Will Judge Roger Benitez save California’s public school students?

He just may, at least temporarily.

Photo by Kristina Flour on Unsplash

One of the most important cases in California is heating up. Mirabelli v. Olson, a federal case out of the Southern District of California continues to instill a sense of hope and confidence that courts will restore parental rights in the public school domain. Initially, the case only involved two Escondido Union School District teachers who refused to deceive parents by hiding that their students adopted a transgender identity while at school. The brilliant Judge Roger Benitez issued a thoughtful ruling in September of 2023 that enjoins the Escondido Union District (District), the California Department of Education (CDE) and the Attorney General Rob Bonta (AG) from enforcing the District’s policy 5145.3 that requires school employees to hide from parents that their child is adopting an identity that differs from their sex. The prohibition is for the pendency of the case. Currently though, this incredible outcome only safeguards the teachers and students at the one district.

Attorney Paul Jonna, the attorney for the teachers, knew that he needed to extend Judge Benitez’s ruling to all school districts in California; the Benitez ruling was just too powerful not to parlay into a more significant outcome. Judge Benitez not only understands the harm to the two teachers, but he comprehends the wider issue of parental rights as well as the detriment to students when schools participate in the social transition of students without parental involvement. He ruled:

(Excerpt from Judge Benitez’s September 14, 2023 Ruling)

Following that ruling Jonna rustled up some parents of students in other school districts that had their children secretly socially transitioned at school along with a couple more teachers from the District to add as plaintiffs in the case. Jonna also astutely raised Assembly Bill 1955, the law that passed this summer that prevents school districts from adopting notification policies that would require school employees to inform parents of their children’s gender confusion. Jonna then motioned to expand the Mirabelli case into a class action and to enjoin every school district in the state from complying with any school policy that requires employees to deceive parents about their student’s gender identities. This case can, in one fell swoop, disembowel AB1955 and return parents back to their rightful position as caretakers of their children. (If the government loses the case at the district court level, it will appeal the ruling, but having a strong trial court opinion will be more than a flesh wound to gender ideology.)

Escondido’s main defense of its deception policy is that the California Department of Education (CDE) required school personnel to actively deceive parents. In a gross misinterpretation of law, CDE created an FAQ page on its website that stated “schools must consult with a transgender student to determine who can or will be informed of the student’s transgender status, if anyone, including the student’s family. With rare exceptions, schools are required to respect the limitations that a student places on the disclosure of their transgender status, including not sharing that information with the student’s parents.” A layperson reading that language would unquestionably believe that the secrecy policies are mandated and in fact, even school board attorneys fell for it.

The CDE references a common school board policy, 5145.3, when specifying how schools should hide a child’s struggles with gender from their parents. This policy has not only been adopted by the majority of school districts in California, but attorneys advise their boards to create a separate “shadow” file to skirt federal education law (FERPA) and avoid providing key information to parents who directly inquire about their children’s gender identity.

By blaming CDE, the school district opened the door for Mirabelli’s attorneys to add CDE as a defendant, as well as Attorney General Rob Bonta, who, in a separate lawsuit, sued the Chino Valley Unified School District (CVUSD) for its policy requiring parental notification when a child tries to change their name or pronouns. CVUSD prevailed in court and continues to have a notification policy. (The AG has yet to decide whether he will appeal that ruling, or whether he is satisfied with his attack on parental notification policies under AB1955. He has a few more weeks to make that decision).

CDE and the AG are now trying to extract themselves from the Mirabelli case with weak arguments that Judge Benitez does not appear to buy; primarily arguing that the secrecy policy was just merely optional guidance and not a mandated rule. However, the facts belie their flimsy argument, since almost every school district adopted the secrecy policy, CDE and the AG publicly supported AB1955, and each of them sued school districts that adopted parental notification policies.

CDE claims that it has no power to enforce its own guidance and would never dare to. Funny, I seem to recall that the head of the CDE, Superintendent Tony Thurmond, tried unsuccessfully to bully his way to speak longer than any other member of the public at the CVUSD’s school board session to oppose its parental notification policies.

AG Bonta argues that he is only against forced notification policies, and would not use his power to force schools to adopt CDE’s secrecy guidance. This is a distinction without a difference. Notification and deception cannot be disentangled. Either schools must deceive the parents of every student who believes they are “born in the wrong body,” or they must notify them. There is no middle ground. The AG knows this fact, as evidenced by his refusal to stipulate that he would not sue any school district that failed to comply with the secrecy policy referenced by the CDE.

In early December, Judge Benitez held a hearing on the District’s, CDE’s and the AG’s motions to dismiss the case against them. While the court has yet to issue its final ruling, the transcript from the hearing signals that Judge Benitez will retain his nickname, Saint Benitez.

Below are some of the most salient excerpts from the hearing that clearly demonstrate that Judge Benitez realizes what is at stake and is well-aware of the game of semantics being waged by CDE and the AG.

AG Bonta’s attorney tried to thread the needle between parental notification policies and school secrecy policies, refusing to stipulate that Bonta would not pursue schools who fail to abide by the secrecy policy with these statements:

Judge Benitez shows his deep understanding that there is no legal basis for deceiving parents about their child’s gender confusion and that social transition is demonstrative of a mental health issue with the following statements and inquiries with the following line of questioning:

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Here, CDE’s attorney argues that its FAQs are merely suggestions and schools are not mandated to have secrecy policies:

One of my favorite inquiries from the judge is this death blow question even though the government’s attorney does not realize it. Here, the judge is setting up for a ruling that parents being informed knowing of their child’s distress is not discrimination vis-à-vis parent and child. In other words, the school is not treating a child with gender dysphoria any differently than it would treat a student with any other mental health issue – by involving the parents. One can also see the nonsensical response from the government attorney too, that gender is a spectrum – the all too often repeated incoherent mantra.

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Last, but certainly not least, Judge Benitez raises a hypothetical question about suicide (this is the government’s Achilles heel e.g., if students who adopt a transgender identity are more likely to be suicidal, how is keeping the parents in the dark beneficial to the child?). Here, Benitez asks if a gender dysphoric child who is secretly affirmed at school, thus preventing parents from getting the child the needed mental health treatments, and the child survives a suicide attempt but is in a vegetative state, who will be responsible for the child’s daily care? Will the school employees be the ones, or the child’s parents? Bam! Benitez hits the nail on the head- parents are with children for life. The judge also hits on the fact that the secrecy policies assume all parents are abusive. This line of questioning was beyond magnificent.

Judge Benitez has yet to rule on the defendants’ excuses to get out of the lawsuit. He has also not heard the motion for class certification and the injunction request that would enjoin every California school district from deceiving parents. That said, if I were a betting woman, I would put all my chips on Jonna succeeding in all of the pending motions.