S. Ernie Walton (Regent University School of Law) has recently posted to SSRN his paper, Parental Preclusion Policies: Do Parents Have Standing to Challenge Them Before Enforcement?. Here is the abstract:
Today, “parental preclusion policies,” by which school districts facilitate the social gender transition of students at school without parental consent or knowledge, have seemingly put two bedrock pills of constitutional government in direct conflict: parental rights and standing. The conflict, at least to this point, has involved a zero-sum game in which one principle must be destroyed that the other might live. The doctrine of standing has emerged the victor—and decisively. Both federal courts of appeal that have considered the constitutionality of parental preclusion policies have found a lack of requisite standing, and the Supreme Court denied cert in both cases. But is this winner-take-all view correct? Although well-intentioned, the courts have gotten it wrong. Parental preclusion policies harm parents and their children in a direct, imminent, and concrete manner. Federal courts must use the authority granted to them by the “People” through Article III to vindicate the fundamental right of parents to direct the upbringing of their children. And courts need not twist, stretch, or discard the doctrine of standing to vindicate the fundamental rights of parents. On the contrary, a closer examination of the effect these policies have on the parent-child relationship reveals that parents do have standing to challenge these policies under existing precedent, even before enforcement, because the policies themselves affect and interfere in the parent-child relationship.