Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This case, which I blogged about last year, just settled yesterday for $175K ($108K to S.E. and his family, $40K to P.D. and his family, and $27K to the lawyers).
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I → blogge → lawyers
Here's my post from last year about the preliminary injunction in the case (which has now been vacated as part of the settlement):
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which → vacate → settlement
[* * *]
From Judge James Lorenz's order yesterday in S.E. v. Grey (S.D. Cal.):
The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students.
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activity → occur → students
P.D. and S.E., both fifth graders, were each paired with a kindergartener.
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P.D. → pair → kindergartener
In this program, "students in the older classroom mentor students in the younger classroom."
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students → mentor → 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.
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books → involve → students
The school sent parents a weekly newsletter listing the books the students were reading each week.
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students → send → books
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.
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Shadow → entitle → newsletter
My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls.
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who → like → girls
Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue.
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shadow → think → family
The story involves a conflict between the boy and his father.
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story → involve → boy
The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self."
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father → come → 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.
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author → appear → identity
Defendants admit that the book "does address gender identity."
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book → admit → identity
In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class.
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teacher → read → 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.
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teacher → join → 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.
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that → follow → 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.
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book → involve → students
S.E. described the book as "about LGBTQ."
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S.E. → describe → LGBTQ
P.D. described it as "about a boy who wanted to change his gender to be a girl.
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who → describe → gender
Because choosing one's own gender identity is contrary to Plaintiffs' religious beliefs, they were uncomfortable with the buddy class.
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they → choose → class
Moreover, as mentors, P.D. and S.E. did not wish to affirm the book's message to their buddies.
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P.D. → wish → 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….
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identity → tell → 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.
…
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that → provide → training
Defendants responded that Plaintiffs had no right to opt out because the buddy class was not part of a "health unit."
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class → respond → unit
Furthermore, the teachers suggested that similar buddy activities would be provided in the future without notice and an opportunity to opt out.
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activities → suggest → .
S.E.'s and P.D.'s parents sued on their children's behalf.
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parents → sue → 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:
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who → hold → students
The buddy program differs from regular classroom instruction in that the fifth graders mentor their kindergarten buddies.
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graders → differ → 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.
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class → require → color
P.D.'s tracing of his buddy's shadow on the ground was an expressive act protected by the First Amendment….
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tracing → protect → 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.
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he → read → buddy
P.D.'s required participation in the buddy class therefore directly and immediately affected P.D.'s freedom of speech.
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participation → require → speech
"Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech."
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speaker → mandate → speech
Laws and regulations which alter content of speech in this manner are content based….
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which → alter → manner
"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.'
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they → base → 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.
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sections → regard → 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.
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groups → prohibit → portrayal
Defendants argue that My Shadow Is Pink conformed to these requirements.
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Shadow → argue → 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.
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who → intend → individuals
…and 12 more, not listed.
The Aporia
