Bloomberg LawAudrey Anderson, who heads the higher education practice at Bass, Berry & Sims PLC, discusses legal cases over schools not telling parents that their child is using a new preferred pronoun. Ethics law expert Arthur Hellman, a Professor at the University of Pittsburgh Law School, discusses the suspension of the country’s oldest federal judge. June Grasso hosts.
This is Bloomberg Law with June Brusso from Bloomberg Radio.
When children say they identify as something other than their sex at school, do they become mere creatures of the state, or do their fit parents still have the fundamental right to make decisions regarding their care.
The emerging legal battle over pronoun protocol in public schools has nothing to do with grammar and everything to do with gender identity. Some parents are suing schools that keep their children's use of new pronouns secret, claiming it's a violation of their constitutional right to direct the upbringing of their children. The Ludlow, Massachusetts School Committee is being sued over a teacher's failure to notify parents that their eleven year old began using different preferred pronouns. A federal judge dismissed the parent's complaint, but the First Circuit Court of Appeals could revive it, and at oral arguments, the judges seem to be wrestling with the issues. Here are judges Julie Reichelman and Kermit Lepez.
I think gender identity is clearly very important to everyone, and there are many things that happen in school every day that would qualify is less important than that. So do you really see no limiting principle between something like the gender identity of your child and you know who your child may have played with during recess that day. Are you really saying there's no difference there?
But you seem to be assert bottom line that the rights of the student to preclude disclosure of this request to use pronouns trump's the right of the parents to know what's going on with respect to the child's gender identity. Bottom line, you are asserting.
That, aren't you joining me?
Is Audrey Anderson, head of the higher education practice at Bassbari and Simms. Audrey explained why the parents are suing here.
The school where their children middle schoolers attended, have a policy that's not an unusual policy that says, if the students come to personnel in the school and say that they want to change their name, change their pronoun to the opposite gender that they were born into, the school will work with them to do that, and also we'll keep that information from the student's parents if the students ask for it to be kept from their parents. So the parents here were aware that one of their children was experiencing some questions about their gender and actually reached out to the school proactively to say, we don't want you to talk to our child about this, and the school, nevertheless, behind the parents' backs, talk to the child, started calling the child by a different name, use different pronouns, and the parents, understandably were very upset about this.
What surprises me about this is that at that age, if your kid seems aggressive, gets into a fight with someone, the teachers are on the phone, are calling you in, and yet they don't want to tell them about this very important aspect of their kid's life.
The countervailing policy decision here, and I think one reason why the parents are going to have a particularly hard time winning this case is if there's a Massachusetts law that requires schools to not discriminate against students because of their gender identity. And so this school has decided that in order to carry out that duty, they need to keep that information about the student private if the student asks for it to be private. And as the district court opinion says, that law doesn't that any age limits as to when this right to non discrimination on the basis of gender identity starts. So the school district here says, well, we have this date law that says we are not allowed to discriminate on the basis of gender identity. And there are some students for which it won't be safe for them at home. If their parents know that they are going by a different gender identity, it may become psychologically unsafe for them at home. So that's the countervailing thing. And why this is different in the school's mind from your child god in a fight, or your child through up at school, or all the other things that happen to kids at schools that the school does tell parents about.
I want to be clear on something. Did the school just call the child by preferred pronouns or did the school do more than that?
They also had somebody at the school meet with child regularly to talk to them about how they were feeling and be a resource person for them. And what The parents here alleged that in that way they were actually giving mental health treatment to their child without the parent's consent. Now, the district court found that they hadn't adequately alleged facts to support a conclusion that the child was receiving mental health treatment, though the district court kind of threw that out based on the factual allegation. You know, so they were saying it wasn't just calling them by different names. They were actually giving their child counseling mental health treatment that they did not agree to, which would be a more serious allegation if the district court had supported it.
The district Court used a standard, a very tough standard, shocking the conscience. Tell us what that standard is and is it appropriate in this case? Is it the correct standard in this case?
Well?
