RELIST WATCH

Wisconsin parents challenge school support plan for transgender students

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court continues to whittle down its backlog of relisted cases. At the last conference, the court disposed of four. It noted probable jurisdiction (the arcane term for when the court decides to review one of the few types of cases over which it has mandatory appellate jurisdiction) in a case involving challenges to Louisiana’s redistricting plan. And it granted review in one of the three relisted cases asking the court to address the timing rules governing review of deportation decisions concerning noncitizens at risk of persecution or torture.

Lastly, just as capital case Hamm v. Smith became the most-relisted case of all time, the court finally disposed of it. After a remarkable 24 relists, the court issued a brief two-page unsigned opinion summarily vacating the judgment below and remanding so that the U.S. Court of Appeals for the 11th Circuit could clarify the basis for its conclusion that Joseph Smith was intellectually disabled and thus not eligible to be put to death for the murder of Durk Van Dam. Justices Clarence Thomas and Neil Gorsuch noted that they would grant Alabama’s petition for certiorari and set the case for argument.

If you’re thinking that the Supreme Court didn’t need a full year from when this petition was first circulated to issue a two-page opinion, you are absolutely correct. I suspect that a lot of ink was spilled on memoranda arguing about how to resolve this case before the justices hit upon a solution that seven of them could agree to. When the current justices’ papers are released, long after we’re all dead, perhaps our descendants will be able to figure out what happened.

The court has newly relisted just two cases this week. Parents Protecting Our Children, UA v. Eau Claire Area School District involves administrative guidance issued by the Eau Claire Area School District in Wisconsin, designed to provide schools with direction and resources to help transgender students and students with questions about their gender identity.

The guidance acknowledges that some students might “not [be] ‘open’ at home for reasons that may include safety concerns or lack of acceptance.” For that reason, the guidance instructs school personnel to “speak with the student first before discussing a student’s gender non-conformity or transgender status with the student’s parent/guardian.”

The school district also prepared a template for a “gender support plan,” which is designed to develop a document setting forth the understanding between the student and the school district of a student’s gender identity and parental involvement in the process. The support plan states that “[s]chool staff, family, and the student should work together to complete th[e] document.” The support plan states that circumstances may arise where “parents are not involved in creating this plan,” in which case the guidelines direct school officials that “it shall be made clear to the student that this plan is a student record and will be released to parents when they request it.”

Parents Protecting Our Children is an unincorporated association of parents who have children in the school district. The group challenged the guidance, claiming it violated the members’ rights as parents under the due process clause of the 14th Amendment and the free exercise clause of the First Amendment. The lawsuit was not a response to any particular member’s experience with the school district’s implementation of the administrative guidance, but instead sought to invalidate the new policy in its entirety before it could be implemented. 

The district court concluded that the parents lacked Article III standing to challenge the administrative guidance. It found that the guidance and support plan did not mandate the exclusion of parents from such discussions or decisions regarding gender expression at school, nor had any information been withheld.

A panel of the U.S. Court of Appeals for the 7th Circuit that included two judges appointed by former President (and now President-elect) Donald Trump affirmed. The panel held the parents lacked a legal right to sue, known as standing, because they did not allege that “any particular parent” had experienced any actual or imminent injury attributable to the guidance or support plan, nor did the court “see an indication that any of … [the] members asked the School District about how it plans to implement the guidance. All we have before us is a policy on paper without concrete facts about its implementation.”

Parents Protecting now petitions for review, supported by 12 amicus briefs (one of them joined by 16 states). The group frames the question as whether parents have a right to sue “[w]hen a school district adopts an explicit policy to usurp parental decisionmaking authority over a major health-related decision — and to conceal this from parents.”

The school district counters that the 7th Circuit’s decision represents a straightforward application of standing law and that the parents’ petition “grossly mischaracterizes the Administrative Guidance.” The case was rescheduled three times before being relisted, suggesting at least one of the justices is keeping a very close eye on it.

Next up is Baker v. City of McKinney, Texas, which presents the question whether the takings clause of the Fifth Amendment requires a property owner to be compensated when the government destroys property during the course of what everyone agrees was necessary law-enforcement action.

The plaintiff in the case, Vicki Baker, had retired to Montana, and her adult daughter was preparing her house in McKinney, Tex., for final sale. A fugitive holding a 15-year-old girl hostage holed up in Baker’s house.  Baker’s daughter summoned police, who severely damaged the house with two armored vehicles, explosives, and toxic gas. The girl escaped, and the abductor killed himself.

Baker sued the city for, among other things, “taking” her property by severely damaging the house. She conceded that the damage was “necessary” and that the police “did what they were supposed to do,” but she argued that she was entitled to compensation.

The district court agreed, but the U.S. Court of Appeals for the 5th Circuit reversed. After surveying history and tradition, it concluded that under the doctrine of “necessity,” “the Takings Clause does not require compensation for Baker’s damaged or destroyed property because, as Baker herself claims, it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons.”

But the 5th Circuit noted some tension between the historical tradition it had identified and the Supreme Court’s oft-repeated statement that the takings clause was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by they public as a whole.” The appeals court said that it “would be for the Supreme Court alone” to decide whether “fairness and justice trump historical precedent.”

By a vote of 11 to 6, the court of appeals denied Baker’s to have the full 5th Circuit rehear the case. Judges Jennifer Walker Elrod and Andrew S. Oldham wrote a dissenting opinion expressing skepticism that there was a “necessity” privilege sufficiently broad to apply to law enforcement action. They acknowledged that under established legal tradition, authorities could confiscate property without having to pay compensation if the property was about to fall into the hands of enemy forces, and firefighters could pull down houses that were about to be destroyed anyway to create a fire-break. But, they argued, the historical tradition drew the line at losses the property owner would inevitably have incurred anyway. And the McKinney police “did not merely hasten a loss that would have inevitably befallen Baker.” Thus, the dissenters argued that this case is far “from the paradigmatic example of a public necessity at common law.”

Baker now petitions for review, supported by four amicus briefs, arguing that the 5th Circuit’s decision is inconsistent with historical tradition and Supreme Court precedent. While Baker acknowledges that many courts have held that there is a “necessity” defense to just compensation for property damaged in the exercise of police powers, she contends that the U.S. Court of Appeals for the 4th Circuit has held to the contrary in a case involving beehives destroyed during efforts to curb the spread of the Zika virus.

We should know more soon. Tune in next time!

New Relists

Parents Protecting Our Children, UA v. Eau Claire Area School District, 23-1280
Issue: Whether, when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to such a policy have standing to challenge it.
(Relisted after the Nov. 1 conference.)

Baker v. City of McKinney, Texas, 23-1363
Issue: Whether the takings clause of the Fifth Amendment applies even when the government takes property for a particularly compelling public use.
(Relisted after the Nov. 1 conference.)

Returning Relists

Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences.)

G-Max Management, Inc. v. New York, 23-1148
Issues: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences.)

Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences.)

Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences.)

Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11, Oct. 18 and Nov. 1 conferences.)

Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue: Whether the changes made by New York’s Housing Stability and Tenant Protection Act effect physical takings, and as applied takings, and violate both the due process and contract clauses of the Constitution.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences.)

Smith v. Stillie, 23-1316
Issues: (1) Whether Alaska’s requirement that individual donors must file duplicative reports of their political contributions within 24 hours of making them violates the First Amendment; and (2) whether Alaska’s extensive on-ad disclosure requirements violate the First Amendment.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences.)

Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences.)

Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18 and Nov. 1 conferences.)