ttt$c,trGtn[il¡tmt¡uilot fü,t0tït0t Se¡uthcrn (:¡lilbrni* June 7, 201 8 VIA ELECTRONIC MAIL Alexia Deligianni-Brydges, Ed.D President, Board of Education Orange Unified School Distrjct 1401 North Handy Street Orange, CA 92867 board@olangeusd.org RE: Adoption of Comprehensive Sexual Health Education Curriculum Dear Board President Deligianni-Brydges and members of the Boald of Education I rvrite to remind the Board of Orange Unified School District's (OUSD) corrtirruirrg obligation to adopt a sexual health and HIV plevention education cuniculum that is compliant with the requirements of the Califomia Healthy Youth Act. I arn aware that the Board called a special meeting on May 30th, and voted to postpone the implementation of the planned Teett Talk and Apex instruction that was to take place this school year. Despite public commentary to the contrary, to be clear, the Teen Tctlk cuniculum is compliant with the California Healtliy Youth Act. Although the Board is under no obligation to adopt that parlicular curriculum, it must adopt a compliant curriculum without delay to ensure compliance with the Education Code. A. The District Must Adopt Compliant Curriculum Without Delay. The Board must cornply with the California Healthy Youth Act in a timely lnanner. Altliough the decision of which cunicula to adopt and how to adopt it is within the discretion of the Board, Orange Unified is now two and a half )¡ears past the date on which the California Healthy Youth Act became law. Comprehensive sexual health and HIV prevention education must comply with the Califomia Healthy Youth Act. The Califolnia Healthy Youth Act includes requirements for teacher tlaining and qualifìcations,l parent/guardian notification and opt-out,2 and content.3 School districts must provide comprehensive sexual health education at least once in middle school and once in high school. The specif,rc content requirements for instruction in middle school and high school are set fonh in section 51934 of the Education Code. A number of parents rvho oppose the District's proposed curricula have focused their objectiorrs, at least in ' Cal. Educ. Code $$ 51935-51936. 2 lrl 'l¿. çg 5t93i -51939. $$ 51933-5t934. 1313 W Eighth Slreet, Suite 200 Los Angeles CA 90017 T 213.977.9500 F 213.977.5297 ACLUS0CAL.0RG Orange Unifìecl School Distdct Page 2 June 7. 201 I paft, on instruction relating to sexual orientation, gender, and gender identity. This is lequirecl instruction for comprehensive sexual health education, in'espective of the gracle in which it is taught.a While the District is fi'ee to create its own curricula flom whole cloth, any such culriculum must meet all requirements set fomh in the Education Code. Further, this endeavor cannot be used to delay the implementation of the Califomia Healthy Youth Act in the plesent. Schools thal are not teaching cornpliant comprehensive sexual health eclucation at this point are in violation of the larv. B. Parents Do Not Have the Right to Override the District's Choice of Curriculum. A key component of comprehensive sexual health education, as required under the Califomia Healthy Youth Act, is communication between students and their parcnts, guardians, or other trusted adults about sexuality. Parents play a critical role in complementing the sex education provided in schools. and the vast majority of Califomia parents suppofi the provision of comprehensive sex education to their students, so that they will leam facts and develop skills for having healthy relationships and protecting their health.s While the postponement of the Teen Talk and Altex cun'icula was due to the vote of the Board, so much discussion duling tlie May 30,2018 special meeting focused on the question of what rights parents have to detemrine the instruction provided to their students that it seems valuable to address that question here. Califomia law is clear in this respect: Parents do not have the right to dictate what cumiculum is used or what infonnation is provided to students in public schools. The U.S. Courl of Appeals fol the Ninth Circuit has ruled that parents do not have any constitutio¡ral right "to preverlt a public sclrool from providing its students rvith u4ratever infonnation it wishes to provide, sexual or otherwise, when and as the school deten¡ines that it is appropriate to do so."