The Volokh Conspiracy
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Court Holds Parents Have Right to Opt Out of Gender Identity Teaching to First-Grade Children
In Tatel v. Mt. Lebanon Sch. Dist. (W.D. Pa.), decided yesterday, Judge Joy Flowers Conti concluded that the Third Circuit (the federal appellate court that covers Pennsylvania) recognizes some parental rights over the control of their children's education even in public schools:
{[P]arents, not schools, have the primary responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship in their children. With respect to important matters that strike at the heart of parenting (such as inculcation of religious beliefs or teachings contrary to the parents' religious beliefs), the fundamental rights of parents might override the interests of a public school; the school would need to show its actions are narrowly tailored to achieve a compelling interest.
At issue here are whether Parents have a right to expect that first-grade teachers will not expose their impressionable young children to sensitive gender identity topics against the parents' instructions; will not tell children that parents make mistakes about important matters such as their children's identity; will not tell children the teacher would never lie (implying that their parents may lie about a child's identity); will not advise children they may dress or be groomed as a different gender; and will not tell children not to talk to their parents about what they learn in school about those topics.}
I'm skeptical about claims of parents' constitutional right to opt out from parts of public school curricula (and about K-12 teachers' claims of a constitutional right to include in their teaching things that the school doesn't want them to include); I think all those decisions should generally be left to the political process. (Establishment Clause precedents make this complicated when it comes to religious speech, and there's some First Amendment right for students to be free from some kinds of compelled speech, such as pledges of allegiance and the like, but those are separate matters.) Still, I think this is an important decision that's worth noting. From the court's discussion of the facts:
The parents allege that their children's first-grade teacher, with the permission of the public school district, pursued her own agenda outside the curriculum, which included showing videos or reading books about transgender topics and telling the first-grade students in her class (ages six and seven years old) to keep her discussions with them about transgender topics secret from their parents.
The teacher's alleged conduct went far beyond instructing a student that someone who differs from that student must be treated with kindness, tolerance and respect. As pled in the complaint, the teacher, among other things, instructed the children in her first-grade class that their parents might be wrong about their children's gender and told one of her students that she (the teacher) would never lie (implying that the parents may lie about their child's identity) and the child could dress like a different gender and be like the teacher's transgender child. When the parents complained, the school district supported the teacher and allegedly adopted a policy (the "de facto policy") that the teacher's conduct could continue in the future without notice to the parents or the opportunity to opt out….
The Parents assert they do not seek to impose their religious or moral beliefs about transgender topics on other students. Instead, the parents seek to protect their own young children from a public school teacher's showing videos and reading books about transgender topics and her attempts to promote or inculcate in the young children in her class the teacher's ideas or beliefs about a child's gender identity and to initiate and engage in discussions with the first-graders in her class about the children's own gender identity without the permission of their parents. No party in this case raised any issue about the existence in the school district of bullying or intolerance toward transgender children. Based upon the allegations of the complaint, the court need not resolve at the pleading stage whether there is a difference, for constitutional purposes, between teaching children about kindness toward other children and seeking to influence a young child's beliefs about the child's own gender identity or to advance a teacher's own beliefs about the inappropriateness of a parent's religious beliefs concerning gender identity….
The Parents allege that the District had a policy and practice of providing parental notification and "opt out" rights when sensitive, complex or controversial topics (such as the Holocaust, slavery, the 9/11 terrorist attacks, reproductive education, sex education, Black Lives Matter and Planned Parenthood) were to be taught in a given class. District Policy I(F) is entitled "Curriculum and Parental Rights" and provides for parental review of instructional materials and opt out rights related to instruction that conflicts with their First Amendment beliefs. The Parents allege that defendants failed to recognize their fundamental rights as parents or adhere to the District's notice and opt out policies in Williams' [the teacher's] classroom.
