Courts sharpen their pencils for school-related culture wars

Since COVID, many school boards have become a battleground for ideological conflict, and state lawmakers have joined the fray. In California, the legislature has banned "book bans" and prospectively struck district rules requiring teachers to "out" gender-nonconforming students to their parents. Conservatives and liberals alike have challenged not only school policies but also legislation reacting to these policies in pending state and federal court actions.

It has been widely reported that conservative groups have fared well in local school board races: See, e.g., Newsweek, Nov. 9, 2022, "Moms for Liberty Ride Wave of 'Anti-Wokeness' to School Board Victories" citing the group's success in endorsing hundreds of candidates nationwide who touted "similar messaging in the culture wars between conservatives and progressives: school closures during COVID were overwrought and destructive; Critical Race Theory is itself racist; boys and girls are different and should not share the same locker rooms and restrooms; and there's way too much focus on a pro-LGBTQ agenda."

In California, many communities have elected conservative school board members who have promoted "anti-Woke" policies at odds with the state's Democratic leadership, resulting in litigation over how schools should teach subjects related to race and LGBTQ+ concerns, and how schools should address the competing rights of nonbinary/transgender students and their parents.

This article discusses legislation and lawsuits arising from resolutions passed by three California school boards. A San Bernadino County school board passed a resolution requiring teachers to notify parents when students request gender nonconforming pronouns or bathroom access. In Riverside County, a school board passed a resolution banning Critical Race Theory (CRT). Disputes over these types of resolutions reach beyond the Inland Empire. In San Diego County, a school board found itself defending a policy requiring teachers to use pronouns or gender-specific names requested by students, but preventing them from informing the students' parents of the request.

As background, in 2023, a noisy confrontation between parents attending the Chino Valley Unified School District (CVUSD) meeting and the California State Superintendent of Schools Tony Thurmond resulted in police escorting Mr. Thurmond out of the building at the request of school board leadership. Mr. Thurmond had expressed opposition to a CVUSD policy requiring teachers to inform parents if their child identifies as transgender, questioning whether the policy violated student privacy laws and cautioning that it would increase risks faced by LGBTQ+ students who "may not be in homes where they can be safe." Over this opposition, the board voted 4-1 to approve a "parental notification" system requiring school officials to alert parents if a student requests to use a name or pronoun, or to use bathrooms that "do not align with the gender stated" on the student's birth certificate.

School boards in Riverside, Placer, and Shasta counties passed similar policies. Although a corresponding bill failed in the California legislature, eight states (Idaho, North Dakota, Iowa, Indiana, Tennessee, North Carolina, South Carolina and Alabama) have enacted "parental notification" legislation while five others (Utah, Arizona, Montana, Kentucky, and Florida) have enacted laws that promote, but do not require school officials to notify the parents of transgender youth in all circumstances.

On Aug. 28, 2023, California filed People v. Chino Valley Unified School District, and on Sept. 6, 2023, San Bernardino County Judge Thomas Garza preliminarily enjoined enforcement of the CVUSD parental notification policy. On April 10, 2024, the state filed California Department of Education v. Rocklin Unified School District against a second district that enacted a similar policy. In June 2024, the California Public Employment Relations Board (PERB) ruled that the policy was an unfair labor practice.

On July 15, 2024, Governor Newsom signed the SAFETY ("Support Academic Futures and Educators for Today's Youth") Act, a first-in-nation law prohibiting school districts from enacting "forced outing." Tony Hoang, Executive Director of Equality California, the nation's largest statewide LGBTQ+ civil rights organization, expressed support for the Act: "LGBTQ+ youth across California can now have these important family conversations when they are ready and in ways that strengthen the relationship between parent and child, not as a result of extremist politicians intruding into the parent-child relationship."

