The New Hampshire Supreme Court sided with the Manchester Public School system Friday, ruling parents have no right to know about their children’s sex and gender-related behavior on campus.
“We cannot conclude that any interference with parental rights which may result from non-disclosure is of constitutional dimension,” the court’s 3-1 majority. “This potential interference stands in stark contrast, for example, to circumstances in which we have found the right to parent implicated where parental custody was in jeopardy.”
The case began in the fall of 2021, when a Manchester mom discovered through an inadvertent disclosure by a teacher that her child was engaged in transgender behavior at school. She asked that her child be spoken to and treated in correspondence to the child’s biological sex. The teachers agreed, but they were overridden by the principal, who informed the mother that would violate the district’s policy.
A lawsuit ensued over the school’s policy, which they subsequently amended. The mother lost in the lower court and took the case all the way to the Supreme Court, which rejected her appeal.
Attorney Rick Lehmann, who represented the mother in this case, told NHJournal he believes “the dissent had the better of the arguments” and that “the court underappreciated the importance of parental rights.” But he added, “We respect the ruling of the court.”
The Manchester School District praised the ruling.
“The superintendent and district leadership are pleased with the Supreme Court’s decision. As a district, we are responsible for providing a quality education in an environment that is safe and welcoming to all students. We remain committed to communication and transparency with parents to the fullest extent of the law.”
At issue is the district’s policy, imposed in 2021, declaring “a student’s right to keep private one’s transgender status or gender nonconforming presentation at school.
“Information about a student’s transgender status, legal name, or gender assigned at birth also may constitute confidential information. School personnel shall not disclose information that may reveal a student’s transgender status or gender nonconforming presentation to others including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure.”
After NHJournal began reporting on the policy, the district changed “shall not disclose” to “should not disclose,” but supporters of parental rights say the impact is the same.
During oral arguments, the school district made it clear it believes it has no duty to consider parents’ wishes when it comes to educating their children. Instead, attorney Meghan Glynn argued, parents who don’t want to give up their personal authority over their children should simply not attend Manchester public schools.
“If the parents want to make a different choice, they can homeschool, or they can send their child to a private school; those are options available to them,” she told the court.
The court majority agreed. The opinion, written by Chief Justice Gordon MacDonald, acknowledged that New Hampshire recognizes parental rights, but it also notes that it’s not uncommon for the state to override those rights in the interest of protecting children.
“Our parental rights cases have involved severe intrusions on the most basic rights to the care and custody of a child, such as termination of parental rights, withholding of custody from a parent, and the granting of guardianship or custodial rights to a non-parent over a parent’s objection,” the opinion states.
And because the revised rule says the district “should,” rather than “shall” keep fundamental information secret from parents, the court ruled it doesn’t reach the standard that would require a “strict scrutiny” review of the policy.
“The policy does not directly implicate a parent’s ability to raise and care for his or her child,” the court wrote. “It encourages school personnel to not disclose information that may reveal a student’s transgender status, but contrary to the principal’s assertion to the plaintiff, the policy does not require non-disclosure. Thus, even under the policy, school personnel may disclose the information. Further, the policy does not restrict a parent’s ability to learn information from other sources, including from the child. The policy does not encourage students to hide information from their parents or prevent students from sharing information.”
“We cannot conclude that any interference with parental rights which may result from non-disclosure is of constitutional dimension,” the court concluded.
Associate Justice Melissa Countway dissented.
“This case involves a substantive due process challenge to a policy, which, I believe, on its face, interferes with a parent’s fundamental right to parent,” Countway wrote. “I believe that this case—which involves whether a public school may conceal from a child’s parent the child’s decision to identify as a gender other than that assigned at birth—implicates such a right.”
(Associate Justice Barbara Hantz Marconi, whose husband is currently under investigation by the New Hampshire Attorney General’s office, has been placed on paid administrative leave and did not rule in this case.)
The parental rights issue has been hotly debated in New Hampshire for several years, and Democrats have killed two attempts to pass a parental bill of rights in the House of Representatives.
New Hampshire Democratic Party chair Ray Buckley even claimed parents are too dangerous to be allowed to know about their children’s behavior, saying “some kids will be beaten to death” if transparency is required.
While the two Democrats running for governor — and who would appoint justices to the state Supreme Court if elected — declined to comment, both Republican candidates were quick to speak out Friday.
“I drafted a Parental Bill of Rights and drove its passage through the state Senate because I knew then what I still know now: Parents have a right to be involved in their children’s education,” said former Senate President Chuck Morse. “I even went to Concord the following year in 2023 to testify in support of SB 272 when we tried to get the job done a second time. As governor, not only will I pass legislation to make education freedom an option for every child, I will get an enhanced Parental Bill of Rights across the finish line for New Hampshire”
And a spokesperson for former U.S. Sen. Kelly Ayotte told NHJournal, “As a mom, Kelly believes parents have a right to know what is happening with their child at school, and as Governor, she would proudly sign the Parental Bill of Rights into law.”
Lehmann says the court’s ruling turns the focus now where it belongs: the legislative process.
“Now that the court has spoken, it’s up to parents to go to the political system and elect school board members and legislators who will protect their right to have an important role in their children’s education.
Outgoing state Senate President Jeb Bradley agrees.
“The Supreme Court’s decision underscores the importance of electing people who will support the rights of parents against a public school establishment that thinks it knows more about raising each individual child than parents do.”
