ByJean Merl / Capital & Main
Across California and around the U.S., a spate of legal actions has brought the “culture wars” that have erupted in conservative-leaning school districts from the classroom into the courtroom.
Conservative school board members in a growing number of districts have enacted policies that reflect their ideology but have encountered pushback — including lawsuits — from others. Driven by well-organized groups such as Moms for Liberty, Protect Kids and the California Policy Center, board meetings have erupted in shouting matches and worse over efforts to restrict teaching about America’s racial history, ban textbooks or library materials and require educators to notify parents if their child or teen shows any evidence of being “gender nonconforming.”
Legal experts say the law is unclear and the suits — especially those centering on notification policies about gender identity — tap into a relatively new source of controversy in largely uncharted legal territory that won’t be resolved anytime soon — or cheaply.
Education experts lament the turmoil the controversies have brought to schools and are seeking ways to ameliorate the effects while the legal issues are being worked out in the courts — perhaps eventually reaching the state supreme courts — and, likely, new legislation.
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“Litigation can be expensive,” said Christy Mallory, legal director of the UCLA School of Law’s Williams Institute, which researches policies and legislation concerning LGBTQ issues. The institute’s goal is to help policy makers make informed decisions; it is not an advocacy or lobbying group, Mallory said. She has kept an eye on relevant lawsuits in California and in other states, including Wyoming, Maryland and Wisconsin.
In California, the recent legal battles have centered mainly on notification policies and efforts to protect the privacy of transgender, or LGBTQ, students, or those who are considering transitioning from the sex assigned to them at birth. Some of the cases have been brought to state courts, based on the state Constitution and California Education Code, while at least two were filed in federal court.
In one federal case, Judge John Mende in July threw out a complaint brought by a mother who claimed the Chico Unified School District, in Northern California, had violated her constitutional rights by not telling her that her child had asked to use a different gender pronoun.
After the Chino Valley Unified School District Board of Education became the firstin the state to adopt a policy requiring schools to notify parents if a student showed signs of being gender-nonconforming, California Attorney General Rob Bonta filed suit, charging the San Bernardino County district with violating students’ state constitutional right to privacy and violating state education and government codes. He said students could be harmed if their parents reacted negatively to their gender identity.
“Our message to Chino Valley Unified and all school districts in California is loud and clear: We will never stop fighting for the civil rights of LGBTQ+ students,” Bonta said in a statement.
The district’s policy requires staff to notify parents in writing within three days if they notice a student using names, pronouns or restrooms that do not match their biological sex or giving other indications they may be transgender. Several other school districts adopted similar policies, including Dry Creek Joint Elementary in Placer County, Rocklin Unified in Del Norte County, Murrieta Valley Unified and Temecula Valley Unified in Riverside County, Orange Unified in Orange County and Anderson Union High School District in Shasta County.
Bonta put them on notice that they too could face lawsuits and said the policies violate legal guidance issued by the state Department of Education, which dictates that schools may not disclose a student’s gender identity without the student’s consent.
In October, Judge Thomas Garza granted Bonta a preliminary injunction, forcing the Chino Valley district to put the policy on hold until a full trial determines the final outcome. The ruling also serves as a warning to other districts with similar policies.
“Other districts have been put on notice that Bonta will probably file lawsuits against them too,” UCLA’s Mallory said. “They should expect to be spending a lot of money on litigation” if they continue with their parent notification policies, she said.
Another suit filed in federal court during the summer added a contrasting wrinkle. In that case, U.S. District Judge Roger Benitez temporarily blocked the Escondido Union School District, in San Diego County, from enforcing its policy barring district staff from revealing a student’s transgender status to parents unless the student gives written consent. The suit was brought by two of the district’s middle school teachers, who said the notification policy violated their religious beliefs. In September, Judge Benitez denied the district’s request to dismiss the suit and issued a preliminary injunction, saying the district policy “is as foreign to federal constitutional and statutory law as it is medically unwise.”
Still another suit was filed in state court in August against the Temecula Valley Unified School District, which, in late 2022, banned the teaching of critical race theory, which looks at the systemic nature of racism and racial inequality in America. Public Counsel and a private law firm brought the suit on behalf of the local teachers union, individual teachers, students and parents.
