The Second Circuit vacated a lower court ruling that dismissed a parent’s challenge to a school district’s policy of using “the name and pronoun that corresponds to the gender identity the student consistently asserts at school” without requiring notification to the parents.
The ruling is notable, among other reasons, because it orders the lower court to reconsider how the Supreme Court’s recent emergency-docket ruling in Mirabelli v. Bonta applies. (Emergency-docket rulings, or “shadow-docket” rulings, are preliminary and deal only with the likelihood of success on the merits, not the merits themselves. They therefore lack the full precedential value of a merits ruling. Still, lower courts often treat emergency-docket rulings as precedential, and some on the Supreme Court have suggested that emergency-docket rulings enjoy at least some precedential value.) More on Mirabelli below.
The case, Vitsaxaki v. Skaneateles Central School District, a non-precedential summary order, arose out of a parent’s challenge to the school district’s policy of recognizing the gender identity of students at school without sharing that gender identity with the parents. A parent sued, arguing that the policy violated the Free Exercise Clause and their substantive-due-process right-to-parent under the Due Process Clause. They sought monetary damages and declaratory relief.
The court held that the parent lacked standing to claim declaratory relief, because they failed to plead any likelihood of future harm.
As to the damages claim, the court vacated the lower court’s dismissal and remanded the case to apply Mirabelli. Mirabelli says that a similar policy in California likely violated the Free Exercise Clause and parents’ “primary authority with respect to ‘the upbringing and education of children.’” Pierce v. Society of Sisters (1925).
Mirabelli says “likely” violated (and not certainly violated), because the case came to the Court as an emergency request to reinstate a lower-court ruling enjoining the law (and not on the Court’s regular merits docket). As a result, Mirabelli lacks the same precedential value of a fully-briefed and fully-argued merits-docket ruling. Still, Mirabelli was enough for the Second Circuit to order a remand and order the lower court to consider how it applied to this case.
Justice Kagan, joined by Justice Jackson, dissented in Mirabelli and argued why the Court jumped the gun in that case.
The Second Circuit ruling leaves the school policy in limbo. On the one hand, the court didn’t formally enjoin or strike the policy, or rule the policy unconstitutional, and nothing in the opinion says that the district can’t continue to enforce the policy. On the other hand, Mirabelli strongly suggests that the policy is likely unconstitutional, and, given how lower courts increasingly treat emergency-docket rulings of the Supreme Court, the lower court may well agree.
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