Supreme Court Declines Foote v. Ludlow Case

The Supreme Court of the United States on Monday denied certiorari on an appeal from the First Circuit in Foote v. Ludlow, a parental rights case out of Massachusetts. The Parental Rights Foundation had submitted a brief in the case urging the Court to grant cert (that is, to hear the case and rule on its merits).

The April 20 decision means the ruling of the First Circuit, that schools did not violate parental rights when they engaged in secret gender transitions with students in public schools, will stand.

The Disappointment

“I’m disappointed that the U.S. Supreme Court declined to grant cert in this case,” declared William Estrada, the attorney who penned the Parental Rights Foundation’s amicus brief in the case. (Estrada was president of the Foundation at the time and remains on our Board of Advisors.)

“I hope that soon the Court will accept one of these cases in the nation and affirm what we all know: that parental rights are fundamental, and they do not end at the public school door.”

William Wagner, now chairman of the PRF board of directors, co-authored the brief with Mr. Estrada, and had this to say about the ruling:

“While we are disappointed that the Supreme Court declined to grant certiorari in Foote, leaving unresolved important questions concerning the scope of parental rights, we remain encouraged by the Court’s recent recognition in Mahmoud that parents possess a fundamental right to direct and control the religious upbringing of their children. That affirmation reflects a constitutional principle deeply rooted in our Nation’s history and tradition. We are confident that, in due course, the Court will provide further clarity to ensure that this foundational liberty is fully protected against governmental intrusion.”

The Court receives more than 6,000 cert petitions annually and grants cert to only about 60—that’s less than 1%. As is often the case when denying cert, the Court did not issue any explanation of its decision. We can attempt to guess their thoughts, but this is only speculation.

The Court has recently issued two rulings favorable to parents, including in Mahmoud v. Taylor last June (as referenced by Wagner) and in last month’s preliminary injunction ruling in Mirabelli v. Bonta. But both of these cases contain an element of religious freedom not present in Foote, which is cause for both disappointment and hope.

It is cause for disappointment, because it suggests that when the Court had an opportunity to rule on parental rights apart from religious freedom rights, it declined to do so. Last month’s Mirabelli decision separated out parental due process rights from parental religious freedom rights and hinted favorably toward the parents on both matters. But that is only a preliminary injunction and not a final, dispositive ruling. 

My personal hope for Foote was a clean statement that parental rights are fundamental on their own, even if separated from any practice of religious freedom. Parental rights should be for all parents, and on all subjects, not just for religious parents or subjects of religious motivation.

Yet There Is Hope

Yet, this same distinction also brings hope. On the same day that the Court denied cert in the Foote case, they once again distributed for conference an appeal out of the Sixth Circuit in Littlejohn v. School Board of Leon County, a case out of Florida very similar to the Foote case, but with a religious component.

It is possible that the Court denied cert in Foote because it is leaning toward granting cert in Littlejohn, instead. The cases are similar enough that it always seemed unlikely that the Court would hear both unless they decided to merge them.

Sadly, it is also possible that the Court will ultimately pass on Littlejohn, as well. But that would be a huge mistake.

No agency or officer of the government should be permitted to keep secrets from parents about the health and wellbeing of their minor children. That is the question that both Foote and Littlejohn (as well as other cases around the country—this has been happening a lot!) raise, and the Court’s proper course should be to answer the question firmly in support of parents’ well established fundamental rights.

What You Can Do

As a result of this decision, minors throughout New England’s public schools remain vulnerable to overreaching government agents who choose to keep parents in the dark. The proposed Parental Rights Amendment to the U.S. Constitution would fix that by making clear that parents, not government employees, have the lawful and natural right to make decisions in the best interests of their children.

So, take a moment today to call or email your U.S. Representative and urge him or her to sign on as a cosponsor of HJRes. 127, proposing the Parental Rights Amendment to the U.S. Constitution. They’ll need to know that Rep. Mary Miller is the lead sponsor, and they can reach out to Worth Loving in her office to sign on. 

If the Supreme Court is not going to step in to protect fundamental parental rights in the schools, it is up to Congress and the States to add this protection for our children’s sake.



Thank you for standing with us as we work to protect families both through the Parental Rights Amendment and through our amicus brief efforts on important cases like Foote and Littlejohn.