 2003)................ 19

Doe v. Uthmeier, 2025 WL 1386707

(D. Ct. App. Fla., May 14, 2025) .......................... 22

Doe 1 v. Madison Metro. Sch. Dist.,

2022 WI 65, 976 N.W.2d 584 (2022)...................... 6

Edwards v. Aguillard, 482 U.S. 578 (1987) ............. 14

Foote v. Ludlow Sch. Comm., 128 F.4th 336

(1st Cir. 2025)....................................... 5, 10, 13, 17

Fowler v. R.I., 345 U.S. 67 (1953)............................... 9

iii

Ginsberg v. N.Y., 390 U.S. 629 (1968) ...................... 21

Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000) .......... 20

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................................ 9

Lee v. Poudre School Dist. R-1,

35 F.4th 924 (10th Cir. 2025) ............................... 6

Mahmoud v. Taylor,

145 S. Ct. 2332 (2025)............................4, 8, 10-21

Meyer v. Neb., 262 U.S. 390 (1923).........5-6, 15, 18-19

Morse v. Frederick, 551 U.S. 393 (2007) .................. 14

Parents 1 v. Montgomery Cnty. Bd. of Educ.,

78 F.4th 622 (4th Cir. 2023) ............................ 6, 19

Parham v. J.R., 442 U.S. 584 (1979)................. 6-7, 20

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).......... 10

Prince v. Mass., 321 U.S. 158 (1944) ............ 10, 12, 21

Ricard v. USD 475 Geary Cnty. Sch. Bd.,

2022 WL 1471372

(D. Kan. May 9, 2022) ........................... 6, 11-12, 22

Roe v. Wade, 410 U.S. 113 (1973) ........................ 21-22

Stanley v. Ill., 405 U.S. 645 (1972)............................. 6

State v. Loe, 692 S.W.3d 215 (Tex. 2024) ................. 17

iv

Tinker v. Des Moines Ind. Comm. Sch. Dist.,

393 U.S. 503 (1969) .............................................. 10

Troxel v. Granvill, 530 U.S. 57 (2002)............... 6-7, 22

United States v. Skrmetti,

145 S. Ct. 1816 (2025) ..................................6-7, 17

Winkelman v. Parma City Sch. Dist.,

550 U.S. 516 (2007) ............................................. 12

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 16

Wis. v. Yoder, 406 U.S. 205 (1972) ..................... 12, 15

Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013) ....... 18

Statutes

Family Educational Rights and Privacy Act,

20 U.S.C. § 1232g ................................................. 18

Other Authorities

Douglas Laycock, High-value Speech

and the Basic Educ. Mission of a

Pub. Sch.: Some Prelim. Thoughts,

12 Lewis & Clark L. Rev. 111 (2008) .............. 15-16

1

Statements of Interests 1

The National Legal Foundation (NLF) is a

public interest law firm dedicated to the defense of

First Amendment liberties (including the freedoms of

speech, assembly, and religion) and parental rights.

The NLF and its donors and supporters, in particular

those from Massachusetts, are vitally concerned with

the outcome of this case because of its effect on religion-based parental rights.

Hawaii Family Forum (HFF) was established in 1998 to protect, preserve, and strengthen

Hawaii’s ohana (family). HFF is a non-profit, pro-family research and education organization that provides

resources that equip citizens to make their voices

heard on critical social policy issues involving the

sanctity of human life, the preservation of religious

liberties, and the well-being of the ohana as the building block of society.

The Illinois Family Institute (IFI) is a nonprofit educational and lobbying organization based in

Tinley Park, Illinois, that exists to advance life, faith,

family, and religious freedom in public policy and culture from a Christian worldview. Core values of IFI

include upholding parental rights and championing

religious freedom and conscience rights for all individuals and organizations.

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 of the

filing of this brief was given to all parties.