Williams is the mother of a transgender child who, like the Plaintiffs' children, was in the first grade during the 2021-2022 school year. Williams told parents she "has an agenda" and intends to teach "right on the edge." Williams told one Plaintiff "as long as I am on this earth, I am going to teach children what I feel they need to learn." For example, students in Williams' classroom, against the instruction of the District, were not given the opportunity to recite the Pledge of Allegiance for 52 straight days at the start of the school year. As another example, a Plaintiff's child informed Williams that she was not allowed to watch a certain cartoon (based on a parental choice that some of the content was not age-appropriate). Williams forged ahead, telling the child "I will tell your mom that I told you it was ok to watch it." Williams emailed the parent, informing her that she showed the cartoon to the student even though the child told her she was not allowed to watch it at home.
The published Grade 1 curriculum does not mention or discuss teaching about gender dysphoria and transgender transitioning. Teaching about diversity, equity and inclusion ("DEI") is not included in the first-grade curriculum. No notice or information was provided to parents indicating that gender dysphoria and transgender transitioning would be taught to first graders. In October 2021, a group of concerned parents met with Bielewicz [the principal], who assured them there were no formal lessons about gender identity, especially in first grade.
The Parents allege that defendants permitted Williams to teach and condoned her teaching about gender dysphoria and transgender transitioning to her first-grade students. The Parents allege that this instruction was: (1) contrary to the District's published curriculum; and (2) "in direct disregard of one set of parents' express request that such topics not be taught to their seven-year-old child." The Parents allege that Williams taught their children that "'sometimes parents make mistakes' about a child's gender." The Parents allege that Williams encouraged their children "not to tell their parents about her instruction."
The Parents allege that Williams brought the topics of gender dysphoria and transgender transitioning into her classroom teachings throughout the school year. Early in the fall of 2021, Williams played a video of "Jacob's New Dress." Williams explained to her students that her transgender child wore an Elsa dress for Halloween.
The child of one Plaintiff reported that Williams told him that he could "wear a dress and have hair like my mom." At a parent-teacher conference, that Plaintiff expressed displeasure with Williams for telling her son that he could dress and wear his hair like his mother. Williams had private conversations with this boy throughout the school year, in which she discussed the similarities between the boy and Williams' transgender child. Williams suggested the boy might want to wear a dress; that the two children had similar interests and the same favorite color; and told the boy "he could be like her transgender child." Williams told the boy "doctors can get it [gender] wrong sometimes." Williams told the boy that "she would never lie to him" and told the boy not to tell his parents about the discussions. Id. Plaintiffs characterize this conduct as "grooming" and as a gross breach of trust and abuse of her position as a public school teacher.
In March 2022, Williams began to discuss with her class her child's gender dysphoria and explained that her child was once a boy, but is now a girl. On March 31, 2022 (the Transgender Day of Visibility), Williams provided direct classroom instruction on gender dysphoria and transgender transitioning. Williams explained to her students that sometimes "parents are wrong" and parents and doctors "make mistakes" when they bring a child home from the hospital.
As part of direct classroom instruction that day, Williams played two videos and/or read two books while video illustrations played: (1) When Aiden Became a Brother, (https://www.youtube.com/watch?v=8F2_UR4y0iw); and (2) Introducing Teddy, (https://www.youtube.com/watch?v=ddRmNpLYgCM). Plaintiffs allege that the clear and obvious subject matter of these videos or books is gender dysphoria and transgender transitioning. Williams' instruction about gender dysphoria and transgender transitioning caused confusion among some of the students. For example, one child asked her mom "how do you know that I am a girl."
These materials were not listed on the first-grade curriculum and parents were given no notice or opportunity to opt their children out of having those materials presented to them in school. Williams sought (and received) permission from Bielewicz to use the videos/books as part of her classroom teaching on the morning of March 31, 2022, the same day she later played the videos or read the books to the students in her class. Williams sent an email to all the elementary teachers, encouraging them to play the videos in their classrooms. At least two other elementary teachers did so, without providing notice to the parents.
The complaint alleges that Bielewicz "was fully aware that his permission would cause an uproar among certain parents but he provided it anyway and did so without any notice to parents." A group of parents determined that the videos/books "violated their express direction as to what they as parents did not want taught to their child." In October 2021, these parents told Bielewicz they were not comfortable with their children "learning about gender identity at this age," and Bielewicz advised them those topics would not be covered.