Yes, the parents here are alleging that their substantive due process rights were violated, and the court I think used the right standards to figure that out. You know, the parents in the Court of Appeals have said that the district court kind of made that standard extra tough. But the cases I've looked at seemed to require that the facts alleged really have to shock the conscience, and they're usually looking for something where the state actor has intentionally inflicted harm on the person who is suing. So think about you know, one of the cases I saw where there actually was substantive due process adequately alleged was where a school coach had intentionally used a hard object to hit a student in the face. That shocked the conscience. But there's lots of things where students are hurt, where it might be upsetting, but it doesn't reach that shock. The conscience standard and substantive due process is a very tricky legal standard that lots of judges think should be circumscribed. That there should be very few things that we find are protected by substantive due process. So what's established is the right to marry, the right to have children. So they want to keep the range of things that are within substantive due process really small. Now these parents say that, well, what's within substantive due process is the right to raise your children as you see fit. The thing they run into there is that there are Supreme court cases that support that. But what they support is the right to raise your children as you see fit in a prime at school setting. So there are old cases that say that the state cannot prohibit the teaching of German in private schools when parents want their children taught German. It doesn't say that the public schools have to teach German. There's a case saying that you can't require students to attend public schools, they have to also be allowed to attend private school So to me, those cases only say that these parents have a right to send their children to a school that would not have a policy like this, and there are lots of private schools that would not have a policy like this. I think it's much harder to say that within the public schools they get to have a right to say what the policy is on something like this. Here's my caveat. I'm surprised that they haven't raised a religious argument. I think that they'd have a stronger argument if they were also raising some kind of a free exercise argument that our religion also supports the idea that you are the gender that you're born into, and so for you to be teaching our child something other than that and supporting them transitioning when we've told you not to violate our religious rights. But they haven't argued that in this case.
And on that public private school issue, Judge Reichlman said that one of the basic rights that parents have is to decide whether to keep their children in private or public school, and if a school doesn't disclose information about a child's gender identity, then parents lose the ability to make a really meaningful decision about whether to keep the child in that school or move the child to another school.
Interesting There's a case in Maryland that went to the Fourth Circuit where the parents challenged the school policy. None of their kids, to their knowledge, had taking any advice from the school, or had tried to change their gender or anything like that, and the court said that they lacked standing to challenge the policy. And they said, hey, wait a minute, we don't even know if we have standing because the school won't tell us if our kids have come forward to use a different name and pronoun at school. And this just isn't fair. You're keeping us from even having standing to challenge the policy. And the Fourth Circuit said, yeah, we understand you're in kind of a tough spot, but we in other situations, mostly around national security cases, we prevent people from challenging a government policy where they don't know that they're on the terrorism watch list. For example, they don't know that they are being bied on, but they think they're being bied on in air quotes being surveiled by the government, and you have to allege some kind of facts that can lead the court to believe that you are actually being injured by the policy. Now Here's these parents have no problem with that because they have a good claim of actual injury because they know their students were hurt. But the Fourth Circuits dealt with that and it was a two one decision, but found that the parents last standing to challenge the policy, and what the parents should do that case said was use the ballot box. What they need to do is vote in a new school board that will change the policy that it wasn't for the court.
So this first Circuit decision will be the highest court ruling on the merits of this argument.
I believe that should be the case. And now we're only on a motion to dismiss, but yeah, it will be on the merits, where the for circus cases only on standing. They didn't hit the merits at all. But what's interesting to me is that all of the court that have addressed this have said that they don't like these school policies. They think these school policies are wrong headed and inappropriate, but that doesn't mean that they have the kind of shock the conscience a fact that you need for a substantive due process violation.
There's a case before the Eleventh Circuit which is very conservative, so there might end up being some kind of split in the circuits.
