First-Grade Teacher's "Pursu[ing] Her Own Transgender Agenda Outside the Curriculum" May Violate Constitutional Parental Rights

Some excerpts from the long decision in Tatel v. Mt. Lebanon School Dist., decided yesterday by Judge Joy Flowers Conti (W.D. Pa.) (and see also the earlier decision in the case):

This case involves the extent of parents' constitutional rights when a public school permits a teacher to inculcate the teacher's beliefs about transgender topics in first-grade students over the objections of their parents. As noted in this court's October 27, 2022 opinion (the "first motion to dismiss opinion"), this case is not about treating all students with kindness, tolerance and respect.

Here, the parents allege that their children's first-grade teacher pursued her own transgender agenda outside the curriculum, which included: (1) instructing the children in her first-grade class that their parents might be wrong about their children's gender; (2) telling a student that the child could dress like a different gender and be like the teacher's transgender child (who was also in first grade in a different school); (3) telling a student that she, the teacher, would never lie (implying that the parents may lie about their child's gender identity); and (4) instructing students not to tell their parents about the transgender discussions. The teacher allegedly targeted the children's own gender identity and their parents' beliefs about the gender identity of their own children.

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 their children out of that kind of agenda (despite providing broad parental notice and opt out rights for other topics). At this stage of the case, these averments must be accepted as true and construed in the light most favorable to Plaintiffs.

The defendants do not challenge the averments about the existence of the de facto policy. Instead, citing Parker v. Hurley (1st Cir. 2008), a decision from the First Circuit Court of Appeals, they argue that in a public school, parents have no constitutional right to notice or to opt their children out of any kind of instruction, regardless of the content of that instruction, the age of the children, or whether the instruction is part of the published school curriculum. See ECF No. 42 at 8 ("Parents have no constitutional right to exempt their children from classroom lessons, including those on transgender issues"). In other words, the defendants argue that parents simply have no constitutional right to notice or to object to any information a public school may present to their children.

The defendants' argument is contrary to Third Circuit Court of Appeals precedent, which recognizes that a public school's actions may conflict with parents' fundamental constitutional rights and when conflicts occur on matters of the greatest importance, the parents' rights prevail unless the public school can demonstrate a compelling interest for its actions. C.N. v. Ridgewood Bd. Of Educ. (3d Cir. 2005); Gruenke v. Seip (3d Cir. 2000). The court adheres to its original decision that the parents' constitutional rights at issue here (forming the identity of their young children) are matters of the greatest importance and takes this opportunity to further explain and clarify its analysis….

On October 27, 2022, the court issued the initial motion to dismiss opinion …. A motion for reconsideration pursuant to Rule 54(b) and a motion to amend judgment pursuant to Rule 59(e) … were filed by the … defendants ….

The Complaint alleges that Williams engaged in "grooming" conduct toward one Plaintiff's child despite (or because of) that Plaintiff's objections, as follows:

[78.] The child of one of the Plaintiffs explained to his mother that Williams had told him, "I can wear a dress and have hair like my mom." When Plaintiff raised this with Williams at a parent-teacher conference, Williams deflected, contending that it must have been a misunderstanding and indicating that maybe it was confusion about Halloween. Plaintiff refuted this assertion, letting Williams know that what her son had told her was "very clear" and expressing her displeasure with what Williams had said to her son.

[79.] Despite knowing this Plaintiff's objections, or upon information and belief because of them, Williams appears to have targeted this child for repeated approaches about gender dysphoria. Although Plaintiff did not discover Williams' invasion of her parental and family rights until the spring, throughout the school year, Williams had private conversations with this young boy, discussing with him the similarities between the boy and her transgender child again suggesting that the boy might want to wear a dress, at other times commenting to him how the boy and her transgender child had similar interest[s] and the same favorite color, and telling the child that he could be like her transgender child. Williams explained to this young boy that "doctors can get it wrong sometimes." In the course of these private discussions, Williams also told this young boy that "she would never lie to him" and, if the subjects they were discussing came up at home, to say that "I heard it from a little birdie." In other words, upon information and belief, while having private discussions with this young boy about topics related to gender dysphoria, she told the child not to tell his parents about the discussions. Williams' "grooming" of this young student is unconscionable. It is a gross breach of trust and an abuse of her position as a public school teacher….

Defendants' primary argument is that "parents have no constitutional right to remove their child from instruction." (ECF No. 42 at 3) (emphasis added); (ECF No. 42 at 8) ("Parents have no constitutional right to exempt their children from classroom lessons, including those on transgender issues") (emphasis added). According to Defendants, the age of the child, the topic and whether the information is part of the official curriculum are irrelevant—parents simply have no constitutional right to notice or to object to any information a public school may present to their children.

Defendants' refusal to recognize any parental rights in a public school setting is contrary to clear, binding Supreme Court and Third Circuit Court of Appeals authority. The court's initial motion to dismiss opinion quoted numerous Supreme Court decisions which emphasized the fundamental nature of the parental rights at issue. In Gruenke, the court cautioned: "Public schools must not forget that 'in loco parentis' does not mean 'displace parents.'" In C.N., the Third Circuit Court of Appeals reaffirmed that "parents, not schools, have the primary responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship." …

As the court explained in its initial motion to dismiss opinion, Defendants' position follows the approach taken in Fields v. Palmdale School District (9th Cir. 2005), in which the Ninth Circuit Court of Appeals held that parents forfeit any right to control their child's education if they choose to send their children to public school. In C.N., the Third Circuit Court of Appeals specifically rejected the reasoning in Fields …. Defendants distort decisions holding that parental rights are not absolute to argue that parents have no rights at all….

