Right for All the Wrong Reasons On Parent-Student Religio-Sexual Rights

Jeff at Caerdroia linked to a controversial decision on parental rights.

For background, a public school sent out a poorly worded slip asking parents to allow the school to let a graduate student privately ask questions to students that may require “psychological help” to recover from. Particlarly, the flier read

Dear Parent or Caregiver:

The Palmdale School District is asking your support in participating in a district-wide study of our first, third and fifth grade children. The study will be a part of a collaborative effort with The California School of Professional Psychology — CSPP/ Alliant International University, Children’s Bureau of Southern California and the Palmdale School District. The goal of this assessment is to establish a community baseline measure of children’s exposure to early trauma (for example, violence). We will identify internal behaviors such as anxiety and depression and external behaviors such as aggression and verbal abuse. As a result, we will be designing a district wide intervention program to help children reduce these barriers to learning, which students can participate in. Please read this consent letter and if you agree, please sign and send it back to your school’s principal no later than December 20, 2001. The assessment will consist of three, twenty-minute self-report measures, which will be given to your child on one day during the last week of January. This study is 100% confidential and at no time will the information gathered be used to identify your child. Your child will not be photographed or videotaped. You may refuse to have your child participate or withdraw from this study at any time without any penalty or loss of servicesto which your child is entitled.

I am aware that the research study coordinator, Kristi Seymour, one research assistant, the Palmdale School District, Director of Psychology, Michael Geisser, and a professor from CSPP, will be the only people who have access to the study’s information. After the study is completed, all information will be locked in storage and then destroyed after a period of five years.

I understand answering questions may make my child feel uncomfortable. If this occurs, then, Kristi Seymour, the research study coordinator, will assist us in locating a therapist for further psychological help if necessary. If I have further questions, I may contact Kristi Seymour at 1529 E. Palmdale Blvd., Suite 210, Palmdale, CA 93550 at 661.272.9997 x128. I understand that I will not be able to get my child’s individual results due to anonymity of the children, but I may get a summary report of the study results.

I have read this form and understand what it says. I her[e]by agree to allow my child to participate in this district-wide study.” (emphasis in original). Additionally, two lines were made available on the “Parental Consent” form for the “Parent/Caregiver” to sign and date it.

Some parents who approved were rather surprised when their young children were asked to rate questions such as:

8. Touching my private parts too much
17. Thinking about having sex
22. Thinking about touching other people’s private
23. Thinking about sex when I don’t want to
26. Washing myself because I feel dirty on the inside
34. Not trusting people because they might want
40. Getting scared or upset when I think about sex
44. Having sex feelings in my body
47. Can’t stop thinking about sex
54. Getting upset when people talk about sex

Several parents were upset at the deception, and sued. The parents claimed the school’s actions violated their “basic Constitutional right” “to control the upbringing of their children by introducing them to matters of and relating to sex.” This is the case of .

First, the Court appropriately states that it should not make law, only apply law to existing cases

We note at the outset that it is not our role to rule on the wisdom of the School District’s actions. That is a matter that must be decided in other fora. The question before us is simply whether the parents have a constitutional right to exclusive control over the introduction and flow of sexual information to their children.

Then, the Court notes that the State has a long constitutional history of running schools

In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court recognized that parents’ liberty interest in the custody, care, and nurture of their children resides “first” in the parents, but does not reside there exclusively, nor is it “beyond regulation [by the state] in the public interest.” Id. at 166. For example, the state “as parens patriae” may restrict parents’ interest in the custody, care, and nurture of their children “by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.”

Many other findings are similarly concise. It appears that the Court is crafting a restrained opinion which narrowly strikes down the lawsuit. Even the second-to-last paragraph is fine:

Although we reach our conclusions with little difficulty and firmly endorse the School District’s authority to conduct survey for the purposes involved here, we reiterate that we express no view on the wisdom of posing some of the particular questions asked or of conducting an inquiry into some of the particular areas surveyed by the School District. That determination is properly left to the school authorities.

But this is the Ninth Circuit, a highly political, highly activist branch of the federal judiciary.

All valid criticism of the decision comes from the last paragraph:

In summary, we hold that there is no free-standing fundamental right of parents “to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs” and that the asserted right is not encompassed by any other fundamental right. In doing so, we do not quarrel with the parents’ right to inform and advise their children about the subject of sex as they see fit. We conclude only that the parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select. We further hold that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state. Accordingly, the parent-appellants have failed to state a federal claim upon which relief may be granted. The decision of the district court is affirmed.

