Concluding that school officials’ actions did not “shock the conscience,” a divided federal appeals court Wednesday ruled against a couple who sued the Leon County school system in a dispute stemming from their child wanting to express a gender identity and use pronouns the parents didn’t support.
A sharply divided panel of the 11th U.S. Circuit Court of Appeals upheld a decision by Chief U.S. District Judge Mark Walker to dismiss the lawsuit, which was filed in 2021 by January and Jeffrey Littlejohn against the Leon County School Board, Superintendent Rocky Hanna and other school officials.
Before the 2020-2021 school year, the Littlejohns’ child, then a 13-year-old student at Deerlake Middle School, asked to go by a male name, “J,” and use they and them pronouns, according to Wednesday’s main opinion written by Judge Robin Rosenbaum. The child was identified as a girl at birth, and the Littlejohns did not allow the name and pronoun changes, though they said the child could use J as a “nickname” at school.
The child told a school counselor about wanting to use the name J and the they and them pronouns, Rosenbaum wrote. Under a school system policy guide at the time, the parents were not informed of the social transition at school. That ultimately led to the lawsuit.
“The Littlejohns allege that the board and its officials violated their parental due-process rights when the officials met with and permitted the Littlejohns’ 13-year-old child to express the child’s gender identity at school,” Rosenbaum wrote. “In compliance with the board’s guidelines at the time, school officials developed a gender identity-related “Student Support Plan” for and with the child without the Littlejohns’ involvement and contrary to the Littlejohns’ wishes.”
But the appeals court said the case involved a challenge to government executive actions and, as a result, the legal test under court precedents was whether school officials’ actions “shocked the conscience.”
Rosenbaum concluded that the actions did not rise to that level.
“The child was not physically harmed, much less permanently so,” Rosenbaum wrote, citing a series of legal precedents.
“Defendants did not remove the Littlejohns’ child from their custody. And defendants did not force the child to attend a Student Support Plan meeting, to not invite the Littlejohns to that meeting, or to socially transition at school. In fact, defendants did not force the Littlejohns’ child to do anything at all. And perhaps most importantly, defendants did not act with intent to injure. To the contrary, they sought to help the child. Under these circumstances, even if the Littlejohns felt that defendants’ efforts to help their child were misguided or wrong, the mere fact that the school officials acted contrary to the Littlejohns’ wishes does not mean that their conduct ‘shocks the conscience’ in a constitutional sense.”
Judge Kevin Newsom wrote a concurring opinion but was sharply critical of due-process precedents — and the school system.
“I think the defendants’ conduct here — in essence, hiding from the Littlejohns the fact that their 13-year-old daughter had expressed a desire to identify as a boy at school — was shameful,” Newsom wrote.
“If I were a legislator, I’d vote to change the policy that enabled the defendants’ efforts to keep the Littlejohns in the dark. But — and it’s a big but — judges aren’t just politicians in robes, and they don’t (or certainly shouldn’t) just vote their personal preferences. The question for me, therefore, isn’t whether the defendants’ conduct was shameful, but rather whether it was unconstitutional.”
But Judge Gerald Tjoflat dissented, focusing, in part, on parental rights and saying the shock-the-conscience legal test should not apply to the case. He wrote that the Littlejohns are “entitled to a day in court on the merits of their claims that the defendant executives violated their parental rights.”
Tjoflat also wrote that the question is, “Does the Constitution still protect parents’ fundamental right to direct the upbringing of their children when government actors intrude without their knowledge or consent? The majority says it does not. It reaches this conclusion by applying an illogical, unauthorized, and atextual ‘shocks-the-conscience’ standard that denies the Littlejohns the ability to vindicate their fundamental right to raise their child.”
Rosenbaum’s opinion said the Leon County system in 2022 updated its policy guide about handling LGBTQ issues.
