Another Federal Court Determines Parents Had No Right to Know School Was Socially Transitioning Daughter

A panel of the U.S. Court of Appeals for the 11th Circuit recently determined that the efforts of a Florida middle school to help a minor child socially transition to a different gender behind her parents’ backs were not sufficiently egregious to “shock the conscience” and allow the parents’ claim to proceed. But in granting the school officials’ motion to dismiss the case, the panel’s ruling in Littlejohn v. Leon County wasn’t just bad policy, it was bad legal analysis as well. 

In 2020, as the COVID-19 pandemic swept the nation, and most children were relegated to virtual school, January and Jeffrey Littlejohn’s 13-year-old daughter told January that “she no longer felt like a girl.”

This revelation appeared at the same time that three of their daughter’s friends at her local middle school had also suddenly declared a transgender identity, and while their daughter was struggling with Attention-Deficit/Hyperactivity Disorder, that made online learning challenging. 

Over the next two years, January and Jeffrey’s daughter’s claimed identity changed four times. She revealed she had met with school administrators and was requesting that her teachers refer to her by a different name and “they/them” pronouns. Under the school board’s “gender support” guidelines, school officials had developed a gender identity-related “Student Support Plan” for and with the Littlejohns’ daughter without her parents’ involvement and contrary to their express wishes. 

Their lawsuit followed. Unfortunately, in assessing their claims, both the trial court and the appellate court got it wrong.

The 11th Circuit Court of Appeals rightly started its analysis with the question of whether the Leon County School Board and its employees’ actions were more “legislative” (a policy or regulation applicable to a larger segment of society) or “executive” (a specific act of a governmental officer applicable to only one person) in nature. That distinction governs which framework a court must apply in cases rooted in the due process clause of the Constitution’s 14th Amendment, like the one brought by the Littlejohns. 

When reviewing legislative action, a court is supposed to apply the traditional levels of judicial scrutiny from lowest (rational basis review, wherein a challenged policy is presumptively constitutional) to highest (strict scrutiny, wherein a challenged policy is presumptively unconstitutional), depending on the type of right asserted. When a plaintiff asserts a right that is considered “fundamental,” strict scrutiny review applies. In Troxel v. Granville, the Supreme Court in 2000 noted clearly that the parental right to direct a child’s upbringing is the oldest of the “fundamental” liberty interests ever recognized by that court. 

So, because a fundamental right was at issue, the court should have applied strict scrutiny. Specifically, the school board and its officials should have had to prove that the policy and their actions were necessary to achieve a “compelling” government interest and were the most narrowly tailored means to achieve that interest. Strict scrutiny is a high bar for any government defendant to overcome. 

But the court instead determined that the school board’s policy and the actions of school officials based on that policy were not legislative in nature but rather were “executive” in nature. And executive actions are presumptively constitutional. To prevail, a plaintiff must meet the high burden of proving that the actions of the official were so egregious as to be “conscience-shocking.” In other words, the conduct of a government official was so deplorable, unjust, and malicious that it violated fundamental principles of fairness and due process.

The 11th Circuit majority wrote that it had repeatedly rejected claims of “conscience-shocking” conduct in educational settings. It asserted that the conduct of the school officials in creating a gender support plan for the Littlejohns’ minor daughter, including facilitating the use of her preferred pronouns and preferred restrooms, was not done “willfully or maliciously” with an intent to injury the child, but rather, in an effort to help her.  

But as courts have held and I’ve written, school policies that apply to all children in a school or school district are properly classified as legislative actions, not executive actions. That means the court should have applied strict scrutiny instead of a “shocks the conscience analysis”—something that likely would have rendered the school policy unconstitutional. 

The 11th Circuit majority also ignored a mountain of case law to the contrary on the primacy of parental rights. In 1970, for example, the Supreme Court in Parham v. J.R. wrote: “Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”

In his dissent from the majority’s conclusion, Circuit Court Judge Gerald Tjoflat cited an extensive line of cases indicating that the primacy of the parental right to direct the upbringing of one’s minor children has been long recognized as constitutionally protected. 

He argued that:

“If today’s opinion states the law, then enforcement in the Eleventh Circuit of the fundamental liberty interests the Littlejohns seek to vindicate … has come to an end … The Supreme Court clarified that the liberty guaranteed by the Fourteenth Amendment ‘denotes not merely freedom from bodily restraint’ but also protects liberties including ‘the right … to … bring up children.’ … Instead of fundamental rights being protected from an executive actor’s intrusion, they are protected only if the act ‘shocks the conscience.’ The Majority is wrong.”

While the Littlejohns consider an appeal to the U.S. Supreme Court, it should be noted that this term, the court has already dismissed petitions for review in two cases dealing with precisely the same type of school gender secrecy policies. 

Tjloflat noted those cases in his strenuous dissent, writing, “As Justices Alito and Thomas recently warned in a factually similar case, ‘[t]his case presents a question of great and growing importance.’”

“Does the Constitution still protect parents’ fundamental right to direct the upbringing of their children when government actors intrude without their knowledge or consent?” Tjoflat asked. “Today’s decision ignores bedrock separation of powers principles, waters down fundamental rights, and flies in the face of our prior panel precedent rule. It is as wrong as it is ominous for the future of fundamental rights in the Eleventh Circuit,” he concluded.

Ominous, indeed.

Sarah Parshall Perry is a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Reprinted with Permission from The Daily Signal – By Sarah Parshall Perry

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.