The Chino Valley Unified School District Board this week made what legal and constitutional experts said is calculated to be an adjustment of a parental notification policy that has been under political attack before it was passed in July and under legal challenge since the California Attorney General’s Office took the district to court in August which will allow it to stand.
The policy originally passed by the school board on a 4-to-1 vote in July was more or less specific to efforts at or toward gender alteration or showings thereof. The action taken on Thursday, March 8 makes the notification requirement more general but yet inclusive of the circumstances covered by the policy initiated last summer. Unknown at present is whether the change made this week will annul the existing legal challenge or if it will trigger further litigation to prevent the district from engaging in the type of interaction with parents that four-fifths of the school board considers prudent.
A year ago, Assemblyman Bilal Essayli introduced a bill, AB 1314, which called for imposing statewide a requirement that school officials not keep information pertaining to gender reidentification that students insist upon within a school setting, that being a deviation from the male or female identification which appears on the student-in-question’s birth certificate, from the parents of those children. The Republican Essayli’s bill died a quiet legislative procedural death when Assemblyman Al Muratsuchi, a Democrat and the chairman of the Assembly Education Committee, declined to set a hearing date for the bill before his committee, such that the bill was not given a chance to be considered by the entire Assembly. A handful of school districts throughout the state thereafter contemplated or indeed used their own authority within the confines of their individual jurisdictions to impose a similar notification requirement.
Esayli’s effort struck a resounding chord with the four Republican members of the five member Chino Valley Unified School District Board of Education, and within less than four months, Chino Unified Superintendent Norm Enfield in consultation with the district’s special counsel, Tony De Marco, drafted a policy virtually identical to the one outlined in Assembly Bill 1314.
The change, codified as Chino Valley Unified School District Policy 5020.1, which was strongly endorsed by parents in the district and passionately opposed by advocates of the lesbian-gay-bisexual-transsexual-queer community, mandated that the district’s faculty notify the parents of a child in writing within three days if he or she reidentifies his or her gender, which is defined by the student changing pronouns, names or seeking to use a gender-based changing room, locker room or restrooms for a gender different than the one assigned that child at birth. The policy further required parental notification when a student tells faculty or a counselor about any violence he or she has experienced or of any contemplation of suicide.
The day that the school board was scheduled to consider adopting the policy, California Attorney General Rob Bonta, a Democrat, dashed off a letter to the school board in which he offered his opinion that the notification policy might intrude on students’ privacy rights and otherwise interfere with educational access. Students individually have the right and discretion to determine under what circumstances and when they should make disclosure of their gender identity and to whom, Bonta insisted. He vowed that his office would act to see that right is upheld.
At the July 20 meeting, California Superintendent of Public Schools Tony Thurmond, who had sojourned to Chino from Sacramento to address the board on the topic of the proposed policy, was on hand at the Don Lugo High School Auditorium where the Chino Valley Unified School District Board met to accommodate an over-capacity crowd the matter had attracted. Board President Sonja Shaw, who with th assonance of her board colleagues had limited the public speaking time at that evening’s meeting from the customary three minutes to one minute to be able, she maintained, to allow all of those intent on addressing the matter to speak, made no special allowance or dispensation for Thurmond, also a Democrat, despite his status as the state’s leading educational authority. Thurmond, who had anticipated being able to make a leisurely, indeed folksy, presentation of his perspective, complete with rhetorical flourishes and personal allusions, salutations and dramatic pauses, did not adjust to the conditions Shaw had imposed by editing, high-grading, winnowing or streamlining the speech he came prepared to make, which, it would turn out, squandered the limited time that he had to deliver the substance of his message.
After a highly rhetorical introduction, Thurmond stated, “We can debate all of the laws and all of the polices and practices. I ask you to consider this: That nearly half of students who identify as being LBGTQ+ are considering suicide. I ask you to consider this: The policy that you consider tonight not only might fall outside the laws that respect privacy and safety for our students but may put our students at risk because they may not be in homes where they can be…”
Superintendent Enfield, serving as the timekeeper, instructed by Shaw to hold each speaker to a strict one-minute limit, cut the microphone off at that point.
Strongly expressed views on both sides of the issue were expressed that evening, and advocates from one side or the other from as far away as San Diego to the South and the Bay Area to the north were heard. The majority of those in favor of the policy consisted of parents or others living within the district, with some input from those outside the area. There was a large show of opposition to the policy by lesbian gay bisexual transsexual queer advocates from around the state, with some input from local residents or students. Several teachers and their union spokeswoman opposed the policy but there were some teaching professions who questioned the wisdom of withholding information about the way students conduct themselves in a school setting from their parents.
