Legal Feature


Ninth Circuit: No Constitutional Right for Parents to Exclusively Teach Children About Sex



November 08, 2005

By Dave Caddell

On Wednesday, November 2, 2005, the Ninth Circuit Court of Appeals in a unanimous decision ruled that parents do not have a constitutional right to be the exclusive provider of information regarding sexual matters to their children.

As part of an effort to identify psychological barriers to learning, the Palmdale, California School District conducted a survey of its students ranging in age from seven to ten. Prior to administering the survey, the school district sent a letter to parents requesting their consent to survey their child and to inform them of the survey's nature and purpose. The letter further explained that the questions their children would be answering dealt with "early trauma (for example, violence)" and included a warning that "answering questions may make the child feel uncomfortable." The survey consisted of 79 questions intended to test how often the students experienced a variety of sensations, emotions, thoughts and experiences. The students were asked to rank their responses to the activities according to a scale that ranged from "never" to "almost all the time." Many of the activities questioned on the survey dealt with emotions that are typically associated with young children, such as "Bad dreams or nightmares," "Wanting to yell at people" and "Can't stop thinking about something bad that happened to me." But unknown to the parents, the survey also asked the students to consider activities related to sexual sensations and activities, such as "Thinking about having sex," "Thinking about touching other peoples' private parts," "Can't stop thinking about sex" and "Not trusting people because they might want sex."

After learning about the nature of the survey from their children, a group of parents filed suit against the Palmdale School District in Federal District Court. They claimed that by requiring their children to respond to questions that were inconsistent with their personal and religious values, the school district "robbed" them of their basic constitutional right to control the upbringing of their children.

The school district, however, asserted that there is no constitutional right of parents to control the upbringing of their children by introducing them to matters relating to sex in accordance with their personal and religious values. Furthermore, they claimed that their responsibility to educate students exceeds providing them with the basic skills of reading, writing and arithmetic. According to the school district, today's public schools must also insure that students become healthy, productive and responsible members of society. This responsibility, they argued, includes providing students with information relating to sex.

After weighing the arguments, the district court agreed with the school officials. It ruled that although parents have a fundamental right to control the upbringing of their children, such a right does not include the privilege to control the manner in which sex education is taught in public schools.

Therefore, the Palmdale parents, unhappy with the district court's conclusion, appealed to the Ninth Circuit Court of Appeals. Their appeal, however, was to no avail. In a unanimous decision, the panel of three appellate judges affirmed the district court's ruling.

Judge Reinhardt, writing for the Ninth Circuit, began his analysis by conceding that the U.S. Supreme Court has ruled that parents have a constitutional right to control the education and upbringing of their children. For instance, he cited the High Court's 1923 ruling in Meyer v. Nebraska where the Court struck down as unconstitutional a Nebraska law that prohibited the teaching of foreign languages. He likewise cited their 1925 case, Pierce v. Society of Sisters, which held that a federal law requiring parents to send their children to public schools violated their fundamental rights.

Yet, despite these Supreme Court rulings, Judge Reinhardt went on to observe that such fundamental rights do not come without limitations. He noted that the state, in order to further a legitimate government purpose, also has an important interest in controlling the education and upbringing of children. For example, to insure that society maintains an educated and healthy citizenry, the state may require and enforce school attendance, school uniform policies, curfews and mandatory health classes. Judge Reinhardt also placed particular emphasis on a prior case from the First Circuit Court of Appeals in which a school district required its students to attend a presentation aimed at educating youth on AIDS and other health concerns. In response, several parents in the school district complained that their children's compelled attendance at an assembly that made explicit references to sexuality deprived them and their children of their constitutional right to privacy. But the First Circuit disagreed, determining that "It is fundamentally different for the state to say to a parent, 'You can't teach your child German or send him to a parochial school' than for the parent to say to the state, 'You can't teach my child subjects that are morally offensive to me.'" In other words, the court was saying that while the state may not prevent parents from teaching their children new things such as foreign languages, parents may not prescribe for the state what to teach in public schools.

Consequently, after applying these principles to the case before him, Judge Reinhardt concluded that even though parents have a fundamental right to inform and advise their children about the subject of sex as they see fit, they do not have a constitutional right to prevent public schools from providing information on this intimate subject in any forum or manner they so choose. "Schools," Judge Reinhardt stated, "cannot be expected to accommodate the personal, moral or religious concerns of every parent.... Such an obligation would not only contravene the educational mission of the public schools, but also would be impossible to satisfy."

David Caddell is an associate staff attorney at The Rutherford Institute.