Plaintiffs allege that Williams' instruction about gender dysphoria and transgender transitioning conflicts with their sincerely held religious and moral beliefs that "human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one's identity, and biological reality, as either male or female." Plaintiffs also assert they have sincerely held religious and moral beliefs that "parents have the non-delegable duty to direct the upbringing and beliefs and religious training of their children." Plaintiffs contend that defendants deliberately supplanted the parents' role to control the instruction of their young children on transgender topics in accordance with their values.
Upon learning about Williams' instruction on March 31, 2022, one plaintiff removed her child from Jefferson Elementary school and enrolled him in cyber school. One plaintiff met with Williams, voiced her objections, and explained that she would like to be the person responsible for discussing those topics with her child. Williams responded they would "need to agree to disagree" and stated "100% I have an agenda" and she had no intention of stopping her instruction. Williams also claimed that Bielewicz and the Board approved the videos.
The Parents allege that they complained about Williams' instruction to administrators, as well as at three Board meetings, but got excuses and were "stonewalled." On April 5, 2022, Bielewicz confirmed he approved the videos on the morning of March 31, 2022, and explained he thought they were appropriate and Williams was qualified to provide instruction based on her own personal experiences. Bielewicz indicated that Steinhauer, Irvin and the Board agreed the instruction was appropriate after the fact. One Plaintiff asserted her right as a parent to discuss that topic with her child and Bielewicz responded they would need to "agree to disagree" and stated that Williams might teach those subjects in the future. At another meeting with parents on April 5, 2022, Bielewicz conceded he should "take a mark" (i.e., accept fault) for not notifying these parents despite their prior request and despite his prior representation that transgender topics would not be presented to first graders.
Plaintiffs characterize Williams' excuse for introducing transgender topics—i.e., that she would be bringing her own child into the classroom on Bring Your Child to Work Day—as a purposefully deceptive ruse. Bielewicz confirmed to parents on April 5, 2022, that there was no change in the District's policy that teachers could not bring their kids to work on Bring Your Child To Work Day. Subsequently, the District announced a policy change, based on an objection by Williams, and permitted teachers to bring their children in that day.
The Parents met with Steinhauer in early April 2022. Although Steinhauer made conciliatory statements (i.e., the video should have been approved by a higher level of the administration and it was reasonable for parents to have a choice), he has not announced any policy change to contradict the de facto policy that the transgender topics may continue to be taught without notice or opt out rights for parents. At a public meeting on April 19, 2022, Irvin defended Williams' instruction and use of the videos as consistent with District Policy I(J) (related to curriculum). Irvin did not discuss the parental rights in Policy I(F). The Parents allege they were told by the administration that Williams could conduct this instruction now and in the future without a commitment to provide parental notification and opt out rights.
As noted, the issue was discussed at three school board meetings. At one school board meeting, Wyland (the Board President) gave a monologue in favor of Williams' instruction. The Parents allege that the conduct of the administration and Board constitutes a de facto policy permitting the teaching of gender dysphoria and transgender transitioning in elementary schools in the District without providing parental notification and opt out rights. Defendants do not challenge the sufficiency of the allegations about the existence of a de facto policy.
In summary, there are two distinct grounds for liability set forth in the complaint: (1) Williams' pursuit of her own agenda about transgender topics throughout the school year, including showing the videos and reading the books, advising the first-graders in her class that parents may be mistaken about their children's gender, telling a child she would never lie, telling one child that child could dress and be groomed like a child of the opposite sex, and attempting to keep these efforts secret from the parents; and (2) the adoption by the District of the de facto policy to permit that conduct in the future. Plaintiffs seek a permanent injunction that: (1) prohibits the District from providing instruction in its elementary schools on gender dysphoria and transgender transitioning; or (2) requires the District to provide parental notice and opt out rights. Plaintiffs also seek compensatory and punitive damages….
The court noted that some courts, such as the Ninth Circuit, conclude that parental rights don't provide any parental opt-out from things that happen in school, but concluded that Third Circuit law is otherwise:
The parental right to custody, control and nurture of their children is deeply rooted and implicit in the United States' concept of ordered liberty. The Supreme Court repeatedly emphasized the fundamental nature of that parental right…. Troxel v. Granville (2000) ….
