Doe v. Manchester Sch. Dist.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2022-0537
Citation: Doe v. Manchester Sch. Dist., 2024 N.H. 48

JANE DOE

v.

MANCHESTER SCHOOL DISTRICT & a.

Argued: April 27, 2023
Opinion Issued: August 30, 2024

Lehmann Major List, PLLC, of Concord (Richard J. Lehmann on the brief
and orally), for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (Demetrio F. Aspiras,
III, Meghan S. Glynn, and James A. O’Shaughnessy on the brief, and Meghan
S. Glynn orally), for the defendants.

GLBTQ Legal Advocates & Defenders, of Boston, Massachusetts (Chris
Erchull and Mary Bonauto on the brief), and American Civil Liberties Union of
New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R.
Klementowicz on the brief), for GLBTQ Legal Advocates & Defenders, American
Civil Liberties Union of New Hampshire Foundation, American Medical
Association, Heather Romeri, Nico Romeri, Andres Mejia, Rachel Blansett,
Quinci Worthey, New Hampshire Medical Society, New Hampshire Academy of
Family Physicians, New Hampshire Pediatric Society, New Hampshire
Psychiatric Society, Unitarian Universalist Action New Hampshire, New
Hampshire Council of Churches, Jason Wells, Kali Fyre, Marjorie Gerbracht,
Sarah Rockwell, Bob Stewart, Elsa Worth, Jay MacLeod, GLSEN, Inc., GLSEN
New Hampshire, YWCA New Hampshire, Seacoast Outright, and 603 Equality,
as amici curiae.

MACDONALD, C.J.

¶1 The plaintiff, Jane Doe, appeals a decision of the Superior Court
(Messer, J.) dismissing her claims against the defendants, Manchester School
District (the District) and School Administrative Unit #37, challenging the
District’s transgender student policy. We affirm.

I. Background

¶2 The plaintiff’s complaint alleges the following facts. On February 8,
2021, the defendants adopted a policy titled “Transgender and Gender Non-
Conforming Students.” (Bolding omitted.) They amended that policy on March
14, 2022. As amended, the policy provides, in relevant part, as follows
(additions to the original language are shown in bold; deletions are indicated by
strikethrough):

The Board recognizes 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 should 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. Transgender and gender
nonconforming students have the right to discuss and express
their gender identity and expression openly and to decide when,
with whom, and how much to share private information. Nothing
herein shall be construed to change the obligation of the
school to take action when student safety is concerned.
When contacting the parent or guardian of referring to a

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 transgender or gender nonconforming student, school personnel
should use the student’s legal name and the pronoun
corresponding to the student’s gender assigned at birth unless the
student, parent, or guardian has specified otherwise. Any student
who has a need or desire for increased privacy, regardless of the
underlying reason, should be provided with a reasonable
alternative to meet the need for that individual’s privacy,
regardless of gender identity.

The plaintiff alleges that both the original and amended policies, which she
appended to her complaint, “suffer the infirmities set forth in this Complaint.”
Resolving this appeal does not require us to consider the original and amended
policies separately; accordingly, we refer to both policies collectively as “the
Policy.”

¶3 The plaintiff states that she is the parent of a minor child (M.C.)
enrolled in school in the District. In the fall of 2021, the plaintiff discovered,
through an inadvertent disclosure by a teacher, that M.C. had asked teachers
and students to call M.C. by a name typically associated with a different gender
than that assigned to M.C. at birth. The plaintiff informed M.C.’s guidance
counselors and others at the school that “she would like the school to continue
to treat M.C. according to M.C.’s birth gender, to address M.C. by . . . M.C.’s
given name . . . , and to address M.C. using the pronouns that correspond to
M.C.’s biological sex.”

¶4 Initially, some of M.C.’s teachers indicated that they would respect
the plaintiff’s wishes. Soon thereafter, however, the principal emailed the
plaintiff and explained that while the principal respected and understood her
“concern, we are held by the District policy as a staff.” The principal explained
that, under the Policy, staff was required to call M.C. by M.C.’s desired name
and could not “disclose a student’s choice to parents if asked not to.”