The day after the law was signed, Texas-based non-profit Liberty Justice Center filed Chino Valley Unified School District v. Newsom in the United States District Court for the Eastern District of California to prevent the law from taking effect on Jan, 1, 2025. In addition to the district, eight parent plaintiffs each allege he or she is a "devout Christian who believes God created man and woman as distinct, immutable genders." The plaintiffs argue the law violates the First and 14th Amendments, as well as the Family Educational Rights and Privacy Act (FERPA). Liberty Justice Center said in a press release, "School officials do not have the right to keep secrets from parents, but parents do have a constitutional right to know what their minor children are doing at school." The Governor's office said in a statement, "This is a deeply unserious lawsuit, seemingly designed to stoke the dumpster fire formerly known as Twitter rather than surface legitimate legal claims."

In a First Amended Complaint filed Aug. 8, 2024, several school districts in Shasta County as well as the Orange County Board of Education joined CVUSD as plaintiffs.

Another pending federal lawsuit challenges a San Diego County school district -- along with the California Department of Education -- for being too "Woke." On April 27, 2023, the Thomas More Society filed Mirabelli v. Olson in the United States District Court for the Southern District of California, originally on behalf of two teachers who objected to an Escondido Union School District that allegedly "required school personnel to participate in a student's social transition to a new gender and to withhold any information about this social transition from the student's parents ...[in violation of] Plaintiffs' moral and religious views." The teachers sought and received a religious accommodation related to the use of student-preferred names and pronouns (permitting the teachers to refer to these students by their last names), but EUSD denied the teachers a religious accommodation related to disclosure to parents. The Second Amended Complaint adds additional prospective class plaintiffs, several of whom allege he or she is "a devout Roman Catholic and the parent of a gender incongruent middle school-aged child attending California public schools." The lawsuit alleges violations of the plaintiffs' constitutional right to free speech, free exercise, and substantive due process (parental rights), and religious discrimination/failure to accommodate in violation of Title VII.

On Sept. 14, 2023, District Judge Benitez enjoined the defendants from enforcing what the plaintiffs referred to as "parental exclusion policies." In his ruling, the Judge found:

"The school's policy is a trifecta of harm: it harms the child who needs parental guidance and possibly mental health intervention to determine if the [gender] incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long-recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs who are compelled to violate the parent's rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students -- violating plaintiffs' religious beliefs."

The plaintiffs' motions for partial summary judgment and class certification are currently set for a hearing on Sept. 23, 2024.

Turning to Riverside County, in November 2022, the Temecula Valley Unified School District elected three conservative school board members during the pandemic, including Komrosky. At the newly constituted board's first meeting, Komrosky successfully sponsored a resolution that banned instruction on critical race theory. The Board additionally voted to remove a textbook, "Social Studies Alive!" because its supplemental materials provided to teachers (but not students) included a discussion of former San Francisco supervisor and LGBTQ+ rights activist Harvey Milk, who was assassinated in 1978 along with San Francisco Mayor George Moscone by a disgruntled former supervisor. The resolution stated that CRT "is an ideology based on false assumptions about the United States of America and its population," that CRT is a divisive and racist ideology, and that TVUSD's goal is to "uplift and unite students by not imposing the responsibility of historical transgressions in the past." Soon after, the Board passed a parental notification resolution identical to CVUSD's.

In contrast to the Chino Valley community's visible support of the CVUSD's parental notification resolution at the meeting in which the rule was enacted, in Temecula, students, parents and teachers associated with the district's three high schools protested the TVUSD resolution, staging demonstrations and a coordinated walkout in January 2023.

On Aug. 2, 2023, Los Angeles-based non-profit Public Counsel filed a lawsuit, Mae M. v. Komrosky in Riverside Superior Court against TVUSD on behalf of 10 students, the California Teachers Association, and four teachers, several of whom have taught at TVUSD for decades, arguing that the resolution has caused a chilling effect on any topic or classroom conversation that could be construed as violative. The plaintiffs allege that books targeted for removal include "The Kite Runner" by Khaled Hosseini, "The Bluest Eye" by Toni Morrison, and "Looking for Alaska" by John Green.

