By CSBA’s Legal Department
Questions related to student rights, parental rights and teacher rights in the school setting have been circulating through both state and federal courts this past year. Recently, many of those cases have gained attention in the media as initial decisions have been reached and created varying legal standards that may apply to scenarios in schools involving students, teachers and parents. Below is a summary and comparison of two federal district court cases in California, as well as a description of other similar matters taking place in the state and throughout the country.
Regino
In Regino v. Staley, a case CSBA wrote on earlier this year, Regino, the mother of a fifth-grader in Chico USD, filed a lawsuit alleging violation of her substantive and procedural due process and First Amendment rights under the United States Constitution. Regino’s complaint challenged the district’s administrative regulation, AR 5145.3 – Nondiscrimination/Harassment, on which district employees based their actions when complying with a request by Regino’s daughter to use a preferred name and pronouns in school other than those in her official student records. The district employees encouraged the daughter to share her gender identity information with her family members but did not disclose the developments to Regino and did not suggest to Regino’s daughter that she consult a medical professional. After the court’s denial of Regino’s motion for preliminary injunction and the subsequent filing of her first amended complaint, the district filed a motion to dismiss the complaint in its entirety for its failure to state a claim upon which relief can be granted. The district’s motion to dismiss was granted due to a lack of “cognizable legal theory” or “insufficient facts under a cognizable legal claim.” Regino has appealed to the Ninth Circuit Court of Appeals.
Mirabelli
In Mirabelli v. Olson, another case previously written about by CSBA, two teachers in the Escondido Union School District filed a complaint against the district’s Board of Education, certain administrative staff, the California State Board of Education and the State Superintendent of Public Instruction alleging that the district’s administrative regulation – AR 5145.3 – Nondiscrimination/Harassment, as it relates to the privacy of transgender and gender nonconforming students and employee disclosure of such students’ intimate information to their parents, violates the First Amendment to the U.S. Constitution. Specifically, the plaintiff teachers claimed in their motion for preliminary injunction, that AR 5145.3 violates their First Amendment rights to free speech and the free exercise of religion. In response, the defendants moved to dismiss the claims and after a hearing, the court granted the teachers’ motion for preliminary injunction and denied the state defendants’ motions to dismiss.
Comparing outcomes and analyses between the courts
Both Regino and Mirabelli consider the legality of a school policy that requires student consent before the parent of a transitioning student may be informed about the student’s gender identity. While Mirabelli was brought by teachers and was ostensibly about their rights, both decisions primarily focus on an analysis of parental rights under federal law. Despite these similarities, these cases diverge in many significant ways in their conclusions and the details of their analyses. Most prominently, there is a clear disagreement between these two courts as to the exact contours of parental rights in the school setting under the U.S> Constitution. The Regino court relies on interpretation of existing law to find that, in the school setting, parental rights do not extend to the right to receive notice of a student’s gender transition or provide consent for such a transition. Mirabelli, on the other hand, interprets existing law to include the right of parental notice.
In Regino, the court found in each of the substantive and procedural due process claims that Regino failed to allege sufficient facts or provide any legal precedent to demonstrate a constitutional right was being violated, which is needed to show 5145.3 is unconstitutional. The court found that there is no established constitutional right for a parent to be notified or that a parent must provide their consent when their child socially transitions at school. The court characterized Regino’s argument that her parental rights to make medical decisions and important decisions extended to the right to be informed of her child’s identity at school as advocating an expansion of parental rights that was not supported by legal precedent. Further, the court found that the district had “demonstrated a legitimate state interested in creating a zone of protection” for transgender and gender nonconforming students. Similarly, as to Regino’s familial association-based First Amendment claims, the court found that Regino failed to allege a cognizable constitutional violation and to establish that her right to familial association free from unwarranted state interference extends to the right to be informed of her child’s gender identity. The court distinguished the cases regarding “interference” cited by Regino, including one that involves school officials compelling student athletes to take pregnancy tests, as bearing “no resemblance to the instant case.”
