Case 2:22-cv-00837-JFC Document 142 Filed 09/30/24 Page 1 of 94

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CARMILLA TATEL, STACY DUNN and CIVIL ACTION NO. 22-837

GRETCHEN MELTON, individually and
as parents and natural guardians of their
children,

Plaintiffs,

v.

MT. LEBANON SCHOOL DISTRICT, et

al.,

Defendants.

OPINION

I. Introduction

This case is about the extent of constitutional rights of parents of young children in a

public elementary school to notice and the ability to opt their young children out of noncurricular

instruction on transgender topics. A first-grade teacher, without providing notice or opt outs,

decided to observe Transgender Awareness Day by reading noncurricular books and presenting

noncurricular gender identity topics to her students. During that classroom presentation, the

teacher told her students “parents make a guess about their children’s – when children are born,

parents make a guess whether they’re a boy or a girl. Sometimes parents are wrong.” Ps’ ¶ 99.

Some of the young children experienced confusion about how that topic personally affected

them. Ps’ ¶ 82.

Parents were not notified that transgender topics might be presented to first-graders. The

school district provides no guidelines about whether or when to provide notice and opt outs to
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parents, but has a “de facto policy” that leaves those decisions to “teacher prerogative.” (ECF

No. 95-21 at 69-70). When some parents objected, the principal, assistant superintendent and

superintendent backed the teacher’s conduct, despite permitting notice and opt out rights for

numerous other religious and secular topics.

Plaintiffs assert that their federal constitutional rights to Substantive Due Process,

Procedural Due Process, Free Exercise of Religion, Equal Protection and familial privacy and

their rights under the Pennsylvania School Code were violated. Defendants take the legal

position that parents “do not have the right to notice and the ability to opt out from classroom

instruction and that classroom instruction does not implicate fundamental parental liberty

interests even when the Parents’ religious beliefs are implicated.” ECF No. 113 at 10.

It is undisputed that all children, including children that identify as transgender, must be

treated with kindness, tolerance and respect. There is no evidence in this record of bullying,

unkindness or disrespect toward transgender students in the elementary school attended by the

children of Plaintiffs. This case involves different beliefs about gender identity. As the court

explained in its memorandum opinion on the motion to dismiss:

The Parents assert they have sincerely held religious and moral beliefs that
“human beings are created male or female and that the natural created order
regarding human sexuality cannot be changed regardless of individual feelings,
beliefs, or discomfort with one’s identity, and biological reality, as either male or
female.” Complaint ¶ 140. See Genesis 1:27 (“So God created mankind in his
own image, in the image of God he created them; male and female he created
them.”).
The transgender movement posits a distinctly different view of identity
formation. In Doe [v. Boyertown Area School District, 897 F.3d 518 (3d Cir.
2018)], the court defined the applicable terminology:

“Sex” is defined as the “anatomical and physiological processes that

lead to or denote male or female.” Typically, sex is determined at birth
based on the appearance of external genitalia.
“Gender” is a “broader societal construct” that encompasses how a
“society defines what male or female is within a certain cultural context.” A

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person's gender identity is their subjective, deep-core sense of self as being

a particular gender. As suggested by the parenthetical in our opening
paragraph, “cisgender” refers to a person who identifies with the sex that
person was determined to have at birth. The term “transgender” refers to a
person whose gender identity does not align with the sex that person was
determined to have at birth.

Doe, 897 F.3d at 522. “Transgender individuals may experience ‘gender

dysphoria,’ which is characterized by significant and substantial distress as a
result of their birth-determined sex being different from their gender identity.” Id.
“‘Social gender transition’ refers to steps that transgender individuals take to
present themselves as being the gender they most strongly identify with.” Id.
“For transgender individuals, an important part of social gender transition is
having others perceive them as being the gender the transgender individual most
strongly identifies with.” Id.

(ECF No. 38 at 30-31).

Here, the Parents assert the teacher, by reading noncurricular books and instructing their

young children, without notice or the ability to opt out, that parents make guesses about their

children’s gender at birth and may be wrong violates their constitutional rights. How to resolve

whether the teacher’s beliefs or the Parents’ beliefs are correct would be beyond the ability of

most first graders.

II. Pending Motions

The parties filed cross-motions for summary judgment: (a) the remaining Defendants Mt.

Lebanon School District (the “District”), first-grade teacher Megan Williams (“Williams”),

Superintendent Dr. Timothy Steinhauer (Steinhauer”), Assistant superintendent Dr. Marybeth

Irvin (“Irvin”), Principal Brett Bielewicz (“Bielewicz”), and school board president Jacob W.

Wyland (“Wyland”) (collectively, “Defendants”) filed a motion for summary judgment (ECF

No. 92); and (b) Plaintiffs Carmilla Tatel (“Tatel”), Stacy Dunn (“Dunn”) and Gretchen Melton

(“Melton”) (collectively, “Plaintiffs” or the “Parents”) filed a motion for summary judgment

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(ECF No. 96). The motions were thoroughly briefed and the parties submitted numerous

exhibits and developed their respective concise statements of material facts (“CSMFs”) (ECF

Nos. 93-95, 97-116, 121-124, 127-129, 135-136). Unless otherwise noted, the citations to the

factual background will be taken from the parties’ combined CSMF (ECF Nos. 135, 136).1 Also

pending before the court is Plaintiffs’ motion to strike certain paragraphs from Defendants’

responsive CSMF (ECF No. 125), to which Defendants filed a response (ECF No. 139), which

will be addressed by the court before the substantive issues raised in the summary judgment

motions are discussed. The motions are ripe for disposition. Although the parties submitted

certain documents under seal, the court determined that this opinion will not be filed under seal.

III. Motion to strike (ECF No. 125)

Plaintiffs argue that Defendants improperly responded to Plaintiffs’ CSMF in an effort to

create disputed issues of material fact where none exist. Plaintiffs move to strike the responses

to Ps’ ¶¶ 1, 2, 16, 17, 24, 30b, 32, 33, 37, 43, 54-57, 78, 89, 98a, 106 and 166. Defendants argue

that their responses to each of these paragraphs were proper and complied with Local Rule 56.

Defendants explain that, where applicable, they acknowledged that Plaintiffs accurately quoted

deposition testimony, but went on to explain why Defendants disputed the underlying fact or

inference by citing to other evidence of record (ECF No. 139).

In Lewis v. Delp Family Powder Coatings, Inc., No. CIV.A 08-1365, 2010 WL 3672240,

(W.D. Pa. Sept. 15, 2010), the court summarized the requirements of Local Rule 56 for

responding to a CSMF:

With regard to a responsive concise statement, Local Rule 56 mandates that the
opposing party: (1) admit or deny whether each fact contained in the moving
1
The combined CSMF consists of a composite of the parties’ various CSMFs and responses thereto. The
court will use the following citation conventions: (Ps’ ¶; Ds’ ¶; and Ps’ Supp. ¶).
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party's concise statement of material fact is undisputed and/or material; (2) set
forth the basis for the denial if any fact in the moving party's concise statement is
not admitted in its entirety; and (3) provide citation to the particular pleading,
deposition, answer to interrogatory, admission on file, other part of the record that
supports the opposing party's denial of any fact denied in whole or in part. LCvR
56.C.l.a & b. In addition, the party opposing summary judgment is required to set
forth in separately numbered paragraphs any other material facts that are allegedly
at issue and/or necessary for the court to rule on the motion for summary
judgment. LCvR 56.C.1.e.

Id. at *1. As relevant to the current motion to strike, the court in Lewis explained it is

appropriate to admit that the witness so testified and separately admit or deny the factual

substance of that testimony, although citation to specific evidence in the record supporting a

denial is required. Id. at *3.

The court in Lewis explained that the “purpose of a concise statement of material facts

and responsive concise statement under Local Rule 56 is to provide a mechanism by which

courts can expeditiously determine what, if any, material facts are in dispute” and chastised

counsel who “seem[ed] to have lost sight of this purpose and instead have engaged in a war of

semantics loaded with inappropriate comments.” Id. at *4. The court commented that having to

become involved in matters that should be resolved among counsel is an ineffective use of the

court’s resources. Id.

The Third Circuit Court of Appeals acknowledges that “the District Court is in the best

position to determine the extent of a party's noncompliance with Local Rule 56.1, as well as the

appropriate sanction for such noncompliance.” Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604,

613 (3d Cir. 2018) (discussing Local Rule 56 of the Middle District of Pennsylvania). The

district court’s decision is reviewed for an abuse of discretion. Id. The court will briefly address

each disputed paragraph.

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A. Ps’ ¶ 1

In Ps’ ¶ 1, Plaintiffs asserted (citing their own deposition testimony) that they were not

ready for their children to receive instruction on “gender identity.” Defendants disputed this

assertion based on a text from Tatel to the effect that her children have known the difference

between a boy and a girl forever. Knowing the sex of a child is not the same as learning about

gender, including transgender identity. Defendants recognize that Plaintiffs did not want their

first-grade children to be introduced to transgender topics by their teacher. Defendants’ response

will not be stricken, but this issue should have been resolved by counsel without court

intervention. Paragraph 1 will be regarded as undisputed, with the understanding that Williams’

instruction involved transgender identity.

B. Ps’ ¶¶ 2, 89

CSMF Ps’ ¶¶ 2 and 89 involve Tatel’s and Melton’s sincere religious beliefs and Dunn’s

similar moral beliefs. Ps’ ¶ 2 states:

Plaintiffs Tatel (Roman Catholic) and Melton (Church of Jesus Christ of

Latter Day Saints) hold sincere religious and moral beliefs, inter alia, that human
beings are created male or female and that the natural created order regarding
human sexuality cannot be changed regardless of individual feelings, beliefs, or
discomfort with one’s identity and biological reality, as either male or female;
although not founded in a particular religion, Plaintiff Dunn holds similar moral
views.

Ps’ ¶ 89 states:

Plaintiffs’ deeply rooted parental, moral and religious beliefs teach that
parents do not select a child’s gender – a child’s gender is determined by God and
(scientifically) by the child’s X and Y chromosomes.

Defendants dispute whether Plaintiffs objected to Williams’ instruction based on their

religious/moral beliefs, rather than their scientific or political beliefs. Defendants’ position is not

novel; courts have faced similar disputes in numerous cases involving objections to the Covid

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vaccine. There are two related inquiries: (1) whether a belief is religious in nature; and (2)

whether it is sincerely held.

In Bushra v. Main Line Health, Inc., No. CV 23-1090, 2023 WL 9005584 (E.D. Pa. Dec.

28, 2023), the court observed that “[t]he Supreme Court and Court of Appeals for the Third

Circuit have well-established guidelines for this inquiry.” Id. at *5. Courts cannot consider the

validity or plausibility of a person's belief. Id. (citing United States v. Seeger, 380 U.S. 163,

184-85 (1965)). On the other hand, courts can consider “whether there is a genuine dispute of

material fact that [the plaintiff’s] beliefs are religious in nature or ‘essentially political,

sociological, or philosophical.’” Id. (citing Africa v. Commw., 662 F.2d 1025, 1031 (3d Cir.

1981); and Fallon v. Mercy Cath. Med. Ctr. of Se. Pa., 877 F.3d 487, 491 (3d Cir. 2017)). In

Africa, the court explained: “while the ‘truth’ of a belief is not open to question, there remains

the significant question whether it is ‘truly held.’” Africa, 662 F.2d at 1030 (quoting Seeger, 380

U.S. at 185). A plaintiff must explain how her subjective belief is religious in nature and connect

her objection to the defendants’ conduct to that belief. Aliano v. Twp. of Maplewood, No.

22CV5598, 2023 WL 4398493, at *10 (D.N.J. July 7, 2023) (explaining why some, but not all,

employees stated cognizable religious objections to the Covid vaccine).

1. First prong – whether the beliefs are religious in Plaintiffs’ subjective view of
the world

The three “Africa factors” are considered in determining whether a belief is religious in

nature: “’First, a religion addresses fundamental and ultimate questions having to do with deep

and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-

system as opposed to an isolated teaching. Third, a religion often can be recognized by the

presence of certain formal and external signs.’” Fallon, 877 F.3d at 491 (quoting Africa, 662

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F.2d at 1032). Defendants do not contest that Plaintiffs’ beliefs in this case are “religious” under

the Africa factors.

On the facts presented, the court has no difficulty in concluding a reasonable jury could

only find that Tatel’s and Melton’s beliefs about the gender identity of their children are

religious in nature. First, the nature of a child’s identity addresses fundamental and ultimate

questions having to do with deep and imponderable matters, e.g., why their child was created as

a male or a female. Second, Tatel’s and Melton’s views about gender identity are comprehensive

in nature, as opposed to an isolated teaching, and are part of a belief-system about the

relationship between a creator and humans as created beings. Third, Tatel’s and Melton’s beliefs

are supported by the presence of certain formal and external signs, such as religious texts about

the creation of males and females. See, e.g,, Genesis 1:27 (“So God created mankind in his own

image, in the image of God he created them; male and female he created them.”).

2. Second prong – whether the beliefs are sincerely held

The gravamen of Defendants’ argument is that Plaintiffs’ objections are political, rather

than religious. In Seeger, the Supreme Court explained that the threshold question of sincerity is

a question of fact. Seeger, 380 U.S. at 185 (noting the comprehensive rules for guiding draft

boards in deciding the validity of claims to conscientious objector status); Cf. Aliano, 2023 WL

4398493, at *6 (“a court can, and must, ensure that a plaintiff's beliefs are religious, as opposed

to being “essentially political, sociological, or philosophical.”).

Based upon the record in this case, the court concludes that there is not a genuine dispute

of fact about the sincerity of Plaintiffs’ beliefs. Defendants do not cite any evidence in the

record from which a reasonable jury could conclude that Tatel’s and Melton’s religious beliefs

are not “truly held.” Defendants point to a portion of Tatel’s deposition in which she stated that

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the book Introducing Teddy “itself” did not offend her religious beliefs “as a standalone.” (ECF

100-9 at 66). In responding to the previous deposition question, however, Tatel testified: “I told

you what my religious and moral beliefs are. Again, it’s another gateway to have a discussion

about things that offend my religious and moral beliefs.” Id. Tatel also testified, in response to a

question about whether passages from a book read by Williams offended her religious and moral

beliefs:

A. Yeah, kids don't choose their sex. Right? Parents don't choose their kids' sex.
I've already told you, I believe that God gives you the sex. God creates you
male or female. This is implying that we -- both the child and the mother,
they made a mistake about what God gave them.

(ECF No. 123-1 at 68); see ECF No. 95-1 at 27; ECF No. 95-2 at 10-11.

Defendants point to an email in which Tatel referred to Williams “pushing her left wing

agenda all year,” (ECF No. 100-10 at 3) and a text which referenced “leftist propaganda.” (ECF

No. 100-10 at 3). Defendants cite Melton’s references that “social issues like this should not

ever be allowed at this age”; Melton’s plan to meet with Williams to explain that “the material is

not suitable for kids that age”; Melton’s political opposition to Diversity, Equity and Inclusion

(“DEI”) and Social and Emotional Learning and Melton’s endorsement of conservative political

commentators. (ECF No. 136, Ds’ response to Ps’ ¶ 2).

The cited references do not undercut or disprove the sincerity of Tatel’s and Melton’s

religious beliefs about the identity of their children as being a male or female. At most, they

show that Tatel and Melton also had overlapping political or philosophical objections to those

and other aspects of Williams’ instruction. Courts have held, in the Title VII context, that claims

for religious discrimination are cognizable for topics which overlap both the religious and

political spectrum, such as abortion, so long as the claims are based on a plaintiff's bona fide

religious belief. Gadling-Cole v. W. Chester Univ., 868 F. Supp. 2d 390, 397 (E.D. Pa. 2012)

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(collecting decisions). The Gadling-Cole decision involved a motion to dismiss, but the court

noted that after the record was developed, the court would examine the relevant factors. Id.

Based on the record in this case, a reasonable factfinder could only conclude that the Free

Exercise claims brought by Tatel and Melton with respect to transgender instruction are based on

their sincerely held religious beliefs and those religious beliefs are connected to their objections

to Defendants’ conduct.

With respect to Dunn, the record is clear that her objections are not based on her religious

beliefs. Dunn testified that she does not have a religion and her opposition to Defendants’

conduct is not based on a religious viewpoint. (ECF No. 100-15 at 18). Plaintiffs made that

distinction between Dunn and Tatel and Melton in Ps’ ¶ 2.

In sum, Defendants’ responses to Ps’ ¶¶ 2 and 89 will not be stricken, but those CSMFs

will be regarded as undisputed.

C. Ps’ ¶ 16

CSMF Ps’ ¶ 16 is based on Steinhauer’s testimony that “it’s a long-standing practice in

the school district” to provide notice and opt outs broader than required by the Pennsylvania

School Code. (ECF No. 95-21 at 69-70). Defendants explain that their dispute about this

paragraph is really a clarification that the notices are provided by teachers, not the District. D’s

response to Ps’ ¶ 16 (“It is undisputed that individual teachers, at their discretion, have provided

advance parental notice and the opportunity to opt-out of instruction on topics other than for

those that may be required by Pennsylvania statutes and regulations.”).

Defendants’ clarification is supported by the record. In the same deposition testimony

quoted by Plaintiffs, Steinhauer testified “I think it’s always teacher prerogative” and explained

that the District did not “have any specific guidelines for what you should notify parents about

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and not notify parents about.” Id. Defendants’ clarification will be accepted.

Defendants also assert that Ps’ ¶ 16 (and numerous other CSMFs) are not material

because the District permits parents to opt out of any instruction which conflicts with their

religious beliefs.2 That assertion is globally improper. As explained above, one of the three

Plaintiffs in this case (Dunn) is not religious and her complaints about Defendants’ conduct are

not based on her religious beliefs. It is material, therefore, whether a nonreligious parent has

notice and opt out rights.

D. Ps’ ¶ 17

CSMF Ps’ 17 states that “certain” letters written to parents do not specify that opt outs

must be based on religious objections. Defendants explain that their dispute is really a

clarification that two of the letters do not specify religious objections, but one letter does.

This “dispute” is a semantic quibble, which does not comply with the spirit or text of

Local Rule 56. Defense counsel should not have disputed Ps’ ¶ 17, but Plaintiffs’ counsel should

not have filed a motion to strike the response. Counsel could have resolved this “dispute”

without court intervention. Paragraph 17 will be regarded as undisputed.

E. Ps’ ¶ 24

CSMF Ps’ ¶ 24 states that the Mt. Lebanon School Board (“School Board”) has not

discussed adoption of a policy to give parents advance notice and opt out rights for gender

identity instruction. Defendants disputed Ps’ ¶ 24, although they agreed that “the School Board

has not discussed a policy for parent opt-out rights specific to gender identity instruction.”

Defendants explain that they dispute “that parents lack opt-out rights from gender identity

instruction.” (ECF No. 139 at 6).

2
Parents’ ability to opt out of instruction for religious reasons presupposes that they receive adequate
notice of objectionable topics. See discussion infra at 67.
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Defendants’ dispute is not proper. Defendants’ explanation is not responsive to Ps’ ¶ 24,

which relates to whether the School Board discussed adoption of a policy. Defendants should

admit Ps’ ¶ 24 and, if necessary, include their explanation about opt out rights under other board

policies and state law in a supplemental CSMF. Paragraph 24 will be regarded as undisputed.

F. Ps’ ¶ 30b

CSMF Ps’ ¶ 30b describes an email sent by the District and asserts that the “Annual

Notifications” tab “was not called out in any way in the body of the Newsletter.” (ECF No. 136

at 15-16). Defendants disputed this paragraph by: (1) noting that the District sent another email

on August 27, 2023; and (2) asserting that the Annual Notifications tab was “called out” because

it was a hyperlink in bold at the top of the email.

Defendants’ first dispute is really just an additional fact that does not undermine ¶ 30b.

Defendants’ second dispute is proper – reasonable factfinders could differ about whether the tab

is “called out.”

G. Ps’ ¶¶ 32, 33

CSMF Ps’ ¶¶ 32 and 33 relate to the process for accessing parental opt out rights on the

District website. Exhibit 95-32 contains screenshots of the various steps. Defendants do not

dispute the exhibits, but argue that Plaintiffs “exaggerate the difficulty” in locating the

information and dispute the “implication” that it is difficult to locate. Defendants purport to

dispute the “implied fact” that the information is difficult to locate.

