Two weeks ago, a divided Eleventh Circuit panel ruled (in Littlejohn v. School Board of Leon County) that parents could not pursue a claim that a school board violated their substantive-due-process rights when it hid from them that it was assisting their 13-year-old daughter to identify as a boy. Judge Robin Rosenbaum wrote the majority opinion, which Judge Kevin Newsom determined he was obligated to join. Judge Gerald Tjoflat dissented.

The three judges combined to produce four opinions running 169 pages. In addition to her majority opinion, Judge Rosenbaum wrote a solo concurring opinion that provides what Judge Newsom calls an “ode” to substantive due process.

In his own concurring opinion, Judge Newsom recites his longstanding skepticism of substantive due process in its entirety. But he devotes the bulk of his opinion to an internal “perversity” of substantive-due-process case law: challenges to legislative action are governed by a very different standard than challenges to executive action. For legislative action, the judicial standard of review turns on whether a “fundamental right” is at stake. If it is, strict scrutiny applies; if not, rational-basis review. But for executive action—which the majority determined the school board’s action to be—courts are to determine whether the action “shocks the conscience.” Whatever that might mean.

In his dissent, Judge Tjoflat disputes the majority’s framework. In his analysis, the question is whether the parents alleged a violation of a fundamental right, not whether the school board’s conduct “shocked the conscience.” He would hold that the parents could pursue their claim that the school board violated their fundamental right to direct the upbringing of their children.

If and when the parents seek Supreme Court review of the Eleventh Circuit’s ruling, both Judge Newsom’s challenge to the different standards for legislative and executive action and Judge Tjoflat’s challenge to the majority’s framework should make this case a strong candidate for review.

The Court might at the same time be considering a certioriari petition from the First Circuit’s recent ruling in Foote v. Ludlow School Committee, which in the course of rejecting a similar challenge from parents ruled that the school action being challenged was legislative, not executive.