The complaint alleges violation of the California Constitution's "void for vagueness" and "right to receive information" clauses, violation of California equal protection and anti-discrimination statutes, and violation of a California statute prohibiting unlawful expenditure of taxpayer funds. California's Attorney General, ACLU, Penguin Random House, The Authors Guild, First Amendment Coalition, The Freedom to Read Foundation, PEN America, and Freedom to Learn Advocates all filed amicus briefs in support of the plaintiffs' motion to enjoin enforcement of the resolutions.

On Feb. 16, 2024, Riverside County Judge Keen denied the defendants' anti-SLAPP motion to strike the complaint, however, a week later Judge Keen denied plaintiffs' motion for a preliminary injunction. Judge Keen quoted defendant Komrosky's supporting affidavit, which declares that the resolution "does not interfere with the teaching of ethnic studies, history, or any other subject," and teachers "can still teach on accurate historical events and individuals, such as Dr. Martin Luther King, the Holocaust, and slavery."

Judge Keen additionally found that the resolution was reasonably related to a "legitimate pedagogical concern."

"The Resolution allows instruction in CRT, but specifically prohibits instruction on theories such as 'only individuals classified as "white" people can be racist because only "white" people control society,' or 'racism is ordinary, the usual way society does business,' or 'an individual, by virtue of his or her race or sex, is inherently racist and/or sexist' or finally, that 'an individual is inherently morally or otherwise superior to another individual because of race or sex.' Theories such as these (and others banned by the Resolution) which are precepts taught within Critical Race Theory would seem to lack any legitimate pedagogical concern and would not be reasonably related to legitimate educational concerns."

On June 14, 2024, the plaintiffs filed a notice of appeal challenging the denial of their motion for a preliminary injunction. In their brief, they argue that the Board's "censorship hinders the learning of all schoolchildren. But it particularly injures children of color and LGBTQ children, stigmatizing (when not outright erasing) their identities, histories, and cultures. On top of this, the Board enacted a new policy requiring Temecula teachers and school staff to 'out' transgender and gender nonconforming students to their parents, regardless of the abuse those students risk as a result of the disclosure." The brief further argues that the board passed the parental disclosure policy as "part of a wave of anti-LGBTQ measures," citing the board's "excision of State-mandated curricular content on the LGBTQ movement," its ban on Pride flags, and "its rejection of a proposed resolution prohibiting discrimination, bullying, and harassment of all students, including LGBTQ students."

As background to the CRT debate, in 2011, California passed the FAIR (Fair, Accurate, Inclusive and Respectful) Education Act, which updated the individuals and groups whose contributions to the history of California and the United States are to be taught, to include "Native Americans, African Americans, Mexican Americans, Asian Americans, Pacific Islanders, European Americans, lesbian, gay, bisexual, and transgender Americans, persons with disabilities, and members of other ethnic and cultural groups, to the economic, political, and social development of California and the United States of America." FAIR also prohibits instructional materials with a discriminatory bias or negative stereotypes based on gender, sexual orientation or disability.

Citing the 2022 Temecula resolution, on Sept. 25, 2023, Governor Newsom signed AB 1078 into law, a bill banning "book bans" in California schools. The law expands the FAIR Act, prohibiting censorship of instructional materials and strengthening California law requiring students to provide all students access to textbooks that teach about California's diverse communities. The bill's author, State Assemblymember Dr. Corey Jackson, in announcing the enactment, said "[t]he act of banning books, particularly those that shed light on diverse perspectives, cultural histories, and underrepresented voices, deprives our students of a well-rounded education. ... [W]e will not tolerate the erasure of history or the suppression of diverse voices."

On June 4, 2024, Temecula Valley voters ousted TVUSD board president Komrosky in a recall election. Citing the narrow margin (4,963 voting yes and 4,751 voting no), Komrosky suggested he would run in the next election in November.

The group that spearheaded the special election stated in a press release that Komrosky's recall was another step in making "Temecula boring again."