2

Wisconsin Family Action (WFA) is a Wisconsin not-for-profit organization dedicated to strengthening, preserving, and promoting marriage, family,

life and religious freedom. WFA has a unique and significant statewide presence with its educational and

advocacy work in public policy and the culture. WFA’s

interest in this case stems directly from its core issues,

in particular its long-sustained efforts to protect and

promote the family.

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 nearly

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 ERLC affirms that God has

established the family as the first and most foundational institution of society and has an interest in ensuring that parents have the freedom to make decisions regarding the upbringing, education, and

healthcare of their children.

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 strengthen

women and families and advocates for the traditional

virtues that are central to America’s cultural health

and welfare, including religious and familial liberties.

CWA actively promotes legislation, education, and

policymaking consistent with its philosophy. Its members are people whose voices are often overlooked—

3

everyday, middle-class 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 rights. As

such, PJI has a strong interest in the development of

the law in this area. PJI often represents teachers,

parents, and their children to vindicate their constitutional rights in the public schools. PJI operates in

Massachusetts.

The Family Foundation (TFF) is a Virginia

non-partisan, non-profit organization committed to

promoting strong family values and defending the

sanctity of human life in Virginia through its citizen

advocacy and education. TFF serves as the largest

pro-family advocacy organization in Virginia. Its interest in this case is derived directly from its concern

to preserve religious freedom for all.

Protect Our Kids (POK) is a statewide coalition of California parents, community leaders, attorneys, pastors, teachers and concerned citizens who

acknowledge that public schools have a role in educating children on matters of basic biology, anatomy and

human reproduction, but not the promotion of controversial sexual ideas and other ideologies far exceeding

the rightful boundaries of the public-school charter.

POK exists to inform parents about the scope of these

threats, their rights as parents, and to protect children from the harms of public-school indoctrination.

4

POK adheres to Biblical truth which teaches that God

created mankind in His image, male and female, and

that parents are the rightful guardians of their minor

children’s worldview.

Summary of the Argument

The decision below allows the public schools to

subvert parental rights. The petition should be

granted and the decision reversed for multiple reasons.

Your Amici focus on three such reasons. First,

the naming of children is not a scholastic matter, as

the First Circuit held, but a parental one. Second, the

First Circuit misapplied this Court’s precedent in

holding that schools have no duty to disclose to parents when their child decides to exhibit as

transgender and change names and pronouns. And,

third, the school’s purported “interests” on which the

lower courts relied are really just a nullification of parental rights and so do not support even a rational basis for the school’s policy, much less a compelling one.

This Court last term in Mahmoud v. Taylor, 145 S. Ct.

2332 (2025), recognized the importance of these rights

in connection with the Free Exercise of Religion. Just

as important are these parental rights in a non-religious context this case addresses.

Argument

I.

The Petition Should Be Granted to Confirm That the Naming of Minor Children

Is a Fundamental Parental Responsibility

The First Circuit found that parental rights,

while fundamental and protected by the Fourteenth

5

Amendment, are not absolute and that schools may

impose reasonable regulations about curricular and

administrative matters. Foote v. Ludlow Sch. Comm.,

128 F.4th 336, 348-49 (1st Cir. 2025). From there, the

circuit court assumed, without supporting analysis,

that the name a child is called at school, along with

associated pronouns, is up to the child and the school

to determine simply by virtue of the fact that the

school published a policy that says so. Id. at 351-52.

This certainly must come as a surprise to parents, as

it is they who name their children at birth, who register their children for attendance at school, who tell the

school the sex of their child, and who instruct the

school what name and nickname the school should use

for their child. It is not “reasonable” for schools to subvert this parental responsibility, either by publishing

a policy or otherwise.