The United States Court of Appeals for the Third Circuit has recognized, in the public school setting, the primacy of parental rights in the upbringing of their children…. In Gruenke, a high school swim coach intruded into the suspected pregnancy of a student swimmer without informing the parents. The court cautioned: "Public schools must not forget that 'in loco parentis' does not mean 'displace parents.'" …
The Third Circuit Court of Appeals recognized that parental rights are entitled to protection outside the school setting from misguided attempts to impose moral views by government officials. In Miller v. Mitchell (3d Cir. 2010), the court recognized a parent's Fourteenth Amendment Substantive Due Process right to shield her child from unwelcome moral views about teenage girls sending sexually suggestive photos (i.e., sexting). A local district attorney sought to require the girls' attendance at a program teaching that the minors' actions were morally wrong. The parent objected that these views contradicted the beliefs she wished to instill in her daughter. The court granted an injunction and explained:
We agree that an individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe's right to raise her daughter—the "responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship"—was interfered with by the District Attorney's actions.
The court noted that the program was not part of the school curriculum. {The court did not decide how this conduct would be analyzed if it had been included in the school curriculum.} …
Ridgewood [another Third Circuit case], … involved a student survey about sexual practices in a public school. The anonymous survey of 7th through 12th graders at issue in Ridgewood "in no way indoctrinated the students in any particular outlook on these sensitive topics; at most, they may have introduced a few topics unknown to certain individuals." The court recognized that "the Supreme Court has extended constitutional protection to parental decisions regarding certain matters." The court concluded, however, that "the survey's interference with parental decision-making did not amount to a constitutional violation." In its analysis, the court specifically rejected the reasoning in Fields and explained:
In reaching this conclusion, we do not hold, as did the panel in Fields v. Palmdale School District (9th Cir. 2005), that the right of parents under the Meyer-Pierce rubric "does not extend beyond the threshold of the school door." Nor do we endorse the categorical approach to this right taken by the Fields court, wherein it appears that a claim grounded in Meyer-Pierce will now trigger only an inquiry into whether or not the parent chose to send their child to public school and if so, then the claim will fail. Instead, guided by Gruenke, wherein this Court stressed that it is primarily the parents' right "to inculcate moral standards, religious beliefs and elements of good citizenship," we have determined only that, on the facts presented, the parental decisions alleged to have been usurped by the School Defendants are not of comparable gravity to those protected under existing Supreme Court precedent….
Limits on parental rights
Even under the Third Circuit Court of Appeals' broader precedent, parental rights are not absolute or unlimited…. The court in Ridgewood interpreted Gruenke to distinguish "between actions that strike at the heart of parental decision-making authority on matters of the greatest importance and other actions that, although perhaps unwise and offensive, are not of constitutional dimension." … In Parker, the court noted that the impressionability of young school children is another relevant factor in the constitutional analysis. Plaintiffs repeatedly emphasize that their children were only six or seven years old. Defendants did not address how the age of the children impacts the constitutional analysis. In Ridgewood, the court recognized that public schools may require older students to state the arguments that could be made on both sides, to encourage critical thinking, but may not demand that a student profess beliefs with which the student disagrees…. In sum, the parental right to control the education and upbringing of a child loses some force as the child nears adulthood.
The dispute in this case rises to constitutional importance …
Teaching a child how to determine one's gender identity at least plausibly is a matter of great importance that goes to the heart of parenting.
The Parents assert they have sincerely held religious and moral beliefs that "human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one's identity, and biological reality, as either male or female." The transgender movement posits a distinctly different view of identity formation…. The contradictions between these worldviews are likely beyond the grasp of most first-graders.
