And the House has passed a resolution (320-to-91) requesting the Ninth Circuit to rehear the case.
The hostile reaction of conservatives to this rulings demonstrates "judicial activist" is an insult without substance. They don't want the courts involved in deciding the religious content at schools (prayers at graduation, the pledge to God, Intelligent Design), but they do want the court involved in regulating sexual content. If activism meant anything, conservatives (as at least one does) should be supporting the Ninth Circuit decision.
The federal court's involvement in regulating sexual content of education would be far more activist than limiting religious indoctrination. The First Amendment explicitly mentions the government cannot establish religion. There is no Constitutional text dealing with sexual information.
Liberty Counsel represents the plaintiffs. In their petition for the case to be reheard they argue
If the ruling stands, . . . public schools must come with a warning: CAUTION! Your parental rights are severed when you drop your child off at school. You will have no input whatsoever or right to object to any instruction or materials, sexual or otherwise, presented to your child during the school day. . . . the panel's decision says: "Parents - keep your mouth shut. Susie belongs to the school. So get lost!"
There is a simple, democratic solution to objectionable school material: pressure elected officials to change the content. The panels decision says: "Parents – Stop using federal suits to get publicity. Your protests belong at school board meetings. So get lost!"
I hope the Ninth Circuit takes the case. I would expect an overwhelming confirmation of the panel decision. I would like to see the Supreme Court take the case and would expect a unanimous opinion against the parents. Because the panel decision is obviously correct, and taking the case will only generate more negative publicity from right-wing organizations, neither court is likely to take the case.
Congress' resolution is simply political theater, a jab at the Judicial Branch to insulate themselves from being accused of supporting asking sex questions to six year olds next year. If Congress really wanted the decision reversed, they could simply pass a law stating that federal education dollars will only be given to States that require parental notice and approval of all instruction involving sexual materials. I think that such a law would be costly to monitor, unnecessary take control of an issue that should be left to local government, and would be unlikely to change what actually occurs at schools, but it could be done.