Legal Opinions Regarding a Parent's Right to Opt-Out

The following memo from the desk of Ron Wenkart, General Council to the OC Board of Education, explains one legal opinion regarding a parent's right to opt out. Essentially, he says that parents may opt their children out of almost every lesson.  But, there are a few subjects our legislators have determined all youth must learn and from which they may not opt out. The philosophy of gender fluidity is just one of those subjects.

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Many other law firms have supported an opposite interpretation of the law.  Dean R. Broyles, Esq, President and Chief Counsel of The National Center for Law and Policy, offered a response to Ron Wenkart's legal memo:

I have reviewed Ronald D. Wenkart’s (Gen. Counsel, O.C. Dept. of Educ.) letter dated August 29, 2017 (attached), which [was] forwarded to me on January 3, 2017. Simply put, his legal opinion is incorrect that “parents who disagree with the instructional materials related to gender, gender identity, gender expression, and sexual orientation may not excuse their children from this instruction” (hereinafter SOGI). His is a misreading and misapplication of the law.

Yes, state law (Ed. Code section 51932(b)) carves out these SOGI areas (when not explicitly discussed in sex ed. class, i.e. with “body parts”), however, this does not mean that a local school board, out of respect for parents, may not exercise its discretion to provide an opt out policy for parents. In other words, just because the law doesn’t require an opt out, doesn’t mean a district can’t provide an opt out. [That] is my legal opinion, as well as the interpretation of ADF attorneys.

It seems that for now, the best thing to do is to contact local school boards for clarity on how they plan to enforce this confusing legislation. 

But, even if parents are ultimately given permission to opt their child out of an entire middle school CSE course (including lessons on gender fluidity), the law allows this gender instruction to begin as early as kindergarten.  And, where this instruction is not connected to a CSE course, a parent is currently not allowed to opt out.  So, this isn't just a question of whether or not we can opt our children out of a CSE curricula to which we are opposed -- one that teaches philosophies with which we disagree (although that is an issue); but, it's a question of whether this philosophy should be allowed to be taught at school at all.

Fortunately, some of our legislators are working to amend the language in the California Healthy Youth Act, to make a parent’s right to opt-out fully comprehensive. But, the fact remains that the California Department of Education encourages the introduction of gender fluidity philosophy to our children from the time they enter the public school system.  (Synopsis of CHYA)