Lawmaker Points to Escondido Teachers’ Case: ‘No Statute’ Requiring Schools to Hide Students’ Identity Decisions

An Inland Empire lawmaker Thursday urged school districts to nullify any policies regarding withholding information about students’ gender identity choices from parents in light of the state’s acknowledgement that its prosecutors would not take action against districts that don’t enforce such policies.

Assemblyman Bill Essayli, R-Norco, pointed to a hearing earlier this week in U.S. District Court in San Diego during which a California Department of Justice attorney admitted student privacy guidelines stemming from state legislation approved a decade ago were “non-enforceable.”

“This admission in court that California Department of Education guidance to keep secrets from parents is unenforceable is a victory for parents and school board members, who will not be intimidated by empty lawsuits and threats,” Essayli said. “From day one, when we started our parental rights movement last year, we knew the law was clear, and there was no statute requiring schools to keep secrets from parents.”

On Monday, during a hearing on a federal civil rights lawsuit prompted by the dismissal of two Escondido Union School District teachers, state attorney Emmanuelle Soichet told U.S. District Judge Roger Benitez that arguments indicating California Attorney General Rob Bonta might threaten legal action against the district for failure to enforce student gender identity privacy guidelines were misplaced.

“To answer your question about who has enforcement power over those guidelines — those are non-enforceable guidelines, so there’s no one in the state who’s actually going to enforce those guidelines,” Soichet told the court.

The prosecutor added that the privacy provision inferred from earlier legislation should not be interpreted as a “mandate of state law,” and it was an “incorrect assumption” to believe otherwise.

The acknowledgement was elicited from Benitez ahead of his decision to tentatively release the attorney general and governor as defendants in the Escondido case, which was brought by two teachers who sued over alleged religious viewpoint discrimination when the district dismissed them for refusing to abide by its policy of keeping details about students’ gender identity decisions concealed from parents.

Benitez ordered them reinstated pending further proceedings.

“I encourage every California school district to immediately repeal any secrecy policies that were implemented as a result of the unenforceable guidelines illegally issued by the Department of Education,” Essayli said.

In legislation he proposed last year, Assembly Bill 1314, Essayli sought to clarify the necessity of parental rights in school districts’ policies statewide. AB 1314 was tabled by the Committee on Education in January.

The bill primarily targeted policies implemented by districts in the wake of AB 1266, signed into law in 2014.

It focused on “pupil rights,” expanding on Section 221.5 of the California Education Code regarding students’ participation in courses.

The thrust of AB 1266 was that a “pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

There were no explicit provisions written into the bill prohibiting educators from talking with parents about their kids’ gender choices. However, legal guidelines attached in a companion measure cited the California Public Records Act, Article 1, Section 1 of the state constitution and the federal Family Educational & Privacy Rights Act — FERPA — in establishing limits on what educators are permitted to disclose.

There have been teacher dismissals in other districts based on refusals to enforce the policies. Among them was Jurupa Unified School District physical education instructor Jessica Tapia, who openly defied JUSD’s requirement that students’ identity choices be kept from parents, if students desired it.

She has since filed a federal civil rights lawsuit, similar to the one in Escondido.

Essayli said there were already provisions in the education code asserting a “parent’s right to know” everything in connection to the welfare of his or her child, and AB 1314 would have reaffirmed that.

“Governor Gavin Newsom, Attorney General Bonta and Sacramento Democrats know the law and public opinion are on our side, which is why they refused to even hear my bill,” he said.