Distinctly, the court in Mirabelli took a different approach, finding that parental rights as previously held by the U.S. Supreme Court include the right to know when a student transitions genders at school. Based on this broader interpretation of parental rights, the court found that the teachers’ constitutional free exercise and speech rights could be violated if they are required to receive student consent before discussing a student’s gender identity. According to the court, the teachers’ rights are, in this circumstance, intertwined with the rights of the parents. As to the free speech claim, the court did not make any definite pronouncement, but found that the teachers potentially have a strong free speech claim if, based on district policy, they are being required to violate the law or deliberately convey an illegal message. Related to their free exercise claims, the court reasoned that the teachers’ sincerely held religious beliefs, including “that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children” and “that God forbids lying and deceit,” are potentially implicated and infringed upon when the teachers are required to participate in the system of communication about a student’s gender that does not provide parents with certain information about a student’s transition.
Moving forward, each of these decisions will have different implications. The Regino decision granted the district’s motion to dismiss and stopped the case from moving forward, though it has been appealed to the Ninth Circuit Court of Appeals. The Mirabelli decision, on the other hand, denied the district and state defendants’ motions to dismiss, allowing the case to continue through the judicial process. Further, the Mirabelli court granted the plaintiff’s preliminary injunction, meaning that the district cannot enforce the policy against the two teachers. In the future, higher courts may consider these specific cases on appeal and provide clarification and additional guidance on parents’ rights, especially as they relate to the rights of transgender and gender nonconforming students. For now, each case provides differing insight into how courts may consider teacher, parent, and student rights.
Chino Valley USD and the AG
In a related but distinct matter, on Aug. 28, 2023, California Attorney General Rob Bonta filed a complaint in California Superior Court, San Bernardino County, requesting a declaration that Chino Valley USD’s new parental notification policy, Policy 5020.1, is unconstitutional under the California Constitution and state law. The complaint also asked the court to issue a temporary restraining order (TRO) and preliminary injunction prohibiting the district from enforcing the new policy until this case is decided and to ultimately issue an order permanently enjoining the district from enforcing the policy. The policy, adopted on July 20, 2023, requires school personnel to notify parents within three days when they learn that a student is “requesting to be identified or treated, as a gender […] other than the student’s biological sex or gender listed on the student’s birth certificate or any other official records.”
On Sept. 6, 2023, the court issued the requested TRO, which prohibited Chino Valley USD from adopting, implementing or enforcing Policy 5020.1 pending a hearing on a preliminary injunction, which is scheduled for Oct. 13. The court issued the TRO “on the basis that the State of California, the plaintiff in the lawsuit, had demonstrated a likelihood that it will prevail on the merits of its Complaint.” On Sept. 26, the Attorney General issued guidance stating that the ruling in Mirabelli v. Olson did not affect the temporary restraining order in the Chino Valley USD case and that the TRO “remains in full force and effect.” The Attorney General also stated that the Mirabelli decision “has no bearing on the lawfulness of the implementation of Policy 5020.1 or similar policies, nor on the Department of Justice’s enforcement of the law as outlined in its moving papers” in the Chino Valley USD litigation. The guidance also reiterated the Attorney General’s interpretation that parental notification policies such as Policy 5020.1 violate the California Constitution, the Education Code and the Government Code.
While six other districts at the time of this writing have enacted parental notification policies similar to Chino Valley USD’s (see the appendix below for more details), the Attorney General has not, at this time, filed suit against any other district on this basis. However, the Attorney General is, in addition to suing Chino Valley USD, monitoring the adoption of similar policies and has issued press releases stating an opposition to policies adopted in the following districts: Anderson Union High School District, Dry Creek Joint Elementary School District, Murrieta Valley USD, Orange USD, Rocklin USD, and Temecula Valley USD.