The “implied fact” about how difficult it is to access the information is not set forth in the

CSMFs. The documents speak for themselves and the inferences to be drawn from the

documents should be addressed in the briefs, not the CSMF. Paragraphs 32 and 33 will be

regarded as undisputed.

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H. Ps’ ¶ 37

CSMF Ps’ ¶ 37 involves the testimony of a person, who teaches in the District and is also

a parent, that she was unaware of the opt-out language in the parental rights notification.

Defendants’ dispute was proper. Defendants’ dispute is supported by a more extensive

quotation of that testimony, which shows that the deponent’s response was equivocal. (ECF No.

95-4 at 23-24). The court notes that Plaintiffs made numerous similar responses (backed by

citations to the record) with respect to Defendants’ proposed CSMFs, see, e.g., Responses to Ds’

¶¶ 17, 18.

I. Ps’ ¶43

CSMF Ps’ 43 states: “No written procedure has been created instructing that, if topics of

gender identity are to be taught, that parents should be given advance notice and the ability to opt

out.” (ECF No. 136 at 20). Defendants concede that no written policy has been created to

instruct principals that parents should be given advance notice about gender identity instruction.

Defendants purport to dispute a different fact, i.e., whether the District has any written

procedures for parental opt outs. Defendants’ response was not proper. Ps’ ¶ 43 will be

regarded as undisputed.

J. Ps’ ¶¶ 54-57, 106

Each of these CSMFs involve direct quotations from the record, to which Defendants

lodged disputes. Defendants admit the quotations are accurate, but purport to dispute underlying

or anticipated facts or inferences.3

Defendants’ response to Ps’ ¶ 106 was proper. Plaintiffs provided a partial quotation of

Williams’ testimony and Defendants cited to additional deposition testimony to reflect that

Williams thought the testimony of aide Sharon Boss (“Boss”) was hyperbolic. (ECF No. 95-23
3
Defendants’ response (ECF No. 139) did not address Ps’ ¶ 57.
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at 14-15). Williams did not express any specific disagreements with the substance of Boss’

testimony. Id.

Defendants should have admitted the remaining CSMFs and included their additional

information in supplemental CSMFs. These disputes should have been resolved by counsel

without court intervention.

K. Ps’ ¶ 78

CSMF Ps’ ¶ 78 provides: “As of March 31, 2022, teachers were not permitted to bring

their children to work on Take Your Child to Work Day which occurred on April 28, 2022.”

(ECF No. 136 at 31). Defendants disputed this statement on the basis that during prior years,

teachers were permitted to bring their children to work and no decision had yet been made for

2022. Defendants also point out that it had not officially been prohibited.

The record does not support Defendants. The only citation they provide is to ECF No.

115-66, which consists of an email chain. Of particular relevance, ECF No. 115-66 provides:

(a) on February 24, 2022, Lorien Moyer found a 2021 email from Dr. Ronald Davis

(“Davis”), the Assistant superintendent of Secondary Education, which stated:

“Should a staff member inquire about bringing their child to your school for the day,

it is not permitted this year.” (Id. at 2). In the February 24, 2022 email, Lorien

Moyer stated that Davis “indicated the same for this year particularly due to the

overlap with testing” (id.); and

(b) on April 7, 2022, Sarah Shaw asked: “What are we doing this year about staff who

want to bring their child to work?” Christine Patti replied: “I thought that was not

permitted.” (Id. at 14).

The record contains other exhibits confirming that staff would not be permitted to bring their

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children in 2022. On April 12, 2022, Irvin wrote to Steinhauer: “We are not allowing staff to

bring their children to school with them.” (ECF No. 100 Ex. 51). On April 19, 2022 at 10:34

a.m., Bielewicz advised a teacher: “No employees are permitted to bring kiddos. Sorry.” (ECF

No. 100 Ex. 8).

In sum, teachers were not allowed to bring their children in 2021; on February 24, 2022,

the same prohibition was renewed for 2022; and as of April 7 and 12 and the morning of April

19, 2022, various administrators understood that the prohibition remained in place. The first date

on which it was communicated that staff members were permitted to bring their children to work

was an email sent by Davis in the afternoon of April 19, 2022. (ECF No. 115-66).

Ps’ ¶ 78 will be regarded as undisputed.

L. Ps’ ¶98a

CSMF Ps’ 98a involves a classroom aide’s recollection about whether Williams referred

to her own child during the discussion on March 31, 2022. Plaintiffs cited generally to four

pages of the aide’s deposition. Defendants disputed the characterization of that testimony by

quoting one portion of it.

Defendants’ dispute was proper. The aide testified that she remembered Williams

mentioning the name of Williams’ child and that she “just remember[ed] the name coming up. I

don’t have a lot of clear memory.” (ECF No. 95-59 at 13). Plaintiffs should have provided direct

quotations to the relevant testimony, rather than attempting to recharacterize four pages of a

deposition transcript into a single CSMF. Paragraph 98a will be regarded as disputed.

M. Ps’ ¶ 166

CSMF Ps’ ¶ 166 states: “Irvin was aware that these teachers had read the books.” (ECF

No. 136 at 48). Defendants disputed this paragraph because it does not contain a time reference.

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Defendants dispute any inference that the District administration was aware prior to March 31,

2022, that the books were being read to elementary students or that they knowingly acquiesced in

such conduct. Defendants’ dispute and clarification is appropriate.

In sum, counsel on both sides could have discussed an amicable and reasonable way to

resolve their concerns about the CSMFs, rather than indulging in semantic battles that required

court intervention. As described in detail above, some of Defendants’ disputes were proper and

some were either improper or should have been presented by way of supplemental CSMFs. The

motion to strike (ECF No. 125) will be denied, but certain facts will be deemed undisputed as set

forth above.

IV. Factual and procedural background

A. The parties

Plaintiffs Tatel, Melton and Dunn are the mothers of students who were in Williams’

first-grade class in 2021-2022. Tatel, who is Roman Catholic, and Melton, who is a member of

the Church of Jesus Christ of Latter-Day Saints, hold sincere religious and moral beliefs that

human beings are created male or female and that the natural created order regarding human

sexuality, as either male or female, cannot be changed regardless of individual feelings, beliefs,

or discomfort with one’s identity and biological reality. Dunn does not have a religion, but holds

similar views based on her moral beliefs. Ps’ ¶ 2.

Plaintiffs’ deeply rooted religious (for Tatel and Melton) and moral beliefs “teach that

parents do not select a child’s gender – a child’s gender is determined by God and (scientifically)

by the child’s X and Y chromosomes.” Ps’ ¶ 89.

Defendant Steinhauer, now retired, was the superintendent of the District during the

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relevant time period. As superintendent, Steinhauer had authority to create and implement

written procedures for District administrators and teachers to follow. Ps’ ¶ 119.

Defendant Irvin, now retired, was the assistant superintendent in charge of elementary

education in the District during the relevant time period. In the area of elementary education,

Irvin had the ability to establish procedures that would be District wide. Ps’ ¶ 127.

Defendant Wyland is president of the School Board. Ps’ ¶ 115.

Defendant Bielewicz was the principal at Jefferson Elementary School during the

relevant time. From an administrative standpoint, school principals have immediate

responsibility for their respective schools. Ps’ ¶ 163.

Defendant Williams is a first-grade teacher at Jefferson Elementary School in the

District. Williams is the mother of a transgender child who, like the Plaintiffs’ children, was in

the first grade during the 2021-2022 school year. Williams’ child attended another elementary

school in the District.

The District is a public school district organized under Pennsylvania law. (ECF Nos. 1

and 49 ¶ 16).

B. The 2021-2022 school year

For the 2021-2022 school year (and through the present), neither the Curriculum section

of the District’s website nor the information available to parents in Atlas4 refers to teaching the

subject of gender identity, i.e., transgender identity, to elementary students, including first-

graders. Ps’ ¶ 8. The District has not adopted a formal DEI curriculum. Ps’ ¶ 11.

District Policy I(F) provides that: (a) parents and guardians should have access to

information about the curriculum, including academic standards to be achieved, instructional

4
Atlas is the District’s electronic curriculum mapping and alignment system and can be accessed on the
District’s website. https://www.mtlsd.org/uploaded/District/images/2018-2019/D01d_Mt-Lebanon-
SD_Comprehensive-Plan_10-1-2018_(1).pdf.
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materials, and assessment techniques; and (b) “[u]pon request, parents and guardians will be

provided with copies of instructional materials (except for certain confidential exams) for

courses in which their children are enrolled. Requests for copies may be written or oral and

should be made directly to the teacher of the course.” Ps’ ¶ 13.

Under Policy I(F), parents may excuse a child from instruction based on a conflict with

their religious beliefs; no other basis for opting out is contained in the Policy. Ps’ ¶ 29. The

District, however, provides advance parental notice and the ability to opt students out of

instruction related to: in fifth and eighth grade, human development and sexuality; and in

eleventh grade, HIV, sexuality, birth control/contraceptives, and sexually transmitted infections.

Ps’ ¶ 15. The advance notice and opt outs provided by the District cover topics that are broader

than those topics for which advance notice and opt out is required by the Pennsylvania statutes

and regulations. Ps’ ¶ 16.

District representatives5 also sent advance notice and the ability for parents to opt

students out of participation in: (a) an assembly involving a therapy dog; (b) viewing certain

movies to be shown in class (including The Bad Guys,6 The Tiger Rising,7 Invictus (which

concerns Nelson Mandela and Apartheid), and The Giver8); (c) lunch group meetings with a

school counselor; (d) PASS surveys9; (e) the Scripps Spelling Bee; (f) hearing stories related to

5
It is unclear from the record (see, e.g., the sample notices in ECF No. 95-22), whether notices about
school-wide events, such as assemblies, were sent by individual teachers.
6
A film about a gang of notorious animal criminals who pretend to be rehabilitated to avoid prison, only
for their leader to realize that he genuinely wants to change his ways.
https://www.imdb.com/title/tt8115900/. See Jones v. Twentieth Century Studios, Inc., No. CV 21-5890
PA (SKX), 2021 WL 6752228, at *3 (C.D. Cal. Dec. 7, 2021) (taking judicial notice of the contents of a
film as indisputably authentic).
7
A film about a boy who finds a caged tiger in the woods. https://www.imdb.com/title/tt1596557/.
8
A film about a seemingly perfect community without war, pain, suffering, differences or choices, in
which a young boy is chosen to learn from an elderly man the true pain and pleasure of the "real" world.
https://www.imdb.com/title/tt0435651/.
9
The survey measures Pupil Attitudes to Self and School. https://support.gl-education.com/knowledge-
base/assessments/pass-support/general-information/about-pass
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Chanukah, Christmas and Kwanzaa; (g) dissecting animals in biology; and (h) viewing video

clips from a TV series that involves a homosexual character. Ps’ ¶ 18.

During the course of the 2021-2022 school year, Williams sent group emails to the

Parents of the students in her class. One email titled “Family Interest Inventory” advised

parents, in advance, that the family of a student had expressed interest in sharing their Hanukkah

traditions with the class. Ps’ ¶ 22.

The District never sent a letter directly to elementary school parents advising them in

advance of particular planned instruction on the subject of gender identity/transgender issues and

providing the ability to opt their children out of that instruction. Ps’ ¶ 20. The District did not

send (and never sent) an email to parents, which in the body of the email notified parents that

they can opt a student out of gender identity-related instruction. Ps’ ¶ 36.

The District’s curriculum should guide classroom instruction. Ps’ ¶ 5. For the 2021-22

and 2022-23 school years, nothing in the “Parental Rights” notification on the District Website

mentioned possible instruction on gender identity. Ps’ ¶ 38.

On October 1, 2021, in response to information in the Jefferson Elementary School’s

newsletter about acknowledging LBGTQ month, a parent (not a party to this case) asked in an

email to Bielewicz: “I was wondering if/how this is acknowledged in the first grade because I am

not comfortable with my daughter learning about gender identity at this age.” Ps’ ¶ 64.

Bielewicz responded, “[t]here is no formal introduction or lessons surrounding it at JES,

especially in 1st grade. It’s just merely an acknowledgment of inclusivity and awareness to our

JES community.” Id. The parent (L.R.) forwarded this response to Tatel. Id.

Some students in Williams’ class knew Williams’ child as a boy through youth sports

(ECF No. 95-53). Williams’ child started wearing dresses at age 5 and intermittently expressed

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“I am a girl.” (ECF No. 95-23 at 30-31). Williams informed her class that her child went as Elsa

for Halloween. Ps’ ¶ 67. In March 2022, Williams’ child expressed a desire for a pronoun

change, i.e., to be called “she” by teachers and classmates. (ECF No. 95-23 at 32). Williams

informed her child’s teacher about the desired pronoun change. Id.

Williams told Dunn’s son, in substance, that he had similar interests to Williams’ child

including the same favorite color. Ps’ ¶ 70. Williams denied the remaining “grooming”

allegations set forth in the Complaint.10 Ds’ ¶ 70.

During the academic year 2021-22, no student at Jefferson Elementary School identified

as transgender to the District. Ps’ ¶ 65. The District received no complaints of transgender

harassment or discrimination from a transgender student at Jefferson Elementary School during

the 2021-22 school year. Ps’ ¶ 66.

C. The events in the days immediately prior to March 31, 2022

Williams’ child changed to using female pronouns the same week that Williams read

Aidan and Introducing Teddy to her first-grade class. Ps’ ¶¶ 60-61.

On March 30, 2022, Williams sent a text to two fellow teachers, stating: “Tomorrow is

international trans day of visibility. I’d like to read something.” ECF 100-22. During the text

exchange, the books When Aidan Became a Brother (“Aidan”) and Introducing Teddy, a gentle

story about gender and friendship (“Introducing Teddy”) were discussed. Ps’ ¶ 72. Williams

asked: “Do you think it’s good to read aloud in first?” (ECF No. 95-48). One of the other

teachers planned to read the books and commented: “Now I may be pulled into the principal’s

office ... but that’s okay with me.” Id.

10
In the complaint, Plaintiffs asserted that Williams instructed her students not to tell their parents about
her discussions with them concerning transgender topics. The parents chose not to have their children
deposed and presented no evidence of that assertion at the summary judgment stage.
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D. The events on March 31, 2022

1. The morning

According to Boss, an aide in Williams’ classroom, “morning work” was done by 9:00

a.m. (ECF No. 95-52 at 31). At the end of morning work on March 31, 2022, Williams “out of

nowhere” began talking about bringing her child to Take Your Child to Work day. Id. at 33.

Some of the students stated that they knew Williams’ child through sports and referred to the

child as “him.” Williams stated to the students that her child was now a “she.” Ds’ ¶ 46.

Boss testified that “right after” this discussion (i.e., soon after 9:00 a.m.), Williams

showed the video of Aidan, but with the sound off, and read the words to the class herself. ECF

No. 95-52 at 36-37. A print copy of Aidan is found at ECF No. 95-57. The first line of the book

is: “When Aidan was born, everyone thought he was a girl.” Id. Aidan uses the term

“transgender” on page 6 and, in referring to the child on page 18, contains the line: “When you

were born, we [the Parents] didn’t know you were going to be our son. We made some mistakes

but you helped us fix them.” Ps’ ¶ 94. Neither the word “tolerance” nor the word “kindness” is

contained in Aidan. Ps’ ¶ 92. No character in Aidan was the subject of bullying or being picked

on. Ps’ ¶ 93.

Defendants’ contention that Melton’s child was not present for Williams’ instruction on

March 31, 2022, is speculative because they have no information about when she left or returned.

Melton’s child typically left the classroom from 10:00 to 11:00 a.m. for special instruction. The

child regularly received instruction from Bridgette Watson from 10:00 to 10:30 a.m. and from

Kim Salvador from 10:30 to 11:00 a.m., but Ms. Salvador was absent on March 31, 2022 (ECF

No. 110-10 at 3). See Melton Deposition (ECF No. 100-7 at 42-43) (her child returned from

special instruction and caught the tail end of a book, but Melton did not ask whether this was in

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the morning or afternoon).

The reading of the book caused confusion among the students. Ps’ ¶ 82. As reflected in

Boss’ contemporaneous notes, a student commented: “I don’t get it.” ECF No. 95-53. Another

student called out “Oh, I get it – she was a he” and Williams, as part of the discussion, said “yes,

she was a he,” referring to the character in the book. Ps’ ¶ 83.

There was still some confusion. Several students asked, “who decides this” and Williams

responded, “your parents do.” Ps’ ¶ 84; ECF No. 95-53. Williams then called for an unscheduled

recess. Ps’ ¶¶ 85-87.

Boss testified that as the class left, Williams said to Boss, “I hope you were ok with that

lesson,” to which Boss responded, “It doesn’t matter what I think – it matters what they think

and what their parents think.” Ps’ ¶ 88.

At 9:23 a.m. on March 31, 2022, Williams sent Bielewicz an email stating, “I was

thinking of sharing these read alouds with colleagues, but I just wanted to run it by you first?

They were both recommended to me by other teachers in the district.” Ps’ ¶ 74. Williams

testified that, other than the email, she did not seek Bielewicz’s prior approval in any way. (ECF

No. 100-20 at 61).

Bielewicz replied at 11:25 a.m., after he reviewed the links to two video illustrations of

the books. Bielewicz wrote: “I’m fine with it. It’s their choice if they wish to incorporate or

not.” Ps’ ¶ 74. After watching the videos, Bielewicz testified that he “went about my day.” Ps’ ¶

74a. Bielewicz testified that he never told Williams it was okay to read the books/play the

videos to her students; instead, he authorized her to share them with colleagues. (ECF No. 95-18

at 23).

At 11:38 a.m. on March 31, 2022, Williams shared links to Aidan and Introducing Teddy

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with the faculty and staff of Jefferson Elementary School via email; the email, among other

things, indicated “[t]oday is Transgender Day of Visibility” and “[t]his is a topic close to my

heart.” Ps’ ¶ 75.

2. The afternoon

There were two aides in Williams’ classroom during the afternoon of March 31, 2022,

Lisa Mathewson (“Mathewson”) and Jackie Girman (“Girman”). That afternoon, Williams

played/read to her students Introducing Teddy (ECF No. 95-58). The book contains the line: “In

my heart, I’ve always known that I’m a girl teddy, not a boy teddy.” Id. Teddy’s name is

changed to Tilly. Id. Neither the word “tolerance” nor the word “kindness” is contained in

Introducing Teddy. Ps’ ¶ 103. No character in Introducing Teddy was the subject of bullying or

being picked on. Ps’ ¶ 104.

Mathewson recalled that Williams played the video/read the book and had a five to ten

minute discussion about it prior to the afternoon recess. ECF No. 95-59 at 13-14. In the

discussion, Williams told the class her child would be coming for Take Your Child to Work Day

and would be in a dress. Ps’ ¶ 98b. Mathewson and Girman testified that, as part of the class

discussion, Williams told her first-grade class “parents make a guess about their children’s –

when children are born, parents make a guess whether they’re a boy or a girl. Sometimes parents

are wrong.” Ps’ ¶ 99; ECF No. 95-59 at 13; ECF No. 95-60 at 13-14.

After Williams had the afternoon discussion, one child raised his hand and said: “But I’m

a boy. I don’t want to be a girl.” ECF No. 95-60 at 14-15. Girman described the student as

“upset.” (ECF No. 100-28 at 19-20). Williams responded, “Yes you are. Talk with your parents

about that.” Ps’ ¶ 178.

Parents were not provided any advance notice or the ability to opt their children out from

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Williams’ instruction on March 31, 2022. Ps’ ¶ 21.

E. Plaintiffs’ and students’ reactions

After school on March 31, 2022, Tatel’s daughter asked Tatel “how do you know that I

am a girl?” Ps’ ¶ 108. Boss testified that the following day, Tatel’s daughter was “upset” and

brought up that “when you change a baby’s diaper . . . you know if they’re a boy or a girl.” Ps’ ¶

109.

After school on March 31, 2022, Tatel and her spouse discussed with their daughter the

topic of gender identity and explained their beliefs and “what we know to be true” about gender

and “have gotten her straight.” Ds’ ¶ 74. Tatel testified that she was not ready to have such a

discussion with her child and Williams’ instruction forced her to have it. Ds’ ¶ 74. Tatel was

able to explain her beliefs with her daughter, but her child remained confused. (ECF No. 110-3

at 147) (“[S]he was still confused. Because why would her teacher tell her something wrong?”).