Yeah, I definitely agree with that I think that this is an issue that some conservative court will find that at least a complaint can go forward, and then the question will be whether the Supreme Court gets interested enough at that point, just when you have a decision on a motion to dismiss, or whether they want a case with a little bit more factual development, something that goes to a summary judgment motion at least or maybe even a trial before they decide to weigh in on this, you know, when the Supreme Court. If when the Supreme Court weighs into this, I think that some of the justices will have a hard time because the conservative side of the Supreme Court wants very much to have a very very narrow set of circumstances where substantive due process protects rights and justice. Thomas doesn't think that there is such a thing a substantive due process. On the other hand, I would believe them to from a policy angle, be very concerned about these kinds.
Of school policies.
So how they will thread that needle, I think will be very interesting to watch because you know, again there's very well settled law that says that at least curriculum now this isn't really curriculum, but that public schools get to choose their own curriculum and parents don't get a say in that except through the school board members if they elect. That's how parents get a saying curriculum.
So, according to the Conservative group Parents Defending Education, more than one forty school districts in thirty seven states discourage or bar staff from telling parents about a school's transgender status or gender identity without their permission. So just how big an issue is this?
There are certainly some communities where I think that there are you know, more and more children who are you know, between teenagers who are saying that they're trands or that they want to use a different pronoun or they want to be gender fluid or without a gender, and schools are you know, accommodating that. I don't think these policies are really unusual. I also though, from a policy perspective, I can see that parents would be very, very concerned about it. But I can also be the school's reasons for doing it, that schools want to be a place of psychological safety for students, and as the district court said, you know, they could imagine that it would be a much better policy that the school supports the student in sharing that information with their parents. You know, that can be a really tricky thing. And so, for example, I wouldn't expect the school to tell me if my child was making out in the whole way with another child. That might really upset me. It might be against a rule i'd said at home, it might be against my religious beliefs, but I wouldn't expect the school to tell me. And so you know, there are a range of things that we don't expect schools to tell us and that school don't tell us. So where this fits on the continuum, I think people can have good faith disagreements about and as concerning as I can see it would be as a parent, I can also understand the school's side of this.
Well.
Certainly this case is being watched nationally. There were more than one hundred amikas briefs filed, including from nineteen states that supported the parents' position and fifteen states that supported the school's position. So we'll see other first circuit rules. Thanks so much, Audrey. That's Audrey Anderson, head of the Higher Education practice at bess Berry and Simms. Ninety eight year old Judge Paul Newman was inducted into the ip Watchdog Hall of Fame at the Patent Law Blogs Annual conference in Virginia on Monday. Two days later, she was suspended by the Federal Circuit for one year for refusing to undergo medical testing as part of an investigation into her mental fitness to sit on the bench. The investigation was launched in late March, and a proceeding that usually unfolds behind the scenes, played out in public. Newman, who's been on the Federal Circuit Court of Appeals for nearly four decades, has vowed to find the decision joining me is ethics. Law expert Arthur Hellman, a professor at the University of Pittsburgh School of Law, tell us about this unanimous order from the Federal Circuit.
Well, what's in the order is that George Newman is suspended for one year from hearing new cases. That's both panel cases and bank cases. And the one year starts from the date of the order, which was yesterday, So it's really on top of the suspensions that have been issued starting back in March. George Newman has not been hearing cases now for about six months, and this will add a full year to the suspension, and it also two provisos. One is that it's renewable if she continues to refuse to cooperate with the committee, but the Committee and the Council can reconsider if she does cooperate.
This comes after a one hundred and eleven page report based on more than twenty interviews with members of the Court staff that Judge Newman had been having troubles recalling events, conversations and information. Does this order have anything to do with that report or is this just about her not cooperating with the committee and not going for medical tests.
That's actually one of the problematic aspects of this proceeding because in a way, the Council, like the Special Committee, is trying to have it both ways. This suspension order is predicated solely on refusal to cooperate, which is a form of misconduct. And yet the underlying concern, which is subject, as you point out, of extensive discussion in the Special Committee report as well as the Judicial Council order, the underlying concern is with disability. And so even though the real subject of the original complaint was disability, the Special Committee of the Chief Judge and the Council have turned it technically into a misconduct proceeding this supposedly narrow issue of failure to cooperate.
Is there precedent for this order?