The Court’s decision is dishonest. The bulk of the material is narrow, laying the groundwork for a finding against the parents. But then the Court creates law, saying the State has total rights to introduce sexual information in any way regardless of the faith or religion of the child or parent.

This enforced secularism is closer to French than American. And if Hillary Clinton’s proposals are what is needed to stop this bigotry, then so be it.

Of course, just fixing the Courts would be even better.

3 thoughts on “Right for All the Wrong Reasons On Parent-Student Religio-Sexual Rights”

  1. Dan,

    The very last bold section of the quoted material is where the biggest problem lies. By stressing “any forum or manner,” they are including possible religious indoctrination (whether traditional religious or secular-religious indoctrination), which is entirely contrary to the U.S. Constitution on that subject; and, the fora allowed (“any”) would seem to contradict rights of association.

    However.

    The longstanding tradition that parents are ipso facto the *owners* of children is long due for breaking. Theoretically (and probably, Constitutionally) children have no more nor fewer rights than adults, and adults do not own children the way adults once owned slaves. So I don't buy the argument that parents should have complete authority over a child's exposure to information, nor that parents have any inherent right to indoctrinate children in isolation. Parents do have the right of free speech and association and so may teach their children their religion, ideals, values, etc.; but they don't have the right to restrict their children's access to information from other sources. But neither does the state have such a right over children.

    Laws and precedent, on the other hand, recognize a child's relative inability to choose wisely which information and associations are best and which are harmful. This of course presents many problems…

    In general, I agree with the court's decision although I think the delivery of that decision was quite muddled.

  2. Curtis,

    I think we agree that the last paragraph is awful. Reading along, it was sickening. The Court was obviously setting up a limited ruling, and then decided to tack on a sweeping assumption of state power.

    I wonder if they had an existing opinion already written, and then something convinced the judges that parents had too many rights…

    Clearly parents aren't owners of their children, but parents are guardians of those children.

    Also so sad is that rulings hurts the poorest the most. Those with extra cash, or a parent able to stay home, are much more able to opt-out of the public school system than a double-income working-class couple.

  3. I'm a little unclear on what you are arguing, Dan. If you maintain that the power to operate schools is not available to the State of California, I would refer you to Amendment X and the California State Constitution which, I seem to recall, requires the state to provide public schools.

    If the state is providing public schools, does it not follow that the state must provide a set of curricula for those schools to follow, as well as to provide any additional materials or programs necessary to the education of children within the school system?

    And does it not follow from that that the state must have the power to determine what the contents and form of the curricula, programs and other materials and activities will be?

    If the state has the power to determine what is taught, what is the extent of that power? One would think that it is limited only by the state laws and local ordinances that control the exercise of that power. Of course, if there is a Constitutional right granted to individuals at the Federal level, or a legal right granted at the state level (or, in practice since federalism is dead, a legal right granted at the Federal level), that right may override the power of the schools to set the curricula. But I see no Federal guarantee in the Constitution or law that would control what topics the school may teach, so long as it does not attempt to enforce religious compliance (Amendment I).

    And in fact the plaintiffs argued on three different grounds that they had Constitutional rights that superseded the state's right to set the curricula. The court found against them on all three grounds.

    Are you arguing that the court was wrong because parents have an exclusive right to communicate sexual information to their children? If so, on what grounds do you argue this? How would the parents enforce that right against, say, slightly older children who have already learned the sexual information that the parents wish to control? How does that right come to be, while not limiting the state's right to decide, say, what will be taught in geology classes? In other words, what are the limits and enforcement mechanisms associated with the claimed right?

    Or, are you arguing that the parents have a due process right to be informed of everything that will be presented to their children? If so, how would the school logistically comply? Not only would it be difficult to even make an exhaustive list, but the school would then find itself taking extraordinary amounts of time in explanations and clarifications, as well as facing numerous requests for specific modifications on a per child basis, and on top of that would be more or less continually defending itself against lawsuits based on anything less than perfect compliance with either the reporting requirements or modifications not made for whatever reason. If you are arguing a narrower due process right, on what grounds do you argue it? What are the limitations of that right? Does it only apply to sexual information? If so, how do you derive that right?

    Or, alternately, are you arguing that the parents have a privacy right? If so, how do you derive a right of privacy in a public place? What are the limitations of the right, and how would it be enforced?

    If you are not arguing any of these three, which the court reject with reasoning you seem to be claiming was justified, then what exactly are you arguing? Semantics?