Absent Williams’ conduct, Tatel would not have discussed transgender identity with her child.

(ECF No. 110-3 at 148.)

Melton’s child told Melton she did not really understand what was happening because

she came into class at the last part of the book. Melton did not press the issue because she felt

this was a topic her child was not old enough to truly understand. (ECF No. 100-7 at 42).

On the evening of March 31, 2022, L.R.’s daughter questioned whether her pink stuffed

bear, who she referred to as a boy, should really be a girl. Ps’ ¶ 110. Dunn’s child approached

Williams in class and asked whether Williams had ever changed her child’s diaper because, if so,

Williams would know whether her child was a boy or a girl. (ECF No. 95-1 at 74).

Dunn testified that Williams’ conduct caused Dunn “to have uncomfortable conversations

with my first grader that I shouldn't have to have in the first place.” (ECF No. 123-2 at 66). The

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next day, on April 1, 2022, Dunn emailed Steinhauer, stating: “I am a parent of a first grader at

Jefferson Elementary; and it has come to my attention that a teacher there is having adult

teachings about transgender with children.” Ds’ ¶¶ 76, 77; ECF No. 95-66. Dunn stated that she

was not comfortable with having her child return to Williams’ classroom and requested that the

District provide her child with on-line asynchronous instruction for the remainder of the school

year. Ds’ ¶¶ 76, 77; ECF No. 95-66.

On April 4, 2022, Melton met with Williams concerning the books that were read on

March 31, 2022, to the first-grade class. Ds’ ¶ 79. Melton recounted her recollection about the

substance of the meeting in a text message later that day and in her deposition. ECF No. 100-1

at 119; ECF No. 110-9 at 80-88. Williams disputed Melton’s memory about the substance of the

meeting. ECF No. 100-20 at 79-81.

On April 5, 2022, Tatel met with Bielewicz to express her disagreement with Williams’

conduct. Bielewicz told Tatel there were various perspectives and Williams felt the instruction

was appropriate. (ECF No. 95-50 at 70). Tatel testified that she asked Bielewicz to guarantee

that Williams would not teach the transgender content again, and Bielewicz said he could not.

(ECF No. 95-1 at 100).

F. Defendants’ reactions

1. Williams

Due to her own child’s gender transition, Williams felt that criticism that arose from the

events in her own first-grade class on March 31, 2022 was “so f**king personal.” Ps’ ¶ 63.

Williams exchanged numerous texts with friends and family in the days after March 31, 2022.

On the evening of March 31, 2022, Williams stated: “People are upset about the read alouds.

One is ‘representing’ the group and asked to meet with Brett [Bielewicz] tomorrow. I also told

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my class today about [Williams’ child], simply [because] it came up, we were talking about take

your child to work and I told them. . . . Brett [Bielewicz] and MB [Irvin] have my back but I

HATE THIS FEELING.” (ECF No. 95-64). Later in the exchange, Williams stated: “I feel sick

to my stomach about this. But I shouldn’t. I’m in the right here!” Id.

On April 1, 2022, Williams stated: “Tim Steinhauer knows everything and I did nothing

wrong. So I’m not in any professional trouble.” Id. Later, Williams acknowledged: “Yeah, it

was a much bigger reaction than I anticipated.” Id. In another text string, Williams stated: “6

parents emailed Brett [Bielewicz] to complain about my read aloud yesterday” and one parent

requested asynchronous learning for her child for the remainder of the year. (ECF No. 95-41).

On April 3, 2022, Williams texted, with respect to the parent complaints: “Brett

[Bielewicz] seemed cool as a freaking cucumber about it all.” (ECF No. 95-63). Later in the

exchange, Williams stated: “Tim [Steinhauer] and MB [Irvin] know everything and I am backed

by everyone. So I’m not in trouble professionally.” (ECF No. 95-63).

2. Bielewicz

Six parents complained to Bielewicz about Williams’ conduct on March 31, 2022.

Bielewicz characterized the Parents’ position as a “concern with the book.” (ECF No. 95-50 at

19).

On April 1, 2022, Girman reported Williams’ conduct to kindergarten teacher Casey

Stewart (“Stewart”). Stewart sent an email to Bielewicz, to memorialize that Williams told the

children, “when you’re born, your parents make a guess of what you are and sometimes

they’re right and sometimes they’re not.” Ps’ ¶ 100; ECF No. 95-61 (bold in original).

Bielewicz did not find it alarming and did not respond to the email or investigate the allegation.

(ECF No. 95-17); ¶¶ 134, 135.

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Bielewicz had no knowledge that Williams read one book in the morning and another in

the afternoon on March 31, 2022. Ps’ ¶ 147. Bielewicz did not know if Williams provided any

introduction to her class before reading either book, mentioned her own transgender child,

discussed potentially bringing her child to school, or engaged in any questions and answers with

the class after she read either Aidan or Introducing Teddy. Ps’ ¶ 148.

In a text exchange with a teacher who thanked him for his support of Williams, Bielewicz

responded: “Having mb [Irvin] and tim [Steinhauer] support helps too.” (ECF No. 95-65); Ps’ ¶

113. Regarding the text message, Bielewicz testified that, based on his conversations with

Steinhauer and Irvin, they had no issue with Williams having read the books. Ps’ ¶ 114.

Bielewicz testified that he does not have any objection to the use of the books. Ps’ ¶ 133.

On April 4, 2022, Bielewicz sent an email to Williams, stating: “You got tons of support

from top down – trust me!” ECF 100, Ex. 23.

Tatel met with Bielewicz on April 5, 2022. Bielewicz told Tatel that he approved

Williams’ instruction. Tatel testified: “[Bielewicz] told me Mrs. Williams came in that morning,

I believe he said before school, to show me the videos and I approved them.” (ECF No. 95-1 at

100). In the meeting with Tatel on April 5, 2022, Bielewicz said that Williams felt that reading

Aidan and Introducing Teddy was an appropriate decision in her classroom and for her

community of learners. Ps’ ¶ 164.

On April 7, 2022, a parent emailed Jefferson Elementary School second-grade teacher

Sarah Davis (“Davis”), asking that she be informed if “transgender” topics would be discussed in

her classroom. Bielewicz recommended that Davis reply by stating that, in the event of any

controversial subject, “moving forward, we will certainly inform parents ahead of time so that

they may determine if they’d like their child to be present during the activity.” Ds’ ¶¶ 92, 93;

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(ECF No. 100-18 at 49). Following Williams’ instruction on March 31, 2022, several

elementary principals, including Bielewicz, communicated via email that parents would be

notified of any instruction involving gender identity. Ds’ response to Ps’ ¶ 52.

Bielewicz assisted Williams with drafting an email to parents about bringing Williams’

child to Take Your Child to Work Day. ECF No. 95-50 at 62.

3. Irvin

Irvin learned from Bielewicz on April 1, 2022 that: Williams read Aidan and Introducing

Teddy to her students; parents reached out with questions; and Bielewicz was facilitating

meetings to follow up. (ECF No. 95-11 at 50). Irvin’s understanding, until the lawsuit was filed,

was that Williams read the books to her class; one student said “I’m a boy”; Williams responded

“you certainly are”; and that was the entirety of the conversation. Id. at 53.

Irvin testified it is her position that “it’s okay that [Williams] read those books. I wish we

would have provided parents notice.” (ECF No. 95-11 at 62). Regarding the books, Irvin did

not think there was anything wrong with what Williams did. Ps’ ¶ 129. At a public April 19,

2022 School Board DEI Committee meeting, Irvin expressed her opinion that it was okay for

Williams to have read Aidan. Ps’ ¶ 130.

The principal at Foster Elementary School, another school in the District, notified Irvin

that two of his teachers had read the same books that Williams read. Ps’ ¶ 131. Irvin did not ask

the principal at Foster Elementary School to talk to either the students or parents of students who

were in the respective classes. Ps’ ¶ 131a. Irvin did not talk to any of the aides in Williams’

classroom about the events of March 31, 2022. Ps’ ¶ 144. No District administrator ever

interviewed Boss, Mathewson, Girman, or Stewart. Ps’ ¶ 143.

In the fall of 2022, a German teacher was doing some introductory instruction to a fifth-

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grade class about family-related words in German. In response to a comment/question by a

student, the teacher allegedly made a statement to the effect that: “I understand biology, and

there’s always one mother and there’s always one father.” Ps’ ¶ 153. After discussing this

incident with Irvin, the school’s principal interviewed every student in the class. Ps’ ¶ 154.

Irvin testified that no policy had been adopted subsequent to Williams’ conduct that

would require parental notice. (ECF No. 95-11 at 62). Some time after May 5, 2022, however, a

practice was orally communicated to the principals, and teachers were instructed, not to read any

books on gender identity to their students while the lawsuit is pending. Id. at 62-63; Ds’ ¶ 113.

Irvin testified Steinhauer and she agreed that instructing teachers not to read any books on

gender identity “was going to be the best path at this point, not knowing the outcome of the

lawsuit.” (ECF No. 110-1 at 63) (emphasis added). Irvin explained this plan was adopted

despite the fact that she did not think there was anything wrong with what Williams did. Id.

4. Steinhauer

Steinhauer first became aware that Williams read the books Aidan and Introducing Teddy

to her first-grade students by having been informed by Irvin that there were parental complaints

about Williams reading those books to her classroom. Ds’ ¶ 105. Upon being informed of the

concerns expressed by parents, Steinhauer reviewed the books and concluded that it was

appropriate for Williams to use the books in her classroom. Ds’ ¶ 106.

Steinhauer did not respond to Dunn’s email dated April 1, 2022, in which she requested

asynchronous instruction for her child. Ps’ ¶¶ 125, 125a. Steinhauer did not undertake an

investigation to determine what Williams said in the classroom on March 31, 2022. Instead,

Steinhauer relied upon Irvin to ascertain what occurred in Williams’ classroom on March 31,

2022. Ds’ response to Ps’ ¶ 142.

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Steinhauer spoke about the books at a public School Board meeting on April 11, 2022

and indicated that he had seen the books and the underlying theme was about “kindness, empathy

towards all and acceptance towards others” and, at his deposition, Steinhauer testified that he

thought “it was appropriate that [Williams] used the books in her classroom.” Ps’ ¶ 123.

It is undisputed that the characters in Aidan and Introducing Teddy were not being

bullied and the books do not contain the words “tolerance” or “kindness.” Ps’ ¶¶ 93, 103, 104.

The books introduce the first-grade students to cute, lovable transgender characters, who make

the decision that they are a different gender than their sex, are affirmed in that belief by the other

characters and recognize that parents may make mistakes about their children’s gender.

On May 5, 2022, Steinhauer met with the Parents of a student in Williams’ class. During

that meeting, Steinhauer expressed that the Parents should have been notified in advance of

Williams reading the books on gender identity. Ds’ ¶ 112. After the May 5, 2022 meeting,

Steinhauer and Irvin directed elementary principals and teachers to ensure that parents would be

provided notice and the opportunity to opt out of instruction involving “controversial subjects.”

Ds’ ¶ 113. The directive was not put in writing. (ECF No. 100-43 at 65).

5. Wyland

At a public School Board meeting on April 11, 2022, Wyland made comments that he

testified were in favor of Williams’ instruction. Ps’ ¶ 116.

6. The District

Williams and Bielewicz were not disciplined with regard to anything that occurred on

March 31, 2022. Ps’ ¶¶ 155, 156. No written procedure was created instructing that, if topics of

gender identity are to be taught, parents should be given advance notice and the ability to opt

their children out of that instruction. Ps’ ¶ 43.

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The School Board did not discuss the adoption of a policy whereby parents would be

provided advance notice and opt-out rights for gender identity instruction and did not provide

any directive prohibiting instruction on gender identity. Ps’ ¶ 24.

Wyland, the School Board president, testified he was not aware of any written

operational guideline (i.e., a written procedure implementing a School Board policy) from the

District’s administration telling principals and teachers to provide advance notice if the subject

of gender identify is to be taught, or any written directive from the administration prohibiting the

subject of gender identity from being taught. Ps’ ¶ 25.

No written administrative practice or procedure requiring advance notice to parents of

gender identity related instruction was created by the Administration. Ps’ ¶ 26. The District’s

Elementary Curriculum available to parents via the District website and Atlas portal still does not

reference gender identity or gender identity instruction. Ps’ ¶ 53.

G. Policies and Practices in effect as of March 31, 2022

District Policy I(J), ECF No. 95-16, covers selection of instructional materials.

“Instructional materials” is defined broadly to refer: “to any material(s) (whether acquired or

locally produced) with instructional content or function that is used for formal or informal

teaching/learning purposes. These materials include, but are not limited to textbooks, other

books or articles, supplementary reading and instructional materials, . . . audio and video

materials, . . . .” Id. (emphasis added). Policy I(J)(f) provides that instructional materials “shall

be appropriate for the subject area and for the age, emotional development . . . and social

development of the students for whom the materials are selected.” Id. The Policy states: “It is

the responsibility of the Administration to implement and enforce this policy, and to develop

Administrative Procedures for implementation or enforcement where necessary.” Id.

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District Policy I(F), ECF No. 95-17, covers Curriculum and Parental Rights. In the

Policy, the School Board “recognizes that parents and guardians of students have the right to

access and review information concerning the instruction, assessment and academic progress of

their children.” Id. The objective of Policy I(F) is to identify the processes for developing the

curriculum and “to assure that parents and guardians of students can access and review

information concerning the instruction, assessment and academic progress of their children.” Id.

Policy I(F)(2) provides that curriculum development shall “comply with state and/or federal

mandates,” including parental rights to:

(a) access to information about the curriculum, including academic standards to

be achieved, instructional materials, and assessment techniques;
(b) a process for the review of instructional materials; [and]
(c) the right to have their child(ren) excused from specific instruction which
conflicts with their religious beliefs, . . .

Id. (Emphasis added). Policy I(F)(3) reiterates: “Parents and guardians of students enrolled

in the District have the right to access and review instructional materials for courses in

which their children are enrolled.” Id. (Emphasis added). Policy I(F)(4) provides that requests

for copies of instructional materials “may be written or oral and should be made directly to the

teacher of the course.” Id.

Policy I(F) states: “It shall be the responsibility of the administration to develop the

procedures necessary to implement this policy, including: (1) making available to parents . . .

instructional materials.” Id.

District Policy I(F) provides for opt outs for religious reasons. Steinhauer testified that

the Pennsylvania School Code regulations required opt outs only for religious reasons. (ECF 95-

21 at 67-69). Steinhauer explained that the District provided broader opt outs, including for

nonreligious reasons like therapy dogs, PG movies and sex ed topics. Id. Steinhauer testified the

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broader opt outs were a long-standing practice in the District. Id. at 70; ECF No. 95-9 at 72

(Irvin testifying that opt outs for growth and development were a long-standing practice).

Steinhauer explained that notice and opt outs were “always teacher prerogative.” (ECF

95-21 at 67-70). He testified: “We [i.e., the District] don’t have any specific guidelines for what

you should notify parents about and not notify parents about.” Id. Steinhauer confirmed there

were no written procedures about notice to parents. Id.

Wyland testified he was not aware of any written operational guideline (i.e., a written

procedure implementing a School Board policy) from the District’s administration telling

principals and teachers to provide advance notice if the subject of gender identify is to be taught,

or any written directive from the administration prohibiting the subject of gender identity from

being taught. Ps’ ¶ 25.

H. Settlement of the Preliminary Injunction

On June 16, 2022, Plaintiffs filed a motion for preliminary injunction (“PI”) to prevent

Defendants from presenting instruction on gender identity without notice and opt out rights for

the Parents. (ECF No. 5). The parties amicably resolved the motion and on June 28, 2022, the

court entered a stipulated order (ECF No. 12).

Defendants agreed to “provide, at a minimum, one (1) week written notice (by email) to

Plaintiffs of the intention to provide instruction or information on the topics of gender identity or

gender transitioning.” (ECF No. 12). Defendants did not admit liability and the order specified

it was “entered into for the purpose of obviating a request or need for preliminary injunctive

relief pending the adjudication of those claims.” (ECF No. 12).

The agreement has been in place for approximately two years. There is no evidence in

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the record that the agreement is unworkable or imposes any burden on Defendants.11

I. August 2022 written procedure for opt out requests

Effective August 29, 2022, Steinhauer and Irvin created a document entitled “Principal

Responsibilities Regarding Parental Requests for Students Excusal from Instruction for Religious

Objection.” (“August 2022 written procedure”) (ECF No. 95-34). After March 31, 2022, this is

the only written procedure created by District representatives addressing how to handle parental

opt out requests. Ps’ ¶¶ 41-42.

The August 2022 written procedure does not provide for advance notice to parents of

planned instruction topics so that they can decide whether or not to opt out their children. Ps’ ¶

46. The August 2022 written procedure only permits a parent to opt out a child if they have a

religious objection. Ps’ ¶ 48. If the parental objection is nonreligious, the opt out should not be

approved. Ps’ ¶¶ 49, 50.

In pertinent part, principals were instructed to ensure that opt out requests included all the

following: (1) children names; (2) the exempted curriculum topics were clearly stated and

understandable; and (3) a religious objection. Principals were cautioned that if requests did not

contain all the required information, those forms should not be signed, but instead be returned to

parents. In particular, if the request used a sample form circulating in the community that

referenced the stipulated agreement to resolve the PI (discussed above), rather than stating a

religious objection, the opt out request should be denied.

11
As set forth above, on May 5, 2022, Steinhauer and Irvin verbally directed elementary principals and
teachers to ensure that parents would be provided notice and the opportunity to opt out of instruction
involving “controversial subjects.” Ds’ ¶ 113. There is no evidence that this directive imposed any burden
on Defendants.
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J. The 2023-2024 “Disclaimer”

For the 2023-24 school year, the “Parental Rights” notification on the District website

contains a “Disclaimer” which indicates, in relevant part:

[T]he District curriculum may include instruction or discussion on a wide array of

topics including race, color, age, creed, religion, sex, gender, gender identity,
sexual orientation, ancestry, national origin, familial status, language, genetic
information, pregnancy, or handicap or disability, even if such instruction is not
specifically identified in the published Curriculum. Parents/guardians who
wish their child(ren) to be excused from specific instruction on these or any other
topics because they conflict with their religious beliefs should notify their
child(ren)’s principal in writing.

Ps’ ¶ 39 (emphasis added).

For the 2023-24 school year, the published Curriculum for Elementary School that is

available to parents via the District website and Atlas portal still does not mention instruction on

gender identity. Ps’ ¶ 40. Steinhauer agreed that the Disclaimer puts the burden on parents to

object to something that is not in the curriculum. (ECF No. 110-12 at 67) (Q: “The onus is on

the parent to tell the district I don’t want x subject matter taught to my child?” A: “Yes.”).

Steinhauer also agreed that parents can opt out only for religious reasons. Id.

V. Summary judgment standard

The standard for resolving cross-motions for summary judgment was set forth in Arconic

Corp. v. Novelis Inc., No. CV 17-1434, 2023 WL 5510574, at *1–2 (W.D. Pa. Aug. 25, 2023):

In Wilczek v. Phillips 66 Co., No. CV 19-17374, 2023 WL 3644652

(D.N.J. May 25, 2023), the court recently reviewed the general summary
judgment standard:

Federal Rule of Civil Procedure 56(a) provides that summary

judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204
(3d Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

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In deciding a motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving party. See
Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998)
(citing Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346,
1349 (3d Cir. 1994)).
The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). “[W]ith respect to an issue on which the nonmoving party
bears the burden of proof ... the burden on the moving party may be
discharged by ‘showing’ — that is, pointing out to the district court — that
there is an absence of evidence to support the nonmoving party's case.” Id.
at 325. Once the moving party has met that threshold burden, the non-
moving party “must do more than simply show that there is some
metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must
present actual evidence that creates a genuine issue as to a material fact for
trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth
types of evidence on which nonmoving party must rely to support its
assertion that genuine issues of material fact exist).
Unsupported allegations, subjective beliefs, or argument alone
cannot forestall summary judgment. See Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888 (1988) (nonmoving party may not successfully oppose
summary judgment motion by simply replacing “conclusory allegations of
the complaint or answer with conclusory allegations of an affidavit.”); see
also Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995)
(“[T]he nonmoving party creates a genuine issue of material fact if it
provides sufficient evidence to allow a reasonable jury to find for him at
trial.”). Thus, if the nonmoving party fails “to make a showing sufficient to
establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial ... there can be ‘no
genuine issue of material fact,’ since a complete failure of proof concerning
an essential element of the nonmoving party's case necessarily renders all
other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55, n.5
(3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

Id. at *1-2. In Moore v. Walton, 96 F.4th 616 (3d Cir. 2024), the Third Court of Appeals recently

explained: “A genuine dispute exists when the evidence is such that a reasonable jury could

return a verdict for the nonmoving party, and a fact is material if it might affect the outcome of

the suit under the governing law.” Id. at 622 (internal punctuation and citations omitted).