A child announcing to a school a desire to adopt

a new, transgender name does not convert that renaming by the child into the act or instruction of the

school. It is not something initiated by the school, and

it is not a classroom course of study or part of the curriculum. As Judge Niemeyer stated regarding a similar school “Parental Preclusion Policy,”

While the science and medicine related

to gender identification, gender dysphoria, and

gender transitioning are, these days, being actively debated, it is clear that developing and

implementing a gender transition plan for minor children without their parents’ knowledge

and consent do not simply implicate a school’s

curricular decisions but go much further to

implicate the very personal decisionmaking

about children's health, nurture, welfare, and

6

upbringing, which are fundamental rights of

the Parents. See Troxel [v. Granville], 530 U.S.

[57,] 65 [(2002)]; Parham v. J.R., 442 U.S. 584,

602 (1979); Stanley v. Illinois, 405 U.S. 645, 651

(1972); Ricard v. USD 475 Geary Cnty. Sch.

Bd., No. 5:22-cv-4015, 2022 WL 1471372, *8 (D.

Kan. May 9, 2022).

Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th

622, 646 (4th Cir. 2023) (Niemeyer, J., dissenting); 2

see also United States v. Skrmetti, 145 S. Ct. 1816,

1836-37 (2025) (noting scientific debate); id. at 184145 (Thomas, J., concurring) (reciting details of scientific debate).

It is unreasonable, if not foolish, to expect a

child to make difficult and critically important decisions, especially ones that will have repercussions for

While Judge Niemeyer was writing in dissent, he was the

only judge on the panel to reach the merits, as the majority

held that the particular parents who sued lacked standing.

Nevertheless, the majority went to some pains to remark

that “this does not mean [the parents’] objections are invalid,” id. at 626, and that the parents made “compelling arguments” that the “Parental Preclusion Policy” of hiding

from parents that their child is changing names and exhibiting as transgender is unlawful. Id. at 636. Judge

McHugh of the Tenth Circuit echoed Judge Niemeyer’s

analysis in Lee v. Poudre School District R-1, 135 F.4th

924, 937 (10th Cir. 2025) (McHugh, J., concurring). See also

Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, 976 N.W.2d

584, 599 (2022) (Roggensack, J., dissenting) (while the

four-member majority avoided addressing the merits of a

similar parental preclusion policy on procedural grounds,

three justices would have reached the merits and ruled

that it violated the parents’ federal constitutional rights).

2

7

the rest of the child's life, and social transitioning does

not constitute any sort of an exception. It is well established that parents are to make such decisions for

their minor children. As the Supreme Court explained in Parham, children lack the “maturity, experience, and capacity for judgment required for making

life’s difficult decisions.” 442 U.S. at 602; see also

Skrmetti, 145 S. Ct. at 1835-36 (finding reasonable a

state’s determination that minors lack the maturity to

understand the consequences of medically transitioning); id. at 1846-47 (Thomas, J., concurring) (same).

And in Troxel, the Court repeated that parents have a

“fundamental right to make decisions concerning the

care” of their minor children. 530 U.S. at 72 (plurality

op.).

The Supreme Court elucidated in Parham

that, even if the decision of the parents “is not agreeable to a child or . . . involves risks,” it “does not diminish the parents’ authority to decide what is best

for the child.” 442 U.S. at 603-04. The Court continued that a child’s disagreement with the parents does

not “automatically transfer the power to make that decision from the parents to some agency or officer of the

state.” Id. at 603. That is true even when the “agency

or officer of the state” is a school district or its employee.

Properly understood, the curricular/administrative carve-out to parental control of the child’s education deals only with internal school choices that

must be applied uniformly to allow a school to function, such as the substance of classroom instruction

(e.g., what textbooks to use) and hours of operation.

Transgenderism, like other medical or psychological

conditions, may need to be addressed while the child

8

is in school. But treatment of a student’s medical or

psychological condition is, at most, ancillary to the primary mission of public schools. Parents entrust their

children to the public schools not to name them, feed

them, clothe them, or diagnose and medically treat

them, but to educate them. Within its proper sphere,

the school has considerable discretion, particularly

within the area of what, when, and how subjects are

taught (commonly called the “curricular exception”).

