On February 18, 2025, in Foote v. Ludlow School Committee, the First Circuit undermined parental God-given rights to direct the upbringing of their children. The court instead upheld the authority of educators in Massachusetts, who, acting pursuant to an unwritten protocol of their school committee (as boards are called there), withheld information from parents that their sixth-grade daughter wanted to be identified by a male name and pronouns at school.
In light of the court’s having concluded that “parental rights are not unlimited,” the column briefly reviews its order before reflecting on its impact on families.
Foote v. Ludlow School Committee
Controversy arose early in the 2020-21 school year after eleven-year-old sixth-grader B.F. and classmates received an assignment asking them to include their pronouns. Subsequently, “her school Google account started receiving ‘unsolicited LGBTQ-themed video suggestions,’” causing B.F. to question whether she “might be attracted to girls” and have “gender identity issues.”
By December 2020, B.F. met with a teacher (who did not notify her parents) to discuss her ensuing depression.
In an email dated February 28, 2021, that B.F.’s parents were initially unaware of, B.F. announced to her teachers and others in school that “I am genderqueer.” The email also stated that, using initials only, she changed her first name from B. to R.
During that time, educators used an unwritten committee protocol relying on a 2012 non-binding guidance from the Massachusetts Department of Elementary and Secondary Education on “transgender” children. The protocol directed staff to use the names and pronouns students preferred and not inform their parents without the consent of their children.
When, in March 2021, B.F.’s parents learned what was happening, they complained to the superintendent that staff members were essentially aiding their daughter’s “social transitioning”, amounting to a form of medical and psychosocial mental health treatment.
Because officials refused to address their concerns, the parents unsuccessfully sued the school committee and various educators for violating their Fourteenth Amendment substantive due process rights to direct the care, custody, upbringing, and education of their daughter, to make medical and mental health decisions for her, and to familial privacy.
On the appeal of an order rejecting the parental allegations for failing to state claims for which relief could be granted, a three-judge panel of the First Circuit unanimously affirmed in favor of school officials. Largely glossing over Pierce v. Society of Sisters of the Holy Name of Jesus and Mary, the bedrock of parental rights to direct the education of their children (discussed below), the panel ignored the overreaching actions of educators.
In fact, instead of cautioning officials to take the parental concerns into account, the panel caustically employed a take-it-or-leave-it attitude. According to the court, the parents “remain free to strive to mold their child according to the Parents’ own beliefs, whether through direct conversations, private educational institutions, religious programming, homeschooling, or other influential tools.”
The court contended that “[t]he protocol “plausibly creates a space for students to express their identity without worrying about parental backlash.”
The court further remarked that “[b]y cultivating an environment where students may feel safe in expressing their gender identity, the protocol endeavors to remove psychological barriers for transgender students and equalizes educational opportunities.”
To add insult to injury, the panel ordered the parents to pay the school committee’s costs. There is no word yet on whether the parents will appeal.
Reflections on impact
The First Circuit’s unsigned, per curiam (or “by the court”) order demonstrates judicial hubris of the worst kind, as none of the judges admitted to authoring the opinion. The court mostly disregarded Pierce’s 1925 dictum that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Minimally acknowledging Pierce, the court rejected the parents’ claim that the protocol could be viewed as a form of medical treatment or intervention as implausible because, if anything, it dealt with mental health treatment, ignoring connections between physical and mental health.
Moreover, the court rejected the parents’ concern that having educators who could deny them access to this information discuss “gender transitioning” with their daughter infringed on their rights. Their complaint addressed and questioned how the school “chooses to maintain what it considers a desirable and fruitful pedagogical environment.”
The court had authorized educators to allow middle school children to use the pronouns they wished without informing their parents. To this end, the court decreed that “[p]arents may not invoke the Due Process Clause to create a preferred educational experience for their child in public school.”
Unfortunately, this outcome relegates parents to the role of bystanders rather than active participants in the lives of their children attending public schools.
In light of Foote—and earlier judgments trammeling parental rights to direct the upbringing of their children, over, for instance, the extent to which young children can, or should, be exposed to age inappropriate sexual materials—one must wonder what judges are thinking. Under Foote, it is unclear how far jurists are willing to go in enabling educators to permit confused eleven-year-olds, and perhaps other children, to select pronouns of their choice inconsistent with their sex without notifying their parents.
As the situation unfolded, in December 2020, B.F.’s mother wrote to school officials: “I appreciate your concern and would like to let you know that her father and I will be getting her the professional help she needs at this time. With that being said, we request that you do not have any private conversations with [B.F.] in regards to this matter.”
Rather than working with her parents to try to develop a plan to help B.F., though, educators and the courts reified B.F., treating her as nothing more than a pawn, placing their ideological whims over the rights of her parents to address her needs and ultimate well-being.
Because an eleven-year-old such as B.F. cannot, for example, admit herself to a hospital, drive, vote, smoke, or purchase alcohol, it remains to be seen how far these activists in the guise of educators will go in deferring to children, keeping their parents uniformed over such a significant development as their daughter’s attempted “social transitioning”. These educators, aided and abetted by the judiciary, are openly averse to recognizing the primacy of parental rights.
Unfortunately, educators and the courts have taken the notion of in loco parentis—literally, “in the place of a parent”—well beyond its logical scope. Educators denied B.F.’s parents access to information, going to the very heart of caring for her physical and emotional well-being. Historically, “in loco parentis” covered academic and disciplinary matters as educators cared for children in their temporary custody. It is quite another matter for officials to develop policies on sensitive topics while denying parents access to intimate information about their children, thereby preempting their familial roles.
Moving forward, educators and the courts must restore the natural balance by acknowledging that parents are the primary caregivers of their children. School officials and jurists must consider the potential deleterious impact of Foote on familial trust and the need for open, honest communications as they empowered eleven-year-old B.F. and perhaps her peers to exclude their parents from their lives. Hopefully, sanity will prevail so that dangerous precedents will not be established and thus authorizing educators to ignore essential parental rights.
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