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VI. Discussion

A. The remaining claims

The following claims remain in the case: (1) Substantive Due Process (parental rights)

claims against all remaining Defendants (count I); (2) Procedural Due Process claims against all

remaining Defendants (count II); (3) familial privacy claims against Williams and the District

(count III); (4) First Amendment Free Exercise of Religion claims against all remaining

Defendants (count IV); (5) Equal Protection claims against Steinhauer, Irvin, Wyland and the

District (count IV); and (6) a request for declaratory judgment (count VI).12

Plaintiffs seek summary judgment on all claims, except the familial privacy claim.

Plaintiffs seek only nominal monetary damages for the violations of their constitutional rights

and declaratory relief to prevent future violations of their constitutional rights. Defendants

oppose Plaintiffs’ entitlement to any relief and seek summary judgment in favor of all

Defendants on all claims. Both parties assert that summary judgment is appropriate because the

material facts are not in dispute. (ECF No. 127 at 5; ECF No. 93 at 23). The court will address

each remaining claim, but first will address: (a) an overview of § 1983 claims; (b) the standards

for municipal and supervisory liability; (c) the claims against Wyland; and (d) the standards for

qualified immunity, which will need to be addressed for each claimed constitutional violation.

B. Section 1983 Overview

Plaintiffs assert all their constitutional claims under § 1983, which provides a mechanism

for enforcing individual rights secured by the Constitution. Gonzaga Univ. v. Doe, 536 U.S. 273,

285 (2002). To prevail on a § 1983 claim, a plaintiff must plead: (1) a deprivation of a right,

privilege or immunity secured by the Constitution or laws of the United States; and (2) the
12
The children’s right to privacy claim in count V was dismissed without prejudice.
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conduct complained of was committed by a person acting under the color of state law. 42 U.S.C.

§ 1983. In this case, Defendants do not dispute that they acted under the color of state law.

Defendants vigorously assert, however, that they did not infringe the Parents’ constitutional

rights.

Plaintiffs assert violations of their rights under the Fourteenth Amendment to the United

States Constitution with respect to Substantive Due Process, Procedural Due Process, familial

privacy, and Equal Protection and under the First Amendment to the United States Constitution

with respect to Free Exercise of Religion. The Fourteenth Amendment provides, in relevant part:

No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

U.S. Const. Amend. XIV. The First Amendment provides, in relevant part:

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof....

U.S. Const. Amend. I.

The protections in the Bill of Rights (including the Free Exercise clause) are made

applicable to state actors through the incorporation doctrine under the Fourteenth Amendment.

See Timbs v. Indiana, 586 U.S. 146, 150 (2019) (“With only ‘a handful’ of exceptions, this Court

has held that the Fourteenth Amendment's Due Process Clause incorporates the protections

contained in the Bill of Rights, rendering them applicable to the States.”). In West Virginia

Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court noted the importance

of distinguishing between the Due Process clause of the Fourteenth Amendment when “it is

applied for its own sake” and when it serves as “an instrument for the First Amendment.” Id. at

639. States may restrict First Amendment rights raised by way of the Fourteenth Amendment

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“only to prevent grave and immediate danger to interests which the state may lawfully protect.”

Id. Defendants did not articulate any grave or immediate danger to protected interests in this

case.

C. Municipal and supervisory liability/ ratification

1. Municipal liability

The Supreme Court outlined the standards for municipal liability in Monell v.

Department of Social Services of the City of New York, 436 U.S. 658 (1978). In G.S. v. Penn-

Trafford School District, No. 20-3281, 2023 WL 4486667 at *3 (3d Cir. July 12, 2023)

(reversing dismissal of a Monell claim against a school district), the Third Circuit Court of

Appeals explained: “A school district may incur Monell liability under Section 1983 for a

violation of an individual's constitutional rights when it implements an official policy or custom

that results in a constitutional deprivation.” The court noted that if an official without

policymaking authority violates a plaintiff's constitutional rights, a municipality can be held

liable “if the final policymaker either acquiesced in the subordinate's decisions or delegated

authority to him or her.” Id. at *4; accord Kelly v. Borough of Carlisle, 622 F.3d 248, 264 (3d

Cir. 2010) (subordinate's decisions can only establish policy “if a municipal policymaker

delegated power to the employee or ratified his decision.”).

2. Ratification

In G.S., the court recognized: “the Supreme Court held in City of St. Louis v. Praprotnik,

485 U.S. 112, 142 (1988) that ‘[i]f the authorized policymakers approve a subordinate's decision

and the basis for it, their ratification would be chargeable to the municipality because their

decision is final.’” G.S., 2023 WL 4486667 at *4 n. 34. In G.S., the court held that the parent-

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plaintiff stated a claim “that the administrators’ ‘clear message’ became policy when the School

District's superintendent reviewed and approved [her child’s] suspension.” Id. at *4.

In Praprotnik, the Court explained:

When an official's discretionary decisions are constrained by policies not of that

official's making, those policies, rather than the subordinate's departures from
them, are the act of the municipality. Similarly, when a subordinate's decision is
subject to review by the municipality's authorized policymakers, they have
retained the authority to measure the official's conduct for conformance with their
policies. If the authorized policymakers approve a subordinate's decision and the
basis for it, their ratification would be chargeable to the municipality because
their decision is final.

Praprotnik, 485 U.S. at 127.

A municipality “will be liable if an official with authority has ratified the

unconstitutional actions of a subordinate, rendering such behavior official for
liability purposes.” McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (citing
Praprotnik, 482 U.S. at 127). Ratification occurs “only ‘when a subordinate's
decision is subject to review by the municipality's authorized policymakers
[because] they have retained the authority to measure the official's conduct for
conformance with their policies.’” Kelly v. Borough of Carlisle, 622 F.3d 248,
264 (3d Cir. 2010) (citing Praprotnik, 485 U.S. at 127).

Martin v. Harveys Lake Bor., No. 3:20CV330, 2024 WL 387685, at *6 (M.D. Pa. Jan. 31, 2024).

In Starbuck v. Williamsburg James City County School Board, 28 F.4th 529 (4th Cir. 2022), the

court explained:

the entire concept of ratification liability presupposes that the initial complained-
of conduct precedes involvement by the final policymaking authority.
Accordingly, neither the Supreme Court nor this Court has ever held that initial
involvement is required to hold officials with final policymaking authority liable
as the “moving force” for ratification of the decisions of subordinates.

Id. at 535.

Ratification can occur if the subordinate’s decision is “cast in the form of a policy

statement and expressly approved by the supervising policymaker.” Praprotnik, 485 U.S. at

130. In that case, “the supervisor could realistically be deemed to have adopted a policy that

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happened to have been formulated or initiated by a lower-ranking official.” Id.

3. Supervisory liability

“Supervisory liability under § 1983 utilizes the same standard as municipal liability.”

Richardson v. Clark, No. 1:22-CV-00029, 2024 WL 1258653, at *6 (M.D. Pa. Mar. 25, 2024)

(citing Carter v. City of Philadelphia, 181 F.3d 339, 356 (3d Cir. 1999)). To be liable under §

1983, Plaintiffs must show the supervisor “participated in violating their rights, or that he

directed others to violate them, or that he, as the person in charge [ ], had knowledge of and

acquiesced in his subordinates' violations.” Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d

Cir. 1995).

D. Claims against school board member Wyland

Defendants argue that summary judgment should be granted in favor of Wyland on all

claims against him. They contend that as an individual school director, he had no supervisory or

policy-making authority (ECF No. 113 at 18 n.4). Plaintiffs did not respond to this argument.

The court agrees that Wyland is entitled to summary judgment on all claims against him.

There is no evidence, on this record, that Wyland had any personal involvement in the alleged

constitutional violations beyond expressing his personal opinions at public school board

meetings. As a single school director, Wyland did not exercise supervisory or policy-making

authority. As explained in Deltondo v. School District of Pittsburgh, No. CV 2:22-350, 2023

WL 2876812 (W.D. Pa. Jan. 30, 2023), report and recommendation adopted, No. 2:22-CV-350,

2023 WL 2534817 (W.D. Pa. Mar. 16, 2023):

With respect to claims against the School Board members in their individual
capacities, the Supreme Court has held that, “to establish personal liability in a §
1983 action, it is enough to show that the official, acting under color of state law,
caused the deprivation of a federal right.” Melo v. Hafer, 502 U.S. 21, 25 (1991)

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(citation omitted). However, individual School Board members cannot terminate a

teacher's employment and can only do so by voting as a group. See 24 P.S. § 5-
508 (“The affirmative vote of a majority of all the members of the board of school
directors in every school district, duly recorded, showing how each member
voted, shall be required in order to ... [d]ismiss a teacher after a hearing.”) A
single member of a governing body cannot be held liable for decisions that are
made by the body as a whole.

Id. at *14. In LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003)

(addressing a similar situation involving one member of a three-member board), the court

explained:

only a majority of the three-member Board is authorized to establish policy on

behalf of the County. 16 Pa. Cons. Stat. § 504. Therefore, whatever the contents
of Marino's statements, because he was only one member of the Board, those
comments do not constitute County policy. See City of St. Louis v. Praprotnik,
485 U.S. 112, 123, 108 S. Ct. 915, 99 L.Ed.2d 107 (1988) (“[O]nly those
municipal officials who have ‘final policymaking authority’ may by their actions
subject the government to § 1983 liability.”).

Under Pennsylvania law, “[t]he affirmative vote of a majority of all the members of the board of

school directors in every school district, duly recorded, showing how each member voted, shall

be required in order to take action on the following subjects: . . . Appointing or dismissing

district superintendents, assistant district superintendents, associate superintendents, principals,

and teachers; . . . Adopting courses of study . . . .” 24 Pa. Cons. Stat. § 5-508.

Here, there is no evidence that Wyland knew about Williams’ in-class conduct in

advance. There is no evidence that the School Board delegated Wyland to act on its behalf.

Developing policies, adopting courses of study and supervising the actions of the superintendent

were roles for the board as a whole, and Wyland had only one vote. Accordingly, viewing the

evidence in the light most favorable to Plaintiffs, no reasonable jury could render a verdict in

favor of Plaintiffs on their claims against Wyland and summary judgment must be entered in

favor of Wyland and against Plaintiffs on all claims against Wyland in his individual capacity.

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E. Standards for Qualified Immunity

Qualified immunity is an affirmative defense, which a defendant has the burden to

establish by a preponderance of the evidence. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir.

2014) (“we follow the general rule of placing the burden of persuasion at a summary judgment

proceeding on the party asserting the affirmative defense of qualified immunity.”). Whether

qualified immunity exists is a question of law for the court, although when qualified immunity

depends on disputed issues of fact, those issues must be determined by the jury. Monteiro v. City

of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006). In this case, the parties did not point to any

material disputes of fact about qualified immunity.

The doctrine of qualified immunity “shields governmental officials from suit and from

liability if their conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Mack v. Yost, 63 F.4th 211, 221 (3d Cir. 2023)

(quoting Peroza-Benitez v. Smith, 994 F.3d 157, 164-65 (3d Cir. 2021). The doctrine balances

two interests: (1) holding public officials accountable when they exercise power irresponsibly;

and (2) shielding “officials from harassment, distraction, and liability when they perform their

duties reasonably.” Id.

In Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000), the court explained that the test for

determining whether an allegedly violated right is clearly established “is not whether the current

precedents protect the specific right alleged but whether the contours of current law put a

reasonable defendant on notice that his conduct would infringe on the plaintiff's asserted right.”

Id. at 302. In Clark v. Coupe, 55 F.4th 167 (3d Cir. 2022), the court explained: “The dispositive

question is whether the violative nature of the particular conduct is clearly established.” Id. at

182 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)) (emphasis in original).

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The individual Defendants requested qualified immunity at the motion to dismiss stage,

which the court denied without prejudice. The individual Defendants renew that request at the

summary judgment stage and the court will address that request with respect to each pertinent

claim.

Municipal entities, such as the District, “do not enjoy qualified immunity from suit for

damages under § 1983.” Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d

136, 145 (3d Cir. 2017). In Barna, the court explained:

Although not subject to respondeat superior liability, municipalities may be held

directly liable under Monell if they adopt a custom or policy that is
unconstitutional or that is the “moving force” behind any constitutional violation.
See Monell, 436 U.S. at 694, 98 S.Ct. 2018; Thomas v. Cumberland Cty., 749
F.3d 217, 222 (3d Cir. 2014). Municipalities can be held liable regardless of
whether it was clear at the time of the policy's adoption that such conduct would
violate a plaintiff's constitutional rights. Owen, 445 U.S. at 656–57, 100 S.Ct.
1398. Because liability may be imposed on a municipality separate and apart from
the liability imposed on an individual officer, “[t]he precedent in our circuit
requires the district court to review the plaintiffs' municipal liability claims
independently of the section 1983 claims against the individual ... officers.”
Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996); see also Fagan v. City of
Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994) (“A finding of municipal liability
does not depend automatically or necessarily on the liability of a police officer.”).

Barna, 877 F.3d at 145 n.6.

F. Constitutional claims

1. Substantive due process (parental rights) (Count I)

Parents have a fundamental right to control the upbringing of their children. This

parental right is protected under the Fourteenth Amendment to the United States Constitution by

the Substantive Due Process doctrine. In Dobbs v. Jackson Women's Health Organization, 142

S. Ct. 2228, 2242 (2022), the Supreme Court explained that the Due Process Clause

“guarantee[s] some rights that are not mentioned in the Constitution, but any such right must be

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‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered

liberty.’” Id. at 2242 (quoting Glucksberg, 521 U.S. at 721).

The parental right to custody, control and nurture of their children is deeply rooted and

implicit in the United States’ concept of ordered liberty. The Supreme Court repeatedly

emphasized the fundamental nature of that parental right. See ECF No. 38 at 19-23 (quoting

numerous Supreme Court decisions); see, e.g., Pierce v. Society of the Sisters of the Holy Names

of Jesus & Mary, 268 U.S. 510, 535 (1925) (“The child is not the mere creature of the state;

those who nurture him and direct his destiny have the right, coupled with the high duty, to

recognize and prepare him for additional obligations.”); Prince v. Massachusetts, 321 U.S. 158

(1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation for obligations the state can

neither supply nor hinder .... And it is in recognition of this that these decisions have respected

the private realm of family life which the state cannot enter.”); Wisconsin v. Yoder, 406 U.S. 205

(1972) (“The history and culture of Western civilization reflect a strong tradition of parental

concern for the nurture and upbringing of their children. This primary role of the parents in the

upbringing of their children is now established beyond debate as an enduring American

tradition.”). In Troxel v. Granville, 530 U.S. 57, 65 (2000), the Supreme Court stated: “[T]he

interest of parents in the care, custody, and control of their children—is perhaps the oldest of the

fundamental liberty interests recognized by this Court.” As this court observed in its earlier

opinion:

These repeated pronouncements from the Supreme Court are not simply platitudes
or mere surplusage, which may be given lip service and brushed aside. The
Supreme Court clearly recognized that the right of parents to control the
upbringing and education of their children is fundamental. This right is deeply
rooted in the nation’s history and implicit in the concept of ordered liberty.

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ECF No. 38 at 23.

This case involves the assertion of parental rights in the context of a public school. In

Edwards v. Aguillard, 482 U.S. 578 (1987), the Supreme Court summarized the social contract

between parents and public schools:

Families entrust public schools with the education of their children, but condition
their trust on the understanding that the classroom will not purposely be used to
advance religious views that may conflict with the private beliefs of the student
and his or her family. Students in such institutions are impressionable and their
attendance is involuntary. See, e.g., Grand Rapids School Dist. v. Ball, 473 U.S.
373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985); Wallace v. Jaffree, 472
U.S. 38, 60, n. 51, 105 S.Ct. 2479, 2492, n. 51, 86 L.Ed.2d 29 (1985); Meek v.
Pittenger, 421 U.S. 349, 369, 95 S.Ct. 1753, 1765, 44 L.Ed.2d 217 (1975);
Abington School Dist. v. Schempp, 374 U.S. 203, 252–253, 83 S.Ct. 1560, 1587–
1588, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). The State exerts great
authority and coercive power through mandatory attendance requirements, and
because of the students' emulation of teachers as role models and the children's
susceptibility to peer pressure.

Id. at 584.

The fundamental parental right is distinct from the First Amendment right to Free

Exercise of Religion, although many of the decisions involving education of children implicate

both rights.13 Defendants argue, citing the Pennsylvania School Code, 22 Pa. Code § 4.4, that a

school is required to provide opt out rights only for religious reasons. (ECF No. 127 at 17-18).

The scope of federal constitutional rights, however, “is defined by the Constitution and may not

be restricted by a state legislature or by state education officials.” C.N., 430 F.3d at 178. In

Fairchild v. Liberty Indep. Sch. Dist., No. 1:06-CV-92, 2008 WL 11446526, (E.D. Tex. Feb. 11,

2008), the court explained: “It is important to remember that even if the [state statute]

sanctioned the Board’s policies and actions, Constitutional guarantees would still trump the

13
The Third Circuit Court of Appeals has rejected the “hybrid rights” theory. See Combs v. Homer-
Center Sch. Dist., 540 F.3d 231, 247 (3d Cir. 2008) (“Until the Supreme Court provides direction, we
believe the hybrid-rights theory to be dicta”).

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statute.” Id. at *11. In this case, all Plaintiffs (including Dunn) have cognizable rights under the

Substantive Due Process doctrine because the policy burdens their fundamental parental rights.

The state regulation and District Policy I(F) are underinclusive because they do not recognize the

fundamental parental rights of nonreligious parents. Put another way, both parents with religious

beliefs (like Tatel and Melton) and parents who do not assert religious beliefs (like Dunn)

possess fundamental parental rights under the Substantive Due Process doctrine.

The extent of parents’ substantive due process rights under the United States Constitution

is a legal question for the court. Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is

emphatically the province and duty of the judicial department to say what the law is.”). In C.N.

v. Ridgewood Board of Education, 430 F.3d 159 (3d Cir. 2005) (“C.N.”) 14, the court recognized

that “[t]he Supreme Court has never been called upon to define the precise boundaries of a

parent's right to control a child’s upbringing and education.” Id. at 182.

The Third Circuit Court of Appeals recognizes and respects parental rights as primary

and fundamental, but those rights are not absolute or unlimited. In Gruenke, the court

commented:

Notwithstanding these near-absolutist pronouncements, the [Supreme] Court has

also recognized that for some portions of the day, children are in the compulsory
custody of state-operated school systems. In that setting, the state's power is
“custodial and tutelary, permitting a degree of supervision and control that could
not be exercised over free adults.” Vernonia Sch. Dist. v. Acton, 515 U.S. 646,
655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

Gruenke, 225 F.3d at 304. “Thus, there may be circumstances in which school authorities, in

order to maintain order and a proper educational atmosphere in the exercise of police power, may

impose standards of conduct on students that differ from those approved by some parents.” Id.15

14
In the initial motion to dismiss opinion, this decision was referred to as “Ridgewood,” but in this
opinion and hereafter, it will be referred to as “C.N.”
15
There is no evidence in this record that Williams’ instruction was necessary to maintain order and a
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In Combs (involving a challenge to home schooling regulations), the court explained that parents

“do not have a constitutional right to control each and every aspect of their children's education

and oust the state's authority over that subject.” 540 F.3d at 248 (emphasis added).

If government action infringes on a fundamental right, courts apply strict scrutiny.

Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (“the Fourteenth Amendment ‘forbids the

government to infringe ... ‘fundamental’ liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”)

(citation omitted, emphasis in original). In this case, Defendants argue that the Parents’ asserted

rights are not fundamental, and therefore, only rational basis review16 applies. Defendants

contend that the Parents’ beliefs are not relevant because the Parents’ rights stop at the

schoolhouse door. That argument was specifically rejected by the Third Circuit Court of

Appeals in C.N.:

[W]e do not hold, as did the panel in Fields v. Palmdale School District, 427 F.3d
1197 (9th Cir. 2005), that the right of parents under the Meyer–Pierce rubric
“does not extend beyond the threshold of the school door.” Id. at 1207. Nor do we
endorse the categorical approach to this right taken by the Fields court, wherein it
appears that a claim grounded in Meyer–Pierce will now trigger only an inquiry
into whether or not the parent chose to send their child to public school and if so,
then the claim will fail.

C.N., 430 F.3d at 185 n.26.

Defendants’ continued reliance on decisions from other circuits is misplaced. As

explained in the court’s previous opinions in this case (ECF Nos. 38, 55), there is a circuit split

between the Court of Appeals for the Third Circuit’s respect for the primacy of parental rights

and the school-primacy approach taken in other circuits.17

proper educational atmosphere.

16
Under rational basis review, the state action will be upheld if it is rationally related to any legitimate
state interest. See infra at 76.
17
As this court previously observed:
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Third Circuit Court of Appeals’ precedent recognizes that when conflicts occur between

parents and public schools on matters of the greatest importance, the Parents’ rights prevail

unless the public school can demonstrate a compelling interest for its actions. C.N., 430 F.3d at

184; Gruenke, 225 F.3d at 305. The Third Circuit Court of Appeals reminded public schools

that:

[p]ublic schools must not forget that ‘in loco parentis' does not mean ‘displace
parents.’ It is not educators, but parents who have primary rights in the
upbringing of children. School officials have only a secondary responsibility and
must respect these rights. State deference to parental control over children is
underscored by the [Supreme] Court's admonitions that the child is not the mere
creature of the State, and that it is the Parents' responsibility to inculcate moral
standards, religious beliefs, and elements of good citizenship.

C.N., 430 F.3d at 183 (quoting Gruenke, 225 F.3d at 304, 307) (emphasis added).18

The holding in Parker [v. Hurley, 514 F.3d 87 (1st Cir. 2008)] and Fields [v. Palmdale
School District, 427 F.3d 1197 (9th Cir. 2005), amended on denial of rehearing, 447 F.3d
1187 (9th Cir. 2006),] that parents forfeit their rights at the schoolhouse door and retain
only the right to decide whether or not to send their children to public school may be
fundamentally unfair to parents who in reality do not have that choice. Many people
cannot afford to pay for private school for their children and may be working parents or
may not be educationally or otherwise able to home school their children. For many,
particularly those of limited means or education, public school is effectively mandatory.
Edwards, 482 U.S. at 584. Constitutional rights should not be analyzed in a way that
benefits only socially and economically advantaged persons. In sum, the court in Parker
did not persuasively apply Supreme Court precedent about the fundamental nature of the
parental rights at issue and how to balance those rights with the interests of a public
school in a pluralistic society. See Kennedy [v. Bremerton School District, 597 U.S. 507
(2022)], 142 S. Ct. at 2431 (rule suppressing religious expression “would undermine a
long constitutional tradition under which learning how to tolerate diverse expressive
activities has always been ‘part of learning how to live in a pluralistic society.’”).

ECF No. 38 at 38.

18
Defendants’ reliance on McCurdy v. Dodd, 352 F.3d 820 (3d Cir. 2003), is misplaced. That decision
did not involve the parental right to control the education and upbringing of a minor child. In McCurdy, a
father asserted a parental rights claim arising from a police shooting of his adult son. The father was in
jail at the time of the incident, did not provide any meaningful financial support for his son or list his son
as a dependent on his income tax returns. It was unclear whether he ever resided with his biological son or
performed any parental duties. Id. at 823. The court held: “we hold that the fundamental guarantees of
the Due Process Clause do not extend to a parent’s interest in the companionship of his independent
adult child.” Id. at 830 (emphasis added). There is no evidence adduced in the pending motions that
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Within the Third Circuit, courts (and school officials) must distinguish “between actions

that strike at the heart of parental decision-making authority on matters of the greatest

importance and other actions that, although perhaps unwise and offensive, are not of

constitutional dimension.” C.N., 430 F.3d at 184. In J.S. ex rel. Snyder v. Blue Mountain School

District, 650 F.3d 915 (3d Cir. 2011), the court emphasized that “the threshold for finding a

conflict will not be as high when the school district's actions “strike at the heart of parental

decision-making authority on matters of the greatest importance.” Id. at 933-34.

If a conflict occurs on a matter of greatest importance, the school must recognize and

respect the primacy of the parental rights:

It is not unforeseeable, therefore, that a school's policies might come into conflict
with the fundamental right of parents to raise and nurture their child. But when
such collisions occur, the primacy of the Parents' authority must be recognized
and should yield only where the school's action is tied to a compelling interest.

Gruenke, 225 F.3d at 305.

In C.N., in discussing an issue related to a survey given to middle school and high school

students, the court recognized that “introducing a child to sensitive topics before a parent might

have done so herself can complicate and even undermine parental authority.” 430 F.3d at 183.

In other words, the burden is on the school – not the Parents – to foresee areas in which the

school’s policies might conflict with parents’ fundamental rights. In the event of a conflict, the

school must either: (1) recognize the primacy of parents’ authority; or (2) articulate a compelling

interest for the school’s action. Gruenke, 225 F.3d at 305.

Plaintiffs were similarly uninvolved with their dependent young children. In any event, McCurdy could
not overrule Gruenke. See Third Circuit IOP 9.1 (“no subsequent panel overrules the holding in a
precedential opinion of a previous panel”).

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In this case, the parties agree that “what occurred in Williams’ classroom on March 31,

2022 is well established by the evidentiary record.” ECF No. 113 at 8. It is undisputed that

neither the curriculum section of the District’s website nor the information available to parents in

the relevant period referred to teaching transgender topics to elementary students. Ps’ ¶ 8. It is

also undisputed that Williams gave Parents no notice or opportunity to opt their children out of

her instruction about transgender topics. Plaintiffs are not trying to control each and every aspect

of their children’s education – only noncurricular teaching to their young children about a

sensitive topic. The Parents only seek relief related to their children and recognize other parents

may choose not to opt their children out of instruction about sensitive topics, like transgender

issues. In other words, the Parents seek only to have effective prior notice and the ability to opt

their own young children out of that kind of instruction.

The court applies Third Circuit Court of Appeals’ precedent to the undisputed facts. The

court considers whether: (1) there are conflicts; (2) they rise to constitutional dimension, i.e.,

strike at the heart of parental decision-making authority on matters of the greatest importance;

and (3) if so, the school’s action is tied to a compelling interest. C.N., 430 F.3d at 184; Gruenke,

225 F.3d at 305 (if a school's policies come into conflict with the fundamental right of parents to

raise and nurture their child, “the primacy of the Parents' authority must be recognized and

should yield only where the school's action is tied to a compelling interest.”). Defendants

recognize that their conduct conflicts with Plaintiffs’ beliefs. Defendants argue, however, that

the conflicts do not implicate the Constitution because parents’ rights stop at the schoolhouse

door.

a. The school’s actions conflict with the Parents’ beliefs

There are several conflicts between the Parents and Defendants. The court will discuss

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three disagreements asserted by the Parents: (1) Williams’ statements that “he is now a she”; (2)

Williams’ statement that “when children are born, parents make a guess whether they’re a boy or

a girl. Sometimes parents are wrong,” Ps’ ¶ 99; and (3) Williams’ unilateral decision to

introduce these topics to her first-grade students.

i. “He is now a she”

The Parents object to Williams’ instruction that a boy can choose to become a girl, or

vice versa. The Parents disagree that gender is a subjective, individual choice. They assert that

gender is objective, immutable and determined by God and biology.

Tatel testified: “I believe that God created us in his image. He created man and woman

and body and soul are the same. So I don’t think that it’s possible to have a boy brain and a girl

body or a boy body and girl brain. . . . I think to do something to your body to change what God

created you as would be a sin.” (ECF No. 95-1 at 27). Tatel stated: “I don’t think that there is

any way that someone who is born male, with male chromosomes, could ever become a female.”

Id. Tatel testified:

Yeah, kids don't choose their sex. Right? Parents don't choose their kids' sex. I've
already told you, I believe that God gives you the sex. God creates you male or
female. This is implying that we -- both the child and the mother, they made a
mistake about what God gave them.

(ECF No. 123-1 at 68).

Melton testified: “I believe that God created men and women. When he created us, he

created our bodies and spirits. Both are either male or female. I do not believe that God created

a male body with a female spirit in it. I believe that those two match and that is who we are.

That is the gender that you are when you are born.” (ECF No. 95-2 at 10). Melton stated: “I

personally don’t believe that a man can become a woman or a woman can become a man.” Id. at

11.

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Dunn succintly explained her moral beliefs about gender: “You’re born what you’re born

when you come into this world, and that’s that.” (ECF No. 95-3 at 20).

Williams’ statement to her first-grade students that “he is now a she” is directly contrary

to Plaintiffs’ beliefs about gender.

ii. Parents guess and sometimes are wrong about a child’s gender

Plaintiffs object to Williams’ instruction that “when children are born, parents make a

guess whether they’re a boy or a girl. Sometimes parents are wrong.” Ps’ ¶ 99. Williams read to

the first-grade students the books Aidan and Introducing Teddy, which presented gender as the

child’s or transgender character’s choice, about which parents can be mistaken. See, e.g., Ps’ ¶

94 (“we [the Parents] didn’t know you were going to be our son. We made some mistakes but

you helped us fix them.”); Ps’ ¶ 99; ECF No. 95-59 at 13; ECF No. 95-60 at 13-14. Williams

reinforced that presentation in her comments to the students described above. This conflict

implicates the dynamics of the Parents’ relationship with their children.19

Plaintiffs assert that a young child’s gender is a parental decision, based upon the

Parents’ religious or moral beliefs, not a young child’s decision. Plaintiffs dispute the idea that a

child the age of the characters in Aidan and Introducing Teddy has the maturity to understand

that the teacher’s statements conflict with the Parents’ religious and moral beliefs and that the

teacher could be wrong in instructing that a child determines the child’s own gender.

Plaintiffs testified they believed it was their role, as parents, to make decisions about

gender identity on behalf of their children until the children have enough maturity to make that

kind of decision for themselves. See Melton Deposition (ECF No. 110-9 at 70) (“I don’t think

children – they don’t have the maturity. That’s why they’re our children and that’s why they

19
As discussed above, the Parents dispute that gender is a “guess” and assert it is an objective reality.
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have parents, to help them learn and grow and experience the world, because they can’t do it on

their own.”); Tatel Deposition (ECF No. 123-1 at 70) (“ As a parent, it's my job to keep the guide

rails in place, to keep her safe, to make sure she stays on the right path both morally and as a

human being, a citizen.”).

Melton testified: “We believe that God sent those kids to us to raise them, to instill

morals and values and teach them how to be good people and to help them create a value system

and morality system for their life. . . . When a teacher steps in and starts teaching things that are

contrary to the value system that I believe, that’s an – it infringes upon my right as a parent to

teach that to my own child.” (ECF No. 95-2 at 15-16).

Williams’ instruction that a parent may be wrong about a young child’s gender conflicts

with the Parents’ beliefs about their role as parents to make decisions about their young children.

iii. What age to introduce transgender topics

Plaintiffs object to Williams’ unilateral decision to present transgender topics to their

first-grade children without their permission. Melton testified: “I am responsible for introducing

topics at appropriate times for my children when I know that they’re ready and capable of

understanding those topics.” (ECF No. 95-2 at 16).

As Dunn testified, Williams’ conduct caused Dunn “to have uncomfortable conversations

with my first grader that I shouldn't have to have in the first place.” (ECF No. 123-2 at 66).

Tatel was able to explain her beliefs with her daughter, but her child remained confused. (ECF

No. 110-3 at 147). Absent Williams’ conduct, Tatel would not have discussed gender identity

with her child. (ECF No. 110-3 at 148.)

Williams’ decision to introduce transgender topics to her first-grade students was in

conflict with the Parents’ belief that their children were too young to discuss gender identity

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issues.

b. An important matter of parental decision-making

The crux of this case is whether the conflicts implicate the Parents’ constitutional rights.

Defendants posit that Williams’ conduct consisted merely of reading two books and having two

short discussions on March 31, 2022. Defendants argue that her conduct was “perhaps unwise

and offensive, [but was] not of constitutional dimension.” C.N., 430 F.3d at 184. Plaintiffs

contend that the issues in this case “strike at the heart of parental decision-making authority on

matters of the greatest importance.” Id.

The court must consider the young age of the children and the nature of the conflicts

discussed above about: (1) forming the children’s core identity; (2) the Parents’ role and

authority in forming their young children’s gender identity (i.e., suggesting parents make a guess

and children can fix parents’ mistakes about whether their own child is a boy or girl); and (3) the

Parents’ authority to decide when to discuss transgender topics with their children.

i. Plaintiffs’ children were in first-grade

In Busch v. Marple Newtown School District, 567 F.3d 89 (3d Cir. 2009), the Third

Circuit Court of Appeals recognized that the age of the children being instructed is an important

factor in evaluating parental constitutional rights:

“While secondary school students are mature enough and are likely to understand
that a school does not endorse or support speech that it merely permits on a
nondiscriminatory basis, kindergartners and first graders are different.” Id. at
277 (internal quotation marks and citation omitted). For elementary school
students, “the line between school-endorsed speech and merely allowable
speech is blurred, not only for the young, impressionable students but also
for their parents who trust the school to confine organized activities to
legitimate and pedagogically-based goals.” Id.

Id. at 96 (quoting Walz ex rel. Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir.

2003)) (emphasis added). In Walz, which upheld restrictions on an elementary student’s ability

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to pass out candy canes20 and pencils with religious messages, the court noted that “the age of the

students bears an important inverse relationship to the degree of control a school may exercise:

as a general matter, the younger the students, the more control a school may exercise.” 342 F.3d

at 276 (citing Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 290–91 n. 69 (1963)

(Brennan, J., concurring) (“[T]he susceptibility of school children to prestige suggestion and

social influence within the school environment varies inversely with the age, grade level, and

consequent degree of sophistication of the child.”).

In Busch, the court held that a school could prevent a mother from reading a Psalm as

part of a “show and tell” activity. The court explained that, for young children, speech by a

student's parent “blurs ‘the line between school-endorsed speech and merely allowable speech.’”

567 F.3d at 98 (quoting Walz); cf. C.N., 430 F.3d at 187 (recognizing that public schools may

require older students to state the arguments that could be made on both sides, to encourage

critical thinking).

Here, the conduct at issue involves speech by a teacher that was part of noncurricular

classroom instruction. The concern that young students will believe an adult’s statements to be

endorsed by the school applies much more forcefully when the speaker is the child’s teacher.

Young students respect their teacher as a role model and would trust that her messages were

endorsed by the school. See Edwards, 482 U.S. at 584 (public schools wield great power

“because of the students' emulation of teachers as role models”). Parents of first-graders “trust

the school to confine organized activities to legitimate and pedagogically-based goals.” Busch,

567 F.3d at 96.

The court observed in Busch: “Parents of public school kindergarten students may

20
The school prevented the student from passing out the candy canes during a class party, but allowed
him to pass out the candy canes in the hallway and during recess. Walz, 342 F.3d at 280.
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reasonably expect their children will not become captive audiences to an adult's reading of

religious texts.” Id. at 99. That understanding would likewise apply when a teacher like

Williams, absent a compelling governmental interest, speaks or reads books aloud21 during first-

grade classroom instruction about noncurricular matters Williams believes are correct, but are

contrary to the Parents’ religious and moral beliefs.

The conduct in this case, including noncurricular instruction by a first-grade teacher

during classroom instructional time that “he is now a she” and “parents make a guess whether

[their child is] a boy or a girl. Sometimes parents are wrong,” Ps’ ¶ 99, is more significant to the

parent-child relationship and the child’s identity than the conduct restricted in Walz (a child

passing out candy canes and pencils with a religious message) or Busch (a parent reading a

Psalm during “show and tell”).22 In sum, the young age of the children amplifies concerns about

infringements on Plaintiffs’ fundamental parental rights.

ii. The topic of transgender identity

Transgender identity is a controversial topic on which many people have strong, deeply-

held and contradictory views. See, e.g., Doe by & through Doe v. Boyertown Area Sch. Dist.,

897 F.3d 518, 522 (3d Cir. 2018) (gender identity implicates a person’s “deep-core sense of

self”). First-graders are unlikely to think critically about the differences between the competing

views of gender identity.23 Who decides how to determine a young child’s gender identity goes

to the heart of parental decision-making authority on a matter of greatest importance.

21
Williams could have played the videos of the books, but chose to show the video without sound while
she read the books aloud. Her conduct reinforced the teacher’s role in the instruction.
22
In this case, Williams provided notice to the parents of her students when the family of a student
expressed interest in sharing their Hanukkah traditions with the class. Ps’ ¶ 22.
23
The District’s curriculum defers “sex ed” instruction until fifth, eighth and eleventh grades (and
provides explicit prior notice and opt out rights). Steinhauer Deposition, ECF No. 95-21 at 69.
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iii. Parents’ authority over their young children

A teacher instructing first-graders and reading books to show that their parents’ beliefs

about their children’s gender identity may be wrong directly repudiates parental authority.

Williams’ conduct struck at the heart of Plaintiffs’ own families and their relationship with their

own young children. The books read and Williams’ instruction to her first-grade students taught

that gender is determined by the child – not, in accordance with the Parents’ beliefs, by God or

biological reality. In Aidan, the parents admit they “made some mistakes” about whether their

child was a boy or a girl, but the child “helped [the parents] fix them.” Ps’ ¶ 94. As explained

above, Plaintiffs believe they have a parental duty to make those kinds of decisions for their

young children.

This case, unlike Parker, 514 F.3d at 87, involves not merely instruction to influence

tolerance of other children or families, but efforts to inculcate a teacher’s beliefs about

transgender topics in Plaintiffs’ own children. Williams’ conduct caused actual confusion

among the children. Telling the students to talk to their parents about the child’s gender – after

telling the first-graders their parents might be wrong – did not eliminate the students’ confusion

in this case (Ps’ ¶¶ 109-110, ECF No. 110-3 at 147) (“[S]he was still confused. Because why

would her teacher tell her something wrong?”).

Concerns about undercutting parental authority are heightened when the children are in

first grade and the person trying to influence them is their teacher. See Edwards, 482 U.S. at 584

(public schools wield great power “because of the students' emulation of teachers as role

models”); Busch, 567 F.3d at 96 (parents of first-graders “trust the school to confine organized

activities to legitimate and pedagogically-based goals.”). The students’ confusion in this case

illustrates how difficult it is for a first-grader when a teacher’s instruction conflicts with their

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Parents’ religious and moral beliefs. The heart of parental authority on matters of the greatest

importance within their own family is undermined when a teacher tells first-graders their parents

may be wrong about whether the student is a boy or a girl.

iv. Parental authority over when to discuss transgender topics

In C.N., the court specifically recognized that parents’ ability to decide when to raise

sensitive topics with their children can be undermined when the topic is raised by a state actor

before the parents make that decision. C.N., 430 F.3d at 183 (“introducing a child to sensitive

topics before a parent might have done so herself can complicate and even undermine parental

authority.”). In this case, Williams undermined parental authority by unilaterally deciding,

without notice to the Parents, to read books and discuss with her young students that a “he is now

a she” and that parents may be wrong about their child’s identity.

The Parents being able to discuss with their children after the fact that they were not

wrong about their children’s identity cannot undo the infringement on their fundamental parental

right to decide when to discuss sensitive topics that go to the heart of their relationship with their

young children. The continuing effects of the infringement are demonstrated by the confusion

Williams caused, e.g., a child asking the parent why the teacher would tell her something wrong.

(ECF No. 110-3 at 147). In sum, the court concludes, based upon the record, a reasonable jury

could only find that the undisputed conduct at issue “strike[s] at the heart of parental decision-

making authority on matters of the greatest importance.” C.N., 430 F.3d at 184.

c. Compelling interest

The Third Circuit Court of Appeals instructed that strict scrutiny review applies to

infringements on fundamental parental rights. See Gruenke, 225 F.3d at 305 (parental authority

“should yield only where the school’s action is tied to a compelling interest”) (emphasis added).

