Federal and state courts in California have recently issued rulings on the constitutionality of school districts’ policies regarding student privacy rights and how those rights relate to parent/guardian notification regarding their student’s gender identity/gender expression. While this issue remains unresolved, this Alert provides updates on the current status of the law in this area. This Alert follows our previous Alerts[1] discussing lawsuits against Chico Unified School District, Chino Valley Unified School District, and Escondido Union School District challenging their respective policies/regulations on parental notification – or lack thereof – regarding their student’s gender identity/gender expression without student consent. For purposes of convenience, this Alert provides a summary of the information from our earlier Alerts as well as updates on actions by the courts and school districts in these matters.
Chico Unified School District
On July 11, 2023, the U.S. District Court for the Eastern District of California dismissed a parent’s lawsuit against Chico Unified School District (“CUSD”) regarding its regulation prohibiting disclosure of a student’s transgender status to their parent without the student’s consent.
In Regino v. Staley (E.D. Cal. July 11, 2023) No. 223CV00032JAMDMC, 2023 WL 4464845, a parent challenged CUSD’s Administrative Regulation 5145.3 regarding nondiscrimination and harassment as applied to transgender students. The parent claimed the regulation “permits school personnel to socially transition students expressing a transgender identity” and prohibits school personnel from informing parents of this change “unless the student expressly authorizes them to do so.” The regulation included an exception for disclosure in the event it was required by law or necessary for a student’s health. The parent argued the regulation violates substantive and procedural due process and the First Amendment right to familial associations.
CUSD filed a motion to dismiss the lawsuit, which the court granted. The court held that the parent was advocating for an expansion of parental rights that was not supported by existing case law. The court also noted that CUSD’s regulation was reactive, not proactive, as it did not force students to adopt transgender identities and did not prohibit students from informing their parents. Thus, it is the student who decides to socially transition. The court further noted that the regulation encourages familial association by preventing CUSD from interfering in the “parent-child relationship by allowing students to disclose their gender identity to their parents on their own terms.”
The parent has since appealed the District Court’s dismissal to the Ninth Circuit Court of Appeals. On appeal, the parent argues that the District Court’s decision should be overturned, and the case should be remanded for further proceedings because the District Court applied incorrect legal standards, improperly disregarded factual allegations, and made conclusions contrary to established precedent. Oral argument is scheduled to occur on May 9, 2024.
Chino Valley Unified School District
In July 2023, Chino Valley Unified School District’s governing board (“CVUSD”) adopted Board Policy 5020.1, which mandated that staff inform parents and guardians when their children take certain affirmative steps to socially transition at school, such as requesting to use a name or pronoun associated with a gender other than the student’s biological sex or gender, or requesting to join athletic teams or use bathrooms or changing facilities of the other sex.
In October 2023, the Superior Court of California in San Bernardino issued a preliminary injunction to enjoin CVUSD from implementing its parent notification Board Policy. The court found that the portions of the policy that required staff to notify parents when their children request to use different names, pronouns, bathrooms, or changing facilities violated the Equal Protection Clause of the U.S. Constitution. The court also noted that CVUSD could adopt policies that specifically addressed bullying, mental health, and psychological distress that did not single out transgender and gender nonconforming students.
This is not a final ruling, and the merits are still being litigated. Trial dates have not yet been set. However, CVUSD has been enjoined from enforcing this policy until a decision on the merits is issued.
In March 2024, in response to the court’s preliminary injunction order, the CVUSD governing board voted to replace Board Policy 5020.1 with a new notification policy that does not contain the provisions enjoined by the Court. It is unclear at this point how this will affect the ongoing litigation.
Escondido Union School District
On September 14, 2023, the U.S. District Court for the Southern District of California issued a preliminary injunction in Mirabelli v. Olson (S.D. Cal., Sept. 14, 2023, No. 323CV00768BENWVG) 2023 WL 5976992 to prevent the Escondido Union School District (“EUSD”) from taking disciplinary action against teachers for violating its regulation that deemed transgender students’ gender identity and expression private and not subject to disclosure to parents/guardians. Under EUSD’s Administrative Regulation 5145.3, “a teacher ordinarily may not disclose to a parent that a student identified as a new gender or wants to be addressed by a new name or new pronouns during the school day.” Disclosure is only permitted if the student provides consent. Knowing disclosure by a staff member in the absence of student consent is considered “discriminatory harassment and is subject to adverse employment actions.”
After failing to receive a religious accommodation not to conceal a student’s transgender status, two teachers brought suit alleging the regulation violates the free exercise of religion under the First Amendment. The teachers claimed EUSD’s regulation violates their sincerely held religious beliefs that “communications with a parent about a student should be accurate” and that “communications should not be calculated to deceive or mislead a student’s parent.” The teachers also asserted “that parents enjoy a federal constitutional right to make decisions about the care and upbringing of their children.” As part of their claim, the teachers sought a preliminary injunction to prevent EUSD from taking any adverse employment action against the teachers for violation of the regulation.