Outside its proper sphere, schools must defer to parents for the care, nurturing, and upbringing of children.

Of course, there is a limit to the curriculum

exception, even as to matters directly affecting education. For example, grades are central to the educational function of the school, but a school certainly

could not refuse to disclose an individual student’s

grades to the parents because the student was afraid

of the parents’ reaction or wanted to keep them secret.

Much less can a school withhold information from parents about their child’s transgender behavior, which

is not part of the school’s delegated education function. See Mahmoud v. Taylor, 145 S. Ct. 2332 (2025)

(finding opt-out for parents when school’s curriculum

for their children violates their religious beliefs).

II.

This Court Should Grant the Petition to

Confirm That Public Schools Have a Duty

to Tell Parents That Their Children Are

Taking Other Names and Socially Transitioning

The First Circuit held that the school was excused from failing to report the child’s gender and

name transition because the Constitution does not im-

9

pose a notice requirement in these circumstances, absent “coercion” or “affirmative deception” by the

school. 128 F.4th at 352-56. The circuit court held it

was sufficient that “the Parents remain free to strive

to mold their child according to the Parents’ own beliefs” at home or by sending their children to private

schools. Id. at 355. This, too, was error.

When the government infringes constitutional

rights, it does not suffice to argue that the individuals

wronged may still exercise their rights at a different

time or in a different place. 3 For example, when a city

prohibits use of a public park by some denominations

but not others, it is no defense to say that those foreclosed can still practice their religion elsewhere. See

Fowler v. R.I., 345 U.S. 67 (1953). Nor could the school

district be excused for its sanctioning of Coach Kennedy for his praying on the field because he could have

said the same prayer elsewhere. See Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507 (2022). Similarly,

just because the parents may exercise their free exercise and parental rights when their children are not at

school does not excuse this school district’s violation of

parental rights while the children are at school. To

paraphrase Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the parents’ rights to care for and make decisions for their

minor children do not stop at the schoolhouse gate. See

id. at 506 (noting that school actions may unconstitutionally interfere with parental rights).

The First Circuit’s suggestion that parental

3 Of course, this case does not involve a time, place, or man-

ner restriction.

10

rights only come into play when coercion or affirmative deception is present doesn’t hold water, either.

Any infringement or hindrance of fundamental, parental rights violates them. See Prince v. Mass., 321

U.S. 158, 166 (1944). In this connection, the circuit

court could see no intrusion on parental rights as established by Supreme Court opinions and refused to

“expand” them. Foote, 128 F.4th at 354. However, the

parents here need go no further than demand recognition of their parental rights to manage the care and

upbringing of their children. Far from asking for an

expansion of parental rights in the school context, this

case brings into play two, well-established features of

parental rights.

First, for a century it has been recognized that

parents have the right to decide whether their child

should attend, or continue to attend, a public school.

See Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35

(1925); see also Mahmoud, 145 S. Ct. at 2351-52. Obviously, a key reason parents may wish to remove

their child from public school, as the facts here demonstrate, is if the school is not cooperating with the parents on the issue of their child exhibiting as

transgender. When a school keeps secret from parents

that their child is transitioning, the school is preventing the parents from exercising their responsibilities.

Thus, the school must provide timely, contemporaneous notification to them. See id. at 2364 (requiring

school to provide parents notice when curriculum to

be used with their children might violate parental religious beliefs).