¶5 After receiving the principal’s email, the plaintiff “discussed issues
related to gender expression, birth-name usage, and pronouns with M.C.” The
plaintiff subsequently learned, through representations by both M.C. and
school personnel, that M.C. asked school personnel to use M.C.’s birth name
and pronouns and that school personnel were doing so. Nevertheless, the
plaintiff alleged that “the continued existence of the Policy means that [she]
cannot know whether representations by District personnel are factually true,
or whether the District personnel are simply following the Policy by misleading
and/or lying to [her] about M.C.’s in-school gender expression and the
District’s response thereto.”

¶6 In May 2022, the plaintiff brought the instant action seeking a
declaratory judgment that the Policy violates Part I, Article 2 of the New
Hampshire Constitution, both facially and as applied, is ultra vires, and

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violates both the federal Family Educational Rights and Privacy Act, 20 U.S.C.
§ 1232g (2018) (FERPA), and the federal Protection of Pupil Rights Act, 20
U.S.C. § 1232h (2018) (PPRA). In addition, the plaintiff sought temporary and
permanent injunctions, nominal damages, and attorney’s fees.

¶7 The defendants filed a motion to dismiss, which the trial court
granted. With respect to the plaintiff’s constitutional claim, the court found
that because the Policy did not infringe upon a fundamental right, strict
scrutiny review was not warranted. The court then found, under the rational
basis test, that the Policy was not unconstitutional. The court further found
that the plaintiff failed to state a claim that the Policy was ultra vires, and the
court determined that the Policy did not violate either FERPA or PPRA.

¶8 The plaintiff appealed, initially raising in her notice of appeal the
question whether the trial court erred in dismissing all counts of her
complaint. Because she briefed only a challenge to the trial court’s ruling on
her constitutional claim, we deem any challenge involving the other counts to
be waived. See Fiske v. Warden, N.H. State Prison, 175 N.H. 526, 530 (2022).

II. Analysis

¶9 The plaintiff appeals the trial court’s dismissal of both her facial and
as-applied constitutional challenges to the Policy, arguing that the trial court
erred in finding the Policy did not violate her “constitutional parenting rights.”
The single question presented for our review asks: “Did the superior court err
in dismissing the First Amended Complaint when it found that the Policy did
not violate the plaintiff’s constitutional parenting rights, despite the allegation
that the Policy encourages school officials to affirmatively conceal her child’s
open and public gender identity transition in school from her?”

¶10 The plaintiff’s argument is based upon the State Constitution;
accordingly, we base our decision solely on the State Constitution and cite
federal cases for guidance only. See State v. Ball, 124 N.H. 226, 231-33 (1983).
In reviewing a trial court’s grant of a motion to dismiss, we consider whether
the allegations in the plaintiff’s pleadings are reasonably susceptible of a
construction that would permit recovery. Granite State Trade Sch. v. N.H.
Mechanical Licensing Bd., 175 N.H. 708, 710 (2023). We assume the plaintiff’s
pleadings to be true and construe all reasonable inferences in the light most
favorable to the plaintiff. Id. However, we need not assume the truth of
statements in the plaintiff’s pleadings that are merely conclusions of law. Id.
We then engage in a threshold inquiry that tests the facts in the complaint
against the applicable law. Id. We will uphold the trial court’s grant of a
motion to dismiss if the facts pleaded do not constitute a basis for legal relief.
Id.

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 [¶11] Part I, Article 2 of the New Hampshire Constitution provides:

All men have certain natural, essential, and inherent rights—among
which are, the enjoying and defending life and liberty; acquiring,
possessing, and protecting, property; and, in a word, of seeking and
obtaining happiness. Equality of rights under the law shall not be
denied or abridged by this state on account of race, creed, color, sex or
national origin.

“We have long recognized the right to raise and care for one’s children as a
fundamental liberty interest protected by Part I, Article 2 of the State
Constitution.” In the Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003).
“Similarly, United States Supreme Court precedent recognizes ‘that the Due
Process Clause of the Fourteenth Amendment [to the Federal Constitution]
protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion)). “This judicial reluctance to interfere
with parental prerogatives derives, historically, from the notion that parents
have a natural entitlement to the exclusive companionship, care, custody, and
management of their children.” Id. at 547-48. “The right of parents to raise
their children without interference is a fundamental liberty interest deserving
of the highest level of protection.” Id. at 548. As we have recognized, the issue
of infringement of parental rights implicates substantive due process. See In re
J.H., 171 N.H. 40, 50-51 (2018) (addressing claimed infringement of parenting
rights under substantive due process).