The court issued the plaintiffs’ motion for a preliminary injunction, taking issue with several items included in EUSD’s regulation. First, the court noted EUSD’s regulation is “not conducive to the health of their gender incongruent students,” and the lack of parental notification by a child’s school “interferes with parents’ ability to pursue a careful assessment and/or therapeutic approach prior to transitioning, prevents parents from making the decision about whether a transition will be best for their child, and creates unnecessary tension in the parent-child relationship.”
Second, drawing on precedent from the U.S. Supreme Court, the District Court noted that children are “impetuous[],” and “tend to make … ill-considered life decisions.”
Third, the District Court asserted EUSD’s regulation is “in direct tension with the federal constitutional rights of parents to direct the upbringing and education of their children” protected by the Due Process Clause of the Fourteenth Amendment. The court noted the right is further protected by the Family Educational Rights and Privacy Act (“FERPA”), which “speaks to the Congressional elevation of the importance of parents being involved in their child’s education.”
Finally, the District Court reflected that despite the California Department of Education’s (“CDE”) assertion that students have a constitutional right to privacy in the school setting, the California Supreme Court “has not had occasion to issue a binding interpretation, and no state appellate court decisions have been identified.” Thus, based on the lack of case law addressing a student’s right to “quasi-privacy about their gender identity expressions” and the existence of case law supporting “parents’ rights and obligations,” the court held, “a parent’s rights are superior to a right of privacy belonging to their child.” Thus, the District Court noted, “Whether a child’s state law right to privacy includes a right of confidentiality from their own parents after the child has expressed a desire to be publicly (at school) known by a new name and referred to by new pronouns, seems unlikely.” Overall, the District Court asserted: “A student who announces the desire to be publicly known in school by a new name, gender, or pronoun and is referred to by teachers and students and others by said new name, gender, or pronoun, can hardly be said to have a reasonable expectation of privacy or expect non-disclosure.”
In assessing the merits of the two teachers’ free exercise claim for the purpose of a preliminary injunction, the District Court noted EUSD’s regulation is not generally applicable because it is not being applied to all staff, such as instructional aides or substitute teachers. Because the regulation is not generally applicable, it must pass the highest form of judicial scrutiny to be constitutional. The District Court was unconvinced of EUSD’s interest in protecting gender-diverse students from harm and noted the policy of “keeping parents uninformed and unaware of significant events that beg for medical and psychological experts” is likely to cause more harm.
In late January 2024, the teacher plaintiffs filed an amended complaint adding Governor Gavin Newsom and Attorney General Rob Bonta as defendants. Newsom and Bonta have both filed motions to dismiss that are currently pending before the court. Litigation on the merits is ongoing.
Collective Bargaining Challenges
Chino Valley Unified School District and Murrieta Valley Unified School District (“MVUSD”) are also currently litigating unfair labor practice charges (“ULPC”) before the California Public Employment Relations Board (“PERB”). The ULPCs were filed by employee unions of each school district related to the districts’ respective adoptions of parental notification policies. In both cases, the unions argue that the districts were required to negotiate the impacts and effects that the policy may have on mandatory subjects of bargaining before the policy could be implemented. A similar ULPC was also filed against Rocklin Unified School District in October of 2023.
PERB has not yet issued a decision addressing these issues as they pertain to parental notifications. Thus, it is unknown whether PERB will, and if so, to what extent, weigh in on the constitutionality of parental notification policies in the context of determining the parties’ respective collective bargaining rights and obligations under California law.
Other Legal Updates
On September 25, 2023, Governor Newsom signed Assembly Bill (“A.B.”) 1078 into law. The law amended Education Code section 234.1, at subdivision (a), and requires school districts and county offices of education to amend their existing nondiscrimination policies to specify that these nondiscrimination policies apply to the governing board and the superintendent in enacting policies and procedures. While the law is believed to be designed to address other potential actions by school leaders, this provision of A.B. 1078 could also become relevant in the area of parental notification policies.
On April 10, 2024, the California Department of Education sent a letter to Murrieta Valley Unified School District, directing MVUSD not to implement its parental notification policy, Board Policy 5020.1, which mirrors the challenged Chino Valley Unified School District Board Policy. The directive was in response to CDE’s investigation of a complaint filed by two MVUSD teachers and its finding that the Board Policy was unlawful because it singled out transgender students. MVUSD has reported that the Board Policy is not currently being implemented. At this time, it is unknown what action MVUSD will take long-term in response to the CDE directive.
There is currently an effort underway to qualify a ballot measure for the November 2024 election to establish statewide law on this and related topics. The measure would require school staff to notify parents if a student asks to change gender identification at schools. The measure’s proponents have sued Attorney General Bonta over the title and summary of the measure (generally prepared by the AG), and they are also requesting additional time to gather the signatures required to qualify the measure for the ballot.
School districts and county offices of education should continue to watch legal developments in this area, as the legal landscape is unsettled and may remain so for some time. We are closely following this issue and will continue to provide updates on the status of the cases discussed herein, as well as any other significant developments in this area.