Parents do not have the burden to keep asking

the school if their child is exhibiting as transgender

11

(which the school by policy is hiding from them in any

event). See id. at 2358 (“it is not realistic to expect parents to rely on after-the-fact reports by their young

children to determine whether the parents’ free exercise rights have been burdened”). The parents told the

school what to call their child and what sex their child

was when they registered their child. The school violates those parental instructions on this critically important, life-changing decision when it starts honoring a child’s desire to exhibit as transgender and to

hide that decision from the parents. Parents cannot

carry out their constitutional responsibilities to decide

whether their child should continue to attend the

school without this basic information. See id.; Ricard,

2022 WL 1471372 at *8.

Second, the rights of parents to direct their

children’s education do not end with a right to remove

their child from the school. As the First Circuit appears to recognize, 128 F.4th at 355, parents also have

a constitutional right to supplement their children’s

education by instruction of their own, especially about

subject matters touching on sexuality, and they have

a right to do so with specificity, knowing when and

what their child is being taught and how their child is

being counseled at school. See Winkelman v. Parma

City Sch. Dist., 550 U.S. 516, 529 (2007) (“It is not a

novel proposition to say that parents have a recognized legal interest in the education and upbringing of

their child.); Wis. v. Yoder, 406 U.S. 205, 213-14 1972);

Prince, 321 U.S. at 166. They can only properly fulfill

these fundamental responsibilities if they know what

is happening at school in a timely manner. Of course,

sufficient information on this score is unavailable

from the children themselves. Any parent knows that

12

most children are neither capable nor willing to provide a play-by-play of the school day to their parents.

Family relations are also affected when parents have

to probe their children repeatedly about sexual subjects. Plus, such probing is difficult on matters to

which the parents do not yet wish to expose their children or if it suggests that parents suspect their children may be disrespecting their wishes, whether they

actually are or not.

It is as simple as this: to be able to exercise

their recognized, constitutional rights and responsibilities intelligently, parents need to know what is going on at school. “[I]t is illegitimate to conceal information from parents for the purpose of frustrating

their ability to exercise a fundamental right.” Ricard,

2022 WL 1471372 at *8. The Supreme Court’s ruling

in Mahmoud trumpets exactly the same message. A

school hiding the ball by failing to disclose when it is

violating the instructions parents have given about

the name and gender of their child that the school is

to use is an unconstitutional infringement of parental

rights.

The First Circuit, in Foote, in support of its

holding that the school had no affirmative obligation

to inform parents that it was calling their child by another name cited DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). See

Foote, 128 F.4th at 354. Properly analyzed, DeShaney

supports the parents here, not the school.

In DeShaney, a county’s social service agency,

despite indications that a child might be suffering

13

abuse from his father, did not promptly intervene, and

the father subsequently seriously harmed the child.

The child claimed this was a substantive due process

violation by the agency, but this Court rejected that

claim because “nothing in the language of the Due

Process Clause itself requires the State to protect the

life, liberty, and property of its citizens against invasion by private actors.” Id. at 195. This Court distinguished the abuse situation before it from a setting in

which the State had compelled attendance, noting

that such a circumstance creates a special relationship between the State and the individuals involved.

Id. at 199-200.

Here, the situation is very different from

DeShaney, at several levels. First, the State has not

been passive; it has acted to deprive parents of their

fundamental rights. The school is not just leaving

matters alone; if it did that, it would continue to let

parents decide the naming of their child and whether

the child should exhibit as transgender. Instead, the

school is taking affirmative steps to shield the child

from the parents’ authority and decision making. It

plays it too clever by half to suggest that the school

was not lying to parents when it hid from them what

name they were using with the child, including by reverting to the child’s given name when communicating with the parents. Certainly, constitutional

rights do not rest on such subterfuge and ethical sophistry.

Second, the State has acted in its compulsory

education laws to require that the child attend school.

While some parents have the wherewithal to put their

children in private schools or to home school them,

14

many do not. See Mahmoud, 145 S. Ct. at 2351; Morse

v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring). As a result, their only alternative to comply

with the compulsory education laws is to send them to

public school, and that generates an affirmative obligation upon the State to keep parents in the know

about what is happening at school. The words of this

Court in Edwards v, Aguillard, 482 U.S. 578 (1987),

address the school situation and identify it as a special

relationship:

Families entrust public schools with the education of their children, but condition their trust

on the understanding that the classroom will

not purposely be used to advance religious

views that may conflict with the private beliefs

of the student and his or her family. Students

in such institutions are impressionable and

their attendance is involuntary.

