Dad, I Got a 'C' in Sex

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The subject: Sexual topics in public elementary school. A person associated with the Palmdale, California school district administered a survey to children (ages 7 to 10) in the early grades with questions concerning "thinking about having sex" and "thinking about touching other people’s private parts." The parents (plaintiffs) pursued an action against the school district for violating their right to privacy and their right "to control the upbringing of their children by introducing them to matters of and relating to sex."

The date: November 2, 2005.

The place: San Francisco, California.

The judge speaking for the 9th Circuit Court of Appeals: Stephen Reinhardt.

The plaintiffs-appellants: James and Tammany Fields, Stuart Haberman, Robert and Kathie Hoaglin, and Vanessa Shetler.

The defendants-appellees: Palmdale School District, Michael Geisser, and Arland Atwood.

Finding: The ruling of the United States District Court for the Central District of California is AFFIRMED.

The plaintiffs lost in District Court and lost again on appeal. Judge Reinhardt’s 21-page opinion appears in full here.

Plainly, parents who send their children to public schools cannot by legal means expect to control their education or the information they are exposed to. While this may not be news to a good many parents, the case makes the helplessness of large numbers of parents especially clear.

In Judge Reinhardt’s words: "…there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, we hold that the defendants’ actions were rationally related to a legitimate state purpose."

The Court of Appeals reviewed the case as if it were a new case. Therefore, the earlier district court legalities can be omitted. I believe that the lawyers for the plaintiffs may not have built the case as well as they might have, and I believe that Judge Reinhardt’s ruling does have flaws. Nevertheless, by and large, both sides pretty much argued the case within mainstream ideas and doctrines. Therefore, the case accurately reflects the existing law on the powers of schools over children. Perhaps the outcome may have been different with other lawyers and judges, but not enough I suspect to make a great deal of difference.

I believe that most of what I have to say does not depend on my ignorance of the law, but some does, especially where I muse about alternative legal approaches. Where that occurs, the context will make it clear. If I err on anything of substance, others will correct me.

All parties agreed that no court had previously found a specific right to "exclusive control over the introduction and flow of sexual information to their children." Judge Reinhardt writes that "no such specific right can be found in the deep roots of the nation’s history or tradition…" He means that he can find no political-legal right of this sort appearing in the documents that found our nation. Therefore, he looks for this right as an accompaniment of other broader rights that either are stated or have been construed by past jurists as having been stated.

Quite clearly, the judge is working solely in a framework of constitutional and statutory law. He is not seeking justice in the sense of natural rights. He is not out to find what is naturally right. His job is to determine what is legal either because a constitution says it is legal, or legislative laws say it is legal, or what other judges have previously determined to be legal.

If Judge Reinhardt were dealing in natural, not political, law, he could never say that the right to determine the sex education of children was not to be found in American history or tradition. He would be laughed out of natural law court. It is common knowledge that from time immemorial parents have heavily determined their children’s education in sex and other matters, and have a natural right to do so. It is also obvious that the appellants are a small sample of a significant set of Americans who have objected to sex education in the schools on various grounds, such as religious, personal, and political, for a long time. If these facts aren’t part of American history and tradition, then what is? The only way the judge’s comment makes any sense is that he is not taking into consideration the age-old natural parent-child relationship.

In natural law, this relationship is straightforward. Children begin life with some rights and acquire more as they grow older. They do not have full adult rights as children. The parents have the right to bring up and educate their children, which they acquired by producing the children. This is not to say that there will not be tensions arising as children mature and acquire more rights.

At this juncture, I navely muse about why the lawyers for the plaintiff and why the judges did not make any reference to the numerous documents in our country’s history that reflect natural law and rights. The Declaration of Independence is a prime example. It plainly states that governments are instituted among men to secure life, liberty, and the pursuit of happiness. I may not personally believe this, but if I were a lawyer I would argue on this basis. Educating one’s children according to one’s preferences is surely conducive to liberty and the pursuit of happiness. It surely is natural to the life of those in a family.

