From Reuters:
Parents have no constitutional right to prevent public schools from exposing children to sexual topics, a U.S. appeals court ruled on Wednesday.
The San Francisco-based 9th U.S. Circuit Court of Appeals affirmed a lower court’s decision that found the rights of parents were not violated by a California public school district that allowed a psychological survey of its elementary school children.
Among the survey questions asked of the children were 10 with sexual references, such as “Can’t stop thinking about sex” and “Not trusting people because they might want sex.”
A group of parents whose children were surveyed sued the Palmdale School District, alleging their right to privacy and civil rights had been violated because control of their children’s upbringing had been “robbed.”
A three-judge panel held the parents have a right to inform their children as they wish about sex but do not have the right to prevent a public school from providing students with information it deems appropriate.
“Schools cannot be expected to accommodate the personal, moral or religious concerns of every parent,” Judge Stephen Reinhardt wrote for the panel. “Such an obligation would not only contravene the educational mission of the public schools, but also would be impossible to satisfy.”
Well, there’s always homeschooling, I guess.
It seems to me if there is an opt out for the Pledge, there should be an opt out for these psychological surveys [update: permission slips were required, but the parents argued they were misled about the content of the survey]. The remedy of removing students from public schools would seem to put an undue financial burden on the parents.
Having said that, the point that “schools cannot be expected to accomodate the personal, moral or religious concerns of every parent,” seems apposite (expect to hear this kind of argument when the Intelligent Design arguments begin hitting the courts in force)—though in this case, I’m not sure how a ruling that would allow for parents to receive notification of, and perhaps an an opt-out mechanism for, sexually-related lessons/activities would necessarily commit the schools to accomodate every potential concern.
Of course, I’m just reacting to this based on the Reuters summary; there is almnost certainly more to the legal reasoning here than I’m aware of. But it’s early, and I don’t feel like reading legal prose just now. Any of you lawyers out there feel like filling in the blanks?
Because Jeff needs his coffee and breakfast toaster pastry.
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update: Erick from Redstate writes:
Interestingly, while the court ruled that parents have no “right to override the determinations of public schools as to the information to which children might be exposed,” the public schools, according to the Ninth Circuit, can only expose children to sex. Exposing children to prayer or the Pledge of Allegiance would indoctrinate the children unfairly.
As a legal matter, the case was most likely rightly decided based on the law. But, we should all be outraged at the lack of respect the Ninth Circuit showed to parents—who should be the the only party introducing seven year olds to issues of sex. As Neodanite said, if the town pervert had grilled the seven year olds on masturbation, it would have been a crime. In the same way, I can hardly imagine the Ninth Circuit upholding a law that would give parents the exclusive right to educat[e] their children about sex. And that is just not right.
(h/t Ben Domenech)
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update 2: Andrew McCarthy weighs in at the Corner:
I’m no fan of the 9th Circuit, but does anyone here really quarrel with its reasoning in this case?
People in our camp are forever pointing out that there is no generalized, uncircumscribable right to privacy in the Constitution. The parents in this case were claiming that the right that to privacy that the Courts have created—which has already been extended into a supposed “right to direct the upbringing and education of their children”—should now be morphed into both a “right to be the exclusive provider of information regarding sexual matters to their children,” and a “right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students.”
Where is any of that in the Constitution? I don’t understand the 9th Cir to be saying that the people of the State of California cannot democratically pass laws that confer these rights on parents by statute. All the 3-judge panel is saying is that these rights are not to be found in the Constitution.
Does anyone quarrel with that? I’m not being flip. I understand the equities argument here—i.e., that the courts are more than willing to go the extra mile to invent new constitutional rights as needed to advance a Leftist agenda but then become strict constructionists when substantive due process is resorted to in an effort to advance a socially conservative agenda. But isn’t the whole point that we don’t want the courts empowered to impose ANY agenda?
Why can’t this be handled legislatively?
TW: “States”. Uh, yeah. That.
Homeschooled here, beginning to end.
And no, I don’t twitch nervously in public.
Here’s what some lawyers think.
Well, I’ll tell you what I think…
I went to sixteen years of Catholic School and..STOP TOUCHING ME!