Cases from other states
The three California cases described above are not unique. Throughout the country, state and federal courts are considering issues related to parental and student rights, and what schools can do with information that is sensitive to students and important to parents. There are teacher’s rights cases such as Kluge v. Brownsburg (Indiana), in which a district denied a teacher’s request for accommodation to use only last names of students, rather than the requested names that do not align with student names that the teacher was familiar with. After initially granting the accommodation, the district later determined it created an undue hardship because it did not align with the district philosophy. The lower and appellate courts agreed that the accommodation did not need to be provided to the teacher because of the undue hardship.
In addition, numerous parent-based claims are being and have been considered. For example, in John and Jane Parents 1 v. Montgomery County Board of Education (Maryland), parents sued the district arguing that the “Guidelines for Student Gender Identity in Montgomery County Public Schools” inappropriately instruct school officials to withhold information from parents regarding their child’s gender identity. The U.S. District Court granted the board’s motion to dismiss, reasoning that the guidelines advance the state’s goal of protecting students’ safety and privacy and found that there is no fundamental right for a parent to be promptly notified when their child’s gender identity changes. Later, the Fourth Circuit Court of Appeals vacated the district court’s order and remanded the case back to be dismissed because the plaintiff parents do not have an injury that the court can provide relief from since none of their children are affected by the policy.
In Doe v. Madison Metropolitan School (Wisconsin), several parents sued a school district alleging that the district’s guidance on support for transgender and gender nonconforming students violated their parental rights and free exercise of religion. A state trial court dismissed the case for lack of standing because there was no chance that the parents would be affected by the policy.
In New Hampshire, a state court dismissed a parent’s lawsuit challenging a district policy requiring student consent before a parent is informed of their gender preferences. The court found that the district’s policy does not violate the parents’ rights and there is no legal duty for the district to inform parents when a student uses a different name or gender identity at school (Doe v. Manchester School District). In Massachusetts, a federal district court granted a school district’s motion to dismiss in a lawsuit involving parents who sued for violation of the parental rights after the school district did not inform them of the names and pronouns their children used at school. The parents have appealed the case to the First Circuit Court of Appeals (Foote v. Town of Ludlow). In Florida, a federal district court dismissed a case involving a parent’s challenge to a school district policy related to supporting transgender students, which included that parents do not have to be told about a student’s change in name, bathroom use, etc. The judge found that the claims raised were better considered under state law, and not federal law. The case is currently being considered by the Eleventh Circuit Court of Appeals (Littlejohn v. School Board of Leon County).
In B.F. v. Kettle Moraine School District (Wisconsin), a state judge denied a school district’s motion to dismiss and found that the plaintiff parents have standing to pursue their claim that their rights were violated when the school district ignored the parent’s request to use the child’s name given at birth and instead called the student by the requested name and pronouns. This practice aligned with the district’s policy, which is being challenged in the case.
In Parents Defending Education v. Linn-Mar Community School District (Iowa), the Eighth Circuit Court of Appeals partially dismissed and partially reversed a lower court when it found that parents challenging a school district’s policy related to transgender and gender nonconforming students were likely to succeed on the merits of their free speech arguments because the policy’s requirement for “respect” was vague.
Appendix of parental notification policies adopted by California school districts
Included here for reference is a summary of the notification policies adopted in California between July 20, 2023, and Oct. 5, 2023.
Chino Valley USD, adopted July 20, 2023:
The Board adopted Board Policy 5020.1, Parental Notification, which requires that:
- Principal/designee, certificated staff, and school counselors must notify parent(s) /guardian(s) in writing within three days of any district employee, administrator, or certificated staff who becomes aware that a student is requesting to be “identified or treated” as a gender different than their biological sex or gender. This required notice includes when a student requests to go by a different name or to use pronouns not aligned with their biological sex or gender, or requests to change any information contained in their official and unofficial records. Parents must also be notified when a request is made to access sex-segregated programs and activities or to use a bathroom or changing facilities different from their biological sex or gender.