Ó In reaching its decision, the court explained that "[s]chools cannot be expected to accommodate the personal, moral or religious concerns of every parent. Such an obligation would not only contl'a\/ene the educational mission of the public schools, but also rvould be inrpossible to satisfy."T The parental notification and opt-out provisions of the Califbmia Healthy Youth Act apply only after the cuniculurl has been adopted. It is valuable to engage palents during the a Section 51933 of the Education Code-which appliesto corrprehensive sexual health education in every grade-requires, atnongotlrerthings, that instluction and nraterials beappropriate foruse with pLrpils of all races, genders, sexual orientations, and cultural backglounds. lt requires that instruction and materials "teach pLrpils aboLrt gerrder, gender expressiorr, gerrdel identitl,, and explore the harnr of negative gencler stereotypes," as well as "affilmatively recognizelhal people have different sexual orientations and, rvhen cliscussing or providing exarrples relationships arrcl couples, shall be inclusive of same-sex relationships." s Constantine, N, Jeruran, P, Huang, A,,9cx Educuliott; The Purenl 's Pers¡teclite, Public Health Institute, May 2007 " Fields y. Pulmclule Sc'h. Dist., 427 F.3d 1191, 1205 (9th Cir. 2005), uff''d,447 F.3d I 187 (9tli Cir. 2006) (en banc). 7 I(t. at 1206. t: Olange Unified School District Page 3 .Iune 7, 2018 process of selecting a cumiculurn for adoption. However, parents have no general light to override a district's ultimate choice of curriculum. Parents do indeed have the right to "supervise their children's educatiolr," but in the context of conrprehensive sexual health and HIV prevention education, that light is limited to leviewing materials adopted by their district and opting out of instruction. As a Califomia court recently recognized, students also have a separate right to have "access to medically and socially appropriate sexual education."s C. The District Has an Affirmative Obligation to Address Incidents of Bias and Harassment Against LGBTQ Students Opposition to the Teen Talk and Apex cumicula also appears to have been focused on elernents of the cumiculum that are inclusive of LGBTQ people or intended to specifically address sexual orientation, gender, gender identity, and gender expression. Comments at the May 3Qth special rneeting and other rneetings at Orange Unifred and the Orange County District of Education focused on this point in pafticular. To be clear - Califomia public schools have an affinnative obligation to prevent and address bias-based bullying, harassment, and discrimination against LGBTQ students.e The Board's rejection or postponement of LGBTQ-inclusive curricula in the face of hostile comments could convey to students, parents, and district personnel that the board does not take seriously its responsibility to protect LGBTQ students and could facilitate an atmosphere of bias within the Orange Unified School District cornmunity, pat'ticularly if the Board does not now take swift action to adopt another LGBTQ-inclusive cun'iculum. D. Conclusion Recently, we have been contacted by a number of OUSD parents and community ¡rembers who have expressed their deep conceût that the District is not providing students with the comprehensive sexual health and HIV prevention education they need and which is requiled by law. Tlre vast rnajority of California's parents-89 percent across all demographic groups and geographic regions, according to researclt conducted by the Public Health lnstitute-support the teaching of comprehensive sexual health education schools.l0 Those parents who do not wish their child to receive sexual health education may request in writing that their child be withheld from instruction. s Aru. Acctdenr, of PedieÍrics t'. Clot,is ()ni.fied Sch. Disf .,No. l2CECG02608 (Cal. Super. Ct. May 14, 2015), ut'ailqble oî httns://www.aclunc.ors/sites/default/files/2015.05.04%20Notice%20ofyo20Entry%20oFlo20Order.Ddf. e See Ctt. EDUC. Cooe $$ 201,220. r0 Constantine et al., Sex Educatiop; The Parell's Perspeclite, slrprQ note 5. Orange Unified School District Page 4 June 7, 201 8 Please let us know by June 21,2018 the District's firm timeline for adopting a corrrpliant curriculum and in-rplementing the full requirements of the California Healthy Youth Act. As always, please do not hesitate to reach out with any question or concems Sincelely, Ruth Dawson Staff Attorney cc Superintendent Gunn Marie Hansen, Ph.D. (via e-mail)