Id. at 584; see also Alfonso v. Fernandez, 195 A.D.2d

46, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (noting

compulsory nature of schooling and finding the school

violated parental rights when it distributed condoms

to students upon their request without giving parents

notice).

Third, a public school’s authority is best understood as a conditioned consent or delegation from

parents. Parents are primarily responsible for their

children’s education, particularly when religious beliefs come into play. See Mahmoud, 145 S. Ct. at 235153; Yoder, 406 U.S. at 413-18; Meyer v. Neb., 262 U.S.

390, 401 (1923). When they sent their children to public school along with the children of other parents who

15

may well have other philosophical and religious beliefs, they consented in the main to a generalized, common instruction for their children. But that does not

give a public school carte blanche to treat their children however the school wishes. See Mahmoud, 145 S.

Ct. at 2361-62. It is also commonly understood that

parental consent is conditioned on the school staying

in its lane, teaching in accord with its central mission.

See generally Douglas Laycock, High-value Speech

and the Basic Educ. Mission of a Pub. Sch.: Some Prelim. Thoughts, 12 Lewis & Clark L. Rev. 111 (2008).

Professor Laycock gives an “outside-its-lane” example

of a public school teaching its students that they

should all support the Democratic Party. Id. at 117.

This would be improper even if the district’s populace

is heavily Democratic. The stakes are even higher

with topics that implicate appropriate sexual lifestyles and religious beliefs about them and when behavioral, rather than curricular, matters are involved.

While writing in the context of free speech

rights, what Professor Laycock says resonates here:

Parents entrust the public schools with their

children for important but particular purposes.

Parents may expect the school to teach skills

and values conducive to success in later life,

and they may expect the schools to teach fundamental democratic values. But they do not

expect the schools to indoctrinate their children

on current political or religious questions that

may be the subject of substantial disagreement

among the parents themselves, either locally or

nationally. Indoctrination on that sort of question is not part of the school’s basic educational

mission . . . .

16

Id. at 119; see W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624, 637 (1943) (“Free public education, if

faithful to the ideal of secular instruction and political

neutrality, will not be partisan or enemy of any class,

creed, party, or faction.”).

Parental consent to having the public school

set behavioral policies is not unconditional. Schools

can go too far and exceed that consent (or delegation).

The school district has done so here, wading into a debate that is roiling our country and encroaching on the

fundamental rights of parents to make decisions for

their minor children.4 Schools cannot leverage compulsory school attendance laws into permission to

trample parental and religious rights at will. See

Mahmoud, 145 S. Ct. at 2358-59.

In these circumstances, the school had an affirmative obligation to notify the parents that the

school was assisting their minor child to exhibit as

transgender. See Lee, 135 F.4th at 937 (McHugh, J.,

concurring). This is a matter at the heart of parental,

not school, responsibilities, and the school violated the

parents’ fundamental rights by violating their instructions as to what to call their child and arrogating to

Justice Blacklock of the Texas Supreme Court has described the two sides in the great national debate over the

wisdom and propriety of minors exhibiting as transgender

as those holding to either the “Transgender Vision” or the

“Traditional Vision.” He notes that, at their core, the differences reflect moral, religious, and political beliefs. State

v. Loe, 692 S.W.3d 215, 239-40 (Tex. 2024) (Blacklock, J.,

concurring). Of course, the differences between the views

also involve contested social science, as demonstrated by

this Court’s decision in Skrmetti.

4

17

itself the decision of what was best for the child.

III.

The School Has No Legitimate Interests

in Hiding Information from Parents,

Much Less a Compelling One

The First Circuit applied (wrongly) a rational

basis test and found that the stated purpose of cultivating a safe, inclusive, and educationally conducive

environment for students adequately justifies the

school’s policy to hide from the parents the fact that

their children are socially transitioning. Foote, 128

F.4th at 356. This purpose does not articulate legitimate state interests, but, rather, is a packaging of impermissible state action in nice-sounding phraseology.