The Parents allege that Williams' instruction about gender dysphoria and transgender transitioning caused confusion among students and resulted in one child asking her mom "how do you know that I am a girl?" Introducing and teaching a child about complex and sensitive gender identity topics before the parent would have done so can undermine parental authority. A teacher instructing first graders that the child's parents' beliefs about gender identity may be wrong and the teacher's beliefs are correct directly repudiates parental authority. The instruction need not be "pro-transgender"; parental rights could also be implicated if a teacher instructed that an anti-transgender position is correct. Williams' alleged conduct, allegedly approved by the District, implicates the Parents' constitutional rights.
Narrowly tailored to serve a compelling interest
… To burden a fundamental parental right, a school district must establish that its actions are narrowly tailored to serve a compelling interest. Based upon the facts pled and the reasonable inferences drawn from them, the defendants—not the Parents—may have the burden to demonstrate a "compelling interest" to override the fundamental parental rights at issue and that any infringement is "narrowly tailored" to serve that interest.
The District argues, in essence, that there was no constitutional violation because the students were merely exposed to two books/videos about tolerance. The District suggests (somewhat contradictorily) that: (1) Williams was entitled to promote acceptance of transgendered children {Defendants did not directly address whether Williams acted within her authority with respect to the allegations about "grooming" of a specific child, telling the first-graders that parents make mistakes about gender, or instructing the children not to tell their parents about those conversations}; (2) the District has untrammeled authority to choose its curriculum and, if children are exposed to sensitive information, the proper remedy is for the Parents to discuss those matters at home; and (3) it is not responsible for Williams' instruction because it was not in the curriculum. At the motion to dismiss stage, the District's arguments lack merit. On a fully developed record, Defendants may raise factual disputes about Williams' conduct, the District's knowledge about and approval of her conduct, and the content of the books/videos. At this pleading stage, however, the facts alleged in the complaint must be accepted as true and all reasonable inferences drawn from those facts must be construed in favor of Plaintiffs.
Unless the school demonstrates that its conduct is narrowly tailored to achieve a compelling interest, a school's interest in promoting tolerance, while laudable, cannot override a fundamental parental right about teaching sensitive topics that go to the heart of the parents' relationship to their young children. Meyer ("a desirable end cannot be promoted by prohibited means"). In Fulton, the Supreme Court recently explained that the government's asserted "compelling need" must be scrutinized in light of the specific opt out request:
Rather than rely on "broadly formulated interests," courts must "scrutinize[ ] the asserted harm of granting specific exemptions to particular religious claimants." The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.
In other words, in this case the District must demonstrate why it has a compelling need to prevent these particular Plaintiffs from opting their children out of this particular instruction. Here, the District did not assert any compelling interest and cannot rely on a generalized interest in promoting tolerance to deny opt outs to the Plaintiffs. There are no allegations in the complaint or the motions to dismiss about bullying or intolerance of transgender children in the District or, more specifically, in Williams' classroom or by Plaintiffs' children.
The record will need to be developed for the District to show it has a compelling need—over the objections of the Parents: to expose six and seven year old children to the instruction about gender dysphoria and transgender transitioning; to tell the young children that their parents may be wrong about the student's gender; to cause confusion in a first-grader about how to determine that child's gender; to tell a young child that the teacher would never lie (implying that the child's parents may be lying); or to suggest to a child that he may be a transgender child.
The allegations in the complaint, if true, raise issues about whether any administrative inconvenience associated with providing notice and opt out rights could suffice as a justification for defendants' conduct. Similar administrative inconvenience results from notice and opt out rights already provided by the District to parents for other reasons, as set forth in ¶ 3 of the complaint.
The District argues that "the parental right to control the upbringing of a child must give way to a school's ability to control curriculum and the school environment." The District's argument that parents' fundamental rights must always yield to the school's interests is not accepted in this circuit. In Gruenke, the Third Circuit Court of Appeals held the opposite—the school, absent a compelling interest, must yield to the parents:
a school's policies might come into conflict with the fundamental right of parents to raise and nurture their child. But when such collisions occur, the primacy of the parents' authority must be recognized and should yield only where the school's action is tied to a compelling interest.
In Gruenke, the court further explained: "Because public school officials are state actors, they must not lose sight of the fact that their professional association ethical codes, as well as state statutes, must yield to the Constitution." …
There's a lot more (the decision is 56 pages long); you can read it here.