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Defendants’ contention that only rational basis review applies (ECF No. 101 at 11-12) is directly

contrary to precedential authority.

The government may not infringe on a fundamental right unless the infringement is

narrowly tailored to serve a compelling state interest. Washington, 521 U.S. at 721. There is no

evidence in the record to demonstrate a compelling interest for Williams to introduce transgender

topics to first-graders outside the curriculum. There is no evidence that Williams’ instruction

was narrowly tailored to achieve a compelling interest.

As an initial matter, Defendants articulated no reason why that instruction was not

disclosed in the curriculum. It is undisputed that the District’s curriculum should guide

classroom instruction, Ps’ ¶ 5, and that for the 2021-22 and 2022-23 school years, nothing in the

“Parental Rights” notification on the District website mentioned possible instruction on gender

identity. Ps’ ¶ 38.

There is no evidence in the record of a compelling interest to introduce transgender topics

to first-graders or to tell the young students that their parents may be wrong about their identity.

There is no evidence that transgender children were being bullied or discriminated against by any

students in Williams’ class (let alone by Plaintiffs’ children). As of March 31, 2022, there was

no reasonable expectation that Williams (or any other teacher) would be permitted to bring the

teacher’s child to her classroom for Take Your Child to Work Day.

d. Summary of Substantive Due Process claims against Williams

In this case, there are several complicating factors that implicate fundamental parental

rights, including: (1) the young age of the children; (2) the topic that parents may be wrong about

their children’s identity, which strikes at the heart of parents’ role in forming their young

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children’s identity; (3) the instruction not being disclosed in the curriculum; (4) the teacher’s

determined decision to broach the topic; and (5) the lack of notice to parents.

A reasonable jury could only conclude, based upon the evidence presented, that: (a)

Williams did not defer to the primacy of the Parents’ fundamental right to raise their young

children; instead, she made a conscious, intentional decision to observe Transgender Awareness

Day by reading books to and discussing with her first-grade students that “he is now a she” and

parents may be wrong about their children’s gender identity, ECF 100-22; (b) Williams’

instruction was not in the curriculum and was not an unanticipated, organic discussion prompted

by a student question. Ps’ ¶ 8, ECF Nos. 95-52, 95-59, 95-60. Williams simply decided to

celebrate Transgender Awareness Day by reading books which referred to parents making a

mistake about their child’s gender identity and reinforcing that statement by instructing the first-

graders that “parents make a guess about their children’s – when children are born, parents make

a guess whether they’re a boy or a girl. Sometimes parents are wrong.” Ps’ ¶ 99. Williams did

not provide the Parents prior notice and an opportunity for them to opt their children out of that

instruction, Ps’ ¶ 21. If the contrary had occurred in the classroom with Williams’ child, i.e., a

teacher instructed that a “he cannot become a she” and parents believing in transgender identity

may be wrong, Williams’ parental rights likewise would have been impacted.

Williams believed “I’m in the right here!” (ECF No. 95-64) and that she was free to

instruct the young, captive students in her class in accordance with her beliefs without giving

parents prior notice or an opportunity to opt their children out of that instruction.24 That conduct

showed intolerance and disrespect for the religious or moral beliefs and authority of the Parents.

A reasonable jury could only find that conduct, without a compelling governmental interest

24
Plaintiffs’ also firmly believe they are “in the right here.” If the roles were reversed, and one of the
Plaintiffs was the first-grade teacher and proclaimed in the classroom her beliefs about gender identity to
Williams’ child, Williams would likely be upset.
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being shown, in the elementary school violated the Parents’ fundamental constitutional rights to

control the upbringing of their young children.

e. Municipal and supervisory liability -- ratification

In Doe v. Southeast Delco School District, 140 F. Supp. 3d 396 (E.D. Pa. 2015), the court

explained that under Pennsylvania law a school superintendent is the final policymaker for

overseeing teachers’ conduct in school:

[I]t is within the superintendent's statutory authority “to note the courses and
methods of instruction and branches taught, [and] to give such directions in the art
and methods of teaching in each school as he deems expedient and necessary.” 24
P.S. § 10–1081. Pennsylvania law further recognizes that superintendents have
the authority to monitor, investigate, and direct teachers' conduct in school.

Id. at 401. In this case, it is undisputed that, as superintendent, Steinhauer had authority to create

and implement written procedures for District administrators and teachers to follow. Ps’ ¶ 119.

It is undisputed that Irvin, as the assistant superintendent in charge of elementary education in

the District, had the ability to make procedures for elementary schools that would be

districtwide. Ps’ ¶ 127. Bielewicz, as principal, was Williams’ direct supervisor. Ps’ ¶ 163.

The District recognizes its responsibility to develop a curriculum and control the

information that is presented to the children entrusted to its care. Policy I(J). A public school

teacher does not have a constitutional right to depart from the school’s curriculum. See Mayer v.

Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2007) (holding that “the first

amendment does not entitle primary and secondary teachers, when conducting the education of

captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum

adopted by the school system.”). Given the young age of the children, it was incumbent on the

District to ensure that they did not become captive to Williams’ noncurricular agenda. Busch,

567 F.3d at 96, 98-99.

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The record is undisputed that Bielewicz, Irvin and Steinhauer gave comprehensive

support to Williams. See (ECF No. 95-63) (“Tim [Steinhauer] and MB [Irvin] know everything

and I am backed by everyone. So I’m not in trouble professionally.”); (ECF No. 95-64) (“Brett

and MB have my back”). On April 4, 2022, Bielewicz sent an email to Williams, stating: “You

got tons of support from top down – trust me!” ECF 100, Ex. 23. Williams and Bielewicz did

not face any discipline. Ps’ ¶¶ 155, 156.

There was no vigorous investigation of the Parents’ complaints. Bielewicz characterized

the Parents’ position as merely objecting to Williams’ reading books. Bielewicz failed to

investigate or respond to a teacher’s email that Williams told the first-graders: “when you’re

born, your parents make a guess of what you are and sometimes they’re right and

sometimes they’re not.” Ps’ ¶ 100; ECF No. 95-61 (bold in original). The adult aides in

Williams’ classroom were not interviewed or consulted at all. The lack of investigation contrasts

sharply with the investigation of the German teacher’s statement to fifth-graders “there’s always

one mother and there’s always one father,” which led to interviews of every student in the class.

Ps’ ¶¶ 153-54. The administrators made public statements of support of Williams. As explained

in G.S., “the administrators’ clear message became policy” when they approved Williams’

conduct. G.S., 2023 WL 4486667 at *4.

Ratification by supervising policymakers occurred here. Steinhauer and Irvin were the

District’s final policymakers responsible to develop and implement policies and practices to

protect parental rights. Policy I(J), I(F). The District provided no guidance and instead had a de

facto policy to defer to “teacher prerogative.” ECF No. 95-21 at 67-70. Williams, a

nonpolicymaking official, following the de facto policy, decided that she would observe

Transgender Awareness Day by reading noncurricular books and instructing her first-grade

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students that “he is now a she” and parents may be mistaken about their children’s gender.

Neither the books nor the instruction was in the curriculum and Williams did not provide notice

to the Parents, ECF No. 100-22, Ps’ ¶ 21. When Plaintiffs lodged objections, Williams’

supervisors, including the District’s final policymakers, ratified and approved that de facto

policy. See ECF 100, Ex. 23 (“You got tons of support from top down – trust me!”).

Steinhauer acknowledged that he reviewed the books, which presented a child and a

transgender character making the decision about their gender and parents making mistakes about

the child’s gender. Ds’ ¶ 106. While he testified he was not aware of Williams’ verbal

instruction, Steinhauer knew the content of the books and determined it was appropriate for

Williams to teach from the books. Id. Steinhauer acknowledged the de facto policy that it was a

teacher’s prerogative to use noncurricular instructional materials and to determine whether or not

notice and opt out rights would be provided to parents.25 Irvin and Bielewicz also approved use

of the noncurricular books and Williams’ instruction. Ps’ ¶ 130; Ps’ ¶ 164.

Viewing the record in favor of Defendants, a reasonable jury could only conclude, based

on the record, that Steinhauer, Irvin and Bielewicz26 ratified Williams’ conduct, and therefore,

are subject to supervisory liability. Because those individuals included the final policymakers

for the District, the District is subject to municipal liability on the basis of ratification.
25
That conduct in affirming the de facto policy, by the District’s final policymaker, can be regarded as
delegating responsibility to individual teachers to determine the noncurricular topics for which parental
notice and opt out rights will be provided. This delegation can be viewed as another basis for liability.
See LaVerdure, 324 F.3d at 125-26 (even if individual lacks final policymaking authority, municipality
may be liable if it delegated to the individual the authority to act or if it acquiesced to the conduct). The
risk of an erroneous deprivation of fundamental parental rights under the District’s de facto policy was
obvious and Defendants consciously disregarded that risk. Indeed, a parent asked in an email to
Bielewicz whether gender identity topics would be presented to her first-grade student and Bielewicz
responded, “[t]here is no formal introduction or lessons surrounding it at JES, especially in 1st grade.”
Ps’ ¶ 64.
26
The court disagrees with Plaintiffs’ contention that Bielewicz is liable on a failure to intervene theory.
(ECF No. 93 at 20 & n. 10). Viewing the record in the light most favorable to Bielewicz, Williams’
morning instruction occurred before she sent an email to Bielewicz and Bielewicz authorized Williams
only to share the books with colleagues, not read them to students.
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f. Qualified immunity

The individual Defendants (Williams, Steinhauer, Irvin and Bielewicz) assert that they

are entitled to qualified immunity. Based on the evidentiary record, as explained above, the

Substantive Due Process parental rights at issue are fundamental, long-recognized and clearly

established. All individual Defendants had fair warning from numerous Supreme Court and

Third Circuit Court of Appeals decisions that Williams’ classroom conduct violated parental

interests of the greatest importance, i.e., forming the identity of their young children. See, e.g.,

C.N. and Gruenke. Officials can receive fair warning that their conduct is violative even in novel

factual circumstances. Mack, 63 F.4th at 234; Clark, 55 F.4th at 182. Indeed, one of the teachers

on the text thread dated March 30, 2022, recognized that reading the books would get her in

trouble (ECF No. 95-48). The teachers made a conscious decision to proceed. A reasonable

teacher would have known that her personal desire to observe Transgender Visibility Day was

not a compelling governmental interest and that discussing with first-grade students that parents

may be wrong about their children’s identity was not narrowly tailored to achieve a compelling

governmental interest. In other words, it is obvious that a teacher reading books to teach first-

grade students that their parents may be wrong about whether they are a boy or a girl would

violate fundamental parental rights.

Summary judgment will be entered in favor of all Plaintiffs and against Williams on

count I. Summary judgment will be entered in favor of all Plaintiffs and against Steinhauer,

Irvin and Bielewicz on count I on the basis of supervisory liability and against the District on

municipal liability, for the reasons set forth above.

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2. Procedural Due Process (Count II)

The Fourteenth Amendment to the United States Constitution provides, in relevant part,

that no state shall “deprive any person of life, liberty, or property, without due process of law.”

Procedural Due Process implicates a flexible level of scrutiny that evaluates “such procedural

protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334-35

(1976). The factors for a court to consider are: (1) the private interest that will be affected by the

official action; (2) the risk of an erroneous deprivation of that interest through the procedures

used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the

government's interest, including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail. Id.

First, the private interests affected in this case implicate Plaintiffs’ fundamental parental

rights, as explained above, and the religious rights of Tatel and Melton, as described below.

Second, the risk of erroneous deprivation strikes at the heart of parents’ role in forming their

young children’s identities. The procedures used here, i.e., no notice and unguided deference to

teacher prerogative, did not protect those interests. The Parents’ rights could be procedurally

protected by notice and the opportunity to opt their young children out of instruction which is

contrary to their moral and religious beliefs. Third, Defendants did not articulate any

administrative burdens. The District provides notice and opt outs for numerous other sensitive

topics and failed to articulate any burden associated with providing notice and opt outs to

Plaintiffs for the kind of noncurricular instruction provided by Williams. In May 2022, the

District directed the principals to ensure that parents are given notice and opt out rights for

controversial topics. Ds’ ¶ 113. In June 2022, to resolve the PI motion, Defendants agreed to

provide notice and opt out rights to Plaintiffs for transgender topics. The court observes that

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agreement has been in place for two years now. There is no evidence that providing notice and

opt outs to Plaintiffs to resolve the preliminary injunction imposed any burden on Defendants.

The factors, based on the record in this case, all favor Plaintiffs.

As explained above, Plaintiffs of young children have a fundamental parental right to not

have their young children be provided noncurricular instruction by their teacher about parents

making mistakes and being wrong about a child’s gender, absent a compelling governmental

interest. Procedural safeguards such as parents being given realistic advance notice when

sensitive topics will be presented in the school by a teacher would avoid the risk of an erroneous

deprivation. See C.N., 430 F.3d at 176 (“A jury could reasonably think it unrealistic in this age

of busy, working parents and busy, scheduled children that a letter warning of a survey on a date

uncertain would be sufficient to allow a parent to act on an objection.”). Williams provided no

notice27 to Plaintiffs before Williams introduced and instructed her first-grade students about

noncurricular transgender topics and the other policymaking individual Defendants ratified that

conduct, making the District also liable.

For essentially the same reasons that establish a Substantive Due Process violation, there

was also a Procedural Due Process violation, which was clearly established so that the individual

Defendants are not entitled to qualified immunity. A reasonable school official would have

known that introducing transgender topics to first-graders and reading books to teach the

students their parents may be wrong about whether they are a boy or girl, with no notice or opt

out rights, would violate Plaintiffs’ constitutional rights. See, e.g., C.N. and Gruenke. A

reasonable jury could not render a verdict in favor of Defendants on this claim. Summary

27
Defendants argue that Plaintiffs did not avail themselves of the opt out process in District Policy I(F)
and the Pennsylvania School Code (ECF No. 101 at 24). That argument is misplaced because Williams’
instruction was not in the curriculum and Plaintiffs had no notice or ability to opt their children out of the
instruction, or avail themselves of other avenues of relief, prior to the deprivation of their rights.
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judgment will be granted in favor of Plaintiffs and against Williams on the Procedural Due

Process claim in Count II. The other supervisory Defendants ratified Williams’ conduct, as

explained above. Summary judgment will be granted in favor of Plaintiffs and against the

District (on municipal liability) and Steinhauer, Irvin and Bielewicz (on supervisory liability) on

Count II, for the reasons set forth above.

3. First Amendment -- Free Exercise of Religion (Count IV)

Public schools must perform their duties within the bounds of the Constitution. Board of

Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (“the

discretion of the States and local school boards in matters of education must be exercised in a

manner that comports with the transcendent imperatives of the First Amendment”). The Free

Exercise Clause is made applicable to the states through incorporation into the Fourteenth

Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). In Edwards, the Supreme

Court summarized the social contract between parents and public schools as follows: “Families

entrust public schools with the education of their children, but condition their trust on the

understanding that the classroom will not purposely be used to advance religious views that may

conflict with the private beliefs of the student and his or her family.” 482 U.S. at 584.

a. Dunn

As an initial matter, the court must distinguish the religious beliefs of Tatel and Melton

from the moral, nonreligious beliefs of Dunn. “Only beliefs rooted in religion are protected by

the Free Exercise Clause, which, by its terms, gives special protection to the exercise of

religion.” Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 713 (1981). Accord

Frazee v. Illinois Dep't of Emp. Sec., 489 U.S. 829, 833 (1989) (citations and punctuation

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omitted) (“There is no doubt that only beliefs rooted in religion are protected by the Free

Exercise Clause. Purely secular views do not suffice.”). In Yoder, the Supreme Court explained

that a philosophical objection would not be protected under the Free Exercise clause: “Thoreau's

choice was philosophical and personal rather than religious, and such belief does not rise to the

demands of the Religion Clauses.” 406 U.S. at 216.

Plaintiffs’ citation to Welsh v. United States, 398 U.S. 333, 340-43 (1970), is

unpersuasive. In that decision, the Supreme Court determined that conscientious objector status

under the Universal Military Training and Service Act, 50 U.S.C. § 462(j), could be based on

nonreligious ethical and moral beliefs. The Court specifically noted that it reached its decision

“without passing upon the constitutional arguments that have been raised.” Id. at 335. In United

States v. Meyers, 906 F. Supp. 1494 (D. Wyo. 1995), aff'd, 95 F.3d 1475 (10th Cir. 1996), the

court observed: “the functional definition of ‘religion’ adumbrated in Seeger and Welsh is, at

least for First Amendment purposes, dead.” Id. at 1500 (citing Yoder). Based on the undisputed

facts, Defendants as a matter of law are entitled to summary judgment against Dunn on the Free

Exercise claim.28

b. Tatel and Melton

Tatel’s and Melton’s Free Exercise claims are intertwined and overlap with their Due

Process claims because the Parents’ objections to Williams’ instruction on gender identity and on

parents’ role in forming the gender identity of their children are based on their religious beliefs.

Tatel and Melton contend that Defendants deliberately supplanted the Parents’ role to control the

instruction of their young children about gender identity in accordance with the Parents’

religious values.

28
As explained above, Dunn (like other nonreligious parents) has protected fundamental parental rights
under the Substantive Due Process doctrine.
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Tatel’s and Melton’s Free Exercise claims are also intertwined with the Equal Protection

claims in this case because they are based on a similar legal theory; namely, that Defendants

treated their religious requests for notice and opt out rights from Williams’ transgender

instruction differently than requests for notice and opt out rights on other sensitive topics. The

Free Exercise and Equal Protection claims are both pleaded in count IV of the complaint (ECF

No. 1 at ¶¶ 137-149).

In Kennedy v. Bremerton School District, 597 U.S. 507 (2022), the Supreme Court

explained “a plaintiff may carry the burden of proving a free exercise violation in various ways,

including by showing that a government entity has burdened his sincere religious practice

pursuant to a policy that is not neutral or generally applicable.” Id. at 525.29 In Fulton v. City of

Philadelphia, 593 U.S. 522 (2021), the Supreme Court explained that a law “lacks general

applicability if it prohibits religious conduct while permitting secular conduct that undermines

the government's asserted interests in a similar way.” Id. at 533; accord Ricard v. USD 475

Geary Cnty., KS Sch. Bd., No. 522CV04015, 2022 WL 1471372 at *5 (D. Kan. May 9, 2022)

(school district policy not generally applicable where it exempts conduct for secular reasons, but

is unwilling to exempt plaintiff for religious reasons).

In Spivack v. City of Philadelphia, 109 F.4th 158, 166 (3d Cir. 2024) (involving a Free

Exercise challenge to a Covid vaccine mandate), the Third Circuit Court of Appeals recently

explained that strict scrutiny and rational basis scrutiny provide “sharply divergent standards.”

Which level of scrutiny applies is “based on whether a law or policy is neutral and generally

applicable.” Id.

The court explained:

A government policy is neutral if it does not “restrict[ ] practices because of their

29
Kennedy did not require coercion as an element of a Free Exercise claim.
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religious nature” or evince “intoleran[ce] of religious beliefs.” Fulton v. City of

Philadelphia, 593 U.S. 522, 533, 141 S.Ct. 1868, 210 L.Ed.2d 137 (2021). And a
policy is generally applicable so long as it does not either “provid[e] a mechanism
for individualized exemptions” or “prohibit[ ] religious conduct while permitting
secular conduct that undermines the government's asserted interests in a similar
way.” Id. at 533–34, 141 S.Ct. 1868 (cleaned up).

Id. at 167. A government “fails to act neutrally when it proceeds in a manner intolerant of

religious beliefs or restricts practices because of their religious nature.” Id. “Even ‘subtle

departures’ from religious neutrality are forbidden.” Id.

Strict scrutiny applies where “no criteria meaningfully cabin[ ] an official's discretion.”

Id. at 172. The court noted: “What does trigger strict scrutiny, however, is a policy of

individualized, discretionary exemptions in which a government official may unilaterally

evaluate ‘the particular reasons for a person's conduct.’” Id. at 172 n.8 (citing Fulton, 593 U.S.

at 533) (emphasis in original).