- The policy also requires notification “immediately or as soon as reasonably possible” when a student incurs a “significant physical injury” while on school property or during a school sponsored activity, when a staff member “suspects or has knowledge” of a student’s suicidal intentions, or within three days of the occurrence of any “incident or complaint” of a verbal or physical altercation including bullying, either against or caused by the student.
- The policy makes a finding that parent involvement is appropriate in situations of counseling or provision of mental health services to a minor. The policy also finds that disclosure to parents is appropriate in situations of educational counseling to a student who is 12 years old or older. These findings are made based on various code provisions (which are cited in the policy) and conflict with the ability of counselors to make these determinations on their own. The policy creates an exception to parent involvement and disclosure without student consent if it is specifically prohibited by law and specifies that the notification requirements do not modify the obligations of mandated reporters to report child abuse or neglect.
Murrieta Valley USD, adopted Aug. 10, 2023:
The board adopted Chino Valley USD’s Board Policy 5020.1, Parental Notification, verbatim and requested that an administrative regulation be developed to help clarify how the new policy would be implemented.
Temecula Valley USD, adopted Aug. 22, 2023:
The board adopted Chino Valley USD’s Board Policy 5020.1 verbatim except to replace Chino Valley Unified with the name of their district.
Anderson Union HSD, adopted Aug. 22, 2023:
The board adopted Chino Valley USD’s Board Policy 5020.1 verbatim with one exception. The statement that nothing in the policy would affect “the obligation” of mandatory reporting requirements for known or suspected child abuse or neglect was not included. Anderson Valley also included a qualification that if any existing board policy conflicts with BP 5020.1, BP 5020.1 would control. Although adopted, the new policy is not yet included in the district’s policy book.
Rocklin USD, adopted Sept. 6, 2023:
Rocklin Unified revised its existing Administrative Regulation 5020, Parent Rights and Responsibilities, and added to the rights of parents/guardians. Specifically, it added that within three schooldays, parents must be notified by a classroom teacher, counselor, or site administrator if their student requests to:
- Be identified as a gender other than their biological sex or gender
- Use a name that differs from their legal name or to use pronouns that do not align with their biological sex or gender
- Have access to sex-segregated programs or activities or to bathrooms or changing facilities that do not align with their biological sex or gender
In addition, AR 5020 permits the notice to be delayed by 48 hours to fulfill mandated reporter requirements when “a staff member in conjunction with the site administrator determines based on credible evidence that such notification may result in substantial jeopardy to the child’s safety.”
Orange USD, adopted Sept. 7, 2023:
Orange Unified adopted a new policy 5020.2, Parent/Guardian Notification During the School Year, that included the same provisions as Chino Valley’s BP 5020.1 verbatim with the following exceptions:
- Students are to be promptly referred to their school counselor or school psychologist by a certificated staff member, when they become aware the student is a requesting a new name or pronouns, accessing sex-segregated programs and activities or bathrooms or changing facilities not aligned with the biological sex or gender, or requesting a change to their official or non-official records. The counselor or psychologist must consult with the principal after meeting with the student.
- In order to be included in school counseling, parents must be notified by the principal within five schooldays of their meeting with the counselor or psychologist unless a) the student is 12 or older and refuses to consent to the disclosure to their parents of “private information” shared with the counselor per Education Code 49602 or b) the school counselor, psychologist and/or principal “has reasonable cause to believe that involvement of the parent/guardian would result in a clear and present danger to the health, safety, or welfare of the student of any age.”
Although adopted, the new policy is not yet included in the district’s policy book.
Dry Creek Joint ESD, adopted Sept. 14, 2023:
Dry Creek revised Regulation 5020, Parents Rights and Responsibilities, to require parent notification when a student requests to use a new name or pronouns, to be identified as a gender other than their biological sex or gender, or to access sex-segregated programs and activities or bathrooms or changing facilities not aligned with the biological sex or gender. Regulation 5020 does not set a timeline for giving parent’s notice and permits a delay of notification after a staff member, in conjunction with the site administrator, investigates and determines that based on credible evidence, “there is substantial jeopardy to the child’s safety.”
