Legal Update on Statewide Parent Notification Policies

10.03.2023

Federal and state courts in California have recently issued rulings on the constitutionality of school districts’ policies regarding student privacy rights and parent/guardian notification of transgender students’ status.  This issue remains unresolved for school districts as they continue with the 2023-2024 school year.  This Alert provides an update on the current status of the law in this area following our previous Alert regarding the dismissal of a lawsuit against Chico Unified School District for its policy/regulation prohibiting disclosure of students’ transgender status to their parent without the students’ consent.  The two recent, conflicting interim decisions issued by trial courts while litigation in both cases continues, as well as a recent statutory change, do not resolve the legal issues, but provide further information and context for California educational agencies to consider in this area.

Chino Valley Unified School District

Specifically, in ongoing litigation related to Chino Valley Unified School District’s (“CVUSD”) recent adoption of Board Policy 5020.1, which mandated that staff inform parents and guardians when their children take certain affirmative steps to socially transition at school, the Superior Court of California in San Bernardino temporarily enjoined CVUSD from implementing its parent notification board policy until further litigation regarding the issue.  This is not a final decision, and the court did not issue a detailed discussion of its reasoning, but temporarily restrained CVUSD from enforcing its new policy and regulation.  We will provide additional information after a hearing on the merits of an injunction scheduled for October 13, 2023.

Escondido Union School District

Separately, the U.S. District Court for the Southern District of California issued a preliminary injunction to prevent the Escondido Union School District (“EUSD”) from taking disciplinary action against teachers for violating its policy that deemed transgender students’ gender identity and expression private and not subject to disclosure to parents/guardians.  In Mirabelli v. Olson (S.D. Cal., Sept. 14, 2023, No. 323CV00768BENWVG) 2023 WL 5976992, EUSD adopted Administrative Regulation 5145.3 regarding parent notification of students’ transgender status.  Under EUSD’s regulation, there is a “school-wide recognition of a student’s newly expressed gender identification” that includes an “enforced requirement” on staff when communicating with student’s parent of “faculty confidentiality and non-disclosure regarding a student’s newly expressed gender identification.”  As a result, “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.[1]  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.”[2]  The teachers also asserted “that parents enjoy a federal constitutional right to make decisions about the care and upbringing of their children.”[3]  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. 

In granting the plaintiffs’ motion for a preliminary injunction, the district court took issue with several items included in EUSD’s regulation.[4]  First, the court noted EUSD’s policy is “dramatically inconsistent with respected medical opinions” related to “gender-identity.”  The expert opinions provided by the two teachers supported that a student’s initial request to change their name or pronoun “may be the first visible sign that the child…may be dealing with gender dysphoria or related coexisting mental-health issues” for which “parental involvement is necessary to obtain professional assistance.”  As such, 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.”  Based on the medical opinion, the district court noted: “Parental involvement is not optional for correct medical diagnosis of gender incongruence” and a policy to the contrary “is not in the best medical interests of a student.”

Second, drawing on precedent from the U.S. Supreme Court,[5] the district court noted that children are “impetuous[],” and “tend to make…ill-considered life decisions.” 

Third, the district court asserted EUSD’s policy is “in direct tension with the federal constitutional rights of parents to direct the upbringing and education of their children.”  This right is based on long standing U.S. Supreme Court jurisprudence that “parents have a right, grounded in [the liberty protected by the Due Process Clause of the Fourteenth Amendment], to direct the education, health, and upbringing, and to maintain the well-being of, their children.”  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.”  This right, per the district court, “extends to matters of health.”

Fourth, the district court had concern with EUSD’s defense of its regulation on the basis that it is compliant with “California law as explained and communicated through the California Department of Education’s [“CDE”] publication” regarding FAQs on AB 1266.  According to the CDE’s FAQ, students have a constitutional right to privacy in the school setting.  The district court reflected that the California Supreme Court “has not had occasion to issue a binding interpretation, and no state appellate court decisions have been identified.”  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.”  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.”

In assessing the merits of the two teachers’ free exercise claim for the purpose of a preliminary injunction, the district court noted EUSD’s policy is not generally applicable because it is not being applied to all staff, such as instructional aides or substitute teachers.[6]  Because the policy 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.  Therefore, the district court granted the two teachers’ motion for preliminary injunction.

Other Legal Updates

On September 25, 2023, Governor Newsom signed Assembly Bill (“A.B.”) 1078 into law.  As the bill contained an urgency provision, the bill took effect the day it was signed.  The law amended Education Code section 234.1, subdivision (a) regarding the requirements for school districts’ nondiscrimination policies.  Specifically, A.B. 1078 requires school districts and county offices of education to amend their existing nondiscrimination policies to include language that these nondiscrimination policies apply to the governing board and the superintendent in enacting policies and procedures.  While the law is designed to counteract book banning in California schools, this provision of A.B. 1078 could become relevant in the area of parental notification policies.

Districts and county offices of education should continue to watch legal developments in this area, as the legal landscape is unsettled.  Both the EUSD and CVUSD decisions are temporary by nature and further litigation is ongoing.

[1] The two teachers also brought a claim under the free speech clause of the First Amendment; however, the district court dismissed this claim based on federal precedent that public school teachers’ speech during the course of their employment duties can be controlled by the employing school district.  (See Johnson v. Poway Unified Sch. Dist. (9th Cir. 2011) 658 F.3d 954.)

[2] Specifically, one teacher asserted a belief “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.”  Both teachers asserted a belief “that God forbids lying and deceit.”

[3] While the two teachers asserted arguments based on parental rights and the district court addressed the federal constitutional rights of parents, because no parent joined the two teachers’ suit, the district court did not resolve the issue of whether a parent’s rights are violated by EUSD’s regulation.  Therefore, the district court’s opinion on such rights would be considered dicta.

[4] The court also noted the regulation was adopted in August 2020 by “school district administrative staff,” not by EUSD’s Board of Trustees, “without fanfare, and without opportunity for parental or public input.”  It was not until February 2022 that most teachers became aware of the policy, when there was a “district-wide video conference meeting for [teachers] regarding the rights of gender diverse students under the newly adopted AR 5145.3.”  At the start of the 2022-2023 school year, teachers received an email from school staff with a list of students with preferred names and pronouns, and the list included directions on whether the information could be disclosed to the students’ parents.

[5] The district court quoted Roper v. Simmons (2005) 543 U.S. 551, 569, stating: “First, as any parent knows and as the scientific and sociological studies ... tend to confirm, ‘a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young.  These qualities often result in impetuous and ill-considered actions and decisions.’”

[6] The district court did indicate the analysis would be different if “the policy merely delegated the task of talking with parents about a student’s gender incongruence to dedicated, trained, personnel.”

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process. 

© 2023 Atkinson, Andelson, Loya, Ruud & Romo