Whether a public school "violates parents' fundamental constitutional right " when it secretly helps "transition " their child to a new "gender " is "a question of great and growing national importance." Parents Protecting Our Child. v. Eau Claire ASD , 145 S.Ct. 14 (2024) (Alito, J., dissenting from denial of certiorari) (cleaned up). Another petition raising that question is currently before this Court in Foote v. Ludlow Sch ool Comm ittee, No. 25-77.

The Eleventh Circuit reached that question below , though its decision turn ed on a threshold issue of constitutional law with even broad er implications . Because the parents here challenged a school's past application of a parental -exclusion policy to their child, the Eleventh Circuit said they were challenging "executive" conduct. Plaintiffs who challenge "executive" conduct , the court continued , must prove that the infringement of their fundamental rights "shock ed the conscience." That decision deepen s a circuit split over the proper standard for alleging fundamental -rights claims against executive actors . And it immediately created another circuit split over the meaning of " executive ." Though Judge Newsom felt bound to join this 2-1 decision, he agreed it "makes no sense."

When a plaintiff alleges that the application of a state policy infringed a fundamental right "'deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg , 521 U.S. 702, 720 -21 (1997), can a court deny relief because the infringement did not "shock the conscience"?

When a plaintiff alleges that the application of a state policy infringed a fundamental right 'deeply rooted in this Nation's history and tradition,' can a court deny relief because the infringement did not 'shock the conscience'?