Interests such as “cultivating a safe, inclusive,

and educationally conducive environment for students” by keeping from parents that the school is facilitating their children exhibiting as another gender

are illegitimate and, thus, cannot properly be accorded any weight. 5 They all have at their base the

assumption that the schools may override the judgment of fit parents about how best to raise their children and what is in their children’s best interests. As

Nor can the school district claim, as other schools have

done, that it is protecting the child’s “privacy” interests. A

minor child has no such interest vis-à-vis the parents. See

Family Educational Rights and Privacy Act, 20 U.S.C. §

1232g (requiring schools to make available to parents all

records regarding their children); Wyatt v. Fletcher, 718

F.3d 496, 505 (5th Cir. 2013).

5

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Judge Niemeyer observed, this does not advance a

proper interest, but, instead, nullifies parents’ fundamental rights:

[T]he district court erred in its strict scrutiny

analysis by relying on the students’ well-being

and privacy interests to defeat the Parents’ fundamental substantive due process right. Just

as it is no defense to an alleged infringement of

a plaintiff’s First Amendment right to claim a

compelling interest in not hearing disagreeable

viewpoints, so also is it no defense to an alleged

infringement of parental substantive due process rights to claim a compelling interest that

is premised on a rejection of that right—in this

case, the Board’s claimed interest in having

matters central to the child’s well-being kept

secret from and decided by a party other than

the parents. In other words, the district court

failed to recognize that its analysis was akin to

holding there to be a per se interest in infringing on the Parents’ rights by granting students

a superior right to privacy and granting the

school the prerogative to decide what kinds of

attitudes are not sufficiently supportive for parents to be permitted to have a say in a matter

of central importance in their child's upbringing. But that is effectively a nullification of the

constitutionally protected parental rights.

Parents 1, 78 F.4th at 646 (Niemeyer, J., dissenting);

accord Lee, 135 F.4th at 937 (McHugh, J., concurring).

Other circuits have also held in related contexts that

the State’s second-guessing of the decision of fit parents about what is best for their children is illegitimate and entitled to no weight. See Doe v. Heck, 327

19

F.3d 492, 521 (7th Cir. 2003); Croft v. Westmoreland

Cnty. Children and Youth Servs., 103 F.3d 1123, 1126

(3d Cir. 1997); Brokaw v. Mercer Cnty., 235 F.3d 1000,

1019 (7th Cir. 2000).

It does not assist the school to pretend that the

policy only affects what happens at school. It doesn’t.

Just by asking a student at school the questions, “Do

you want to tell your parents?” and “Are your parents

supportive of your transition?,” as the policy requires,

school personnel encourage children to distrust their

parents. It is just as obvious that a child living a “double life,” exhibiting as transgender at school and not

at home, creates an emotional distance from the parents and threatens alienation from them after the parents discover that this behavior has been kept secret

from them. This is not just a “school matter,” and it

never can be.

Nor can the school justify its abrogation of parental rights by claiming students will “feel better”

and “do better” at school if the school takes over these

judgment calls for parents at the child’s behest. That

does not alter the basic point that parents are charged

with making these decisions, not school employees or

the children themselves. The law presumes that parents, not school boards, are principally responsible for

their children and are in the best position to know

their children’s unique temperaments, circumstances,

and needs and can best assess their long-term interests. See Parham, 442 U.S. at 602-03. As the Third

Circuit put it, “It is not educators, but parents[,] who

have primary rights in the upbringing of children.

School officials have only a secondary responsibility

and must respect these rights.” Gruenke v. Seip, 225

F.3d 290, 307 (3d Cir. 2000). If the child feels some

20

discomfort at school due to the parents’ decision, or

even performs more poorly than the school thinks the

child might otherwise, that is part and parcel of the

parents’ decision, one they are entrusted by law to

make and that the school must honor. It does not justify the school overriding the parents’ decision or collaborating with the student to counter the parents’ instructions concerning the name and gender of their

child.