And if I were Judge Reinhardt or one of the other two judges, I could, if I had a mind to, conclude that our history and tradition does provide a good deal of evidence of broad natural rights that imply that a parent has a right to determine what a school teaches. Why didn’t both sides use this legal logic? Maybe they have not thought of it, but that’s quite implausible. Maybe it won’t hold up in court, but that’s implausible too. Otherwise, why did the judge mention the documents that found our nation? I am puzzled. I hope that some bright lawyer reads these words and can build a different case the next time.

Under both political and natural law, the appellants have a potential weakness in their case. In sending their children to the school, they may have suspended their rights over the children. However, I argue that this is not the case because coercion is present in several respects. Parents must educate their children by law. Parents (and non-parents) must pay school taxes. Furthermore, parents find it very costly to move for the sake of changing school district. It is also very costly to remove the children and educate them at home or in a private school. Therefore many parents make a highly constrained choice to send their children to public school. They are not voluntarily suspending their rights. It is more accurate to say that they have lost their rights over their children.

A court might say that parents can assert their control over the school through the school board. In reality, the school board is a political body and, as such, is an unwieldy, blunt, and costly instrument for exercising control.

A court might say that the California Constitution makes compulsory public education legal. The majority has ruled when it approved this measure. This shows only that majority rule can be tyrannical, that laws based on majority rule often trample on rights rather than support or enforce them. Where is it written that everyone agreed to decide all questions by majority rule? When did this occur? Do you remember discussing this and agreeing to it? I can’t.

Judge Reinhardt notes that in two cases dating from 1923 (Meyer) and 1925 (Pierce), the Supreme Court expressed what is today called the "Meyer-Pierce" right. The constitutional idea was that the due process clause of the 14th amendment "protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." The logic used to arrive at this conclusion involved substantive due process. This means that the logic can be questioned and that the right is not on firm ground.

Let us examine a minute crumb of natural rights language that found its way into a Court opinion. In Pierce: "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

Not standardizing the children, not forcing them to accept public instruction, not being the mere creature of the State, and those who nurture him having the right to prepare him — all of this follows from natural rights logic. On the other hand, "from public teachers only" and the "high duty" parts weaken the appeal considerably. But at least this shows that a Supreme Court judge can actually make a natural rights argument on occasion. Too bad that subsequent cases went totally in the opposite direction, with judges making anti—natural rights arguments.

The problem with seeking answers for problems of justice in constitutions is that the answers the judges want to give aren’t always there. This results in the invention of shaky legal doctrines like substantive due process in order to justify what the justices may wish to conclude and sometimes what they think is just. On occasion, the justices almost appeal to larger natural rights as in the quoted Pierce language. Too bad that they don’t, won’t and can’t simply pursue justice under an untrammeled natural rights theory.

Reinhardt then notes the numerous cases that came after Meyer and Pierce. It is fair to say that these cases eviscerated the rights of parents and turned children over to the indoctrination of the State. In Wisconsin vs. Yoder (1972), the Pierce right "lends no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society." This says it all. The state’s requirements come first. A parent is denigrated as someone who is odd, peculiar, or distinct. We can’t have that. We must have uniformity. The parent can’t possibly have independent views of knowledge. The state knows what to teach to make someone both productive and happy.

Even the Pierce case acknowledged the power of the state "to require that all children of proper age attend some school…that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." Schools have a host of other legal powers: curriculum, hours, discipline, examinations, hiring, dress code, and extracurricular activities.

Reinhardt notes that again and again cases have "upheld the constitutionality of school programs that educate children in sexuality and health." In Brown vs. Hot, Sexy & Safer Prods., the court made the argument presented earlier (that I disputed) that the parents have to accept the school’s menu of courses once they send the child there.

Needless to say, with all these precedents in the record Reinhardt is on firm legal (but not natural law) ground. Other like-minded judges in other places might well have made the same judgement.

The plaintiffs also argued on right to privacy grounds. Since the Constitution has no right to privacy in it, privacy arguments are weak to begin with and Judge Reinhardt dispatched this readily. Privacy is also not a natural right. One cannot compel someone else not to collect or disperse information about one. (Mind you, such a process might be linked to a crime that harms a person, but that is another matter.) If a person wants to protect his privacy, he has the natural right to do so; but it will require his resources to do so.