The District’s de facto notice and opt out policy during the relevant timeframe, which

extended to secular and religious instruction, was not “generally applicable” because it did not

provide teachers any guidance on the topics for which notice and opt out rights should be

provided to parents – i.e., there were “no criteria meaningfully cabining” the teacher’s discretion.

Steinhauer testified that the District provided no specific guidelines and instead deferred to

“teacher prerogative.” ECF No. 95-21 at 70; Ps’ ¶ 16 and Ds’ clarification thereto. In other

words, teachers make individualized decisions about the kinds of topics for which notice and opt

out rights are provided.

The District’s de facto policy is also not neutral. The District, during the relevant time

period, did not provide Plaintiffs notice and opt out rights for transgender instruction based on

their religious objections, but permitted notice and opt out rights for secular and religious topics

that “undermine[] the government's asserted interests in a similar way.” Fulton, 593 U.S. at 33-

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34. Defendants provided notice and opt out rights to other parents of older students for

numerous secular or religious topics like instruction about apartheid, Chanukah, Christmas,

Kwanzaa, and a TV series that involves a homosexual character. Steinhauer cited tolerance and

inclusivity when ratifying Williams’ conduct in instructing first-grade students about transgender

topics. Defendants did not articulate how Plaintiffs’ religious objections to Williams’ instruction

would undermine their interests in a different way than objections to instruction on these other

matters, which involved racial differences, religious differences and homosexuality. Those other

matters implicate similar concerns about kindness, tolerance and inclusivity toward children of

different races, religions and sexual orientations. There is no principled difference between

allowing notice and opt outs on those topics and the topics at issue in this case. By permitting

notice and an ability to opt out of instruction on the movie Invictus, the District clearly did not

believe it was endorsing apartheid or marginalizing students of African descent; permitting

notice and opt outs of instruction showing a homosexual character must not be viewed by the

District as endorsing homophobia or marginalizing homosexual students; and permitting notice

and opt outs of instruction about Chanukah, Christmas and Kwanzaa is not viewed by the

District as endorsing antisemitism, anti-Christianity or racism or marginalizing persons who

adhere to those religious traditions. Permitting notice and opt outs for those kinds of instruction

was not viewed by the District as intolerant, unkind or noninclusive.

The District points to its August 2022 procedure to illustrate that it does provide notice

and opt out rights for religious reasons. The 2022 procedure (adopted after the lawsuit was filed)

imposed more onerous requirements on parents asserting religious objections (i.e., written notice

to the principal, containing all required information) compared with parents asserting

nonreligious objections (i.e., written or oral requests to a teacher). Compare ECF Nos. 95-17

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and 95-34; ECF No. 95-21 at 67-70; Ps. ¶¶ 48-50. As a factual matter, Tatel and Melton did

assert religious reasons, albeit after-the-fact because they received no notice of Williams’

instruction. As noted above, parents must have reasonable advance notice of planned instruction

to effectuate their religious opt out rights.

In any event, the District’s reliance on the 2022 procedure is misplaced because the

District provides notice and opt outs for nonreligious reasons. Defendants did not provide a

compelling justification or even a rational basis for failing to treat Plaintiffs’ notice and opt out

requests for transgender topics the same as other sensitive secular or religious topics and for

failing to set any criteria to meaningfully cabin teachers’ discretion to provide parental notice

and opt out rights. The burdening of some religious rights, while not similarly burdening secular

or other religious objections, is a clear violation of the Free Exercise Clause. No reasonable jury

could otherwise find.

As explained above, Defendants failed to provide Tatel and Melton notice and the ability

to opt their children out of Williams’ transgender agenda, even though Tatel’s and Melton’s

objections to the instruction were based on their religious beliefs. Defendants ratified the lack of

parental notice and opt out rights, while providing parental notice and the ability to opt out for

numerous other secular or religious reasons. Ps’ ¶ 18. There is no evidence in the record about

Defendants’ compelling interests in refusing to provide notice and opt outs on transgender topics

and there is no evidence that Tatel’s or Melton’s religiously-motivated requests for notice and

opt out rights from Williams’ transgender instruction would undermine Defendants’ asserted

interests in a dissimilar way from the notice and opt out rights provided for other secular and

religious reasons. Defendants did not establish a compelling basis for refusing to provide notice

and opt out rights for parents of first-graders affected by Williams’ transgender instruction.

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Viewing the evidence in the light most favorable to Defendants, a reasonable jury could

only find that Tatel’s and Melton’s First Amendment rights were violated. The Free Exercise

rights were clearly established and intertwined with the Substantive Due Process claims so that

the individual Defendants are not entitled to qualified immunity. A reasonable school official

would have known that refusal to respect the religious objections of Tatel and Melton would

violate their Free Exercise rights. For the reasons set forth above, the District, Bielewicz, Irvin

and Steinhauer ratified the violation of Tatel’s and Melton’s First Amendment rights by giving

her “tons of support from the top down.” ECF 100, Ex. 23. Under those circumstances,

summary judgment will be entered in favor of Tatel and Melton against Williams, against the

District on the basis of municipal liability, and against Bielewicz, Irvin and Steinhauer on the

basis of supervisory liability with respect to the Free Exercise claim.

Dunn was not exercising any religious rights. Summary judgment will therefore be

entered in favor of all Defendants and against Dunn on the Free Exercise claim.

4. Equal Protection (Count IV)

a. General

The Fourteenth Amendment provides, in relevant part, that no state shall “deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. The

Equal Protection claim challenges the parental notice and opt out policy implemented by the

District and its policymaking officials, Steinhauer and Irvin (the superintendent and assistant

superintendent), who were directly responsible for that policy.30 As explained in Nordlinger v.

Hahn, 505 U.S. 1 (1992): “The Equal Protection Clause does not forbid classifications. It simply

keeps governmental decisionmakers from treating differently persons who are in all relevant
30
Williams and Bielewicz are not named as Defendants in the Equal Protection claim.
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respects alike.” Id. at 10.

The parties agree on the legal standard for the Equal Protection claim. (ECF No. 93 at

41; ECF No. 113 at 38). The elements of an Equal Protection “class of one” claim are: (1) a

public entity treated the plaintiff differently than others similarly situated; (2) the entity did so

intentionally; and (3) there was no rational basis for the difference. Hill v. Borough of Kutztown,

455 F.3d 225, 239 (3d Cir. 2006). To establish a selective enforcement Equal Protection claim,

Plaintiffs must demonstrate that they were (1) treated differently from other, similarly situated

persons; and (2) this treatment was based on an unjustifiable standard, such as race, or religion,

or some other arbitrary factor or to prevent the exercise of a fundamental right). Harvard v.

Cesnalis, 973 F.3d 190, 205 (3d Cir. 2020).

To be similarly situated, persons must be alike in all relevant respects, but need not be

identically situated. Harvard, 973 F.3d at 205. Here, the Parents are similarly situated to other

parents in the District who receive broader notice and opt out rights on sensitive topics.

Defendants do not contest that Plaintiffs are similarly situated.

In count IV, Plaintiffs assert that the District, Steinhauer, Irvin and Wyland violated their

constitutional rights under the Equal Protection Clause of the Fourteenth Amendment by refusing

to allow them to have notice and the ability to opt their children out of Williams’ instruction on

transgender topics while permitting similarly-situated parents to opt out of instruction on

numerous other topics:

District representatives have sent advance notice and the ability for parents to opt
students out of participation in an assembly involving a therapy dog; for certain
movies to be shown in class (including The Bad Guys, The Tiger Rising, Invictus
(which concerns Nelson Mandela and Apartheid), and The Giver); for lunch
group meetings with a school counselor; for PASS surveys; for the Scripps
Spelling Bee; for stories related to Chanukah, Christmas and Kwanzaa; dissection
of animals in biology; and video clips from a TV series that involves a
homosexual character.

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Ps’ ¶ 18. Defendants contend that rational basis scrutiny applies and argue there is no proof of

intentional discrimination in the record. (ECF No. 113 at 38-39).

b. Level of scrutiny

The first step in the analysis is to determine the level of scrutiny. As the court explained

in its opinion on the motion to dismiss:

When a court analyzes a constitutional challenge to government action, it must

determine the level of scrutiny to be applied; typically, strict scrutiny,
intermediate scrutiny, or rational basis. Doe v. Pennsylvania Bd. of Probation and
Parole, 513 F.3d 95, 107 (3d Cir. 2008). Under the strict scrutiny standard, the
action will be sustained only if it is narrowly tailored to serve a compelling state
interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
Intermediate scrutiny requires that a classification be “substantially related to an
important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). In
the Equal Protection context, intermediate scrutiny applies to quasi-suspect
classes like gender and illegitimacy. Id.; See Lutz v. City of York, Pa., 899 F.2d
255, 270 (3d Cir. 1990) (applying intermediate scrutiny to Due Process challenge
to cruising ordinance). Rational basis review is a deferential standard which “is
not a license for courts to judge the wisdom, fairness, or logic of legislative
choices.” FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). Under
rational basis review, the state action will be upheld if it is rationally related to
any legitimate state interest. City of Cleburne, 473 U.S. at 440.

ECF No. 38 at 15.

For Equal Protection claims, as explained in Stepien v. Murphy, 574 F. Supp.3d 229

(D.N.J. 2021):

Strict scrutiny is appropriate if the challenged regulation targets a suspect class or

burdens the exercise of a fundamental right. Plyler v. Doe, 457 U.S. 202, 216–17,
102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Artway v. Att'y Gen. of State of N.J., 81
F.3d 1235, 1267 (3d Cir. 1996).

In other cases, rational-basis scrutiny is appropriate; the challenged regulation

“need only be rationally related to a legitimate government goal.” Artway, 81 F.3d
at 1267.

Id. at 237.

In this case, strict scrutiny applies. As explained above, the de facto policy at issue

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burdens all Plaintiffs’ Substantive Due Process fundamental parental rights and Tatel’s and

Melton’s Free Exercise rights while providing notice and opt out rights to similarly-situated

parents for other secular and religious reasons. The de facto notice and opt out policy is not

“generally applicable” because there are “no criteria meaningfully cabining” the teacher’s

decision to teach about sensitive topics and to provide notice and opt outs for that instruction.

Spivack, 2024 WL 3561365 at *11.

Steinhauer and Irvin were the District’s final policymakers responsible to develop and

implement policies and practices to protect parental and religious rights. Policy I(J), I(F).

Steinhauer testified that the District provided no specific guidelines and instead deferred to

“teacher prerogative.” ECF No. 95-21 at 70; Ps’ ¶ 16 and Ds’ clarification thereto. As explained

above, Steinhauer, Irvin and the District ratified Williams’ decision to not provide notice and opt

out rights to Plaintiffs.

The de facto policy about providing parental notice and opt outs in this case fails to

survive any level of scrutiny. Far from demonstrating that the policy is narrowly tailored to

achieving a compelling interest, Defendants did not establish even a rational basis for refusing to

allow Plaintiffs to opt their first-graders out of Williams’ transgender instruction. To the extent

that Defendants argue that their interests were kindness, tolerance and respect and to prevent

marginalization, see, e.g., ECF No. 127 at 20, they failed to explain how being intolerant of

Plaintiffs’ requests31 advanced those interests, while still providing notice and opt out rights for

other topics that implicate those same interests.

There is no evidence that Plaintiffs’ children were unkind, intolerant or disrespectful

toward transgender children. During the academic year 2021-22, no student at Jefferson

31
Defendants describe Plaintiffs’ requests as “nothing more than a personal, partisan demand.” (ECF No.
113 at 41).
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Elementary School identified as transgender to the District. Ps’ ¶ 65. The District received no

complaints of transgender harassment or discrimination from a transgender student at Jefferson

Elementary School during the 2021-22 school year. Ps’ ¶ 66. There is no evidence that

providing notice and opt outs to Plaintiffs’ (to resolve the preliminary injunction) imposed any

burden on Defendants or caused any unkind, intolerant or disrespectful conduct toward

transgender children.

The District denied Plaintiffs’ the opportunity to have notice and opt out rights based on

their religious and parental objections “while permitting secular conduct that undermines the

government's asserted interests in a similar way.” Fulton, 593 U.S. at 33-34. Defendants

refused to recognize the religious, moral and parental objections asserted by Plaintiffs, even

though they provided notice and opt out rights for other topics that affect kindness, tolerance,

respect and marginalized persons, i.e., instruction about Nelson Mandela and apartheid,

Chanukah, Christmas and Kwanzaa, and a TV series that involves a homosexual character. Ps’ ¶

18.

The District’s Equity Statement “recognizes and celebrates the diverse identities of all

members of our school community.” Ds’ ¶ 3. The District permits notice and opt outs of

instruction on sensitive or controversial topics and the District is not asserting that conduct

should reasonably be viewed as an endorsement by the school of a particular position on those

topics. For example, permitting parents to opt their student out of instruction on the movie

Invictus does not mean that the school is endorsing (or opposing) apartheid. Similarly,

permitting parents to opt their student out of instruction on a TV show with a homosexual

character does not mean that the school endorses (or opposes) homophobia. If those opt outs are

provided, permitting parents to opt their student out of instruction on transgender topics that are

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not in the curriculum in elementary school would be neutral and would respect the diverse

decisions of the Parents in the community, like it does for other sensitive religious and secular

topics.

c. Intentional disparate treatment

Defendants argue there was no intentional discrimination in this case. There is a

distinction between intent and motive. Hassan v. City of New York, 804 F.3d 277, 298 (3d Cir.

2015), as amended (Feb. 2, 2016). “While the absence of a legitimate motive may bear on

whether the challenged surveillance survives the appropriate level of equal-protection scrutiny,

‘intentional discrimination’ need not be motivated by ‘ill will, enmity, or hostility’ to contravene

the Equal Protection Clause.” Id. “All you need is that the state actor meant to single out a

plaintiff because of the protected characteristic itself.” Id. (emphasis in original).

The refusal to provide notice and opt out rights to Plaintiffs was intentional. Defendants

meant to single out Plaintiffs’ requests for notice and opt outs because of Plaintiffs’ religious,

moral and parental beliefs about Williams’ instruction. Plaintiffs were treated differently because

of those protected characteristics, i.e., Defendants’ viewed Plaintiffs’ beliefs as “a personal,

partisan demand,” (ECF No. 113 at 41), that could be hurtful to and marginalize transgender

students. (ECF No. 127 at 20). When Plaintiffs raised objections to their lack of notice and opt

out rights, the de facto policy was ratified by Steinhauer and Irvin, the District’s final

policymakers. The August 2022 written policy continued to single out the objections at issue in

this litigation for disparate treatment, instructing that principals deny parental requests using a

sample form circulating in the community that referenced the stipulated agreement to resolve the

PI. ECF 95-34.

In sum, refusing to provide opt outs for parents who assert religious and fundamental

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parental rights objections to transgender instruction to young children, while providing notice

and opt out rights for other sensitive secular and religious topics, constitutes disparate treatment

and violates the Equal Protection clause. Viewing the evidence and drawing all reasonable

inferences in their favor, a reasonable jury could not find in favor of the District, Steinhauer and

Irvin on the Equal Protection claim.32

d. Qualified immunity

The individual Defendants are not entitled to qualified immunity because Plaintiffs’

Equal Protection rights were clearly established and intertwined with Plaintiffs’ Substantive Due

Process and Free Exercise claims. The District had a published policy, District Policy I(F), and

the de facto policy, which recognized parental notice and opt out rights. Reasonable school

officials should have known that to allow notice and opt out rights on numerous topics, but deny

them to parents who object to instructing their young children about transgender topics in a

manner contrary to the Parents’ religious and moral beliefs, would be a violation of their Equal

Protection rights provided under the Constitution. See Danielson v. Chester Twp., No. CIV.A.

13-5427, 2014 WL 3362435, at *10 (D.N.J. July 9, 2014) (denying qualified immunity because it

was “clearly established on the date in question that an individual's rights under the Equal

Protection clause are violated when ‘he has been intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment.’”) (quoting

Hill, 455 F.3d at 239).

e. Summary

Summary judgment will be entered in favor of Plaintiffs and against Steinhauer and Irvin,

as explained above. Summary judgment will be entered in favor of Plaintiffs and against the

District based on municipal liability because Steinhauer and Irvin were its final policymakers.
32
Wyland is not liable, as separately discussed.
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5. Familial privacy (Count III)

The familial privacy claim in count III, like the parental rights claim in count I, asserts a

fundamental liberty interest protected by the Fourteenth Amendment. The court has struggled to

discern how the contours of a familial privacy claim differ from the fundamental parental rights

claim discussed above. See Gruenke, 225 F.3d at 306 (observing that the privacy deprivation

claim “overlaps with and is largely inseparable from that of familial rights”).

After Dobbs, the court must identify a liberty interest that is “deeply rooted in this

Nation's history and tradition” and “implicit in the concept of ordered liberty.” Dobbs, 597 U.S.

at 231. In C.N., the court explained that the constitutional right to privacy protects two strands of

privacy interests: (1) “the individual interest in avoiding disclosure of personal matters”; and (2)

“the interest in independence in making certain kinds of important decisions.” C.N., 430 F.3d at

178. Those important decisions involve “matters relating to marriage, procreation,

contraception, family relationships, and child rearing and education.” Id. (citation omitted).

The court in C.N. was applying a pre-Dobbs kind of analysis. After Dobbs, it is important to

address the nature of the fundamental parental rights. See discussion supra at 44-46. Neither

party briefed the issue of how a familial privacy claim is constitutionally distinct from the

fundamental parental rights Substantive Due Process claim.

In this case, the court is unable to identify a familial privacy claim that is separate and

distinct from the parental rights claim. The court concludes Count I is the same claim asserted in

Count I and will be governed by the same analysis.33

33
The summary judgment record with respect to the familial privacy claim is largely duplicative of the
Substantive Due Process parental rights claim. The only factual addition asserted by Plaintiffs in the
familial privacy claim is the alleged adoptive admission, which occurred during a “listening conference”
early in the school year in which Dunn told Williams her son was upset because Williams told him he
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In summary, Count I will be dismissed without prejudice because it is subsumed into

Count III.

6. Declaratory Judgment (Count VI)

In count VI, Plaintiffs seek: (a) a declaration that Defendants’ conduct violates 22 Pa.

Code § 4.4; and (b) declaratory relief with respect to their federal constitutional claims. See ECF

No. 93 at 42.34 Defendants contend that they are entitled to summary judgment on the state law

portion of Count VI because District policies are consistent with 22 Pa. Code § 4.4. Defendants

also point out that state regulations provide an administrative remedy per 22 Pa. Code § 4.81.

Defendants argue that a declaration based on the federal claims would fail for the same reasons

they articulated with respect to the substantive claims (as addressed above).

a. State law claim

The court concludes that Defendants are entitled to summary judgment on the state law

portion of count VI because the Pennsylvania School Code does not provide a private right of

action. The School Code, on its face, requires the Secretary of Education to take action; it does

not provide a private right of action for a parent to seek redress. See 22 Pa. Code § 4.81(a) (“The

Secretary will receive and investigate allegations of curriculum deficiencies”) (emphasis added).

The Pennsylvania School Code does not provide for relief in state or federal court; instead, it

provides that the general rules of administrative practice and procedure apply to activities and

could wear dresses and a fairy costume and have long hair like his mom. Ps’ Supp. ¶ 10. Williams
denies having discussed the topics claimed by Dunn at the conference and denies having made the alleged
statements to Dunn’s child. Ds’ Response to Ps’ Supp. ¶ 12. Dunn testified that at the conference,
Williams stated “they were having a class discussion and maybe he heard wrong.” Id. In any event, to
the extent a jury would credit Dunn’s testimony, it would just be supplemental evidence against Williams
to support the claim in Count I.
34
Plaintiffs did not address the state law portion of Count VI in their initial summary judgment brief.
(ECF No. 93 at 42).
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proceedings before the Board of Education and Department of Education. 22 Pa. Code §§ 1.5,

1.6 (citing 1 Pa. Code § 31.1 & 1 Pa. Code Part II).

