(The Daily Signal) – California Attorney General Rob Bonta has defied a court order by directing school districts to adopt policies that allow them to hide a student’s claimed transgender identity from parents or guardians, despite a federal judge’s ruling that such policies likely violate the U.S. Constitution, lawyers say.
Bonta, a Democrat, sent a letter Tuesday to school districts across California, encouraging them to adopt secretive transgender policies. In doing so, he based his reasoning on a state court’s temporary restraining order blocking Chino Valley Unified School District’s policy of notifying parents when their children claim to be transgender.
But the state’s attorney general ignored a federal court’s preliminary injunction striking down a secretive policy, based on the U.S. Constitution.
Paul Jonna, a partner at LiMandri and Jonna LLP and special counsel to the Thomas More Society, responded in an open letter Wednesday, condemning Bonta for turning the first principle of federal law upside down.
“By suggesting that this Chino ruling is not impacted by this federal court order, the attorney general is basically ignoring what the federal judge said and choosing to advise state officials to continue to enforce these policies that a federal judge has said are likely unconstitutional,” Jonna told The Daily Signal in a phone call Wednesday. “They are telling school officials to continue enforcing these policies that a federal judge has told us likely violate the U.S. Constitution.”
“That risks subjecting the state and school districts to massive liability in the form of attorneys fees,” the lawyer added.
The San Bernardino Superior Court issued a temporary restraining order Sept. 6, barring Chino Valley Unified School District from enforcing its policy requiring teachers and administrators to notify parents if their child claims to identify as transgender. Bonta had sued the school district, challenging that policy under California law regarding student privacy.
Yet about a week later, Judge Roger T. Benitez in the U.S. District Court for the Southern District of California granted a preliminary injunction preventing Escondido Union School District from punishing teachers Elizabeth Mirabelli and Lori Ann West if they notified parents about a child’s claimed transgender identity.
The Escondido school district’s policy mandates that teachers and school staff will immediately accept a student’s claimed transgender identity and hide it from parents or guardians unless the student consents to notifying them.
Benitez ruled that Mirabelli and West are likely to succeed in arguing that the school district violated their First Amendment right to the free exercise of religion. The judge ordered the school district—and the California Board of Education—not to punish Mirabelli and West should they break the district’s policy.
Benitez cited nine Supreme Court rulings declaring that “parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children.”
Yet Bonta, in his letter Tuesday, insisted that the injunction protecting the two teachers in the Escondido case “has no effect” on the Chino Valley order. The attorney general warned that policies requiring teachers to notify parents violate the California Constitution’s equal protection clause, state statutes banning discrimination, and students’ privacy rights under the California Constitution.
Jonna argued that Bonta has everything backward, saying that if the secretive policy in the Escondido district’s Mirabelli case violates the U.S. Constitution, that upends all such policies throughout California, regardless of state law.
“The court’s analysis in the Mirabelli opinion focuses on the First Amendment and explains under the 14th Amendment parental rights are being violated by this policy,” Jonna told The Daily Signal. “If this policy in our case violates the U.S. Constitution, 14th Amendment, parental rights, that would apply anywhere in the state.”
Jonna’s letter notes that federal courts “have supremacy over state courts, and can enjoin state court orders to protect or effectuate federal court orders. Thus, to protect its own preliminary injunction order, a federal District Court can enjoin a state court’s temporary restraining order.”
“If California continues to openly defy Judge Benitez’s preliminary injunction, and undermine its holding and reasoning, an injunction against the Chino Valley litigation may be necessary,” the lawyer’s letter says.
The letter also explains that “the reasoning of the opinion makes two points abundantly clear: (1) any teacher in California who objects on religious grounds to these dangerous and unconstitutional policies could file their own lawsuit in federal court and obtain similar relief; and (2) any parent who has standing to sue and challenges these dangerous policies could obtain relief against the state and any school district—asserting their fundamental rights as parents under the 14th Amendment due process clause.”
In other words, by doubling down on secretive transgender policies, Bonta may have opened a Pandora’s box.
If Benitez’s preliminary injunction becomes permanent and if the judge issues a final ruling in favor of Mirabelli, that precedent will allow parents and teachers across the state to sue school districts and the state—and the schools likely will lose those lawsuits.