I’m not seeing how surveys like the one you mention are a profitable use of a child’s time in light of the necessity to learn math, reading and writing skills, how to communicate clearly, etc. Is this related to the goal that every child receive early psychological health screening in the hopes that “problems” be found early? Who decides what the results mean? Will the results be used to label a child and thereby affect his/her schooling? We educate at home, but it’s alarming that “experts” continue to usurp parent rights. It affects everyone.
Thanks for the link, Ben. As an aside, a local grade school teacher has created a Pledge of Allegiance to Mother Earth that her third graders say every morning. No one complains at all.
I agree with Erick that the case was rightly decided. So what’s he whining about, then, re: the Ninth Circuit’s “lack of respect” for parents? His beef is with the legislature, not the court. Sad that we have to remind our own side that there’s distinction.
The point about the town pervert is clever but a non-starter. If the town pervert slapped handcuffs on someone and shoved him in the back seat of a car, it’d be kidnapping. Doesn’t mean the police shouldn’t be allowed to do it. As for the need for an opt-out from the pledge, that’s because it touches on First Amendment issues. This case touches on … nothing, really. As the court says, if parents don’t want to buy what a particular school’s selling, they can vote with their feet (or pressure the legislature into banning these sorts of studies for young kids).
I think Erick’s point was that the Ninth didn’t have to go so far afield – that a narrow decision would’ve been enough.
But considering the history of the judge involved, restraint is not exactly a strong trait.
In other words, something that (I think we’d all agree) 90% of the community’s parents would object to can’t be forbidden, because someone out there might find it acceptable. And, in fact, it is not only, but mandatory. Defining deviancy down anyone?
The Ninth circuit seems to be throwing out the notion of a community standard here. Something that offends the vast majority can be done at the whim of an educator.
What next? If they decide it’s OK to cane a kid, what right do we have to object?
I think the study is a bad idea but I also think that the parents filed a dumb lawsuit, especially if this is the case:
Well … m’okay. rights … violated… control…. upbringing … okay. Got it.
I’m dad to a 1st grader and a 6th grader in public school. There are some goofy things that go on – for example, my older son’s homework consisted of a reading a handout about NYC the tourist attractions. It featured the Twin Towers … it was from 2000 so everything about the TT was in the present tense .. and then answering questions about NYC and its tourist attractions. So, there’s that.
But, I think this type of concern is better served by the parents running for the schoolboard.
One approach might be to require the parents to give permission before a student participates in a study of any sort.
In what way was the decision too broad, Ben? Reinhardt discussed the Pierce/Meyer cases and acknowledged that parents have the right to determine what their kids should learn. What they don’t have is the right to determine what any particular school should teach.
McCarthy hits the bullseye.
Allah,
Where exactly is the teaching going on here? I generally agree with the idea of not giving parents “veto of one” power, but this really isn’t about curriculum. Students were asked for information, not provided it. And they were asked for it under what seems to be false or vague pretense.
This seems to be a case where a graduate student wanted to collect data for her master’s thesis in the school district where she worked, and was vague or incomplete in the parental permission forms about exactly what data she was collecting (How this got past any ethical review board at her school, provided there is one, is beyond me). Providing survey data is a courtesy, not a requirement. Or at least it used to be.
Parents have no constitutional right to prevent public schools from exposing children to sexual topics
Whoa, I’m confused. Are we to understand the sentence above has a hidden “their” between “exposing” and “children,” or is the court just saying I can’t prevent the school, if it wants to, from teaching Satchel his dad does NOT have nine inch uncut?
Shorter Erick Erickson: Judicial activism is good for me, but not for thee.
I think the problem here is piss poor wording by the press. What they should say is it is not unconstitutional to expose children to sexual topics. Parents do have a constitutional right to advocate legislation that restricts their children’s exposure if they so desire. I haven’t read it thoroughly, so I may be full of shit as usual.
While I reluctantly agree with the Ninth Circuit’s
decision, I feel that they were right as far as Constitutional rights go. What I do not agree with is the lack of communication between the school district and the parents in regards to the content of the materials the children are being exposed to. That is exactly why as a parent, I feel fortunate that I have the ability to send my children to private schools…….
Geez at the rate the indocrination program is moving, Justice will soon reguire parents just give their children over to the Village to raise sooner than we think.
