As Eugene Volokh explains, it may violate the First Amendment. But why, one has to wonder, would the Encinitas Union School District believe treading along, and over, the line of constitutionally protected speech and expression was so important that it would not merely take the risk, but take the risk at the expense of a fifth grade buddy?

The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, “students in the older classroom mentor students in the younger classroom.”

Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week.

Lacking the pedagogical bona fides to know whether pairing fifth graders as mentors with kindergartners serves a useful educational purpose, given that while they might be substantially more mature than the babies, they still have a good deal of growing up to do. Nevertheless, the nice folks at La Costa Heights Elementary School decided it was kinda cool, and so do it they did.

But then they took this buddy system, and decided to use it for an ulterior purpose.

For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.

Why, one might wonder, did the elementary school decide that this time, this book, would be omitted from the weekly newsletter?

My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not “fit in” with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son’s “pink shadow” not as a phase but as reflecting the boy’s “inner-most self.” Although the term “gender identity” does not appear in the book, the author describes it as a children’s book on the subject of gender identity. Defendants admit that the book “does address gender identity.”

The plaintiffs in the suit, parents of two fifth graders, asserted that this message was inconsistent with their religious beliefs, and that their children should have been given the option to opt out of participating in the reading and subsequent chalked outlining of their mentees’ shadow in the color of their choosing.

Because choosing one’s own gender identity is contrary to Plaintiffs’ religious beliefs, they were uncomfortable with the buddy class. Moreover, as mentors, P.D. and S.E. did not wish to affirm the book’s message to their buddies.

Notably, had this been part of the health curriculum, the parents would have been given the option in accordance with California Education Code Section 51240. But as this was not part of the health curriculum, although also not part of the regular classroom instruction, neither notice nor the option to opt out was given. Judge James Lorenz found that requiring the fifth graders to participate contrary to their parents’ religious beliefs likely violated the First Amendment.

In light of P.D.’s role in the class as his buddy’s mentor, P.D.’s presence next to his buddy during the read-along video presentation and subsequent tracing of his buddy’s shadow in the buddy’s chosen color implicitly conveyed P.D.’s endorsement of the message that gender can be a matter of one’s choice and subject to change—a message contrary to P.D.’s own beliefs and which he did not wish to convey to his buddy. P.D.’s required participation in the buddy class therefore directly and immediately affected P.D.’s freedom of speech.

“Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.” Laws and regulations which alter content of speech in this manner are content based…. “Content-based regulations are ‘presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.'”

The District’s argument for including this, and future instruction in gender identity, was required by California Educational Law and served to remedy the effects of past discrimination.

California Education Code [sections] regarding instructional materials and social sciences instruction … require schools to include the study of the role played and contributions made to California and national development by members of historically marginalized groups, including lesbian, gay, bisexual, and transgender groups. California law also prohibits excluding educational materials due to covering the marginalized groups, mandates that these groups be accurately reflected in educational materials, and prohibits their adverse portrayal. Defendants argue that My Shadow Is Pink conformed to these requirements. Its inclusion in the buddy program was intended to stress the acceptance of those who are different and reduce the serious effects of discrimination against gender-diverse individuals.

The court held that the law was not sufficiently narrowly tailored to survive strict scrutiny. And, indeed, compelling fifth graders to be the messengers to kindergartners of gender inclusivity goes quite a bit further than educational materials accurately reflecting marginalized groups.

The California Education Code provisions cited by Defendants and Defendants’ reasons for introducing My Shadow Is Pink to the buddy program reflect an admirable purpose. However, they do not meet the requisite narrow tailoring to justify interference with students’ freedom of speech. Laws intended to “eliminat[e] discrimination against LGBTQ individuals” and remedy the serious mental and emotional harm of discrimination are generally insufficient to meet strict scrutiny.

Whether it reflects an “admirable purpose” is hardly a given. Were these kindergartners beating up gay kids on the playground such that they needed remediation of their discrimination and intolerance? If not, what was this doing in the curriculum at all? The backlash to the ham-handed anti-DEI executive orders and their sequalae may be dangerously overstated and destructive (such as deleting the Department of Defense’s webpage about the “Enola Gay”), but then when school districts engage in the very sort of indoctrination these vague and grossly overbroad measures seek to stem, you realize that the excesses on both ends of the spectrum give rise to similarly excessive backlashes. Hey, teachers, leave those kids alone.