By GARRY RAYNO, Distan Dome
“Parental rights” have been a long-running battlefield in the culture wars and last week’s New Hampshire Supreme Court’s decision will likely spur even more discussion next legislative session.
In a 3-1 decision carefully parsed by Chief Justice Gordon MacDonald, the court upheld a superior court decision dismissing a lawsuit filed by the mother of a Manchester public school student claiming the school district’s policy governing information on transgender and gender non-conforming students violated her constitutional rights to parent her child.
The court found the lower court did not err in finding the policy did not violate the mother’s constitutional rights under the state and federal constitutions in dismissing the case and based its decision on the state constitution with guidance from federal cases.
Both rulings, while respecting parental rights to raise and care for their children including in a public school, say is it not an unqualified right, and indicate a school policy on transgender or gender nonconforming students and what information may be shared, does not rise to the level of interfering with those rights.
MacDonald notes in his ruling the state has little case law governing the context of parental rights in a school setting, with most parental rights cases involving custody or guardianships, as well as removing children from their parents which all involve significant due process contentions.
The court ruling is not what advocates of parental rights bills proposed in the legislature the past few sessions would want.
Those bills, including several this past session that tried to pass piecemeal what was in two parental rights bills that failed last year and this year, did not become law.
In his ruling, MacDonald encourages future cases to address the due process rights issue related to similar school policies to arrive at a clearer legal standard.
As many articulated during debates over parental rights, the proposals would turn schools into surveillance operations for parents, which these days can rapidly become adversarial given the distrust flamed by public school critics and voucher advocates.
In the current atmosphere MacDonald offers a grounded opinion based on the state constitution and an approach that acknowledges there are many areas in which parents control their children’s upbringing, care and well-being, but with some limits imposed by the state for protecting children.
The courts say parents have many options if they do not agree with a school district policy intended to protect vulnerable children besides bringing lawsuits that do not rise to the level of constitutional action.
The rulings indicate there are other avenues open to parents to learn if their children are transitioning to another gender, including talking to them.
Superior Court Judge Amy Messer wrote in her ruling “[T]he Policy does not prevent parents from observing their children’s behavior, moods, and activities; talking to their children; providing religious or other education to their children; choosing where their children live and go to school; obtaining medical care and counseling for their children; monitoring their children’s communications on social media; choosing with whom their children may socialize; and deciding what their children may do in their free time. In short, the Policy places no limits on the plaintiff’s ability to parent her child as she sees fit.”
Her observation reflects a US Sixth Circuit Court of appeals ruling in Runyon v. McCrary, 427 U.S. 160, 177 (1976)), that was cited by MacDonald in the state Supreme Court’s ruling. The federal court wrote “While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally ‘committed to the control of state and local authorities.’”
Many of today’s Republicans in the House and Senate have tried to give parents control of those things including curriculum and educational materials.
The policy at issue in Jane Doe v. Manchester School District was adopted by the Manchester Board of School Committee in February 2021 and revised to say the district “should not” instead of “shall not” reveal information revealing a student’s gender status or gender nonconforming presentation to others unless legally required to do so,” but does not directly name parents in the prohibition, which it did originally.
The mother claimed the policy violated Part 1, Article 2 of the state constitution, or the state’s Bill or Rights, and the Family Educational Rights and Privacy Act, and the federal Protection of Pupil Rights Act.
In dismissing the suit, Messer found the policy did not infringe upon a fundamental right, so a strict scrutiny review (the highest bar) was not warranted, and under the rational basis test (a lower bar), it did not violate the constitution.
The issue before the Supreme Court was whether the superior court erred in dismissing the First Amendment complaint despite the allegation the policy encourages school officials to conceal her child’s open and public gender identity transition in school from the mother.
The mother learned of her child’s transition and request to be called by a different name and pronouns that reflected another gender inadvertently from one of the child’s teachers.
The mother asked that the school address her child and use the pronouns of the child’s birth gender, and teachers agreed to do that, but later the school principal wrote a letter saying school policy prevents staff from doing that if the child requests it.
After a discussion with her child, the child asked to be called by her original name and pronouns, which was respected by the school, the mother filed the suit contending the policy means she cannot know if the school’s and her child’s contention is factually true or if they are following the policy by misleading her.
In addressing the appeal MacDonald writes, “The questions thus become what is the scope of the fundamental right to parent and how does the Policy implicate it.”
He answered that question later in his opinion.
“We cannot conclude that any interference with parental rights which may result from non-disclosure is of constitutional dimension. This potential interference stands in stark contrast, for example, to circumstances in which we have found the right to parent implicated where parental custody was in jeopardy,” MacDonald writes.
While three of the justices agreed, the policy does not infringe on the fundamental right to parent, the newest Supreme Court Justice, Melissa B. Countway, dissented saying the policy does conflict the fundamental right to parent citing several decisions for federal district courts.
But MacDonald noted, “We believe these cases are inappropriate to our task of resolving whether this particular policy is in conflict with the New Hampshire Constitution. In any event, we respectfully note that there appear to be differences among federal district courts in addressing cases such as this.”
So expect someone to challenge these policies all the way to the US Supreme Court, which has taken a decidedly partisan turn in the past few years with its lopsided conservative majority.
In New Hampshire, the court’s 3-1 decision came without input from Justice Anna Barbara Hantz Marconi, who was recently put on paid administrative leave.
Garry Rayno may be reached at garry.rayno@yahoo.com.
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.