¶12 While we have not previously addressed the scope of the right to
parent in the public school context, other courts have done so. For example,
the United States Court of Appeals for the Sixth Circuit has opined on the
limits of the federal right in this context, observing that “while this right plainly
extends to the public school setting, it is not an unqualified right.” Blau v. Fort
Thomas Public School Dist., 401 F.3d 381, 395 (6th Cir. 2005) (citing Runyon
v. McCrary, 427 U.S. 160, 177 (1976)). The court stated:

While parents may have a fundamental right to decide whether to send
their child to a public school, they do not have a fundamental right
generally to direct how a public school teaches their child. Whether it is
the school curriculum, the hours of the school day, school discipline, the
timing and content of examinations, the individuals hired to teach at the
school, the extracurricular activities offered at the school or, as here, a
dress code, these issues of public education are generally “committed to
the control of state and local authorities.”

Id. at 395-96 (quoting Goss v. Lopez, 419 U.S. 565, 578 (1975)).

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 [¶13] The questions thus become what is the scope of the fundamental
right to parent and how does the Policy implicate it. The dissent cites decisions
from federal district courts in support of the plaintiff’s view. We believe these
cases are inapposite to our task of resolving whether this particular policy is in
conflict with the New Hampshire Constitution. In any event, we respectfully
note that there appear to be differences among federal district courts in
addressing cases such as this. See Doe v. Del. Valley Reg’l High Sch. Bd. of
Educ., No. 24-00107, 2024 WL 706797, at *11 (D.N.J. Feb. 21, 2024) (finding
that the United States Constitution does not mandate school districts to notify
parents of a minor’s gender identity and receive consent before using
alternative names and pronouns).

¶14 Returning to New Hampshire law, 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. See, e.g., In re Shannon M., 146 N.H. 22, 27 (2001)
(agreeing that “[b]ecause parental rights are fundamental under the New
Hampshire Constitution, the party seeking to terminate parental rights must
prove the statutory ground for termination beyond a reasonable doubt”
(quotation omitted)); In re J.H., 171 N.H. at 51 (noting that “requiring Father, a
non-neglectful and presumptively fit parent, to demonstrate his compliance
with conditions before the children can be returned to his custody violates his
fundamental right to parent”); In re Guardianship of Nicholas P., 162 N.H. 199,
200, 203, 205 (2011) (concluding that grant of guardianship to child’s half-
brother over mother’s objection did not violate mother’s parenting rights
because the guardianship statute “safeguards a parent’s fundamental rights by
imposing a high evidentiary standard — that is, by requiring a non-parent
seeking a substitute guardianship to establish the need for it by clear and
convincing evidence”); Nelson & Horsley, 149 N.H. at 549 (holding “that it
would violate the fit natural or adoptive parent’s State constitutional rights to
grant custodial rights to an unrelated third person over the express objection of
that parent”).

¶15 By its terms, the Policy does not directly implicate a parent’s ability
to raise and care for his or her child. 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. The Policy does permit non-disclosure in response
to a parent’s question seeking that information. However, as the trial court
observed:

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 [T]he Policy does not prevent parents from observing their children’s
behavior, moods, and activities; talking to their children; providing
religious or other education to their children; choosing where their
children live and go to school; obtaining medical care and counseling for
their children; monitoring their children’s communications on social
media; choosing with whom their children may socialize; and deciding
what their children may do in their free time. In short, the Policy places
no limits on the plaintiff’s ability to parent her child as she sees fit.

We cannot conclude that any interference with parental rights which may
result from non-disclosure is of constitutional dimension. 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. See Nelson & Horsley, 149 N.H. at 549.

¶16 Accordingly, the plaintiff has failed to demonstrate that the Policy
infringes a fundamental parenting right protected by Part I, Article 2. It
follows, then, that strict scrutiny review is inappropriate, and the trial court did
not err by applying the rational basis test. See Petition of Whitman Operating
Co., 174 N.H. 453, 462 (2021) (applying rational basis standard of review when
no fundamental right or protected liberty interest is at stake). The plaintiff
does not challenge the trial court’s finding that the Policy survives rational
basis review, and, therefore, we do not disturb that finding. Moreover, because
we read the court’s order to find that, under rational basis review, the Policy
survives both the plaintiff’s facial and as-applied challenges, we need not
address those challenges separately.