    Because the thing is, whether you agree or not with the Supreme Court's prior holdings on separation of church and state (and I personally feel that the Court has gone too far in the direction of trying to remove all aspects of religion from public life), the inferior court cannot, as Judge Kozinski said in another case, find that the Supreme Court was “out to lunch” the last time it visited an issue. As it is, the schools cannot take religion directly into account hardly at all, and the inferior court has no way to override the Supreme Court on that.

    As far as I can tell, this is not a rights issue, or a Constitutional issue, but a political issue. The proper place for the parents to fight that horrible school board is at the polls, and at school board meetings. And the parents should fight, certainly, because the board's behavior was unacceptable.

  4. Jeff,

    As I indicted by writing “All valid criticism of the decision comes from the last paragraph,” my hostility to the opinion comes from its last paragraph. Particularly, the bolded sections which I will re-emphasize

    1. 'there is no free-standing fundamental [or other] right of parents “to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs'
    2. 'parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select'

    Your criticism of my focus on the meaning of words (semantics) is confounding, especially by your comment on another thread: “Either words have meaning or they do not. If they do not, all argument is meaningless and a waste of time.” (http://www.caerdroia.org/blog/archives/2005/11/weird_science.html)

    I'm confused by your off-topic questions of the right of the states to operate schools, logisitical issues, etc. Neither were mentioned in the last paragraph, nor brought-up by me.

    I am happy to continue this conversation, but I do not respond to straw-man criticisms such as “do the parents have a due process right to be informed of everything that will be presented to their children?”

  5. I was not trying to lay out a straw man. I was attempting to set up the reasons for which I believe that the state of California has a right to do what they did, even though it was odious. I was looking at the ways that you could disagree reasonably, and I was not sure from your post on what grounds you were disagreeing. Given the comment you made, though, I see what your claims are:

    1. Parents have either a freestanding fundamental right, or a freestanding right otherwise granted, to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs.
    2. Parents have a constitutional right to prevent the public schools from providing information on the subject of sex to their students, at least in particular fora or manners.

    So the operative questions I raised would be these:
    [O]n what grounds do you argue [that the court was wrong because parents have an exclusive right to communicate sexual information to their children]? How would the parents enforce that right against, say, slightly older children who have already learned the sexual information that the parents wish to control? How does that right come to be, while not limiting the state's right to decide, say, what will be taught in geology classes? In other words, what are the limits and enforcement mechanisms associated with the claimed right?
    And since you only object to the last paragraph, per your post and comment, what is missing from the court's reasoning to support their contention that no such right exists? As far as I can tell, they have law, the Constitution, and long-standing precedent on their side.

    I'm not trying to argue the point, so much as I am to understand the basis on which you are claiming the exclusive right of parents to control what sexual information is transmitted to their children, and the basis on which you are claiming that parents should be able to control the manner and/or fora in which sexual information is communicated by the school to children. I simply don't see whence such a right arises.

  6. “Clearly parents aren't owners of their children, but parents are guardians of those children. “

    My own brain might be muddled, but…where is guardianship founded in the Constitution? It is a tradition, it is a legal precedent, it is an “operational” matter; but I'm not sure it is a right. I do believe that rights exist which aren't explicitly written within the Constitution, but I don't believe those rights may infringe on another's rights. For this reason, children can be taken from their parents when the state deems it necessary for the welfare of the child: See, the state is always the arbitrator between citizens, including between a child and a parent. So the state may decide — operationally speaking, must decide — what is best for citizens when rights are in conflict. (I'm not saying, however, that the parents here have any particular rights over children, however. Quite the opposite. Parents have rights pertaining to themselves, but none *over* anyone else, including over children.) In order to do this, some sort of standardization or evaluation process must be in place — and, like it or not, we may not always agree with those standards. (Maybe we can change the standards, in various ways; but until we have, we're somewhat at the mercy of the state.)

  7. Jeff, Curtis, thank you both.

    I think we are arguing past each other.

    I see now how I failed to make myself clear.

    I believe the decision itself was correct. The Court assembled the case law and found no basis for the parental actions.

    But the last paragraph goes considerably beyond that, saying there is “no right [whatsoever] to “control the upbrining…” and that public schools may provide that information in “any forum or manner [whatsoever].”

    The last paragraph is extraneous to the Court's logic — the decision would stand without these extra claims.

    Indeed, there is no strong foundation for the last paragraph's claims. Read the decision again, paying attention to the cases the Court is using as a foundation. None of them made those two findings. They are innovations.

