(NOTE to readers: Skip beat me to the punch on this, but I think the politicization/weaponization of the NH-DOJ is important enough an issue that it is worthwhile for you to have both our takes.)
When I wrote Just Call Him Governor Groomer I was aware that Governor Groomer was justifying his threatened veto of the parental rights bill on “concerns” expressed by the New Hampshire Department of Justice. I tried to find a written version of these concerns because it very much sounded like the NH-DOJ was reasoning backward… that is, starting with the conclusion Governor Groomer wanted reached and then manufacturing arguments to support that conclusion.
I was unable to find anything, but I recently received an email from Cornerstone which contained a link to a letter from the National Legal Foundation that DEMOLISHES the NH-DOJ’s “concerns.” Some highlights:
Gender dysphoria, like other medical or psychological conditions that may need to be addressed while the child is in school, is not part of the primary educational mission for which parents have entrusted their children to the public schools. It is a core parental issue involved in the care, health, and welfare of their children. Just as a school must send scholastic progress reports (report cards) to parents (which, incidentally, “outs” the lazy or uncooperative students to their parents and may lead to abuse), so schools must share information with parents on those matters particularly within the province of parents.
We understand that in a communication with some of the conferees on HB 1431, the Department of Justice has raised some questions with respect to this Bill. In reading this communication, we are quite surprised that the Department did not consider or even mention Meyer v. Nebraska, Pierce v. Society of Sisters, Prince v. Massachusetts or Troxel v. Granville, all of which establish without question the fundamental right of parents to control the upbringing and education of their children.
The Department’s final paragraph discussing the potential liability of a school/ municipality that “outs” a child is disingenuous. The Department cites the case of Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3rd Cir. 2000) in which municipal police threatened to “out” an 18 year old adult who thereafter committed suicide, and the city settled the claim for $100,000. Here the children subject to the NH Parental Rights Act are children, who lack the capacity to file suit. Moreover, the children’s parents are being informed, pursuant to their fundamental rights as parents, by schools pursuant to New Hampshire law. How can parents under such facts ever establish standing to sue?
In the last case cited by the Department in its communication on HB 1431 (Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013), the Department of Justice cites with good reason the dissenting opinion, since the majority held directly the opposite.
In a nutshell, the NH-DOJ is either completely incompetent OR was intentionally misleading the Legislature. Given the NH-DOJ’s track record… playing matador-defense in the Claremont education funding cases and voter-ID cases … I think it is clearly the latter. The NH-DOJ remains … despite three terms of a supposedly Republican Governor … thoroughly politicized.
Don’t call it the New Hampshire Department of Justice … call it the New Hampshire Department of Grooming.
