Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Parents Protecting Our Children v. Eau Claire Area School District
According to the 7th Circuit Court of Appeals opinion in the case, Parents Protecting Our Children sued the Eau Claire School District in Wisconsin federal court to enjoin the enforcement of the district’s Administrative Guidance for Gender Identity Support. The administrative guidance provides direction and resources to schools encountering students with questions about their gender identity.
The district court dismissed the complaint for lack of subject matter jurisdiction, explaining that Parents Protecting leveled a broad pre-enforcement facial attack on the administrative guidance without identifying any instance of the school district applying the policy in a way concerning or detrimental to parental rights. The 7th Circuit affirmed the district court’s decision.
The U.S. Supreme Court denied a writ of certiorari in the case. Justice Samuel Alito dissented from the denial, and Justice Clarence Thomas joined the dissent. Justice Brett Kavanaugh would have granted the petition.
Alito wrote in his dissent that the case presented a question of great and growing national importance: whether a public school district violates parents’ “fundamental constitutional right to make decisions concerning the rearing of” their children, when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.
Alito noted that the lower courts never heard Parents Protecting’s arguments on the merits because they concluded the association lacked standing. According to Alito, the 7th Circuit relied principally on the Supreme Court’s decision in Clapper v. Amnesty Int’l USA and suggested that a parent could not challenge the district’s policy unless the parent could show that his or her child is transitioning or considering a transition.
Alito would grant the petition so the nation’s high court could address the questionable understanding of Clapper and related standing decisions. He expressed concern 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.
The U.S. Supreme Court denied a petition for a writ of certiorari in this case.
Justice Clarence Thomas, joined by Justice Samuel Alito, wrote a statement about the denial of certiorari.
According to Thomas, in New York State Rifle & Pistol Association., Inc. v. Bruen, the Supreme Court singled out Hawaii’s firearms-licensing regime as “analog[ous]” to the New York regime it held unconstitutional. Thomas noted that the nation’s high court explained that states cannot condition an individual’s exercise of his Second Amendment Rights on a showing of “special need.”
But, according to Thomas, the Hawaii Supreme Court ignored its holding, and its conclusion contravened the settled principle that Americans need not engage in empty formality before they can invoke their constitutional rights. Thomas wrote that this wrongly reduces the Second Amendment to a “second-class right.”
While the interlocutory posture of the petition weighs against correcting this error now, Thomas said he would grant certiorari in an appropriate case to reaffirm that the Second Amendment warrants the same respect as any other constitutional right.
Justice Neil Gorsuch also wrote a statement on the denial of the certiorari.
Gorsuch wrote that because the Hawaii Supreme Court failed to address a Second Amendment issue in the case, Christopher Wilson may be convicted and ordered to serve time in prison for violating an unconstitutional law.
But, according to Gorsuch, it may not be too late to avoid that result. He noted that the Hawaii Supreme Court issued its ruling in the course of an interlocutory appeal and that courts often revisit and supplement interlocutory rulings later in the course of proceedings.
According to Gorsuch, if the Hawaii Supreme Court doesn’t take advantage of that opportunity in this case, Wilson remains free to seek the Supreme Court’s review after final judgment.
Boston Parent Coalition for Academic Excellence Corp. v. The School Committee for the City of Boston
The Supreme Court denied the petition for certiorari in this case.
Justice Neil Gorsuch wrote a statement on the court’s denial.
According to his statement, a group of parents and students challenged a Boston public school admissions policy, arguing that it defied the 14th Amendment’s equal protection clause.
But, the difficulty, as Gorsuch sees it, is that Boston replaced the challenged admissions policy, and the parents and students do not challenge Boston’s new policy or suggest that the city is biding its time and intends to revive the old policy.
Gorsuch noted that Justice Samuel Alito, in a dissent on the denial, expressed concerns about the 1st Circuit Court of Appeals’s analysis that he shared and that lower courts facing similar cases would do well to consider.
Alito dissented, with Justice Clarence Thomas joining his dissent.
According to Alito’s dissent, the Boston Parent Coalition for Academic Excellence Corp. claimed that the admission policy, which is now replaced, though facially neutral, violated the equal protection clause.
Alito wrote that except in extraordinary circumstances, intentional discrimination based on race or ethnicity violates that clause. According to his dissent, despite overwhelming evidence of intentional discrimination, the lower courts concluded that the coalition’s equal protection claim failed because it did not show “disparate impact.”
Alito found that the lower court’s disparate-impact analysis was clearly flawed and that the lower courts mistakenly treated evidence of disparate impact as a necessary element of an equal protection claim.
According to Alito, the U.S. Supreme Court has now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions v. Harvard. He would reject this view of disparate impact. But, because the court failed to do so, he respectfully dissented.