Jason—According to the opinion, the school district conducted the study as a way of understanding “psychological barriers to learning.” The goal, presumably, was to develop more effective ways of teaching abused kids. I guess the survey itself doesn’t constitute “teaching,” but since it’s designed to improve teaching, I don’t think we need to draw some big distinction.
You say that the kids weren’t provided with any information, but that’s not quite true. The whole crux of the parents’ argument, as I understand it, is that the questions asked were so explicit that merely listening to them would be enough to screw with a kid’s understanding of sex, which would in turn interfere with the parent’s right to determine the pace and scope of that kid’s sexual education.
A more interesting argument would have focused on the fact that the kids were expected to answer the questions. The fact that there was an opt-out probably would have protected the school district, but if there hadn’t been one, then the kids could have alleged that their First Amendment rights were violated. Not sure if they’d have won, but they’d have been on firmer ground.
I understand their reasoning, but it still leaves me uncomfortable.
To me, it seems that the school is arrogating to itself a mandate that it doesn’t possess. Certainly, it has the duty to define a curriculum, and an obligation to share that with the parents. I think, though, that here it is saying, “Oh, and by the way, whatever we want to do with your kid during school hours is fair game”—including making them participate in a survey that clearly exceeds the authority the permission slip the parents signed gave them.
It’s like saying “Oh, we’re taking the kids on a field trip to Fort Benning for a tour,” and I, as a parent, say, “OK, sounds good, the kid might learn something.” Then my kid comes back and tells me “Dad, it was great. We did a live-fire machine gun course, we blew up some stuff using C4, and we did an equipment jump from a C-130.” Yeah, in a sense, I’d be pleased—even proud of the kid—but I’d also be pretty upset that the school did this when the permission slip implied they were just going on a tour.
To me, the 9th circuit seems to be saying “Well, tough luck, what the school says, goes. The Constitution doesn’t forbid it.”
On the narrow point of law, yeah, well I guess they’re right, in some way. But c’mon. Doesn’t the school’s action clearly exceed a) the authority I granted them in that slip, and b) exceed their legal mandate to teach my kid?
You want to teach them evolution? I’ve got no argument with that. It’s the prevailing scientific theory, so fine, go ahead. You want to use my kid as a lab rat? Well, I’m sorry, but who gave you the right?
Maybe it’s not expressly forbidden in the Constitution, but does it need to be? Is it reasonable to assume the school can use my kid as a lab rat because the law doesn’t say they can’t?
To me, the circuit seems to be saying, “If you don’t like it, put it in the Constitution.” Seems to me we’re going to end up with a lot of 10,000 page constitutions as a result of this.
According to the opinion, the school district conducted the study as a way of understanding “psychological barriers to learning.â€Â
Yeah, well, sure, but educational research is always conducted with some lofty goal in mind. It seems that the primary goal was to collect data for the researcher’s master’s thesis. If it also helps the school, great. That seems to be more of a justification for the research rather than the reason for it. I’m guessing that administrators and teachers in the district wouldn’t have even paid much attention to the results, and I’m even more doubtful that they would have fundamentally changed their teaching practices.
Let’s assume for a moment that the purpose of the study was purely to improve instruction. Why send a deceptive or vague permission slip home to their parents? Why send one at all? Apparently this ruling indicates that they no longer have to.
I actually don’t think the ruling was wrong, based on the arguments that the parents used. If they had argued it based on local and state statutes that concern conducting research in public schools they might have won. I don’t know the state and local laws out there, but I would assume they might have had a couple on their side.
No need to put it in the Constitution, Colossus. Just pass a law.
You’re 100% right about false pretenses, though. I wish I knew more tort law to be able to say for sure, but there have to be some civil claims that a parent could file against a school for misleading them. Fraud pops to mind. Or, if the parents could show some sort of psychological injury to the child, they could allege some type of assault.
Schools worry a lot about liability issues, and rightly so. Tort law may be a better way to go here than constitutional claims.
Then they wouldn’t have been in federal court. Long story short, this wasn’t a federal issue.
Fair enough, Allah. I certainly agree that trying it in Federal court is like using a blunderbuss to swat flies. Wrong tool for the job.
My guess is it ended up with the feds because there might not be any specific law to forbid it at the local or state level. (Who would’ve thought it was needed?) So it ended up in the worst possible venue.