Ultimately that evening, the board, having been assured by De Marco that the Policy 5020.1 passed legal and constitutional muster, approved by a 4-to-1 margin, with Shaw and board members James Na, Andrew Cruz and Jon Monroe prevailing and Don Bridge dissenting, the adoption of the policy.
The board’s action was taken as a victory by parents rights advocates and elements of both the local and national Republican Party. Still, the adoption of the policy and the bold, indeed defiant, manner in which the board had shunted aside Thurmond and disregarded the warning from Bonta was considered to be particularly insolent by lesbian gay bisexual transsexual queer advocates and a powerful swathe of California’s political establishment.
On August 28, the latter roaring back with Bonta, in his capacity as state attorney general, filing suit against the Chino Valley Unified School District to stop enforcement of the mandated notification policy. Bonta asserted that the need to prevent “mental harm, emotional harm and physical harm” to those students who are products of families who are not accepting of their choice to deviate from their birth or biological gender trumps the right of all parents to be informed of their children’s identity choice. “This policy is destructive,” he said. “It’s discriminatory and it’s downright dangerous. It has no place in California, which is why we have moved in court to strike it down.”
The suit, filed in San Bernardino County Superior Court, asserted that the policy “has placed transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures.” Transgender students, as a consequence of the school district action were, according to Bonta, “under threat’’ and “in fear,” facing “the risk of emotional, physical, and psychological harm from non-affirming or unaccepting parents or guardians.”
Bonta charged that the policy “unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical.”
On September 6, San Bernardino County Superior Court Judge Thomas Garza granted the State of California a temporary restraining order prohibiting the Chino Valley Unified School District from enforcing the policy. In doing so, Judge Garza signaled that the court was favorably predisposed toward Bonta’s position when he suggested the rights with regard to gender transitioning were as basic to the U.S. and California constitutions as religious freedom when he analogized changing from one gender to another to making a religious conversion, while stating that under his analysis, Chino Valley Unified’s Policy 5020.1 qualified as being “too broad, too general” while lacking “clear purpose or reference of parental support and involvement.”
Judge Garza acknowledged on September 6 that it was not likely that the matter would be resolved in San Bernardino County Superior Court and that whatever ruling came about at the trial court level would be appealed to the appellate court, the California Supreme Court and possibly to the U.S. Supreme Court.
Despite the Chino Valley Unified School Board majority being outmuscled politically, having lost ground legally within the forum of San Bernardino County Superior Court, as well as being outmaneuvered in terms of the presentation of its position to the public within the popular media in many different venues, there have been developments over the last several months to suggest the principle of parental notification at the heart of the policy might withstand the efforts to resist it.
Though Chino Valley Unified was clearly in the lead, there have now been numerous other school districts in the state that have put into place identical or very similar parental notification policies. If it once appeared that Chino Valley Unified was on its own in a struggle against the entire State of California and its political establishment as dominated by governor, lieutenant governor, state attorney general, secretary of state, superintendent of schools, controller, insurance commissioner and two supermajority-controlled houses of the legislature of the same political party, that is no longer the case, as other school districts, each with their own legal representatives, have now come to stand side-by-side with Chino Valley Unified.
More significantly, there have been court rulings at the federal level which suggest that parental rights, in particular the ability of parents to know or learn about the terms and conditions under which their children are being educated as well as the substance of what they are being taught cannot be abridged by action, priorities or policies of the educational institutions to which those parents have entrusted their children. Even if Bonta, Thurmond, the California Department of Public Instruction and the State of California itself prevail in the legal action that has been taken against Chino Valley Unified within the state court system, including San Bernardino Superior Court, the appellate courts and the California Supreme Court, the issue does not promise to be that cut and dried upon reaching the federal courts.
Of significance is that one of those federal court rulings took place not in a venue outside California or under a jurisdiction subject to another federal circuit, but one in Southern California, in which the federal judge in question was called upon to decide a question precisely the same as that at stake with Chino Valley Unified’s parental notification procedure.
Within days after Judge Garza’s ruling, Senior United States District Judge Roger Benitez in a ruling emanating from the U.S. District Court for the Southern District of California rejected the legal theory that minor students have privacy rights that preclude their parents from learning about their gender identity, which is the central premise in the lawsuit Bonta filed against the Chino Valley Unified School District.
In April, Elizabeth Mirabelli and Lori Ann West, middle school teachers in the Escondido Union School District, filed suit in the U.S. District Court for the Southern District of California against the Escondido Union School District Board of Education, the California State Board of Education, the California Department of Education and State Superintendent of Schools Tony Thurmond over a district policy which requires them to dissemble and outright mislead parents when they face a situation in which students have assumed a gender at a variance with their natural sex.
