The Fundamental Right of Parents
The United States Constitution has long recognized that parents—not the state—have the primary authority to direct the upbringing, education, and care of their children. This principle has been reaffirmed by both the Supreme Court and lower federal courts.
Recent litigation confirms that this right includes parental involvement in significant decisions affecting a child’s mental, emotional, and physical development—particularly where schools take actions that affirm or facilitate a child’s gender identity at school without parental knowledge.
The Third Circuit has acknowledged that policies bypassing parental involvement in their child’s mental and emotional well-being violate the Constitution. For example, in Doe v Pine Richland, decided in 2026¹, a parent alleged harm where a school policy required “affirming” a child’s gender identity without notifying the parent. The court recognized that such policies could undermine parental rights and allowed claims for damages to proceed based on alleged interference with the parent’s role.
Earlier precedent confirms that parental rights extend to access to information affecting a child’s well-being. Courts have held that withholding significant information from parents about their child’s health or development may infringe constitutional protections.
The Supreme Court’s recent decision in Mirabelli v. Bonta (2026)² provides the most direct guidance. The Court evaluated policies that allowed schools to conceal a student’s gender identity and social transition from parents absent the student’s consent. The Court concluded that such policies likely violate constitutional protections because they substantially interfere with the right of parents to guide their children’s upbringing and development, prevent parents from acting as the primary decision-makers for their children’s welfare, and replace parental authority with state actors.
The Court emphasized that “parents—not the State—have primary authority” over children’s upbringing and rejected the argument that secrecy policies are justified by generalized appeals to student safety.
The Court found that these secrecy policies were unlikely to survive strict scrutiny, the exacting review necessary when parental rights are at stake, particularly where these policies excluded parents entirely from decisions involving gender identity and mental health.
School Policies That Exclude Parents Create Liability for Schools
Mirabelli signals a clear liability risk for school districts that adopt policies allowing gender-related decisions (including names, pronouns, or social transition) to occur without parental knowledge or consent.
Lower courts are following Mirabelli. The Third Circuit Court of Appeals noted that parents subject to such policies have standing to sue the school for damages. The Ninth Circuit and Second Circuit appellate courts have issued similar rulings relying on Mirabelli³. In contrast, there are no instances where a school faced liability for informing and asking for the parents’ consent first.
Policy Approaches That Reduce Risk
In contrast, Pennsylvania school boards can mitigate liability by adopting policies that affirm parental rights while providing structured accommodations.
For example, this model Pennsylvania policy on student records and parental rights establishes several key safeguards. Schools “shall not conceal information about a student’s gender identity from the student’s parent/guardian,” schools may not participate in social transition without parental permission, and explicitly recognizes the “fundamental right of parents to direct the upbringing of their children.”
See also these two examples here and here that were adopted by several Pennsylvania school districts, which reinforce a prohibition on concealing “material information” about a child’s mental or emotional health from parents, a requirement that gender identity accommodations (including pronouns or names) require written parental consent, liability protections where parental permission is granted, and speech protections against compelled speech.
These policies align with constitutional standards by ensuring that parents remain informed and involved in decisions affecting their children, children are supported in schools, individuals are protected against compelled speech, and that schools are protected from legal liability.
Policies that exclude or disregard parents’ wishes are likely to face legal challenge. By contrast, policies that provide accommodations with parental involvement and ensure transparency with families are more likely to withstand scrutiny. Importantly, when children are actually at risk for abuse at home, Pennsylvania law already requires schools to report that to the proper authorities.
Conclusion
Federal courts have signaled that schools may not substitute their judgment for that of parents in these matters. Policies that allow gender identity transitions at school without parental knowledge or consent create constitutional risk and potential liability. Conversely, policies that ensure transparency, documentation, and parental consent provide a lawful and defensible framework for school districts.
¹Doe v. Pine Richland Sch. Dist., No. 24-3348, 2026 LX 270558 (3d Cir. Apr. 23, 2026)
²Mirabelli v. Bonta, 607 U.S. 492, 146 S. Ct. 797 (2026)
³Vitsaxaki v. Skaneateles Central School District (2d Cir. June 25, 2026); City of Huntington Beach v. Newsom, No. 25-3826, 2026 LX 347991 (9th Cir. June 18, 2026)
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