Courts have consistently held that there is no private right of action under the

Pennsylvania School Code. As explained in Snyder v. Millersville University, No. CV 07-1660,

2008 WL 11511898 (E.D. Pa. Jan. 31, 2008):

[T]he Pennsylvania Public School Code includes neither express nor implied
private rights of action. See Coreia v. Schuylkill County Area Vocational-Tech.
Sch. Auth., No. 4:CV-04-2425, 2006 WL 1310879 (M.D. Pa. 2006)
(noncompliance with the Pennsylvania School Code does not trigger a private
cause of action); Whipple ex rel. Whipple v. Warren County Sch. Dist., 133
F.Supp.2d 381, 383 (W.D. Pa. 2000) (no cause of action necessary under the
regulations of the Pennsylvania Code where plaintiff had other remedies available
to address alleged regulations breach). That Plaintiff seeks only injunctive relief
under the Public School Code does not provide her with a private right of action
that does not otherwise exist.

Id. at *5; see Issa v. School Dist. of Lancaster, 847 F.3d 121, 141 (3d Cir. 2017) (indicating that

there is no express cause of action under the Public School Code and any implied right of action

may, at a minimum, require exhaustion of administrative remedies).35 In Allen v. Dumaresq, No.

474 M.D. 2014, 2015 WL 5446488, at *8 (Pa. Commw. Ct. June 19, 2015) (involving a suit by

parents seeking to force the Secretary of Education to take action), the court explained:

Contrary to Petitioners' assertions, the Secretary is not required to acknowledge

receipt or provide notice to the persons making the allegation. See 22 Pa. Code §
4.81. Furthermore, the Secretary is not required to notify them of the status or
outcome of the allegations received.

Id. at *8.

The court agrees with the analysis in these decisions and concludes that there is no

private right of action for a violation of the Pennsylvania School Code. Summary judgment will

be granted in favor of Defendants on the state law claim in count VI.

35
There is no evidence that Plaintiffs exhausted their administrative remedies.
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b. Declaratory relief

i. Relief sought

In their summary judgment motion, as declaratory relief, Plaintiffs seek an order that:

(1) Defendants are precluded from providing instruction related to gender

identity without providing direct advance notice to parents and the ability
to opt out of such instruction;

(2) prior to any such instruction, all instructional materials will be made
available to parents for review through appropriate technological means
(i.e., parent portal) reasonably in advance of any instruction; and

(3) Defendants are precluded from providing instruction related to gender

identity without placing references to such instruction in the District’s
published Curriculum.

ECF No. 92-1.36 Plaintiffs apparently no longer seek entry of a permanent injunction.37 See

Minard Run Oil Co. v. U.S. Forest Serv., 894 F. Supp. 2d 642, 664 (W.D. Pa. 2012), aff'd, 549 F.

App'x 93 (3d Cir. 2013) (citations omitted) (court concluded that entry of a permanent injunction

was not necessary where declaratory relief provided an adequate remedy).

36
Plaintiffs explain that they seek only nominal monetary damages for past violations. Id.; ECF No. 93 at
42 & n. 22.
37
Plaintiffs sought the following injunctive and declaratory relief in the Complaint:
1. Preliminary and Permanent injunctive relief in the form of an injunction, inter alia, prohibiting the
District from conducting instruction on gender dysphoria and transgender transitioning and/or, in
the alternative, requiring the District to provide parental notice and opt out rights if the subjects of
gender dysphoria and transgender transitioning or topics related thereto are to be taught in the
District, including in elementary school; that, if taught, these topics be taught only by qualified
and trained professionals based on qualifications made available to the public by the District; and
that all materials to be used in any such instruction be provided and/or accessible in advance to
parents through appropriate technological means (i.e., parent portal) reasonably in advance of any
instruction so as to make the notice and opt out rights meaningful.
2. A Declaratory Judgment as provided for in Count VI including a declaration that “In order to
adhere to the Pennsylvania School Code and to avoid violating Plaintiffs’ Constitutional rights in
the future, the District is prohibited from conducting instruction on gender dysphoria and
transgender transitioning and/or, in the alternative, the District is required to provide parental
notice and opt out rights if the subjects of gender dysphoria and transgender transitioning or
topics related thereto are to be taught in the District, including in elementary school.”
(ECF No. 1 at 44).
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ii. Applicable standard

Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201: “any court of the United

States, upon the filing of an appropriate pleading, may declare the rights and other legal relations

of any interested party seeking such declaration, whether or not further relief is or could be

sought. Any such declaration shall have the force and effect of a final judgment or decree and

shall be reviewable as such.” In Samuels v. Mackell, 401 U.S. 66 (1971), the Supreme Court

observed that “the propriety of declaratory and injunctive relief should be judged by essentially

the same standards.” Id. at 72. The Court explained that under the Declaratory Judgment Act, §

2202, declaratory relief can be the basis for a future injunction and, at least in terms of

interference with a state proceeding, “declaratory relief alone has virtually the same practical

impact as a formal injunction would.” Id.

In Steffel v. Thompson, 415 U.S. 452 (1974), however, the Supreme Court explained that

declaratory relief is a “less harsh and abrasive remedy” than injunctive relief and noted that

principles of equity, comity, and federalism have little force where no state proceeding exists.

Id. at 462-63.38 In Steffel, the Court explained that although a “declaratory judgment has ‘the

force and effect of a final judgment,’ 28 U.S.C. § 2201, it is a much milder form of relief than an

injunction.” Id. at 471. Although a declaratory judgment “may be persuasive, it is not ultimately

coercive; noncompliance with it may be inappropriate, but is not contempt.” Id. The traditional

equitable prerequisites to the issuance of an injunction need not be satisfied prior to the issuance

of a declaratory judgment. Id. Further relief is available if the Declaratory Judgment is violated.

28 U.S.C. § 2202.

iii. Application to this case

38
There is no state court proceeding related to this case.
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Defendants do not contest that the declaratory judgment claim is justiciable. Plaintiffs’

claims related to Williams’ conduct on March 31, 2022, have been resolved (for the reasons set

forth at length above) and no further declaratory relief with respect to those claims is necessary.

Declaratory relief remains an issue, however, with respect to the various changes to the District’s

policies initiated after this lawsuit was initiated.

x. Not moot

Defendants’ actions since 2022 did not moot the dispute. In DeJohn v. Temple

University, 537 F.3d 301 (3d Cir. 2008) (imposing injunctive relief)39, the court explained:

[A]s a general rule, “voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case, i.e., does not make
the case moot.” But jurisdiction, properly acquired, may abate if the case becomes
moot because (1) it can be said with assurance that “there is no reasonable
expectation ...” that the alleged violation will recur, and (2) interim relief or
events have completely and irrevocably eradicated the effects of the alleged
violation. When both conditions are satisfied it may be said that the case is moot
because neither party has a legally cognizable interest in the final determination of
the underlying questions of fact and law.

Id. at 309 (quoting Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d

642 (1979)).

The court concludes that declaratory relief is appropriate to clarify the rights of the

Parents and the obligations of the District to recognize and protect Equal Protection, First

Amendment and fundamental parental rights to control the upbringing of their children and to

provide reasonable notice of instruction that may strike at the heart of parental decision-making

authority on matters of the greatest importance. See Ungar v. Dunkin' Donuts of Am., Inc., 68

F.R.D. 65, 145 n. 102 (E.D. Pa. 1975), rev'd on other grounds, 531 F.2d 1211 (3d Cir. 1976)

(“The granting of declaratory relief is proper where the judgment will serve a useful purpose in

39
The same voluntary cessation principles apply to declaratory relief. See Sutton v. Rasheed, 323 F.3d
236, 248 (3d Cir. 2003).
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clarifying and settling the legal relations at issue, or when it will terminate and afford relief from

uncertainty, insecurity and controversy giving rise to the proceedings.”). In this case, neither

prong of the voluntary cessation test is met.

y. Expectation that the violation will recur

There is a reasonable expectation the violations may recur. There is no assurance that the

District will continue to provide parental notice and opt out rights for transgender topics after the

litigation ends. Williams believes she is “in the right here.” ECF No. 95-64. Bielewicz told

Tatel that Williams might teach about gender identity topics again. (ECF No. 110-3 at 100).

Defendants refuse to adopt the notice and opt out policy requested by Plaintiffs. (ECF No. 127

at 20). For the 2023-2024 school year, the District adopted a “Disclaimer” that places the burden

on parents to opt out of numerous topics, including gender identity, that are not part of the

curriculum, but may or may not be included in instruction.

Although Defendants agreed to provide notice and opt out rights to Plaintiffs to settle the

PI motion, Defendants continue to maintain they did nothing wrong. The current notice is

simply a pragmatic litigation decision for an interim period of time, i.e., during this lawsuit.

Irvin testified Steinhauer and she agreed that instructing teachers not to read any books on

gender identity “was going to be the best path at this point, not knowing the outcome of the

lawsuit.” (ECF No. 110-1 at 63) (emphasis added). Irvin explained this plan was implemented

despite the fact that she did not think there was anything wrong with what Williams did. Id.

Throughout this litigation, Defendants have taken the position that in a public school,

parents have no constitutional right to notice or to opt their children out of any kind of

instruction, regardless of the content of that instruction, the age of the children, or whether the

instruction is part of the published school curriculum. See ECF No. 42 at 8 (“Parents have no

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constitutional right to exempt their children from classroom lessons, including those on

transgender issues”); ECF No. 113 at 10 (parents “do not have the right to notice and the ability

to opt out from classroom instruction and that classroom instruction does not implicate

fundamental parental liberty interests even when the Parents’ religious beliefs are implicated”).

In other words, the Defendants continue to take the position that parents simply have no

constitutional right to notice or to object to any information a public school may present to their

children, even if the District provides notice and opt out rights for other sensitive secular or

religious topics. That is simply not the law within the Third Circuit.

z. Interim events have not irrevocably eradicated the effects

The steps taken by the District since March 31, 2022, do not irrevocably eradicate the

violations. There is no existing policy in effect to ensure equal protection for Plaintiffs (i.e., the

District will treat Plaintiffs’ moral and religious objections to teaching transgender topics to their

young children the same as objections to other topics) or to protect Plaintiffs’ fundamental

parental rights. Steinhauer confirmed there were no written procedures in place. (ECF No. 95-21

at 69-70) (“We [i.e., the District] don’t have any specific guidelines for what you should notify

parents about and not notify parents about.”) In effect, the District continues to defer notice and

opt out policy to the uncabined discretion of individual teachers.

The oral directive by Steinhauer in May 2022 to ensure that parents would be provided

notice and the opportunity to opt out of instruction involving “controversial subjects,” Ds’ ¶ 113,

was a step forward, but continued to defer all policymaking about when to provide notice and opt

outs to the uncabined decisions of individual teachers. The settlement of the PI motion in June

2022 was a pragmatic litigation decision during the pendency of this lawsuit.

The August 2022 written policy instructed principals to ensure that opt out religious-

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based requests were in writing, addressed to the principal, and included all the following: (1)

children names; (2) the exempted curriculum topics were clearly stated and understandable; and

(3) a religious objection. Principals were cautioned that if requests did not contain all the

required information, those forms should not be signed, but instead be returned to parents. The

policy places more burdens on parents seeking a religious opt out (requiring a written request,

with all details demanded by the District, see ECF 95-34) than are placed on parents seeking

nonreligious opt outs on other topics (such as PG movies). In addition, the August 2022 written

policy is underinclusive because it does not allow opt out requests based on fundamental parental

rights. As explained above, Substantive Due Process rights apply to both religious and

nonreligious parents.

The 2023-2024 “Disclaimer,” on its face, fails to provide reasonable notice to parents.

The Disclaimer wrongly puts the burden on parents to object to something that is not in the

curriculum. (ECF No. 110-12 at 67) (“The onus is on the parent to tell the district I don’t want x

subject matter taught to my child.”). No reasonable factfinder could conclude that vague

references in the curriculum to instruction on “the universal attributes of respect, honesty, love,

justice, courage, loyalty and hope” and learning objectives to “identify the characteristics of

students who are bullied,” see ECF No. 136 Ds’ ¶ 25, or the 2023-2024 Disclaimer, Ps’ ¶ 39,

would give parents realistic or effective notice that transgender topics will be presented to young

children.

Defendants’ protestations that they allow religion-based opt outs ring hollow because

Defendants do not provide reasonable advance notice to parents of young children about

noncurricular instruction on transgender topics under the Disclaimer. The Parents’ ability to opt

out their children from that instruction, therefore, is unrealistic and ineffective. C.N., 430 F.3d at

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176.

iv. Scope of declaratory relief

The court should narrowly tailor declaratory relief to resolve the dispute before it and

avoid sweeping constitutional mandates. See Communist Party of Indiana v. Whitcomb, 414

U.S. 441, 452 n.1 (1974) (“the appropriate exercise of judicial power requires that important

constitutional issues not be decided unnecessarily where narrower grounds exist for according

relief.”). Here, the court need not address any constitutional issues that may arise if the teacher’s

instruction: (1) occurs spontaneously in response to a student question; (2) involves middle

school or high school students; or (3) is part of the school curriculum.

The court concludes that some narrowly-tailored declaratory relief is necessary and

appropriate to clarify and protect the Parents’ constitutional rights going forward. See Steffel,

415 U.S. at 472-73 (recognizing the paramount role Congress, in enacting the Declaratory

Judgment Act, assigned to the federal courts to protect constitutional rights).

The court must evaluate the limited relief requested by Plaintiffs (i.e., notice and opt out

rights for a parent’s own children for religious and fundamental parental rights reasons) against

the school’s interest. See Fulton, 593 U.S at 541 (involving a First Amendment challenge to

foster care regulations) (“Rather than rely on ‘broadly formulated interests,’ courts must

scrutinize [ ] the asserted harm of granting specific exemptions to particular religious

claimants.”). Plaintiffs are not seeking a declaration that the transgender view of identity is

wrong. Plaintiffs are not trying to change the curriculum or prevent the District from presenting

transgender topics to other students. Plaintiffs seek the ability to exempt their young children

from such instruction. Plaintiffs assert they are not trying to impose their religious or moral

views on others, but want to prevent Williams from abusing her position as a role model to

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impose the teacher’s views upon the Parents’ children that contradict the Parents’ religious or

moral views.

Defendants assert that to adopt an official policy that provides notice of instruction on

transgender topics “could be hurtful of and marginalize transgender students.” (ECF No. 127 at

20). Defendants point out that not all members of the community agree about transgender

identity issues. Defendants describe Plaintiffs’ requests as “nothing more than a personal,

partisan demand.” (ECF No. 113 at 41).

There are many controversial topics in society. In elementary school, it is

constitutionally impermissible for a school to provide teachers with the unbridled discretion to

determine to teach about a noncurriculur topic -- transgender identity -- and not to provide notice

and opt out rights based on parents’ moral and religious beliefs about transgender instruction,

while providing notice and opt out rights for other sensitive secular and religious topics. See

Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm'n, 584 U.S. 617, 638 (2018) (“it is not, as

the Court has repeatedly held, the role of the State or its officials to prescribe what shall be

offensive.”); Fulton, 593 U.S. at 533 (“Government fails to act neutrally when it proceeds in a

manner intolerant of religious beliefs or restricts practices because of their religious nature.”);

Barnette, 319 U.S. at 637 (“That they are educating the young for citizenship is reason for

scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the

free mind at its source and teach youth to discount important principles of our government as

mere platitudes.”).

The District’s Equity Statement “recognizes and celebrates the diverse identities of all

members of our school community.” Ds’ ¶ 3. When the elementary school provides notice and

opt out rights for sensitive religious and secular topics, but not for transgender topics, the school

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is not neutral.

Refusing to allow notice and opt outs for religious and fundamental parental rights

objections to transgender topics, i.e., forcing young children to be exposed to particular

instruction over the objections of unwilling parents, while permitting notice and opt outs for

other sensitive topics – is not neutral and constitutes an improper use of governmental authority.

See Kennedy, 142 S. Ct. at 2431 (rule suppressing religious expression “would undermine a long

constitutional tradition under which learning how to tolerate diverse expressive activities has

always been ‘part of learning how to live in a pluralistic society.’”).

Some of the declaratory relief sought in paragraphs 1 and 2 will be awarded. The court

concludes that Plaintiffs are constitutionally entitled to a declaration that failure to provide

adequate notice and the ability to opt their elementary-age children out of instruction on

transgender topics that is not part of the school curriculum violates their constitutional rights.

The notice provided to parents must be reasonable to enable the practical exercise of their ability

to opt out their children.

The court will not grant all the declaratory relief requested by Plaintiffs. Proposed ¶ 1 is

framed in injunctive language (i.e., “is precluded”), rather than declaratory language. Some of

the relief sought in ¶ 2 does not require a declaration of rights, but involves details about how

reasonable notice might be provided.

The declaratory relief sought in ¶ 3 (involving the curriculum) is not directly related to

Plaintiffs’ constitutionally-protected interests that are implicated in this case. Williams’

transgender instruction was not part of the curriculum. The court need not determine, therefore,

whether putting the transgender topics in the published curriculum would avoid the constitutional

violations presented here. If this sensitive topic is included in the curriculum, rather than being

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an ad hoc decision by a teacher that is ratified by the District, there may be other issues raised

that would require different evidence or need expert analysis.

There is no need to issue declaratory relief against Steinhauer or Irvin because both of

them are retired. They, therefore, no longer exercise supervisory or policy-making authority in

the District. See Cook v. Corbett, No. CIV.A. 14-5895, 2015 WL 4111692, at *12 (E.D. Pa. July

8, 2015) (claim seeking injunctive relief against former Governor was moot because he left

office).

The following declaratory relief will be awarded in favor of Plaintiffs and against the

District, Williams and Bielewicz:

Absent a compelling governmental interest, parents have a constitutional right

to reasonable and realistic advance notice and the ability to opt their
elementary-age children out of noncurricular instruction on transgender topics
and to not have requirements for notice and opting out for those topics that are
more stringent than those for other sensitive topics.

IV. Conclusion

In summary, for the reasons set forth above, Plaintiffs’ motion to strike responses to the

CSMF (ECF No. 125) will be DENIED, although certain facts will be deemed undisputed.

Defendants’ summary judgment motion (ECF No. 92) will be granted in part and denied

in part as follows: (1) summary judgment will be granted in favor of Wyland on all claims; (2)

summary judgment will be granted in favor of all Defendants and against Dunn on the Free

Exercise claim in Count IV; (3) the familial privacy claim in Count III is subsumed into Count I

and therefore is dismissed; (4) summary judgment will be granted in favor of Defendants with

respect to the state law claim in Count VI because the Pennsylvania School Code does not

provide a private right of action; and (5) the motion will be denied in all other respects.

Plaintiffs’ summary judgment motion (ECF No. 96) will be granted in part and denied in

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part as follows: (1) summary judgment will be granted in favor of Plaintiffs and against the

District, Williams, Bielewicz, Irvin and Steinhauer on the Substantive Due Process claim in

Count I, which subsumes the familial privacy claim in Count III; (2) summary judgment will be

granted in favor of Plaintiffs and against the District, Williams, Bielewicz, Irvin and Steinhauer

on the Procedural Due Process claim in Count II; (3) summary judgment will be granted in favor

of Plaintiffs and against the District, Irvin and Steinhauer on the Equal Protection claim in Count

IV; (4) summary judgment will be granted in favor of Tatel and Melton and against the District,

Williams, Bielewicz, Irvin and Steinhauer on the Free Exercise claim in Count IV; and (5)

summary judgment will be granted in part in favor of Plaintiffs with respect to the request for

declaratory relief in Count VI.

The following declaratory relief will be awarded in favor of Plaintiffs and against the

District, Williams and Bielewicz:

Absent a compelling governmental interest, parents have a constitutional right

to reasonable and realistic advance notice and the ability to opt their
elementary-age children out of noncurricular instruction on transgender topics
and to not have requirements for notice and opting out for those topics that are
more stringent than those for other sensitive topics.

Nominal damages of $1.00 will be awarded in favor of each Plaintiff and against each of

the District, Williams, Bielewicz, Steinhauer and Irvin ($1.00 from each Defendant to each

Plaintiff, for a total of $15.00). See Alexander v. Riga, 208 F.3d 419, 429 (3d Cir. 2000) (“even

absent proof of actual injury, nominal damages are to be awarded to recognize violation of a

constitutional right”) (citing Carey v. Piphus, 435 U.S. 247, 266–67 (1978)).

An appropriate Order follows.

Dated: September 30, 2024 BY THE COURT:

s/ Joy Flowers Conti
Joy Flowers Conti
Senior United States District Judge

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