The lawsuit states teachers are required to use “any pronouns or a gender-specific name requested by the student during school, while reverting to biological pronouns and legal names when speaking with parents in order to actively hide information about their child’s gender identity from them.”
Mirabelli and West contended in the suit that their First Amendment rights were violated by the district in its requirement that they either lie to parents outright or prevent the parents from learning the truth.
In his ruling issued September 14, 2023, Judge Roger Benitez wrote, “A parent’s right to make decisions concerning the care, custody, control, and medical care of their children is one of the oldest of the fundamental liberty interests that Americans enjoy. However, if a school student expresses words or actions during class that may be the first visible sign that the child is dealing with gender incongruity or possibly gender dysphoria, conditions that may (or may not) progress into significant, adverse, life-long social-emotional health consequences, would it be lawful for the school to require teachers to hide the event from the parents?”
Judge Benitez concluded that the teachers’ religious beliefs and free speech rights were violated by the Escondido Union School District’s policy, and wrote that students in the position of being caught between attending school using one gender identity while maintaining a different gender identity at home would be harmed because they need “parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. Parental involvement is essential to the healthy maturation of schoolchildren. The Escondido Union School District has adopted a policy without parent input that places a communication barrier between parents and teachers.”
The court granted Mirabelli and West a preliminary injunction against the district policy.
What was revealed during the course of Mirabelli’s and West’s litigation was that school staff and teachers at the school where they taught were sharing with one another lists of students that essentially revealed which students at the school had changed gender, as those lists provided the names and pronouns teachers should use when dealing with the students in the educational setting and the other names to use when communicating with parents. One exhibit presented in the Mirabelli and West case, a 2022 email, demonstrated many parents were unaware of their students’ preferred names and pronouns.
The Mirabelli and West case has direct relevancy to the circumstance being dealt with in lawsuit brought by Bonta against the Chino Valley Unified School District in state court. The principle enunciated by Judge Benitez has not yet been established at the level of California’s Superior Court. Binding precedent applies only among courts of the same system, such as a state court hierarchy. Legal precedent set in the federal court system is not generally binding on any state court, though it could be utilized as what is commonly referred to as persuasive precedent. It is anticipated that Bonta will essentially disregard the implication of Judge Benitez’s ruling in the Mirabelli and West case, as it would interfere with the legal theory he is proceeding under. Nevertheless, Bonta may have already inadvertently invited the court to consider Judge Benitez’s ruling in the Mirabelli and West case when his office, on October 12, 2023, asked for the court to take judicial notice of a case that does not fall under California law, that being a decision of the New Jersey Superior Court in the case of Platkin v. Middletown Township Board of Education. In that case, on August 18, 2023, the Monmouth County Superior Court preliminarily enjoined three school districts from enforcing a mandatory parental disclosure policy similar to the one contained in Policy 5020. In this way, the magistrate hearing the matter in San Bernardino County Superior Court, Judge Michael Sachs, may feel that the playing field has been sufficiently widened for decisions from elsewhere that are on point, such as the one by Judge Benitez, to be considered.
To the extent that Bonta is not adequately opposed in forging ahead with his basic legal theory that that minor students have privacy rights that preclude their parents from learning about their gender identity, he possibly will prevail going forward as he has so far, with Judge Garza’s ruling and others made by San Bernardino Superior Court Judge Michael Sachs, including one which granted a preliminary injunction preventing the school district from implementing portions of Policy 5020.1 and could prevail at the trial court level, then perhaps again at the appellate level and perhaps before the California Supreme Court.
Ultimately, however, the two entities that are representing the district, the Chicago-based Liberty Justice Center and the law firm of Atkinson, Andelson, Loya, Ruud & Romo, will, if the district does not prevail at the state level, most certainly remove the matter to the federal level, at which point rulings of the tenor of that of Judge Benitez and other like it become the context in which the matter is to be tried.
Of note is that at the time of the passage of Policy 5020.1, Shaw was a relative newcomer to the school board, having been elected in November 2022 in a victory over incumbent Christina Gagnier. The highly presentable Gagnier was a darling of the Democratic establishment, someone being groomed for higher office, indeed much higher than the school board, such that the state legislature was thought to be for her a stepping stone to Congress and then onto lieutenant governor or attorney general and perhaps beyond. During Gagnier’s 2022 election, Thurmond and other Democrat heavyweights were dispatched to the Chino Valley to assist her. Despite their best efforts, Shaw, a favorite daughter of the right wing Christian atmosphere that has evolved in both Chino and Chino Hills between three fundamentalist churches with large congregations and which have no hesitation about utilizing appeals to faith to drive voters to the polls to elect “conservatives” to local office, prevailed over Gagnier. In a real way, schools in the Chino Valley are seen by a cross section of conservative activists well beyond California as a key battleground over fundamental values. This is because, in part, the Chino Valley lies within the Golden State, where Democrats rule the political roost. Their belief is that if the political right can reestablish a toehold in the Chino Valley, which lies immediately adjacent to the once solidly Republican Orange County which has slipped into the control of the Democrats, a multi-generational movement to re-Republicanize California can be born.