    If the Court wished to say it could not find those rights, and hence could not grant the plantiffs relief, it could have done so. Instead, the Court stepped outside of precedent and concluded that these two rights do not exist.

    As the implications of the Courts two bad statements extend far beyond the type of case we had here, and the cases it induced those two findings were far from comprehensive, this was an activist Court pre-emptively denying rights.

    Sickening.

  8. OK, I see what you are saying now. Let me paraphrase to be certain: you see no problems with the court finding against the parents or the grounds on which they found against the parents, but believe the court exceeded its reach by categorically finding that certain rights don't exist, instead of not finding the rights.

    If I have summarized your position correctly, I don't see much difference between “we can't find those rights exist” and “those rights therefore don't exist”. In any case, though, other circuits might disagree, in which case the Supreme Court will eventually have to decide those issues.

    In the meantime, I'll continue ardently supporting the legislative separation of school and state, although I'm somewhat in the minority in that position, and unlikely to prevail on the big issue.

  9. Jeff,

    “Let me paraphrase to be certain: you see no problems with the court finding against the parents or the grounds on which they found against the parents, but believe the court exceeded its reach by categorically finding that certain rights don't exist, instead of not finding the rights.”

    Exactly.

    “I don't see much difference between “we can't find those rights exist” and “those rights therefore don't exist”.

    The difference is profound. The leap is even found in your own question — in the clause with “therefore.”

    When judges exceed their reach by ruling so broadly, they are ignoring the American system is jurisprudence. Doctrines like mootness, ripeness, and standing all emphasize that the Courts purvue is limited. This sets up an evolutionary court system built on precedence and tradition. In turn, this creates a stable rights-based legal environment for people to live and politicians to alter as per the will of the people.

    By jumping out ahead, the Court ignores this American tradition.

    To be more precise, the Court in its findings in Fields v. Palmdale cited

    Leebaert v. Harrington Parents United for Better Sch., Inc. (on mandatory health classes)
    School Dist. of Philadelphia Bd. of Educ. (on condom distribution)
    Brown v. Hot, Sexy & Safer Prods., Inc., (on compulsary assembly sex ed)
    Citizens for Parental Rights v. San Mateo County Bd. of Educ (on voluntary sex ed)

    Looking at these different situations — health classes, outside-of-class condom distribution, sex ed in an assembly, and voluntary sex ed in an assembly, the Court could not induce a parental right, and so correctly ruled in favor of the school district. In other words, the Court could not induce from these cases that the parents had special rights. The court looked at four situations, and concluded that the fifth situation was similar.

    If the Court would have stopped there, I would have been happy. It's like seeing four white birds up close, seeing a light-colored bird in the distance, and deciding that bird is white. Quite rational.

    Instead, the Court induced from these four fora that parents have “no constitutional right” in these religio-sexual matters “in any forum or manner.” That's like seeing four white birds up close, and declaring that all birds are white.

    The first example shows a reasonable combination of inductive and deductive reasoning to form a conclusion on a specific case. The second shows an unjustified and unreasoned dogmatism. The first shows how knowledge naturally grows through experience. The second how limited knowledge can lead to questionable conclusions.

    The Court ruined a perfectly fine opinion through this slipsop induction. Pitty.

  10. OK, I see the point you are making.

    To what degree, following Marbury v. Madison, is the US still a common law country? Does this affect the degree to which courts can rule in a sweeping manner?

    I would argue that, sadly, we are not much of a common law nation any more: as you have noted, we tend to take a very French view towards the supremacy of statute law. As such, I am not certain that it is inappropriate for courts to try to prevent a raft of litigation by stating a broad principle. (And in this case, that principle only applies in the 9th circuit's area, unless and until the Supreme Court affirms it.)

    In other words, I think we would both agree that the ruling is tragic. I just take the tragedy back a little further, so that the ruling is a tragic consequence rather than a tragic cause.

  11. Jeff,

    Thank you again for the comment on the conversation.

    By “common law” I mean “case law,” so America is very much a common law country. While some states attempt to limit their courts power in various ways (it is unconstitutional in South Dakota for Courts to “make law,” and I believe Louisiana has strictures dating from the Napoleonic Code), every state recognizes the validity of common/case law.

    While the federalization of many crimes has meant their is more federal common law relative to state common law, it is case law all the same.

    Indeed, the Erie Doctrine and other American legal concepts expand state common law into federal common law, by forcing local federa court to heed state court decisions on many matters.

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