Now it is time to introduce some pertinent and interesting particulars of the case.

Kristi Seymour administered all the surveys. She was a Master’s Student in psychology at the time who volunteered as a "mental health counselor" in the district. She developed the questionnaire in association with the Children’s Bureau of Southern California and the School of Professional Psychology in which she was enrolled. The Children’s Bureau is a 100-year old private/public institution. It is private in form but receives over half of its funding from the state. One of its focal points is child abuse and neglect. The goal of the research was "to establish a community baseline measure of children’s exposure to early trauma (for example, violence.)"

Seymour mailed a letter to parents that explained the study and provided a consent form. This letter, after mentioning the trauma and violence objective, explains: "We will identify internal behaviors such as anxiety and depression and external behaviors such as aggression and verbal abuse." This comprises the material about the substance of the questions. Nowhere at all is even a hint, not a trace, given of questions about sex or sexuality. However, the actual questionnaire had 10 (out of 79) questions specifically about sex.

My own nave legal thinking is that this deception should be the basis for a tort based upon the breaking of a contract. However, the lawyers of the plaintiffs did not go in this direction.

The appellants argued that the survey was not a legitimate state activity because it was not part of the curriculum, again referring to past cases. They also argued that the survey was done to advance Seymour’s career. Reinhardt dismissed the latter as "entirely speculative and conclusory in nature." He referred to the "detailed information setting forth the legitimate governmental purpose of the survey" and that the survey would be used for the benefit of the School District. Although this issue did not make or break the case, the judge seemed to me to lean over backwards to side with Seymour. He does not admonish her either for her failure to inform parents fully in advance, indeed to mislead them, about the survey, even if only by oversight; and he does not even admit that she did stand to gain personally by her work.

The former claim he axed, noting that the state’s interest goes far beyond curriculum. From Brown vs. Board of Education, he extracted a veritable paean to public education whose glorious language I will spare you from.

The only even slight concession to the appellants occurs here: "Although the students who were questioned may or may not have u2018learned’ anything from the survey itself and may or may not have been u2018taught’ anything by the questions they were asked, the facilitation of their ability to absorb the education the school provides is without question a legitimate educational objective." Judge Reinhardt at this point seems anxious to close off any legal loophole that might be used in the future. He makes a far-fetched assertion. He asserts (with no basis) that the survey makes easier the education of the students being asked the questions. Try as I might, I can’t see how this occurs.

A sampling of public reaction to this case reveals phrases such as: conservatives fuming, war being declared on parental rights, spurious reading of law, bad decision, abhorrent, judicial tyranny, most disturbing ruling ever seen, the last step toward totalitarian rule, court gone mad — you get the idea.

As far as I can tell, Judge Reinhardt’s ruling is well-aligned with previous law and rulings. The legal foundation for the destruction of parent rights over their children was built a long time ago. I do not mean only the rulings in the 1940s, 1950s, 1960s, and later that firmly root state control over education in law. State schools came into vogue from 1840 onwards. Remember Horace Mann? At more than one critical point, Americans accepted tax-funded compulsory education. State constitutions make them legal.

Parents can control their children’s education by choosing the school, public or private, or by teaching them at home. Their control over public schools is limited.

Listen, lawyers. The next time such a case arises, try natural rights. Or how about this? Article XIII of the U.S. Constitution abolishes involuntary servitude anywhere in the United States. If children are made to go to school, and if all property-owners or others must pay, even if they do not have children, isn’t this just a wee bit of involuntary servitude? Or how about Article IV? A child is a person who is not secure in his home but is being seized by the school. Or how about Article IX? "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Maybe the "privileges and immunities" mentioned in Amendment XIV can be construed to include having some say over what a public school does to one’s children.

But then, I am no lawyer.

Legal language and founding documents that support freedom and rights exist. Many judges do not use them. They support the state instead. What can we conclude except that judges who are part and parcel of the state’s political system tend to twist the political-legal law in favor of the state?

Private judges might actually come closer to supplying real justice based on natural rights.

Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.

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