On February 18, 2025, the United States Court of Appeals for the First Circuit issued an opinion in Foote v. Ludlow Sch. Comm., 128 F.4th 336 (1st Cir. 2025) (“Foote”), assessing a school’s protocol requiring its staff to use a student’s requested name and gender pronouns within the school without notifying the parents, unless their student consents.
In her latest School Law Bullet, KingSpry’s Employment Law Chair and Education Law Attorney, Avery E. Smith, Esq., reviews the case and offers guidance to school administrators as it pertains to the use of students’ preferred names and gender pronouns.
Baird Middle School (the “School”) is a public school in Ludlow, Massachusetts. During the 2020-2021 school year, sixth-grade students were given an assignment to create biographic videos about themselves.
According to the Plaintiff-Parents’ (the “Parents”) Complaint, the librarian encouraged students to include their pronouns in their videos. The Parents allege that following their Student’s completion of the assignment, their school Google account started receiving “unsolicited LGBTQ-themed video suggestions,” and the Student began questioning their gender identity.
Unbeknownst to the Parents, the Student sent an email to the School’s teachers and counselor and the Superintendent, informing them that “I am genderqueer,” meaning that the Student would “use any pronouns (other than it/its).” The Student also requested to be referred to by a different name.
Having learned that the Student was still in the process of communicating this to their Parents, the School’s counselor directed all staff to use the Student’s previous name and she/her pronouns when communicating with the Parents, and the Student’s preferred name and pronouns during the school day.
This is where the Ludlow School Committee’s Protocol (the “Protocol”) comes into play.
The Protocol
The Protocol is an unwritten policy that allows students of any age “to determine whether their parents will be notified about decisions related to affirming [their own] discordant gender identity.” As such, the School would not inform parents of their student’s expressions of gender without consent of the student.
The Superintendent maintained that the Protocol complied with DESE Guidance—the Commonwealth’s Department of Elementary and Secondary Education’s non-binding guidance regarding gender-identity—and the laws and regulations of Massachusetts.
Issue
Upon learning of the Protocol, the Parents sued the Town of Ludlow, the Ludlow School Committee, and various School officials (collectively, the “Defendants”) in federal court.
The Parents alleged that the Defendants’ conduct restricted their fundamental parental rights protected by the Due Process Clause of the Fourteenth Amendment of the Constitution.
Decision
In its Per Curiam Opinion, the Court stated that this case presented “challenging issues” for its review. However, in accordance with the lower court’s ruling, the Court concluded that the Parents failed to state a plausible claim that Ludlow School Committee’s implementation of the Protocol, as applied to their family, violated their fundamental right to direct the upbringing of their child.
The Parent’s claimed that the Defendants’ conduct restricted their parental right to control the upbringing, custody, education, and medical treatment of their child.
The Court, however, offered the following:
Medical Care. The Parent’s “bare contention that [the Defendants’] practice constituted medical treatment that restricted their parental right to control their child’s medical care is not plausible.”
Education Experience. “Because public schools need not offer students an educational experience tailored to the preferences of their parents…the Due Process Clause gives the Parents no right to veto the curricular and administrative decisions…”
Protocol. “We conclude that the allegations in the Parents’ complaint about how the Protocol was implemented with respect to the Student did not restrict any fundamental parental right protected by the Due Process Clause.”
The Court summarized its analysis, providing that “the Protocol bears a rational relationship to the legitimate objective of promoting a safe and inclusive environment for students.”
Bottom Line For Schools
Foote is one of several lawsuits challenging school policies that seek to respect students’ requests regarding their preferred names and gender pronouns.
As cases continue to develop and Presidential Executive Orders are signed, school administrators may be questioning whether their policies are permissible.
Although the Court’s decision in Foote is not binding on Pennsylvania courts, it may serve as persuasive precedent in the event a similar case comes before them. For now, Pennsylvania school administrators are encouraged to review their policies and practices regarding student-preferred names and gender pronouns and assess whether they comply with all relevant Federal, State, and Local laws.