¶17 Finally, we observe that the parties in this case did not advocate for
a standard in their briefs by which we should analyze the potential expansion
of existing substantive due process rights, or the existence of previously
unrecognized substantive due process rights, under our State Constitution.
We note that our present case law offers little guidance on this issue. In this
case, we did not articulate a standard as it was unnecessary to resolve this
appeal. We invite parties in future cases involving substantive due process
rights to suggest a formulation of the standard to be applied under our State
Constitution.

¶18 For the foregoing reasons, we affirm the trial court’s order granting
the defendants’ motion to dismiss.

Affirmed.

BASSETT and DONOVAN, JJ., concurred; COUNTWAY, J., dissented;
HICKS, J., sat for oral argument but did not participate in the final vote, see
N.H. CONST. pt. II, art. 78.

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 COUNTWAY, J., dissenting.

¶19 Because I believe that strict scrutiny should be applied in this case,
I respectfully dissent.

¶20 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. 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. Cf. Tatel v. Mt. Lebanon
Sch. Dist., 675 F. Supp. 3d 551, 569 (W.D. Pa. 2023) (noting that the school-
related defendants’ “alleged conduct implicates the violation of parental
interests of the greatest importance about forming the gender identity of their
children”); Ricard v. USD 475 Geary Cnty., KS Sch. Bd., No. 5:22-cv-04015-
HLT-GEB, 2022 WL 1471372, at *8 (D. Kan. May 9, 2022) (opining that “[i]t is
difficult to envision why a school would even claim—much less how a school
could establish—a generalized interest in withholding or concealing from the
parents of minor children, information fundamental to a child’s identity,
personhood, and mental and emotional well-being such as their preferred name
and pronouns”).

¶21 The Policy directs that, absent the child’s consent, “[s]chool
personnel should not disclose information that may reveal a student’s
transgender status or gender nonconforming presentation to others.”
(Emphasis added.) Unlike the majority, I read this language to require school
personnel to affirmatively conceal a child’s gender preferences from the child’s
parent even if the parent asks for such information. According to the plaintiff’s
complaint, even the school principal in this case interpreted the Policy this
way, stating that under the Policy, staff was required to call M.C. by M.C.’s
desired name and could not “disclose a student’s choice to parents if asked not
to.” Because accurate information in response to parents’ inquiries about a
child’s expressed gender identity is imperative to the parents’ ability to assist
and guide their child, I conclude that a school’s withholding of such
information implicates the parents’ fundamental right to raise and care for the
child. Cf. Willey v. Sweetwater County School District No. 1, 680 F. Supp. 3d
1250, 1277 (D. Wyo. 2023) (noting that “[t]o the extent [a school policy]
prohibits a teacher or school employee, upon inquiry by a parent or legal
guardian, from responding or providing accurate and complete information
concerning their minor child (and absent a threat to the wellbeing of the
student), it burdens a parent’s fundamental right to make decisions concerning
the care, custody and education of their child”).

¶22 “When dealing with legislative activity in the area of fundamental
rights this court has applied the strict scrutiny test.” State v. Robert H., 118
N.H. 713, 716 (1978), overruled on other grounds by In re Craig T., 147 N.H.
739, 744-45 (2002). In Robert H., we applied strict scrutiny to the statutory

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scheme governing termination of parental rights because “[t]he family and the
rights of parents over it are held to be natural, essential, and inherent rights
within the meaning of New Hampshire Constitution, part I, article 2.” Id. In a
subsequent, fractured opinion of this court, although the justices could not
agree on a standard for grandparent visitation, they did agree, explicitly or
implicitly, on the constitutional significance of parental rights and the
application of strict scrutiny. See In the Matter of R.A. & J.M., 153 N.H. 82,
95, 110, 114 (2005). Because the Policy burdens parents’ fundamental right
“to make decisions concerning the care, custody and education of their
child[ren],” Willey, 680 F. Supp. 3d at 1277, I further conclude that our
precedents dictate the application of strict scrutiny and that the trial court
erred in dismissing the plaintiff’s constitutional claim. Accordingly, I
respectfully dissent.

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