Injunction Favoring Parental Rights in California Is Restored

Wednesday, March 4, 2026

Page 1

U.S. Supreme Court:

Injunction Favoring Parental Rights in California Is Restored

High Court Lifts Stay, Issued by Ninth Circuit Pending Appeal, of Order Affirming That Parents Have Right to Be Informed by School Officials if Student Expresses Gender Incongruence on Campus

By Kimber Cooley, associate editor

A divided U.S. Supreme Court has partially vacated a Ninth U.S. Circuit Court of Appeals order granting an emergency stay, pending appeal, of a permanent injunction that prevents California schools from implementing or enforcing policies that “mislead” parents about their children’s gender presentation at school.

In Monday’s per curiam opinion, which vacates the stay with respect to a certified class of parents but not as to teachers who object to their compelled participation in nondisclosure policies, the high court declared:

“Gender dysphoria is a condition that has an important bearing on a child’s mental health, but when a child exhibits symptoms of gender dysphoria at school, California’s policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents’ rights to direct the upbringing and education of their children.”

Justice Elena Kagan penned a dissenting opinion, joined by Justice Ketanji Brown Jackson, arguing that the decision shows “how our emergency docket can malfunction” and asserting that the per curiam opinion is at odds with recent jurisprudence disfavoring the recognition of substantive due process rights.

A concurring opinion, written by Justice Amy Coney Barrett and joined in by Justice Brett M. Kavanaugh as well as Chief Justice John G. Roberts, tackles the dissent’s concerns. Justices Clarence Thomas and Samuel Alito would “grant the application in full” and Justice Sonia Sotomayor would deny even partial relief from the stay.’

Religious Exemption

The stay was ordered by the Ninth Circuit last month in a lawsuit initiated in 2023 by two teachers who work for the Escondido Union School District (“EUSD”) in San Diego County. They sought an exemption, on religious grounds, from policies that they say prevent them from notifying parents regarding a child’s so-called “gender confusion.”

After the district asserted that it was forced to adopt the policies due to guidance from Attorney General Rob Bonta and others, state officials were added as defendants, and various parents joined the lawsuit as plaintiffs. The complaint asserts claims under 42 U.S.C. §1983 for violations of the Free Speech and Free Exercise Clauses of the First Amendment and alleges:

“Once a child’s social transitioning has begun, EUSD elementary and middle school teachers must ensure that parents do not find out. EUSD’s policies state that ‘revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent’ is prohibited, and ‘parents…’ are…individuals who ‘do not have a legitimate need for the information,’ irrespective of the age of the student….”

Permanent Injunctive Relief

Last year, Senior District Court Judge Roger T. Benitez of the Southern District of California certified a class with separate subclasses for parents and teachers. In December, Benitez granted summary judgment for all plaintiffs and entered a permanent injunction in their favor.

That order prevents the schools from misleading parents about their children’s gender presentation at school, requires the institutions to follow parents’ directions regarding names and pronouns, and compels defendants to include in state-approved instructional materials “on the gender-related rights of student and faculty” the following notice:

“Parents and guardians have a federal constitutional right to be informed if their public school student child expresses gender incongruence. Teachers and school staff have a federal constitutional right to accurately inform the parent or guardian of their student when the student expresses gender incongruence. These federal constitutional rights are superior to any state or local laws, state or local regulations, or state or local policies to the contrary.”

In January, the Ninth Circuit granted an emergency stay, pending appeal, of the permanent injunction, saying “we have serious concerns with the district court’s class certification and injunction that covers every parent of California’s millions of public school students and every public school employee in the state.”

Strict Scrutiny

Saying that “California’s policies likely trigger strict scrutiny” under the Free Exercise Clause “because they substantially interfere” with the right to “guide the religious development of their children,” as recognized by last year’s decision by the court in Mahmoud v. Taylor, the per curiam decision provides:

“California’s policies will likely not survive…strict scrutiny….The State argues that its policies advance a compelling interest in student safety and privacy. But those policies cut out the primary protectors of children’s best interests: their parents….California’s policies also appear to fail the narrow-tailoring requirement. The State’s interest in safety could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse.”

Continuing, the opinion adds:

“The same is true for the subclass of parents who object to those policies on due process grounds. Under long-established precedent, parents—not the State—have primary authority with respect to ‘the upbringing and education of children.’ ”

Rejecting the Ninth Circuit’s characterization, the court said that “the injunction does not provide relief for all the parents of California public school students, but only for those parents who object to the challenged policies or seek religious exemptions” and concluded that “class certification was likely proper.”

The court declared:

“The application to vacate the Ninth Circuit’s stay presented to JUSTICE KAGAN and by her referred to the Court is granted as to the parents but is otherwise denied.”

Kagan’s View

Kagan wrote:

“The ordinary appellate process has barely started….The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute. It does not hold oral argument or deliberate in conference….It considers the request on a short fuse….And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation. The Court is impatient: It already knows what it thinks, and insists on getting everything over quickly.”

She argued that “[t]he Court grants relief to parents on the same two substantive grounds that supported the District Court’s injunction,” the Free Exercise Clause and substantive due process principles, even though “the Court cannot quite bring itself to name the [latter] doctrine.”

Noting prior decisions in which “members of the majority” have “expressed skepticism” to the recognition of substantive due process rights, she remarked:

“Especially given the Court’s last venture into the field, today’s decision cannot but induce a strong sense of whiplash. Compare [the portion of the majority opinion]…recognizing a parent’s right to make important decisions about her child’s health…with Dobbs v. Jackson Women’s Health Organization (repudiating a woman’s right to make important decisions about her own health).”

Saying that “[n]one of this is to say that the Court gets the merits here wrong,” Kagan asserted:

“The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ordinary processes. A mere decade ago, this Court would never have granted relief in this posture.”

Barrett’s Concurring Opinion

Barrett commented:

“The record in this case indicates that the State’s non-disclosure policy applies even if parents expressly ask for information about their child’s gender identification. One set of parents learned of their child’s transition at school only after the child attempted suicide. Strikingly,…school administrators continued to withhold information about the student’s gender identification. California’s nondisclosure policy thus quite obviously excludes parents from highly important decisions about their child’s mental health,…and is unlikely to satisfy heightened scrutiny. Our resolution of the parents’ likelihood of success on this claim is dictated by existing law.”

Acknowledging that “substantive due process is a controversial doctrine,” she said:

“The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs….But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects….Dobbs holds that Roe v. Wade…[was] incorrectly decided because a right to abortion is not [rooted in our nation’s history]….It does not follow from Dobbs that all our substantive due process cases [rest on tenuous legal grounds].”

She added:

“The Court has chosen to accompany today’s order with a per curiam opinion that explains its reasoning. The choice to say more rather than less is perhaps the source of the dissent’s concern that our disposition of this application will be taken as a ‘conclusive merits judgment.’…In my judgment, the benefits of explanation win out here.”

The case is Mirabelli v. Bonta, 25A810.