It charges that the ban violates the state constitution’s guarantee of an education that protects students from racial discrimination and also flies in the face of state laws laying out learning standards regarding racism and how past events, such as slavery, have affected the present day. A number of states, including Florida, have enacted similar bans. The California suit said the ban particularly “injures children of color and LGBTQ children, stigmatizing their identities, history and culture.”
California’s Democratic political leaders — especially Bonta, Gov. Gavin Newsom and state Superintendent of Public Instruction Tony Thurmond — have weighed in strongly on the side of student privacy. This fall Newsom signed several bills to support LGBTQ youths. Thurmond, who was ejected from a Chino Valley school board meeting in July during a heated debate over the parent notification policy, has worked to strengthen support for transgender students, including helping to develop legislation. Bonta, in addition to his work in California, is leading a 20-member group of state attorneys general to battle anti-transgender laws across the country, including those in Tennessee and Kentucky.
The debates over notification policies around transgender students are complicated and “extremely fraught” because they are relatively new and involve parents and minors, said Jessica Levinson, a professor at Loyola Law School.
“There are few things people care more about than their kids,” Levinson said. And the case law provides no clear dividing line between the rights of parents to be informed about their child’s behavior and the child’s right to privacy about sensitive information.
The question of privacy rights is not new, nor is the question of parental notification, “but this question of forced outing of kids to parents … is a fairly new question,” Levinson said. “This is a different question than if your child got hurt on a school field trip or shoved another kid.”
Levison said she anticipates a “patchwork of different decisions in different jurisdictions,” making it difficult to reach clarity on the issue.
The emotional debates in district board rooms have spilled into the classroom, and not in a good way, according to a 2022 study led by education professors John Rogers at UCLA and Joseph Kahne at UC Riverside. “Educating for a Diverse Democracy: The Chilling Role of Political Conflict in Blue, Purple and Red Communities” was a survey of 682 public high schools in congressional districts across the nation.
It found, perhaps not surprisingly, that the biggest conflicts came in purple districts — those with substantial numbers of both Republican and Democratic voters. More than two-thirds of principals surveyed reported “substantial political conflict” over such hot-button issues as race, gender identity, access to books in the school library or socialemotional learning.
The study found that “increasing political conflict often results from intentional and organized efforts that have targeted Purple communities in particular” and that the debates were fomented by conservative groups that were “aggressively challenging and even threatening educators” over policies and curriculum. The tactics sometimes included misinformation and “threatening, denigrating and violent rhetoric.”
Rogers said in an interview that the resulting turmoil was having a chilling effect on educators and threatened to undermine a primary goal of public education — to prepare students to be informed and function well in a democracy.
“As long as there is a sense of political gain to be made, I don’t think those dynamics are going to go away,” Rogers said. “I don’t think this is an easily remedied challenge.”
Some academic experts are developing programs to help educators and students navigate the challenges inherent in the culture wars.
“We are making a very sensitive topic more difficult by politicizing it,” said Pedro A. Noguera, dean of the USC Rossier School of Education. “Most parents want to support their child but they don’t want to be told what to do.”
Noguera said he looks to the courts to settle issues roiling school districts such as parents’ right to know versus student privacy rights but acknowledges that could take a long time. He noted some university education schools, including Rossiter, are now developing ways to help educators and students deal effectively with controversial topics.
Rossier’s Democracy Project launched two years ago, said professor of clinical education Robert Filback. He and Jenifer Crawford, also a professor of clinical education, are co-chairs of the program.
“We have been working to develop a curriculum … that would focus on critical discourse and reflective dialogue,” Filback said. In working with mostly high schools and a few middle schools, project directors found teachers were unhappy with how politicized things had become but were eager for guidance. “We did not hear ‘students don’t want to talk about this,’ and that was rewarding.”
The Democracy Project won a grant from the U.S. Department of Education and worked with the Constitutional Rights Foundation and teachers to develop its first six modules. The topics are human rights, police and safety, gun violence, immigration, hate speech and climate change.
Transgender issues and some other topics generating controversy in education may well be included in the next phase, Filback said.