Well, there's something of a precedent in the proceedings a few years ago involving District Judge John Adams, and there were some similarities and some differences. But the present situation where the real concern is disability and Judge Adams, the evidence was really of somebody who was campankerous and didn't play well with his fellow judge. There was really very little evidence there to suggest our disability, and in the end the order requiring a examination was withdrawn. So there are some parallels, but nothing like this has happened in the forty plus years. Under the Judicial Conduct and Disability Act, a nineteen eighty.
Law allows for judicial sanctions by colleagues as long as the punishment is not removal from office or indefinite suspension.
So does this order fit within that law?
Well, that's one of the big questions that is going to have to be addressed in the first instance by the Review Committee, the Committee on Judicial Conduct and Disability of the Judicial Conference, because the provision you're referring to does limit suspensions to ordering that on a temporary basis for a time certain, no further cases be assigned. So I regard that as the conjunctive two sets of requirements. It has to be on a temporary basis and for a time certain. And the question will be when you have a one year order that is renewable, does that satisfy the statutory language and does it fit with the aim of the statute. I mean, the statute has a very interesting history because it was a cooperative enterprise the drafting by judges and members of Congress, and they were very much aware that under the generally accepted interpretation of Article three of the Constitution, federal judges can be removed from office only through the process of impeachment by the House and trial in the Senate, and they, by putting that provision in, didn't want to have a backdoor removal. So the question is whether you have an order that is functionally equivalent to removing a judge from office. So, for example, I think a three year suspension probably would one year that's renewable, that's an open question. There is no authoritative decision about that.
Or is there precedent for a court forcing a judge to undergo medical testing. That's what was an issue here, Right, She's submitted tests from her own neurologist and forensic psychiatrist, but they wanted her to go to someone they approved.
Right.
Well, again, the Adams case is the closest parallel, and there the Committee on Judicial Conduct and Disability, as you pointed out, that will be the review body that committee in terms of what we'll call administrative precedent or precedent within the misconduct system. That committee has already said it is permissible under the statute. But there's also a lawsuit pending that Judge Newman is filed in the District Court, and that issue has not been settled by a court, and there's an initial question there whether it is even something that the district court can consider, because there's another provision in the statute that says that the only review of council orders is through the Committee of the Judicial Conference and there's to be no review anywhere else. And the District of Columbia Circuit, in a proceeding involving Judge John McBride of Texas, has said that as applied, challenges to the statute are barred in federal District Court by that preclusion provision, So we don't have a judicial precedent and we may never get one.
Do you think that she has a good chance in her challenge at the Committee on Judicial Conduct and Disability?
I think she does not have a good chance of getting a ruling that the Council cannot order her to undergo some kind of testing. I think the Conduct Committee may be concerned about the process that was followed here, several aspects of it. But for example, the fact that the Council suspended Judge Newman from hearing cases before this process was formally initiated, but tying that suspension to the concerns about disability. One of the emails that is included in the voluminous attachments to the order issued yesterday, where the Chief Judge refers specifically to a Council order directing that Judge Newman not hear any new cases while this process is ongoing, and the reference to the process is pretty clearly the process under the Act, and as I read the Act, that is simply not permissible. So you have right at the outset what I believe was a serious procedural misstep, and I could see the Judicial Conduct Committee, saying that tainted the whole process and it should, if not startle over again, it should be redone. And I would like to see that done by a different circuit. I think that would be much better way of handling it. The Federal Circuit has adamantly refused to transfer, to request a transfer to another circuit, which is something that's permitted under the rules. No, it's not specifically in the Act, but it is in the rules. And I think I would certainly have much more confidence in this proceeding if the findings of fact and the investigation were carried out by judges who had no connection to Judge Newman or to the judges who are sitting on the Council of the Federal Circuit.
Coming up next, I'll continue this conversation with Professor Arthur Hellman and we'll discuss whether a mandatory retirement age for federal judges would be constitutional.
This is Bloomberg.
