On April 4, the Ninth Circuit Court of Appeals issued a decision in Regino v. Staley, a case about parental notification and student privacy rights. The court’s decision vacated the District Court’s decision to dismiss the case with prejudice and remanded the case back for further proceedings with guidance on how the lower court should move forward in its considerations of Regino’s claims.
As described in a 2023 blog post, Regino, the mother of a fifth-grade student of Chico Unified School District, learned that her daughter had confided in a counselor that she felt like a boy and was using a different name and pronouns at school. Based on the district’s Administrative Regulation 5145.3 – Nondiscrimination/Harassment, the counselor encouraged the student to share this information with family members but did not inform the student’s mother when the student began using the preferred name and pronouns. The student eventually told her grandmother, who then shared with Regino. Regino filed a lawsuit and motion for preliminary injunction to stop all district employees from socially transitioning her child and any other students in the district without parental consent.
Regino’s request for preliminary injunction was denied and in July 2023 the United States District Court for the Eastern District of California dismissed Regino’s complaint with prejudice, prompting Regino’s appeal to the Ninth Circuit.
Regino’s claims include six specific legal issues; facial and as-applied substantive due process claims, facial and as-applied procedural due process claims, and facial and as-applied First Amendment familial association claims. Because the appeal addresses if the lower court’s dismissal of the case was proper, the court reviewed the case “de novo” or from the beginning, meaning it looked at the issues as a whole to determine if the lower court’s analysis was correct. In doing so, the court found that for each claim, the lower court’s analysis was incorrect. As a result, the court laid out the analysis that should be applied, with a heavy focus on the as-applied substantive due process analysis.
On Regino’s as-applied substantive due process claim, the lower court analyzed the case based on whether the issue presented involved a “fundamental right” that was clearly established by existing precedent and the encroachment of that right by a government entity, here the school district. The court held that the lower court erred in its analysis when it found that there was no fundamental right here because it was incorrect to “[borrow] a standard from the qualified immunity context and [reason] that a fundamental right is not sufficiently cognizable unless the right has been ‘clearly established.’” (page 19) Instead, the lower court should apply a two-part test; first it should carefully describe the asserted fundamental interest, then it should decide if the asserted interest is “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” (page 17)
After articulating this test, the court, rather than conduct its own analysis, vacated the lower court’s judgment and remanded the case. The court noted that neither Regino’s asserted right nor the district’s justification for the policy have been clearly given, and that in such circumstance, it is the work of the lower court to “formulate the asserted fundamental right” (page 25) in a way that is carefully done and avoids overgeneralizations. Similarly, the lower court must “parse the policy’s terms” (page 26) to determine what is requires and how it is applied. Once that work is completed, then the lower court can consider the nation’s “history and tradition” to determine if the asserted right is one that is fundamental. The court describes that to this point both the district and Regino have advanced positions that are “unqualified” when arguing that student rights to make decisions is “nearly unrestricted” and parental rights are “nearly unlimited.” (page 26) The court provides an outline of parental rights cases and limits of the rights granted in those cases and suggests that those cases may serve as “guideposts” for the lower court’s analysis of what is included in the history and tradition of the country.
While there is a separate and less stringent analysis for First Amendment issues that can be applied to those claims made by Regino, a footnote in the court’s decision describes that this same analysis just described applies to the First Amendment claims made by Regino because those claims are coextensive with her substantive due process claims.
As for the as-applied procedural due process claims, the court similarly found that the lower court incorrectly considered the claims made because no fundamental right is needed for those claims to move forward. Rather, the lower court should simply consider if there is a liberty interest involved in the claims. If there is, and it was adequately alleged that Regino was deprived of it, the claim moves forward.
Last, the court briefly describes that the facial challenges to these due process and First Amendment violations are also flawed since they were dismissed on the same basis as the as-applied to claims, which were incorrectly analyzed.
The District Court must now reconsider the motion to dismiss using the guidance given by the Ninth Circuit. This was a very technical decision, and it is unclear how this decision affects the current status of parental rights legal issues, as the court has sent it back to the District Court for a determination of whether a fundamental right exists.
