Wisconsin parents challenge school support plans for transgender students
RELIST WATCH
The Supreme Court is continuing to reduce its backlog of relisted case. The court decided four cases at the last conference. In a case that involved challenges to Louisiana’s redistricting plans, the court noted probable jurisdiction. This is a jargon term used when the court decides it will review one of the rare types of cases for which it has mandatory appeals jurisdiction. And it granted review in one of the three relisted cases asking the court to address the timing rules governing review of deportation decisions concerning noncitizens at risk of persecution or torture.
Lastly, just as capital case Hamm v. Smith became the most-relisted case of all time, the court finally disposed of it. After a remarkable 24-relistings, the court issued a two-page unsigned summary opinion summarily vacating and remanding the judgment below so that the U.S. Court of Appeals 11th Circuit can clarify its conclusion that Joseph Smith is intellectually disabled and therefore not eligible to die for the murder of Durk van Dam. Clarence Thomas, Neil Gorsuch and Justices Roberts and Thomas noted that they would grant Alabama’s petition for certiorari. They then set the case for arguments. I suspect that many pages of ink were spilled in memoranda discussing how to resolve this issue before the justices came up with a solution to which seven of them agreed. The court relisted only two cases this past week. Parents Protecting Our Children, UA v. Eau Claire Area School District involves administrative guidance issued by the Eau Claire Area School District in Wisconsin, designed to provide schools with direction and resources to help transgender students and students with questions about their gender identity.
The guidance acknowledges that some students might “not
‘open’ at home for reasons that may include safety concerns or lack of acceptance.” For that reason, the guidance instructs school personnel to “speak with the student first before discussing a student’s gender non-conformity or transgender status with the student’s parent/guardian.”
The school district also prepared a template for a “gender support plan,” which is designed to develop a document setting forth the understanding between the student and the school district of a student’s gender identity and parental involvement in the process. The support plan states, “
school staff, family, as well as the student, should work together to create the document.” It also states that in some cases, “parents may not be involved in creating this Plan,” and that in these circumstances, “it is important to make it clear to the students that this Plan is a student’s record that will be released upon request by the parents.” The group challenged the guidance claiming that it violated their rights as parents under both the due process clause in the 14th Amendment, and the free expression clause in the First Amendment. The lawsuit was not in response to a particular member’s experience of the school district’s implementation, but rather sought to invalidate the policy as a whole before it could be implemented. The district court concluded that parents did not have Article III standing to contest the administrative guidance. The court found that the guidance plan did not require parents to be excluded from discussions or decisions about gender expression in schools, nor was any information withheld. The panel ruled that the parents did not have standing to sue because they had not alleged that “any parent” had suffered any actual or imminent harm attributable to guidance or support plan. Nor did the court “see any indication that any of…
Members asked the School District how it plans on implementing the guidance.” All we have before us is a policy on paper without concrete facts about its implementation.”
Parents Protecting now petitions for review, supported by 12 amicus briefs (one of them joined by 16 states). The group asks whether parents can sue if a school district adopts a policy that usurps parental decisionmaking authority and conceals this from parents. The group asks whether parents have a right to sue “[be]when a school district adopts an explicit policy to usurp parental decisionmaking authority over a major health-related decision — and conceal this from parents.”
The next case is Baker v. City of McKinney, Texas. In that case, the plaintiff Vicki Baker had retired in Montana, and her adult daughter was preparing her house in McKinney for final sale.[s]The plaintiff in the case Baker’s daughter called the police who used two armored cars, explosives and toxic gas to severely damage the house. The girl escaped, and the abductor killed himself.[e]Baker sued the city for, among other things, “taking” her property by severely damaging the house. She conceded that the damage was “necessary” and that the police “did what they were supposed to do,” but she argued that she was entitled to compensation.
The district court agreed, but the U.S. Court of Appeals for the 5th Circuit reversed. After surveying history and tradition, it concluded that under the doctrine of “necessity,” “the Takings Clause does not require compensation for Baker’s damaged or destroyed property because, as Baker herself claims, it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons.”
But the 5th Circuit noted some tension between the historical tradition it had identified and the Supreme Court’s oft-repeated statement that the takings clause was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by they public as a whole.” The appeals court said that it “would be for the Supreme Court alone” to decide whether “fairness and justice trump historical precedent.”
By a vote of 11 to 6, the court of appeals denied Baker’s to have the full 5th Circuit rehear the case. Judges Jennifer Walker Elrod, Andrew S. Oldham and others expressed skepticism about the “necessity privilege” being broad enough to cover law enforcement actions. They acknowledged that, under established legal traditions, authorities can confiscate property and not have to pay compensation when the property is about to fall into enemy hands, or firefighters can pull down houses which were about to be demolished anyway to create a blaze-break. They argued that the historical tradition only applied to losses that the property owner was bound to suffer. Baker, backed by four amicus, has filed a petition for review, arguing that 5th Circuit’s ruling is inconsistent with Supreme Court precedent and historical tradition. Baker acknowledges there are many courts that have held that a “necessity defense” to just compensation is available for property damaged during the exercise of police power, but she asserts that the U.S. Court of Appeals 4th Circuit has ruled to the contrary. This case involved beehives that were destroyed in an effort to curb the Zika virus. Tune in next time![the]New Relists
Parents Protecting Our Children, UA v. Eau Claire Area School District, 23-1280[w]Issue
: Whether, when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to such a policy have standing to challenge it.
(Relisted after the Nov. 1 conference. )
Baker v. City of McKinney, Texas, 23-1363
Issue
: Whether the takings clause of the Fifth Amendment applies even when the government takes property for a particularly compelling public use.
(Relisted after the Nov. 1 conference. )
Returning Relists
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue
: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences. )
G-Max Management, Inc. v. New York, 23-1148Issues
: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences. )
Kerr v. Planned Parenthood South Atlantic, 23-1275Issues
: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences. )
Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences. )
Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences. )
Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue: Whether the changes made by New York’s Housing Stability and Tenant Protection Act effect physical takings, and as applied takings, and violate both the due process and contract clauses of the Constitution.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences. )
Smith v. Stillie, 23-1316
Issues: (1) Whether Alaska’s requirement that individual donors must file duplicative reports of their political contributions within 24 hours of making them violates the First Amendment; and (2) whether Alaska’s extensive on-ad disclosure requirements violate the First Amendment.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences. )
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences. )
Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences. )
