While cleaning her 13-year-old daughter’s room in 2022, Amber Lavigne found a chest binder. A social worker at the eighth-grader’s school in Maine had given the child the device, which flattens breasts to facilitate a masculine appearance. Unbeknownst to Lavigne, at school her daughter was using masculine pronouns.
Lavigne is represented by the Phoenix-based Goldwater Institute, a liberty-defending think tank, and 18 states have, so far, joined an amicus brief supporting her petition asking the Supreme Court to hear her challenge to the supposed policy of the community’s school board. That policy is fictitious.
The board’s written guidelines for “addressing the needs of transgender students” require parental involvement. So, the school board says, there can be no constitutional violation. But Lavigne argues that the actual policy, as demonstrated by her surprise upon discovering the facts about her child at school, is to withhold information from parents.
Even after Lavigne had objected to the school’s sneakiness, no school employee was disciplined. And the school board unanimously voted to award a new contract to the social worker who taught Lavigne’s daughter how to use the binder, and who told her he would not inform her mother. The advertised guidelines might as well be written in smoke on water.
Last year, in a case from hyper-progressive Montgomery County, Maryland, the Supreme Court held that parental rights can be violated by a school’s policies about what and how children are taught. The court, citing the First Amendment guarantee of the free exercise of religion, upheld the right of parents of elementary school pupils to advance notice of, and the option to withdraw their children from, instruction featuring LGBTQ+ storybooks
Now, all rights have boundaries, often where they rub up against other rights. The right to free speech can be regulated to accommodate the community’s need for time, place and manner restrictions (e.g., no amplified speaking next to hospitals and schools). Parental primacy in child-rearing does not guarantee complete parental discretion regarding, say, vaccinations to protect a child, and the community’s right to protect itself, from infectious diseases.
The Supreme Court has, however, long held that parents have “primary authority” — not absolute, but primary — regarding the “upbringing and education” of their children. (Indeed, the court has called it a parental “duty.”) Goldwater litigators argue that this surely encompasses what a public school is doing that pertains to — facilitates and hides — a child’s “transition” from one gender to another.
The school board in Maine justified the school’s surreptitiousness regarding Lavigne by citing a state law affirming a student’s right to privacy “regardless of age.” And another state law allows students of any age “to establish their own confidential counseling relationship with a school based mental health services provider.” These laws are foolishly dogmatic, obviously ideological and incompatible with a lot of law concerning parenting.
The Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) rarely surfaces in constitutional reasoning. It did, however, make a quiet cameo appearance in a recent case involving issues similar to Lavigne’s. Supreme Court Justice Elena Kagan has correctly said that parents have “unenumerated” rights — indisputably fundamental ones — concerning their children’s life choices. A century of judicial affirmations of parental rights have embedded them deeply in American assumptions and practices.
Higher education has become widely perceived as adversarial, even contemptuous, toward the cultural values of the society that sustains it, and has paid dearly in diminished funding and prestige. Now, K-12 public schools are putting themselves in peril by stealthy encroachments on parents’ prerogatives.
These schools hemorrhaged trust during the pandemic, partly because of unreasonable closures. And remote learning — pupils at home logging in on their computers to receive instruction — gave parents disturbing glimpses of ideological indoctrination insinuated into education.
Prodded by a portion of their party’s progressive minority (one wonders how many of the prodders have school-age children), some Democratic candidates have impaled themselves on the policy of biological males competing in females’ sports. This is political dynamite.
For many voters, K-12 education is their most intimate and important contact with government. And the Goldwater litigators note that in another case, Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch cited a report that nearly 6,000 schools have policies that block parents from learning about their children’s gender-identity experimenting, and the ways school personnel are involved in it. Woe betide the politicians who plant themselves in support of such policies.
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