The Shadow Docket Sheds Light on Parental Rights

Part 9 of the series Judicial Round Up – Corralling Cases That Affect Schools

Our theme this year for our AASB Commentaries is “Judicial Round Up.” We are gathering significant court actions that impact school districts. This month we will examine the United States Supreme Court’s shadow docket and a decision which casts doubt on the legality of school policies regarding student privacy.

The Challenged Policies

Hundreds of school districts in California adopted policies that forbid teachers and other school staff from informing parents about a student’s unusual gender expression without the student’s express consent. As later described by a federal district court, these policies created a “zone of secrecy” around a student’s expression of gender incongruity.

The Parties and Legal Claims

Two teachers filed a lawsuit against their school district seeking exemption from school district policy. The school district’s defense was that the policy was required by state law as interpreted by the California attorney general and the State Department of Education. The plaintiffs responded by adding state officials as defendants to the litigation. Parents of California school children joined as plaintiffs to assert claims that the challenged school district policies violated their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United State Constitution. The federal district court certified subclasses for parents and for teachers. Each subclass contained individuals who objected to the challenged policies and individuals seeking religious exemption from the policies.

The Injunction Issued by the District Court

The federal district court granted summary judgment for the plaintiffs and issued a permanent injunction. This injunction covered every parent of a California public school student and every public school employee statewide. The injunction prevented schools from misleading parents about their child’s gender presentation at school, required schools to follow parents’ directions regarding their child’s names and pronouns, and compelled the defendants to include in any state-created or approved instructional materials a notice of the rights protected by the injunction. The defendants appealed.

Stay Issued by the Appellate Court

On appeal, the Ninth Circuit Court of Appeal granted a motion to stay the injunction. The Ninth Circuit noted that the district court had not engaged in rigorous analysis before granting class certification, described the injunction as overly broad, and expressed doubts about the legal soundness of the district court decision. The Ninth Circuit did not rule that the district court had made a legal error, only that the district court might have erred. The Ninth Circuit’s interlocutory stay meant that school districts and state officials would not be required to comply with the district court’s injunction while the defendants’ appeal was pending.

The Shadow Docket

Parents and teachers filed with the United States Supreme Court an application to vacate that interlocutory stay. The Supreme Court’s interim relief docket, sometimes called the “shadow docket,” consists of applications seeking immediate relief from the court which are handled on an expedited basis with limited briefing and, typically, without oral argument. Frequently the Supreme Court resolves matters in the shadow docket with unsigned orders containing little or no explanation, although sometimes the order contains an explanation and sometimes there are concurrences and/or dissents from other Supreme Court Justices.

Application to Vacate Stay Granted

In this case, the Supreme Court issued a per curiam opinion vacating the Ninth Circuit’s stay. That is not a final decision on the merits of the Plaintiff’s claims. Although the case has not yet been fully briefed at the appellate court, much less decided, the Supreme Court has tipped its hand. The order on the shadow docket shows that the majority of Justices think the challenged policies will not withstand the strict scrutiny applied to legal challenges alleging interference with the right of parents to guide the religious development of their children and that the district court’s injunction will promote child safety by guaranteeing parents a role in some of the  most consequential decisions in their children’s lives.

Practice Pointers

Each month we provide “Practice Pointers” or practical suggestions for you to consider. When you are called upon to make policy decisions for your District, here are some Practice Pointers to consider:

1. To withstand legal scrutiny, a school district and its employees must comply with both state and federal law.
2. School districts have obligations to safeguard the health and well-being of their students, but not to such an extent that district employees supplant parents or substantially interfere with the rights of parents to guide the religious development of their children. Policies or practices that violate a family’s beliefs and burden religious exercise are subject to strict scrutiny.
3. The law on gender identity in school settings is in flux. Some policies that were adopted previously could be subject to legal challenge now. Districts should consider reviewing their policies regarding transgender students and parental communication.