This resource is provided by ACSA Partner4Purpose Lozano Smith.
In a decision signed on May 12, 2025, the United States District Court for the Southern District of California prohibited the Encinitas Union School District (District) from covering gender identity topics in health instruction in its elementary school buddy program, unless it provides parents with advance notice and an opportunity to opt out.
Background Information
The lawsuit, S.E. et al. v Andree Grey, (S.D.Cal. May 12, 2025, No.3:24-cv-1611-L-SBC) 2025 WL 1387061, was filed by the parents of a fifth-grade student, P.D., who was required to participate in the school’s mandatory “buddy program.” The buddy program, which was a mandatory part of the curriculum, consisted of fifth graders, including P.D., mentoring younger kindergarteners.
The buddy program usually involved art or garden projects, and students selected the books they read. The school typically sent parents a weekly newsletter listing the books students were reading each week. In the instance giving rise to the lawsuit, however, teachers selected the book My Shadow Is Pink without listing it in the weekly newsletter for parents. My Shadow is Pink is about a boy who prefers dresses and toys typically associated with girls and a father who comes to accept his son’s “pink shadow” as his “inner-most self.”
While the term “gender identity” is not used in the book, the defendants admitted the book addresses the subject, and the students understood it was about LGBTQ topics. As part of the buddy program, the fifth graders and their kindergarten buddies watched a read-along video of the book. Afterward, the fifth graders were instructed to trace their buddy’s shadow using a chalk color that the younger students chose to “represent” them.
In his suit, P.D. alleged that choosing one’s own gender identity conflicted with his religious beliefs. He was uncomfortable and did not want to affirm the book’s message to his kindergarten buddy, but did not complain to his teacher for fear of getting in trouble.
P.D.’s parents asked school officials why they did not receive advance notice and an opportunity to opt out, a right provided for similar topics in the formal health curriculum. Officials responded that because the buddy class was not a “health unit,” parents had no right to opt out. The parents were also told that similar activities could occur in the future without notice or an opt-out option.
The parents then filed a lawsuit alleging that the District violated their child’s First Amendment and Due Process rights under the U.S. Constitution, seeking declaratory and injunctive relief prohibiting the District from requiring students to participate in gender identity activities and directing the District to provide parents with notice and an opportunity to opt out.
The Court’s Analysis
The court found that the plaintiffs were likely to succeed on the merits of their First Amendment claim. It concluded that requiring P.D. to participate in the activity was a form of “compelled speech” that forced him to affirm a message contrary to his religious beliefs in violation of the First Amendment, thus causing irreparable harm. The student’s participation, namely mentoring a younger child and tracing their shadow in a chosen color, was an “expressive act” protected by the First Amendment.
The court rejected the District’s argument that P.D.’s participation was voluntary, noting that the program was a mandatory part of the curriculum and that elementary school students are impressionable and susceptible to peer pressure. The court also determined that while the District’s anti-discrimination goals were “admirable,” they were not narrowly tailored enough to justify infringing on a student’s free speech rights. Accordingly, the court granted P.D.’s motion for preliminary injunction as to the school buddy program and held that buddy program activities and materials may not cover gender identity topics covered in health instruction, unless parents are provided with advance notice and an opportunity to opt out.
Takeaways
As a federal trial court decision, this case does not create binding precedent. However, the case serves as a warning to school districts about potential First Amendment liability for “compelled speech.” This legal challenge arose because the District was inconsistent: It offered a parental opt-out for the topic of gender identity in health class but denied that same right when the topic was moved to a different mandatory program, forcing a student to express a message that conflicted with their sincere personal beliefs. To avoid similar lawsuits, if a topic allows for a parental opt-out in one class, school districts should provide the same notice and opt-out rights for that topic in all mandatory activities.
If you have any questions about this court decision or student rights in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide.