In the Third Circuit, courts (and school officials) must 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." … The court, therefore, must determine whether the claims in this case implicate a matter of great importance with respect to parental authority. Defendants argue, conclusorily, that Williams' alleged conduct may be ill-advised and offensive, but does not strike at the heart of parental decision-making. The court adheres to its conclusions in its initial opinion that the issues in this case plausibly rise 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. See, e.g., Doe by & through Doe v. Boyertown Area Sch. Dist. (3d Cir. 2018) (gender identity implicates a person's "deep-core sense of self")….

[I]ntroducing 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….

See Ricard v. USD 475 Geary Cnty., KS Sch. Bd. (D. Kan. 2022) ("It is difficult to envision why a school would even claim—much less how a school could establish—a generalized interest in withholding or concealing from the parents of minor children, information fundamental to a child's identity, personhood, and mental and emotional well-being such as their preferred name and pronouns."). Defendants, allegedly, are interfering with the Parents' right to form their young children's identities. In this case, allegedly, young children are being instructed by their first-grade teacher that their parents may be wrong about the children's gender; one boy was secretly groomed to change his identity to be like the teacher's transgender child; and (in response to the parents' complaints) Defendants adopted a de facto policy that such conduct could continue in the future without parental notice or opt out rights. That kind of conduct implicates the heart of parental decision-making on matters of the greatest importance, i.e., rises to constitutional importance….

Defendants rely heavily on the decision in Parker, in which the First Circuit Court of Appeals addressed a challenge to a statewide curriculum teaching tolerance of gay marriage, which had recently been legalized in Massachusetts…. Parker, however, did not endorse the constitutionality of the kind of conduct alleged in this case and this court must be mindful of the precedential decisions of the Third Circuit Court of Appeals. In addition, Parker did not specifically evaluate the limited relief of notice and opt out rights for a parent's own children against the school's interest….

The parents in Parker objected to a public school's refusal to provide notice and opt out rights with respect to certain reading assignments, including: two books in kindergarten and first-grade about diverse families, including same gender parents; and a second-grade book that depicted and celebrated a gay marriage. The parents were concerned that the books were an effort to indoctrinate their children. The court in Parker commented: "The fact that a school promotes tolerance of different sexual orientations and gay marriage when such tolerance is anathema to some religious groups does not constitute targeting." The court explained that "[t]he school was not singling out plaintiffs' particular religious beliefs or targeting its tolerance lessons to only those children from families with religious objections to gay marriage."

The curriculum at issue in Parker was designed to increase children's tolerance of families that may not be like a child's own family. In Parker, the court recognized "a continuum along which an intent to influence could become an attempt to indoctrinate, however, [the Parker] case is firmly on the influence-toward-tolerance end." The lengthy discussion in Parker about indoctrination shows the court's concern that conduct beyond encouraging tolerance may intrude into the family relationship and be actionable. The court in Parker did not reach the issue whether indoctrination could violate parental constitutional rights, because it concluded that indoctrination was not factually alleged, i.e., there was no constant stream of like materials or required reading of many like books.

This case, by stark contrast, involves not merely instruction to influence tolerance of other children or families, but efforts to inculcate a teacher's beliefs about transgender topics in Plaintiffs' own children. Unlike in Parker, the allegations in this case go beyond mere reading of a few books. Here, the teacher allegedly pursued her agenda throughout the school year, including teaching first-graders that their parents may be wrong about their gender, telling one boy could dress like his mother, and telling the children to keep the teacher's discussions about gender topics secret from their parents. Williams allegedly encouraged her first-grade students that they might be a different gender than their own parents told them. In other words, it was the children's own family and their own gender identity that Williams targeted. Plaintiffs allege that Williams targeted one child for repeated approaches about gender dysphoria despite, or because of, the parents' beliefs. It is reasonable to infer that Williams intended to influence the children's own gender identity and to have at least one child become like the teacher's transgender child.

Construed in the light most favorable to Plaintiffs, the Complaint sufficiently alleges that, on the continuum, Williams' conduct went beyond influencing children toward tolerance and she attempted to indoctrinate first-grade students about how to form the students' own gender identity, contrary to the values or beliefs of their Parents. These allegations, in contrast to the situation in Parker, support a reasonable inference of an attempt to indoctrinate young children on matters that strike at the heart of parental decision-making….

The court in Parker [also] concluded that the parents' only remedy was to engage in political action to change the curriculum for all students. ("If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state."). The suggestion that parents must engage in politics to protect their constitutional rights is contrary to law….

The court adheres to its conclusion that there is a fundamental circuit split between decisions like Parker and Fields and Third Circuit Court of Appeals' precedents like Gruenke, C.N. and Combs. Parker's narrow interpretation of the Supreme Court precedents about parental rights is problematic…. Parker and Fields represent a "school-primacy" view, under which parents whose children attend a public school have no constitutional rights…. The Third Circuit Court of Appeals, by contrast, adopts a "parent-primacy" approach….

The court also concluded that plaintiffs had adequately stated Free Exercise Clause claims, for much the same reasons as given with regard to their parental rights claims; and it concluded that they adequately stated Equal Protection Clause claims, on the grounds that they were treated differently from "parents who are given notice and opt out rights under District Policy I(F) or by practice on numerous other sensitive secular or religious topics. Defendants did not articulate any basis (let alone a compelling basis) for adopting a de facto policy that eliminates notice and opt out rights for parents affected by Williams' transgender agenda while permitting notice and opt out rights for other secular or religious topics." And it concluded that defendants weren't entitled to qualified immunity, because the law was sufficiently well-settled.

As I noted before, I'm skeptical about claims of parents' constitutional right to opt out from parts of public school curricula, and even from teacher speech that isn't a formal part of the curriculum. (I'm likewise skeptical 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.