This Court in Bellotti v. Baird, 443 U.S. 622

(1979), in the context of a minor’s desire to abort, repeated its admonition in Prince that it “is cardinal

with us that the custody, care and nurture of the child

reside first in the parents, whose primary function

and freedom include preparation for obligations the

state can neither supply nor hinder.” 321 U.S. at 166

(emphasis added). The Court then observed that parents have a constitutional role in making critical life

decisions of a sexual nature for their children:

Unquestionably, there are many

competing theories about the most effective way for parents to fulfill their central role in assisting their children on the

way to responsible adulthood. While we

do not pretend any special wisdom on

this subject, we cannot ignore that central to many of these theories, and deeply

rooted in our Nation's history and tradition, is the belief that the parental role

implies a substantial measure of authority over one’s children. Indeed, “constitutional interpretation has consistently

recognized that the parents' claim to authority in their own household to direct

21

the rearing of their children is basic in

the structure of our society.” Ginsberg v.

New York, supra, [390 U.S. 629], at 639

[(1968)].

433 U.S. at 637-39.6

The Supreme Court in Troxel held that, even

after an evidentiary hearing, courts have no right to

override the determination of fit parents about

whether it would be in their children’s best interests

to see their grandparents; minor children do not get a

“vote” on such matters. 530 U.S. at 64-70. If that is so,

school boards certainly have no right to second-guess

the determinations of parents about whether their

children should “change genders,” a decision with

much greater complexity and risk for the children. See

id. at 80 (Thomas, J., concurring) (stating that the

State “lacks even a legitimate governmental interest—to say nothing of a compelling one—in secondguessing a fit parent’s decision regarding visitation

6 In Bellotti, this Court was operating under the regime of

Roe, requiring it to balance against parental rights the

“need to preserve the constitutional right and the unique

nature of the abortion decision.” 433 U.S. at 642. This

Court upheld a parental notification law provided it had a

judicial bypass. Id. at 643. Of course, this Court overruled

Roe in Dobbs, and, post-Dobbs, the intermediate appellate

court of Florida held a similar parental bypass law to be

unconstitutional: “any deprivation of parents’ due-process

rights to notice and opportunity to be heard can no longer

be justified by their children's asserted constitutional right

to obtain an abortion (much less a secret abortion that cuts

presumptively fit parents out of the decision).” Doe v. Uthmeier, 2025 WL 1386707 at *7 (D. Ct. App. Fla., May 14,

2025).

22

with third parties”). The district court in Ricard put it

this way: “It is difficult to envision why a school would

even claim—much less how a school could establish—

a generalized interest in withholding or concealing

from the parents of minor children[] information fundamental to a child’s identity, personhood, and mental

and emotional well-being such as their preferred

name and pronouns.” 2022 WL 1471372 at *8 (footnote omitted). The short answer is that a school can’t

establish any such interest.

Conclusion

The school district here has trampled on the

fundamental rights of the parents of the minor child.

Parental rights do not stop at the schoolhouse gate,

and the naming and gender of a child are not educational matters nor matters best left to children. This

Court should grant the petition and reverse the First

Circuit.

Respectfully submitted,

this 21st day of August 2025,

/s/ Frederick W. Claybrook, Jr.

Frederick W. Claybrook, Jr.

Claybrook LLC

655 15th St., NW, Ste. 425

Washington, D.C. 20005

(301) 622-0360

Rick@claybrooklaw.com

23

Steven W. Fitschen

James A. Davids

National Legal Foundation

524 Johnstown Road

Chesapeake, Va. 23322

(757) 463-6133

sfitschen@nationallegalfoundation.org

jdavids@nationallegalfoundation.org