Me, I’d nuke the school board from space in the next election, just to make sure. And start passing some very specific state laws. Because we have to assume that the schools are no longer bound by any sort of restraint, or nod to the community about what is acceptable.
In a complete vacuum, the case looks to be rightly decided, but this case is NOT in a vacuum, it is in the same heap of festering judicial activism as the Pledge and Prayer in schools. If the former is allowable, the latter two should be as well. Is there a right to privacy in the Constitution or not? (There isn’t)
Get a story and stick to it!
The Constitution formally and directly regulates the ability of the state to Establish religion. You’re comparing apples and oranges, as the cliche goes.
I think several people here are missing the point. The parents went at the problem from a constitutional angle, which was deficient. Why ? Because there does not appear to be any adequate remedy at law to preclude schools from teaching your children about the birds and the bees (and of course, the birds doing other birds and bees extracting honey from other bees, etc) and whatever else they want to teach and parents can’t do much of anything. If the school wants to teach that homosexual sex rather than heterosexual sex is the societal norm, how, as a parent, do you go about stopping that from being taught to your child?
That its “research” means fuckall, imho.
Home school, or moving.
Send him to a private school? Vote Republican when the school-board election rolls around?
FWIW, here’s your best bet for a lawsuit. A controversial claim in many jurisdictions—but not in left-wing, tort-happy California!
If that one doesn’t work, you’ve always got this. Although good luck trying to convince a San Francisco jury that it’s outrageous to ask a five-year-old how often he jacks off.
I do love how schools feel the need to go out of their way to “teach” stuff like this. You know what would be helpful, schools? If you taught kids how maintain a proper credit history or how to buy a house. That would be helpful. Sex surveys for sevne year olds? Oh for fuck’s fake.
I’d say Andrew McCarthy is on the money, here. That which is morally outrageous is not necessarily constitutionally impermissible, and it is to stretch the Fourteenth Amendment beyond all reason to discover within its penumbras and emanations not merely a generalized right to privacy, but an exclusive right to control what one’s children are taught.
Of course, Geek’s “shorter Erik Erickson” quip would be a lot cuter if Geek himself weren’t such a tireless cheerleader for an overreaching federal juduciary. So—also as McCarthy notes—there’s plenty of hypocrisy to go around, here.
Yeah, that’s not a burden or anything.
This is why schooling shouldn’t be a government function. The private sector would have School A teaching 3rd graders proper “Dirty Sanchez” techniques and parents who had a problem with it could send their kid to School B the next day.
‘Cuz right now, 10,000 parents might have beef with the way a school teaches fisting to 12 year olds, but because 10,000 people don’t amount to much when you’re talking statewide elections, they have very limited options. Free markets take care of that real fast (and Golden Shower Elementry would probably still stay in business, but with a much more limited enrollment).
Have the kid ask his teachers whether they “prefer snails or oysters”… But warn him to keep a straight face when they start burbling.
SB: basic
cooking skillz
1st graders? What exactly the hell, are they going to glean from 1st graders when it comes to sex?
I would ask Andrew McCarthy just where the Constitution empowers the government to run publicly funded schools. Must have missed that one, huh?
Mr. Geek,
We must disagree with the meaning of the word “Establish” and the meaning of “the free exercise thereof”.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
I know that I do not agree with the courts, but then again “I is… ahhh… dum”.
You say that if I object to the school’s policy I can “Home school, or moving”. It seems that it would be less of a burden to those that object than to the majority that do not. If we are to have judicial activism, at least it should be consistant. These parents should have the burden of reemoving their children if they are so inclined, just as the parents of those that have issues with the Pledge.
There’s a link to Mr. Erickson’s emotionalistic rant against a court for having applied the law correctly. Please kindly provide evidence for your charge, sir.
<object to the school’s policy I can “Home school, or movingâ€Â. It seems that it would be less of a burden to those that object than to the majority that do not. If we are to have judicial activism, at least it should be consistant. These parents should have the burden of reemoving their children if they are so inclined, just as the parents of those that have issues with the Pledge. </blockquote>
Again, the Pledge deals with a specific, enumerated restriction on the power of the state, while the parents here were asking the court to legislate from the bench.
Now, one may disagree with the SCOTUS jurisprudence over the Establishment clause, but that is a matter of differing interpretations, not inventing rights.