In this way, the Chino Unified School District, the Chino Unified School District Board of Education, its members and supporters, the Liberty Justice Center and the law firm of Atkinson, Andelson, Loya, Ruud & Romo are not looking at the matter before them in the short term, but are playing a long game, one much longer than Thurmond, Bonta or the current crop of Democrat officeholders are capable of or prepared to wage. Bonta, who was appointed to the attorney general’s post in 2021 and ran in his own right in 2022, can run for reelection in 2026, and will be termed out in January 2031. Thurmond, now serving his second term as superintendent of schools, will be termed out in January 2027. The trial on the case relating to Policy 5020.1 will in no case begin any sooner than this summer, and will likely be delayed well beyond that. Assuming the case is adjudicated by 2025, any appeal would not be likely to be completed until 2027. It is unlikely the California Supreme Court would take up the matter and rule on it before mid-to-late 2028. The matter would very likely take years to wend its way through the federal system thereafter. While Thurmond and Bonta are almost certain to spiritedly pursue the case until they prevail or the state’s options on appeal are exhausted, that their successors will retain the same enthusiasm with regard to a matter that carries with it the potential of political repercussions is open to question.
In the meantime, upon the advice and input of the Liberty Justice Center and Atkinson, Andelson, Loya, Ruud & Romo, the school board considered reworking the policy and the directive it provides to faculty in such a way to sidestep the charges leveled against the district that Policy 5020.1 was specifically and deliberately discriminatory toward transgender students to intentionally subject them to disparate treatment and inflict on them mental, psychological emotional and physical harassment, and abuse and harm.
Under the guidelines considered by the school board and ultimately approved, district staff is now being called upon to notify parents or guardians any time students make changes to their official or unofficial records.
This goes to the heart of the issues raised by Bonta that persuaded both Judge Garza and Judge Sachs to perpetuate the restraining order preventing the policy’s enforcement – California’s Equal Protection Clause, which Bonta claimed was violated because Policy 5020.1’s forced disclosure provisions discriminate against transgender students who are “singled out” and ran afoul of California Education Code Sections 200 and 220 and Government Code section 11135 meant to ensure equal rights and opportunities for every student and prohibit discrimination on the basis of gender identity and gender expression.
In this way, the district’s redrafting of the policy seems to be aimed at addressing Sachs’ ruling that two provisions of the policy requiring that faculty in essence “out” transgender students to their parents were discriminatory based on sex, violating both the California Constitution’ and U.S Constitution’s equal protection clauses. A third provision of the policy passed in July, Sachs found, to be what he termed “neutral facing,” meaning it applied to all students.
Another issue highlighted by Sachs which has relevance to the discussion of the policy is the distribution of information that is freely provided by students as well as by teachers. This issue, yet to be resolved, will require, perhaps, that students accept that any information they “voluntarily” divulge on documents deemed part of the public record are disclosable, in particular to their parents. On the district’s side of the issue is whether it can mandate, i.e., force staff to tell parents about their children. In this way, the school district might not be able to require that teachers or faculty inform parents about their children’s comportment at school, including whether they have assumed a gender at odds with their biological one, but the district would not be able to prevent the teachers from providing that information if the subject were raised by the parents in some context, perhaps during a parent-teacher conference.
The revised policy adopted Thursday says that schools must notify parents or guardians if a student makes any change to his or her official or unofficial record, participates in extracurricular activities, or is involved in any case of bullying or possible suicide.
All references to gender have been removed from the revised policy.
The presentation of the new policy and its discussion lasted for more than two hours and forty minutes. The new policy passed by the same 4-to-1 margin that the original policy was approved, with Shaw, Monroe, Cruz and Na voting in favor of it and Bridge in opposition.
Thursday’s move was in part prompted by a February 23 ruling by Riverside Superior Court Judge Eric Keen, who refused to grant the State of California a temporary restraining order to prevent the Temecula Valley Unified School District from enforcing its parental notification policy, which is slightly different from that of Chino Valley Unified.
Lesbian Gay Bisexual Queer and Transsexual advocates argue that the new policy merely crates a loophole that allows the district to infringe on students’ rights.
-Mark Gutglueck