9th Circuit Decision on Sex Education

The 9th circuit has done it again.

It made a decision (and wrote a legal opinion) that seemingly swerves off the road to run over the sensibilities of parents who are worried that the schools are trampling the values they want to teach their kids.

By now you all know the case. Intrusive questions of a sexual nature were asked of 7-10 year old kids as part of a psychology research project. Ten of the 54 questions asked about things of a sexual nature, such as whether the child worried about "Thinking about having sex," "Not trusting people because I think they want sex," and other completely unsuitable questions for a first grader. (You can see all the questions in the judge's opinion, linked above.)

There was a parental consent letter sent home prior to the questionnaire being given, but it didn't reveal that they would be asking questions of a sexual nature. Oddly enough, however, the letter did say, in effect, that if their children experienced emotional trauma from the questions, the district would help them find a therapist to help deal with the damage! I am not making this up.

The legal questions asked in the lawsuit hinged upon whether the 14th Amendment vested parents with a due process right that gave them exclusive reign over what their children are taught. It is a pretty narrow question. I'm no lawyer, but when I read the opinion, I come to two conclusions:

1) The question the parents asked the courts to decide was the wrong one;
2) The court's opinion is correct on the law.

I know this is not the take of most conservative commentators. I of course think that Palmdale School District's conduct is outrageous. If I was a parent, and read that letter of consent, I would have never consented, and I would have wondered why they were doing a psychological survey when they should be teaching my kid to read and do math.

But the legal question is basically "Do parents have the right to compel the schools to follow their own moral or ethical views on what should be taught to the kids?"

The court said "no," and I think they got it right. If parents did have such a right, how would that work? Parents have different moral and ethical views on a plethora of issues, and they often conflict. How could the schools possibly be an arbiter of such a "right?" They would end up having to teach each child a curriculum tailored to his or her parents moral views.

But for some reason the Judge's opinion contained an explanatory statement that went far beyond the question, and is sure to rankle my conservative comrades:

Judge Stephen Reinhardt wrote "there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . ."

Now, here's the problem. I think the above statement is demonstrably false. Yes, parents do have this right. They can exercise it by home schooling, or otherwise filtering the information their child is exposed to.

But the CAN'T exercise it by forcing the public school to follow their moral standards.

I don't know why the judge put it this way. Later in the opinion he wrote a more limited explanation. He said the rights of parents to direct the upbringing of their children (which, coincidentally, was established in an Oregon case called "Pierce vs. Society of Sisters" which stemmed from Oregon's attempt to make private schools illegal, which was found unconstitutional in 1925)

"do not afford parents a right to compel public schools to follow their own idiosyncratic views as to what information the schools may dispense."

I think this is not a particularly controversial proposition. So, in this case, the courts got it right.

This is not to excuse the Palmdale School District. If I were the parents, here is the question I would have been asking:

If a private citizen were to corner my 7 year old daughter and ask her if she "Worries that she touches her private parts too much," or whether she "Thinks about touching other people's private parts," he would be sent to jail and have to register as a sex offender for the rest of his life.

Yet we let our school officials ask these questions? I would have filed a complaint of sex abuse!

Any school official who thinks these questions are suitable for 7-10 year olds has something wrong with them. But the answer is not to give every parent veto power over the school curriculum.

No, the Palmdale case is just another illustration of the need for school choice. Parents resort to lawsuits when they feel trapped. They are forced to send their child to school, and in most cases they are assigned to their public school based on where they live. They are captives. If their values are trampled by things the school does with their children, they have little recourse other than to sue.

But what if they could just choose another school, one that had a better fit between their values and what the school taught and believed? A few things would happen. First, lawsuits such as the Palmdale case would be rare, because parents would just leave schools such as Palmdale that had such a perverted view of what their role is.

Second, school officials would realize that they can't do this kind of stuff with impunity. They would lose customers! Parents now have little recourse, but if we had school choice, they could vote with their kids feet, and it wouldn't be too long before people such as those who perpetrated the Palmdale questionnaire would be on the outside looking in.

It would be about time.