On December 14, 2022, a judge in the United States District Court for the District of Massachusetts issued a decision in Foote, et al. v. Town of Ludlow, et al., No. 22-30041 (2022) which has garnered significant attention in the media. The court dismissed a lawsuit filed by two parents who claimed that the Ludlow Public Schools violated the parents’ fundamental rights to make decisions about the upbringing of their children when school staff offered guidance about gender identity to two students, complied with the students’ requests to use alternative names and pronouns, and did not share information about the students’ preferences with their parents. Because the dismissal assessed whether the complaint stated a claim such that the case could proceed, the court was required to accept as true the allegations in the complaint.
The facts pertinent to the claim are complex but can be summarized as alleging that the school withheld information from the parents of two students regarding the students’ decisions about gender identity, the students’ use of preferred names and pronouns at school, and staff’s counseling of the students. The students at the time were ages eleven and twelve and were enrolled in middle school.
Assessing the parents’ claim as one involving their Fourteenth Amendment right to substantive due process, the court applied a standard which determines whether the school district’s actions were “so extreme and egregious as to shock the contemporary conscience” and exhibited a “‘stunning’ level of arbitrariness that goes beyond ‘[m]ere violations of state law.’” The court concluded that the facts alleged by the parents failed to meet this demanding requirement and dismissed the lawsuit. The parents have filed a notice of appeal requesting review of the decision by the Court of Appeals for the First Circuit.
While the court ultimately decided that the parents had failed to state a claim, it made a number of observations regarding the district’s handling of an issue that is likely to arise with increasing frequency in Massachusetts schools. The court recognized the tension between the competing interests that may be involved in assessing students’ rights and parental rights. It acknowledged that “Massachusetts laws and regulations regarding gender identity … establish a significant government interest in providing students with a school environment in which they may safely express their gender identities, regardless of their ages or the preferences of their parents.” The court noted that this policy is reflected in the “non-binding guidance” of the Department of Elementary and Secondary Education (“DESE”), “Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment”. The court observed that this guidance “emphasizes the importance of creating a safe and supportive environment for students and encourages schools to work with students to develop plans for use of preferred names and pronouns” and that “‘in the case of a younger student,’ DESE advises schools to create a plan with input from parents”, but added that “DESE has not defined younger students, other than by describing them as ‘not yet able to advocate for themselves.’”
Ultimately the court stated that the school district’s actions were “based on a flawed interpretation of the DESE Guidance and ignored the plain language advising that parents be informed after the student is advised that such communication will occur.” The court suggested that “a policy that facilitates communication between students and parents would be consistent with the DESE Guidance and its recommendation to avoid surprising students when informing parents about the matter.”
This decision illustrates the difficulties that will be encountered by school districts in this area when balancing the rights of students in choosing gender identity and the rights of parents in being informed about and being involved in these sensitive matters. The court did not explicitly mention the fact that the non-binding DESE guidance does appear to give more weight to a student’s independent right to make these decisions if the student has attained age 14/enrollment in the ninth grade:
“A student who is 14 years of age or older, or who has entered the ninth grade, may consent to disclosure of information from his or her student record. If a student is under 14 and is not yet in the ninth grade, the student’s parent (alone) has the authority to decide on disclosures and other student record matters.”
This aspect of the DESE guidance is based on the definition of an “eligible student” in the student record regulations, 602 CMR 23.01(1) and (2), under which the age/grade threshold determines whether the parent alone retains the student’s rights regarding records or those rights are held by both the parent and the student.
While we await the eventual outcome of the parents’ appeal, the Foote decision is most useful as a graphic illustration of the highly complicated and evolving character of this area of the law. Although the court concluded that the facts did not meet the exacting standard of the claim that was filed, school districts can face legal exposure if they fail to carefully navigate and balance the competing interests that inevitably will require a case-by-case analysis. That care may warrant communication with district counsel.
If you have any questions about the content of this update, please contact us. We are pleased to assist public and private schools with policy development and implementation.
This update is provided for informational purposes only and should not be considered legal advice.