Lawsuit Alleging School District Wouldn't Inform Certain Parents About Their Children's "Sign[s] of an LGBTQ+ Identity" Dismissed for Lack of Standing

From today's opinion by Judge Michael Watson (S.D. Ohio) in Kaltenbach v. Hilliard City Schools (a notice of appeal has been filed):

… Plaintiffs allege that, if the District believes a parent holds anti-LGBTQ+ views, the District will not inform that parent if the parent's child shows any sign of an LGBTQ+ identity. The [District's] Policies allegedly work as follows: The District's "default" is that it will tell parents anything important about their children, including things related to LGBTQ+ issues. However, there is a "health and safety" exception to this default. Separately, the District labels people who do not support LGBTQ+ youth as "unsafe." Plaintiffs allege that when a parent is labelled "unsafe," the "health and safety" exception applies and, therefore, the parent will not be told important information. Thus, Plaintiffs allege, if a child reports that the child is struggling with LGBTQ+-related issues, and if that child's parent has been labelled "unsafe," that parent will never be informed about the child's struggles.

Plaintiffs allege that these fears came to pass for one Plaintiff, D.S. D.S.'s child, who was assigned female at birth, was struggling with mental health issues during eighth and ninth grade. At some point, employees at the child's school started using a male name and male pronouns to refer to the child, apparently believing that doing so would help with the child's mental health. D.S.'s child attempted suicide but, fortunately, survived and has received professional mental health care. No one at the school told D.S.  that employees referred to the child with male pronouns, until after the suicide attempt. D.S. has since removed the child from the District. D.S. does not allege whether the District labelled her as "unsafe" or perceived her as having anti-LGBTQ+ views.

In addition, Plaintiffs allege that school employees may have exposed students to graphic sexual material. Some school employees wore a badge (the "Badge") that communicates that the wearer supports LGBTQ+ youth. On the back of the badge, there is a QR code that, if scanned, brings up resources and materials related to LGBTQ+ issues. At least some of these resources allegedly contain sexually explicit material….

In-District Plaintiffs … allege that the [District's] Policies violate different rights: (1) Claim IV, freedom of conscience; (2) Claim V, familial integrity; (3) Claim VI, freedom of speech; and (4) Claim VII, due process….

In-District Plaintiffs lack Article III standing to pursue the Claims because they have not alleged an injury-in-fact. To establish injury-in-fact, a plaintiff must  point to an injury that is "concrete—that is, real, and not abstract." To reiterate: An "[a]bstract injury is not enough." Rather, a plaintiff "must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct[.]"If a plaintiff asserts a risk of future harm, she must show that "threat of injury is both real and immediate, not conjectural or hypothetical."

In-District Plaintiffs' theory for the Claims is as follows: if the District believes a parent does not support LGBTQ+ youth, the District labels that parent as "unsafe." If an "unsafe" parent's child expresses or questions an LGBTQ+ identity (or makes statements suggesting a mental illness), the District may decide that the fact that the parents is "unsafe" warrants a "health and safety" exception to the default policy of telling parents important things about their children. If that happens, the District may offer the child mental health treatment without consulting the parents. These actions, allege In-District Plaintiffs, would violate their rights to freedom of conscience, familial integrity, and freedom of speech. Further, because the District allegedly does all these things under impermissibly vague Policies, the District violates the parents' due process rights.

In other words, if a child expresses or questions an LGBTQ+ identity (or shows signs of a mental illness) to a school official, and if the parent has, or is perceived to have, anti-LGBTQ+ views, and if the school knows about those views, and if the combination of those facts mean the school does not tell the parent about the child's sexual-identity comments, and if the school gives the child mental health treatment without the parent's consent or knowledge, then the parent's rights are violated because the parent is being "punished" for his or her beliefs and speech, is deprived of the ability to make important health decisions for the child, and has suffered these deprivations under impermissibly vague Policies.

The number of "ifs" in the preceding paragraph show why In-District Plaintiffs lack standing. In-District Plaintiffs offer no allegations that their children have told or will tell the school that they are (or may be) LGBTQ+ or that the children show any signs of mental illness. Because In-District Plaintiffs have not plausibly alleged that their children have reported or will report such issues to school officials, they have likewise not plausibly alleged that they will suffer any injury as a result of what the District might do in response to such a report.

Nor do In-District Plaintiffs allege that they have (or are perceived to have) anti-LGBTQ+ views. {True, In-District Plaintiffs allege that they have received "backlash" for filing this lawsuit, but they do not elaborate on what that backlash is or, more importantly, whether that backlash includes being perceived by the District as having anti-LGBTQ+ views. Indeed, Plaintiffs allege that the backlash is not coming from the District but is coming instead from "certain activists in the community."} As a result, In-District Plaintiffs have not plausibly alleged that they were or will be labelled "unsafe" or, by extension, that they will suffer any injury stemming from how the District interacts with parents it believes are "unsafe."

Relatedly, In-District Plaintiffs have not alleged that they do anything else that might earn them the label of "unsafe." One of In-District Plaintiffs' theories is that the District might decide a parent is "unsafe" because of a parent's religion, political view, or associations, and that this decision (and the consequences of it) would violate their First Amendment rights. In-District Plaintiffs do not allege that they have any of the religious or political views, associations, or anything else that might lead the district to believe they are "unsafe" or otherwise anti-LGBTQ+. Neither have Plaintiffs alleged that they want to participate in any of those things but are chilled from doing so because of the District's Policies. Thus, because In-District Plaintiffs have not alleged that they engage in—or want to engage in—any First Amendment activities that might make the District label them as "unsafe," they have not alleged any injury related to the same.

In sum, because In-District Plaintiffs do not allege that their children have told, nor that they will—or even may—tell school officials that they are LGBTQ+ or are experiencing symptoms of mental illness, and because In-District Plaintiffs do not allege that they have any views or participate in any activities that could earn them the label of "unsafe," In-District Plaintiffs do not allege an injury-in-fact….

In- District Plaintiffs [also] seek an injunction enjoining the District from allowing school employees to wear the Badge. In-District Plaintiffs, apparently, fear that their children will scan the QR Code and be exposed to sexually explicit material.

However, In-District Plaintiffs do not allege whether any of their children's teachers—or anyone at their children's schools—wear the Badge. Nor have In- District Plaintiffs alleged that they have any reason to believe that their children will scan the QR code if they see a Badge. Therefore, In-District Plaintiffs have not plausibly alleged any risk that their children will be exposed to the sexually explicit material because of the Badge….

D.S. asserts three claims for damages arising out of the way the District handled her child's mental health issues. In two of those claims, D.S. alleges that Defendants violated D.S.'s constitutional rights to familial integrity and freedom of conscience; D.S. also asserts intentional infliction of emotional distress. Defendants do not seek to dismiss those claims and, therefore, they will proceed.

However, D.S. also asserts several claims for declaratory and injunctive relief (the "Prospective Claims"). In those claims, D.S. seeks a declaration that Defendants violated D.S.'s rights to freedom of conscience, familial integrity, freedom of speech, and due process, and asks the Court to enjoin some of the allegedly wrongful behavior and policies.

To the extent the Prospective Claims are not duplicative of D.S.'s first three claims, they must be dismissed for lack of standing. Declaratory and injunctive relief are both forms of prospective relief. D.S. has removed her child from the District and, thus, there is no risk that the Policies will cause any future injuries (or effects of any kind) to D.S. or her child. As a result, D.S. lacks standing to seek prospective relief….