A person wears a pride flag in their hat during the second annual Arlington Pride at Legion memorial Park in Arlington, Washington, on Saturday, July 22, 2023. (Annie Barker / The Herald)

A person wears a pride flag in their hat during the second annual Arlington Pride at Legion memorial Park in Arlington, Washington, on Saturday, July 22, 2023. (Annie Barker / The Herald)

Judge blocks parts of Washington’s new parental rights law

The South Whidbey School District is among the plaintiffs in a lawsuit over the law giving parents access to counseling records for their children.

By Laurel Demkovich and Grace Deng / Washington State Standard

Most of the parental “bill of rights” the Legislature approved earlier this year can remain in effect, for now, but pieces related to when parents can access medical and mental health records can’t go forward, a judge ruled Friday.

King County Superior Court Judge Michael Scott granted a request to temporarily block parts of the law that give parents access to all medical and mental health counseling records for their children and require school districts to turn over the records within 10 days – a shorter time than allowed under federal law.

Most of the law, created by the Republican-backed Initiative 2081, will remain in place. It allows a range of school materials, such as textbooks and curricula, to be easily available for review by parents. Parents are also given notice and allowed to opt their child out of assignments and other activities involving questions about a child’s sexual experiences or their family’s religious beliefs.

The state Legislature approved the measure earlier this year and it took effect June 6.

The lawsuit, spearheaded by the ACLU of Washington and other legal groups, argues that students, parents and school districts will be harmed by the initiative and that it was drafted in a way that violates the state Constitution. That’s despite the Office of Superintendent of Public Instruction’s assurance that much of what was in the initiative was already state law.

In a ruling from the bench, Scott said he is sensitive to the impacts of the initiative on schools throughout the state but that was not the question before the court.

“It’s not this court’s position to determine whether that’s good policy or not,” Scott said.

In his decision to grant the partial preliminary injunction, Scott raised concerns over the sweeping language in the initiative calling for schools to turn over all medical and mental health records and to do so within 10 days. The federal Family Educational Rights and Privacy Act requires schools to turn over records as soon as possible, or within 45 days of the request.

A written order detailing Scott’s ruling will be available next week. The injunction means the blocked parts of the law will remain on hold while court proceedings continue.

The initiative, written by Rep. Jim Walsh, R-Aberdeen, was one of six backed by conservative hedge fund manager Brian Heywood. It passed unanimously through the state Senate and 82-15 through the House, with only Democrats opposed.

Pete Serrano, who’s representing Walsh, the Heywood-sponsored group Let’s Go Washington and others in this case, said he was “extremely grateful” most of the law is intact.

“There’s a lot of opportunity for parents to remain present in their child’s education,” said Serrano, who is also a Republican candidate for attorney general.

In a statement following Friday’s ruling, ACLU attorney Adrien Leavitt said he was pleased that parts of the initiative would not go into effect until there is a final decision.

“But this is not the end,” Leavitt said in a statement. “We will keep fighting this case in hopes of a final judgment that shows this harmful law violates the State Constitution and should not be implemented or enforced.”

When the initiative passed the Legislature, Democrats who supported it emphasized the legislation did not change any protections for marginalized groups.

Sen. Jamie Pedersen, D-Seattle, told the Standard some Democratic lawmakers were uncomfortable with the initiative, but passing it allows the Legislature to amend the statute next session should issues arise.

Had the Legislature declined to take action, sending the initiative to the ballot, lawmakers would have to wait two years before they could amend it if it won voter approval.

But the ACLU of Washington, Legal Voice and QLaw, the three organizations leading the lawsuit, argue the initiative “misled state lawmakers and the public.”

“It violates the State Constitution because it fails to disclose how it revises and affects existing laws,” the groups’ lawsuit says. “This causes confusion about the legal duties of schools, their staff and contractors, and school-based healthcare providers, as well as the rights of students.”

The lawsuit also contends that the initiative would strip important privacy protections for medical and mental health records for LGBTQ+ students, youth of color and students from other marginalized backgrounds.

When the initiative passed, LGBTQ+ advocacy groups voiced concerns about the potentially chilling effect it could have on LGBTQ+ youth.

“Many students simply aren’t going to seek out those services,” Leavitt said Friday.

Julia Marks, litigation attorney for Legal Voice, said Friday’s ruling would help protect these students by keeping their medical and mental health records confidential.

“Survivors of sexual assault, LGBTQ+ youth, youth who need reproductive and sexual health care, and other vulnerable students rely on trusted adults at school who can confidentially help them navigate challenges,” Marks said in a statement.

The initiative came as the socially conservative “parental rights” movement, which aims to restrict schools’ abilities to teach about gender, sexuality and race without parental consent, has gained influence across the United States. LGBTQ+ students and advocates across the country say the movement is less about parental rights and more about targeting and silencing LGBTQ+ youth.

Among the plaintiffs in the lawsuit are South Whidbey School District, equity-focused nonprofit organizations and a parent of two students in Seattle Public Schools.

Washington State Standard is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Washington State Standard maintains editorial independence. Contact Editor Bill Lucia for questions: info@washingtonstatestandard.com. Follow Washington State Standard on Facebook and X.

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