Mr. Newdow—er, I mean Geek—except for the 9th Circuit, no court has ruled that the wording of the Pledge makes it unconstitutional to encourage children to recite it.
So your assertion:
…appeals to a hypothetical world in which the Newdow doctrine has been adopted by the Supreme Court.
Ya know, I just don’t see that happening—even with O’Connor still on the bench.
So IS there a right to privacy, or ISN’T there? If there’s no right to privacy, then we don’t need Roberts and Alito to overturn Roe v. Wade.
Just put it before the 9th circuit.
tw: soviet
just too easy…
Well, since the Pledge deals with specific 1st Amendment issues, then the Zero Tolerance rules are all unConstitutional, being in violation of 2nd Amendment issues?
I still haven’t been able to figure out why sexual descriptions, pictures, and movies are considered vital ideas necessary to the well-being of our nation…
Since, you know, prohibiting the yelling of “fire” in a crowded movie theater isn’t a violation of free speech, then it would follow that it isn’t just the flapping of gums that is protected, but the content said flapping produces. And so I still find myself puzzled why I don’t find the enumerated Right to Porn anywhere in the Constitution, since it is apparently more zealously protected than either Freedom of Religious Expression or Possession of Arms.
Yeah, that’s beyond the scope of this post, but I’m still puzzled.
There were a couple of reader responses at the Corner to Mcarthy’s post. They did not add much new that hasn’t been expressed as well here, but in the second email, I learned two things:
A. The consent form didn’t mention sex,and:
B. The survey was admitted to students as young as 7 years old.
Let’s put aside the fact that this was loose shit on the part of the committee responsible for procedure. An argument can be made that, if parents must relinquish control over the educational decisions made on behalf of their children, since surely they have that in the beginning, it can’t just fall off a cliff into the arms of Big Gov. 7 years old? What kind of research are they doing where they can get reliable information out of asking 7 year olds about sex?
speaking of loose shit: “McCarthy”
tw: hes. hes?
School choice, my freinds, school choice.
tw: class
I had to post with that one.
All those who believe that the sex survey decision marks the emergence of a new Ninth Circuit that will be similarly restrained in determining whether liberals have X fundamental right that precludes Y conduct or Z government policy, please raise your hands.
Everyone saying “The Constitution doesn’t forbid it” should, in my opinion, be saying “The Constitution doesn’t provide for it.” As I recall, any powers not enumerated in the Constitution are left to the states and the people respectivly. I find nowhere in the US Constitution or the laws of California where it states that my child shall be subjected to sexual psychologial surveys, or any surveys for that matter, as part of their right to public education. Public schools are established to _educate_ the populace, not indoctrinate, intimidate, or experiment on the students therein.
Having said this, I agree with the courts decision to permit the survey. To forbid it would necessitate a censorship committee to determine the “worthiness” or “morality” of any quiz, test, exam, survey, questionnaire, etc… the school decided to give. I also think that the genius who decided it would be a good idea to ask 6 – 12 year olds about sex should be relieved of his position due to overwhelming incompetence.
Code word: five. As in “5 is too young to be having sex but 6… now you’re talking!”
Blather, Blather, Blather.
1. Mandate 16 years of school with mandatory
achievement standards.
2. Privatize all schools and let them compete.
3. Provide tax credits to all students
and/or their guardians for the cost of
education and cash payments for students or
guardians who have no taxable income.
Debate
So,where is Dean screaming for the Government to ‘stay out of our bedrooms’ and where is NOW raging ‘right to privacy’?
If I were a seven yr old who was asked to fill out this survey I’d tell them how I FEEL, that being, shove it up their Collective asses, fuck off and keep that nasty Big Eye Ball out of my head.
Then, I riot as a every good ‘yut’ should.
I never said I endorsed Newdow’s Pledge decision–I think it was incorrectly decided.
However, there is a difference between an incorrect interpretation of an explicit limitation of state power and the judicial invention of a right, for which the parents were asking here.
Yet another instance of how wrong it is for the religious types to impose their morals on everyone else; but if libs want to impose their lack of morals on their hapless wards, why then will you puh-leeze just grow up and join the 21st century, you god-bothering neaderthal, you…
Turing = body, as in Whose is it, anyway?