Commentary: Big Tent Ideas

MARC WHEAT: Will Supreme Court Defend Rights Of Parents?

Screen Capture/Supreme Court of the United States

Exactly a century ago this year, the Supreme Court, in its decision in Pierce v. Society of Sisters, recognized the right of parents to direct the education of their children, writing that “[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children . . . The child is not the mere creature of the state.” Today, just as they did a century ago, parents rely on the courts to serve as a backstop against abusive government policy.

Sadly, some courts in America are shutting the door of justice in the face of parents seeking to vindicate their rights and the rights of their children. In a case out of Wisconsin called Parents Protecting Our Children v. Eau Claire Area School District in the Seventh Circuit, the federal court of appeals with jurisdiction over cases arising in Wisconsin, Illinois and Indiana, parents challenged the school district’s policy directing school officials to hide a child’s “social gender transition” from their parents. As the school told its employees, “parents are not entitled to know their kids’ identities.That knowledge must be earned.”

Incredibly, the Seventh Circuit found that the parents’ harm in that case was merely speculative. Apparently, since plaintiffs must show harm to have standing to sue, parents must wait until they find out that their son’s school has been helping him dress as a girl and use the girls’ restroom for six months before they can challenge the policy.

The Supreme Court chose not to review the Seventh Circuit’s decision in that case. Justice Samuel Alito wrote a short dissent, joined by Justice Clarence Thomas, explaining that the parents’ harm is not speculative and that “some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions.”

Nor is this an isolated incident of judges dodging the controversy of gender ideology. The Fourth Circuit, the appeals court with jurisdiction over Maryland, West Virginia, Virginia, North Carolina and South Carolina, came to the same conclusion in John and Jane Parents 1 v. Montgomery County Board of Education. A district court in Ohio did the same in Doe v. Pine-Richland School District.

Parents’ fundamental rights to direct the upbringing of their children, and the right of children to be free from ideological indoctrination by school officials, depends on courts that are willing to protect those rights. That is why Advancing American Freedom is filing an amicus brief asking the Supreme Court to take up Blake Warner’s challenge to an Eleventh Circuit rule which effectively requires parents to hire a lawyer before they can represent their children’s interests in court. Specifically, while people can bring their own claims in court without a lawyer, and parents can sue on behalf of their children, the Eleventh and some other courts have found that parents cannot sue on behalf of their children without hiring a lawyer. While Mr. Warner’s claim is not related to gender ideology, his challenge to this rule is essential because his success would ensure that parents who are unable to afford an attorney can still seek judicial protection for the rights of their children. 

On Jan. 29, President Trump issued an executive order that, among other things, ordered the removal of federal funding from schools that engage in “social transitions of a minor student” and directed the attorney general to work with state and local officials “to enforce the law and file appropriate actions” against school officials who “facilitate the social transition of a minor student.” Trump’s order is important but know that gender ideologues will undoubtedly stage massive resistance. Parents must remain vigilant, and courts must begin to take their claims seriously. The Supreme Court should entrench parents’ rights by taking Mr. Warner’s case and striking down the counsel mandate.

Marc Wheat is the General Counsel for Advancing American Freedom.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.