The Volokh Conspiracy
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Webinar Conversation on the First Amendment and Requiring Fifth-Graders to Read Pro-Gender-Ideology Books to Kindergarten Students
I much enjoyed this conversation with Kayla Ann Toney (First Liberty Institute), who was the prevailing lawyer in S.E. v. Grey:
Encinitas Unified School District required two fifth-grade boys and their assigned kindergarten buddies to read and watch My Shadow is Pink and do an activity, pressuring the kindergartners to choose a color to represent their own shadows. The plaintiffs allege this was designed to make the students question their gender identity. Represented by First Liberty Institute and the National Center for Law and Policy, the families filed a complaint in the Southern District of California and sought a motion for preliminary injunction. On May 12, 2025, Judge M. James Lorenz granted that motion in part, requiring the school district to provide advance notice and opt-outs when gender identity material is taught in mentoring programs. The judge's opinion focused on compelled speech, finding that the plaintiffs were likely to succeed on the merits of that claim. Free speech expert Professor Eugene Volokh and counsel Kayla Toney, who represents the families, broke down the opinion and discussed its ramifications for First Amendment jurisprudence.
Here's an excerpt from Judge James Lorenz's order from last month:
The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, "students in the older classroom mentor students in the younger classroom."
Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week. For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.
My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self." Although the term "gender identity" does not appear in the book, the author describes it as a children's book on the subject of gender identity. Defendants admit that the book "does address gender identity."
In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class. The fifth graders then joined their kindergarten buddies, and the teacher showed a read-along video of the book to the fifth graders sitting next to their respective buddies. The video was followed by an "art activity" in which the teacher asked the kindergarteners to "pick a color that represents you," and instructed the fifth graders to trace their respective buddies' shadows on the ground with colored chalk.
Although the class did not involve an explicit discussion of gender identity, the fact that the book addressed this issue was not lost on the students. S.E. described the book as "about LGBTQ." P.D. described it as "about a boy who wanted to change his gender to be a girl."
Because choosing one's own gender identity is contrary to Plaintiffs' religious beliefs, they were uncomfortable with the buddy class. Moreover, as mentors, P.D. and S.E. did not wish to affirm the book's message to their buddies.
When S.E. and P.D. told their parents about the class, the parents inquired with Defendants why they did not receive notice and an opportunity to opt out, as they did when gender identity was covered in health instruction…. California Education Code Section 51240 … provides in pertinent part:
If any part of a school's instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training and beliefs.
… Defendants responded that Plaintiffs had no right to opt out because the buddy class was not part of a "health unit." Furthermore, the teachers suggested that similar buddy activities would be provided in the future without notice and an opportunity to opt out.
S.E.'s and P.D.'s parents sued on their children's behalf. The court held that the program, which was "a mandatory part of the curriculum," likely violated the First Amendment rights of students who didn't want to participate:
The buddy program differs from regular classroom instruction in that the fifth graders mentor their kindergarten buddies. In addition, My Shadow Is Pink buddy class required fifth graders to trace their buddy's shadow on the ground in the buddy's chosen color. P.D. was therefore not merely a passive listener…. P.D.'s tracing of his buddy's shadow on the ground was an expressive act protected by the First Amendment….
In light of P.D.'s role in the class as his buddy's mentor, P.D.'s presence next to his buddy during the read-along video presentation and subsequent tracing of his buddy's shadow in the buddy's chosen color implicitly conveyed P.D.'s endorsement of the message that gender can be a matter of one's choice and subject to change—a message contrary to P.D.'s own beliefs and which he did not wish to convey to his buddy. P.D.'s required participation in the buddy class therefore directly and immediately affected P.D.'s freedom of speech.
"Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech." Laws and regulations which alter content of speech in this manner are content based…. "Content-based regulations are 'presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.'"
California Education Code [sections] regarding instructional materials and social sciences instruction … require schools to include the study of the role played and contributions made to California and national development by members of historically marginalized groups, including lesbian, gay, bisexual, and transgender groups. California law also prohibits excluding educational materials due to covering the marginalized groups, mandates that these groups be accurately reflected in educational materials, and prohibits their adverse portrayal. Defendants argue that My Shadow Is Pink conformed to these requirements. Its inclusion in the buddy program was intended to stress the acceptance of those who are different and reduce the serious effects of discrimination against gender-diverse individuals.
Remedying the effects of past discrimination may serve as a compelling government interest in public education. Nevertheless, "[b]road prophylactic rules in the area of free expression are suspect[,]" and antidiscrimination laws "can sweep too broadly when deployed to compel speech." The First Amendment imposes limitations on the application of such laws, and "demands a more precise level of analysis than the high level of generality" offered by anti-discrimination laws.
The California Education Code provisions cited by Defendants and Defendants' reasons for introducing My Shadow Is Pink to the buddy program reflect an admirable purpose. However, they do not meet the requisite narrow tailoring to justify interference with students' freedom of speech. Laws intended to "eliminat[e] discrimination against LGBTQ individuals" and remedy the serious mental and emotional harm of discrimination are generally insufficient to meet strict scrutiny. Further, Defendants have not shown that compliance with Education Code requirements and legislative purpose cannot be accomplished in ways other than compelled speech. "In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."
Based on the foregoing, Plaintiffs have met their burden to show that they are likely to prevail on the merits of their claim that Defendants violated P.D.'s rights under the Free Speech Clause of the First Amendment by requiring his participation in My Shadow Is Pink buddy class. In light of this finding, the Court need not review the likelihood of success on the merits of Plaintiffs' remaining claims….
The court therefore granted a preliminary injunction ordering that, as "to the Encinitas Union School District elementary school buddy program," "buddy program class activities and materials shall not cover gender identity topics covered in health instruction, unless Defendants provide parents with advance notice and an opportunity to opt out."
