The U.S. Supreme Court will require the state of California to at least explain why the country’s highest court shouldn’t take up an emergency appeal by a group of parents and teachers seeking to reinstate a federal judge’s ruling that the state’s laws and policies unconstitutionally trample parents’ rights to not be kept in the dark by school staff should their children begin identifying as transgender.
On Jan. 13, U.S. Supreme Court Justice Elena Kagan ordered California Attorney General Rob Bonta to respond within a week to the petition filed by the parents and teachers, as they seek to override the decision by three appeals court judges – all appointees of Democratic former presidents – putting their big court win on hold.
Despite the order, the high court typically does not take up cases at such a juncture in the proceedings, without a final ruling from a federal appeals court.
Nonetheless, attorneys for the parents and teachers called Kagan’s order “an important step forward.”
“California should’ve seen the writing on the wall and abandoned these unconstitutional policies then and there,” said attorney Paul M. Jonna. “Instead, they rushed to the Ninth Circuit (Court of Appeals) to keep these mandates alive on an emergency basis—exposing just how committed they are to their dangerous regime of secrecy and parental deception.”
Jonna and his co-counsel in the case from his firm of LiMandri & Jonna and the nonprofit religious liberties legal advocacy group, the Thomas More Society, lodged the emergency petition with the U.S. Supreme Court after the three-judge panel from the U.S. Ninth Circuit Court of Appeals put a sweeping ruling from a San Diego federal judge on hold.
In that decision, U.S. District Judge Roger Benitez Benitez explicitly declared public schools cannot withhold from parents or otherwise mislead parents about their students’ gender expression or status at school. He said any state law or local policies that interfere with parents’ right to know violates their rights under the Fourteenth Amendment and First Amendment of the U.S. Constitution.
The judge also ruled the state can’t prevent teachers and school staff from telling parents about their children’s gender expressions or status, without similarly violating the teachers’ and staff members’ First Amendment rights.
In the ruling, Benitez blasted California officials for repeatedly asserting the guarantees of privacy rights for students under California’s state constitution and state law outweighs the rights of parents under the U.S. Constitution to know medically, psychologically and religiously significant information about their children, as well as the parents’ rights to direct the religious upbringing of their children.
“The state bases its legal position on a derogation of the parents’ federal constitutional right to care for and raise their children and an unwarranted aggrandizing of a student’s state-created right to privacy. California’s education policymakers may be experts on primary and secondary education but they would not receive top grades as students of Constitutional Law,” Benitez wrote.
The judge also repeatedly faulted state officials for crafting laws, policies and regulations which begin at the presumption that parents who learn that their children may be questioning their gender will respond with abuse and harm, so justifying policies which allow public schools to mislead, stonewall or outright lie to parents about their children’s gender status and presentation.
Benitez imposed a statewide permanent injunction against the state of California and any public school districts that would seek to continue the policies. The ruling was on behalf of a class of all parents of public school students and public school teachers throughout California.
The state, however, appealed immediately, asserting the ruling would create chaos and uncertainty within the schools and harm transgender students.
The parents and teachers who had sued to challenge the state laws and public school policies found a rougher reception from the Ninth Circuit judicial panel, who called Benitez’s ruling overly broad and too sweeping.
That judicial panel included the panel Ninth Circuit Chief Judge Mary Murguia and Circuit Judges Andrew D. Hurwitz and Salvador Mendoza Jr. All were appointed to the court by Democratic former presidents Barack Obama or Joe Biden.
The judges said they believed Benitez’s ruling went too far and was not “narrowly tailored” enough to address the potential “harm” that the ruling could inflict on the state of California by blocking California’s ruling Democratic supermajority from imposing its preferred state laws and policies.
The judges said they also said they believed Benitez’s findings affirming the rights of parents and teachers to be superior to California state law to be constitutionally unsound, because they doubted teachers and parents could show they have been harmed by the state law and education policies.
The judges further said they believed Benitez’s ruling was based on an incorrect reading of the facts in the case, as well. The judges sided entirely with the state, saying it is enough that state policies don’t “categorically forbid” public school teachers from telling parents “information about students’ gender identities … without student consent.”
And the appellate judges brushed aside Benitez’s findings that the state law and policies interfere with parents’ First Amendment religious liberty rights to direct the religious upbringing of their children and with teachers’ First Amendment rights to speak freely.
The appellate judges put Benitez’s ruling on hold, and indicated they believed the ruling would eventually be completely overturned on appeal.
In their emergency appeal to the Supreme Court, the parents and teachers said the Ninth Circuit’s determination “flouts” Supreme Court rulings on such questions and leaves parents “suffering grievously” under a state “regime,” which they said requires “public schools to hide children’s expressed transgender status at school from their own parents—including religious parents—and to actively facilitate those children’s ‘social transition’ over their parents’ express objections…”
The Ninth Circuit’s order, they said, “evades” Supreme Court precedent inconvenient to the desires of the progressive judges and the state of California and “strips parents of their core authority with respect to an issue with significant religious and developmental impact: that is, a child’s growth into adulthood.”
They urged the high court to strike down the Ninth Circuit’s order and allow Benitez’s ruling to take effect.
Kagan gave Bonta’s office until Jan. 21 to respond to the emergency petition.