I've been talking to Professor Arthur Hellman of the University of Pittsburgh Law School about the Federal Circuit suspending ninety eight year old Judge Pauline Neuman, the Court's eldest jurist, for one year as punishment for not submitting to medical testing as part of a disability and misconduct investigation to look into her mental capacity to sit on the bench. According to a twenty twenty Law Review article by Francis Shin, the average age of federal judges, the average.
Age is sixty nine.
Would it be constitutional to have a mandatory retirement age for judges?
It would not be constitutional to have a statutory in retirement age. Now I think to have that, and it might be a good idea or might not, But in my view, it would require a constitutional amendment. I mean, you're certainly correct that there's widening concern about aging figures in all three branches of the national government today. The judiciary is actually unique in that Congress has provided a process for dealing with such a situations. In fact, in addition to the process and to the Act, there's an even older statute that allows the Circuit Council to certify a judge or with essentially mandatory retirement. But something that perhaps should have been more of a focus here than it has been. So in most instances, these processes work well. They work behind the scenes. When they're successful, we don't even know it happened. All we see is an announcement that Judge Smith is taking senior status. That's all we see. What we don't know is what happens. For example, and in some cases I'm familiar with, in one instance, you've had a judge who was no longer competent. He resisted retiring. His wife eventually persuaded him that his whole legacy would be at risk if there were a public proceeded. Another case, the judge's daughter persuaded him. So while this particular proceeding is very, very troubling in many many respects, we should not see it as typical. It is extremely atypical. It is a failure of the system.
Why isn't the Chief Judge then use the process you just talked about.
That's a very very good question. Over the course of this there now I think been three separate documents where the Chief Judge or the Special Committee and are now the Circuit Council has attempted to justify the refusal to transfer. And I've read all of those. I just don't think they're persuasive. I think that everybody's interests would have been served could still be served today by having this considered by a group of judges who have no connection with Judge Newman, no connection with the other judges of the Federal Circuit. And in fact, one of the striking things about this, because the proceeding here has been though totally in house. I mean, in every other circuit, both the Special Investigating Committee and the Circuit Council would be composed of a mix of district judges and circuit judges. You don't have that here. This is the one circuit where the only judges participating in the Special Committee, the only judges participating serving on the Judicial Council, are all Judge Newman's colleagues. The other thing that reinforces that is that in most of the Special Committee proceedings, including the Atoms Proceeding, which the Circuit Council keeps going back to as the model, and the Atoms Proceeding, and in most cases where there's a special Committee, the special Committee hires an outside council to work with it. And that's important and desirable for two reasons. One is that investigation is not something judges are trained to do. But you find a law firm or a lawyer whose specialty is investigating, for example, investigating alleged doing by some corporate insider, a corporate director, so we don't have the expertise of an outside council. Second, and maybe more important, the outside council brings an outsider perspective. You can every kind of investigation benefits from that, whether it's in a corporation, government agency, or even a faculty. Somebody coming in from the outside and who doesn't know the participants can ask the tough questions, can ask about things that the insiders might not even be aware of because it's so so so much a part of their existence. So not only was there no transfer here, there was no outside council to provide that external perspective.
This ends up being such a complex case. And you know this area, so, oh, well, is there anything you want to add?
I have not seen discussed anywhere, And then maybe I'm off based on this, but I'll mention it just to hopefully get it on the table. I mean, one of the things that the council might have done would be to issue the order, but to stay it, you know, and we've seen all these cases challenges to government practices where just the court orders are stayed. I mean, let Judge Newman sit, let us sit on the November and December calendars, and I think that would be the best way of finding out whether she is confident to sit. You know, we have the oral arguments which are public, and then the judge's private conference. We would find out not maybe not definitively, but that would be far better evidence of her competence to participate in judicial decision making than the evidence in the report, which is all interactions with staff. The Special Committee refused to interview the judges that was not part of excluded that from their investigation. So it's a very very limited body. It's a large body of information, but it's a limited body.
Well, this is certainly not the end of the story. Thanks so much, Arthur. That's Professor Arthur Hellman of the University of Pittsburgh Law School.
And that's it for this edition of The Bloomberg Law Show.
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