Metropolitan News-Enterprise


Thursday, November 3, 2005


Page 1


Ninth Circuit Rules:

School’s Queries About Sexual Feelings Not a Privacy Violation


From Staff and Wire Service Reports


A school psychological survey which asked Palmdale first, third and fifth graders about sexual feelings did not violate their parents’ due process or privacy rights, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Judge Stephen Reinhardt, writing for a unanimous three-judge panel, said parents have “no fundamental right…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.”

Neither, he said, did the Palmdale parents have any “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.”

The parents sued after learning from their children that a volunteer mental health counselor had given them a survey asking how frequently they had thoughts about such topics as having sex, touching their own “private parts” or those of others, and distrusting people who might want sex from them. The ten questions relating to sex were part of a 54-question survey instrument produced by Psychological Assessment Resources, Inc.

Activities Rated

The instrument asked the children to rate each activity described on a scale from “never” to “almost all the time.”

Other questions addressed feelings of anger and aggression, thoughts about suicide and violence, and related behaviors. The volunteer who administered the survey was a graduate psychology student.

Parental permission had been obtained for the children to participate in the survey, which was described as intended to “identify internal behaviors such as anxiety and depression and external behaviors such as aggression and verbal abuse” as part of a “district wide intervention program to help children reduce these barriers to learning.” The letter seeking permission did not explain that survey questions on sexual topics would be included.

The district dropped the survey in 2002 amid complaints from parents, but several parents sued anyway.

Failure to State a Claim

Reinhardt said U.S. District Judge James V. Selna of the Central District of California properly dismissed the lawsuit for failure to state a claim.

“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.”

The parents, Reinhardt said, conceded that no court has ever found such a right to be fundamental.

“Thus,” he reasoned, “whether the parents have a constitutional right to exclusive control over the introduction and flow of sexual information to their children depends entirely upon whether the asserted right is encompassed within some broader constitutional right.”

The judge noted a “number of cases that have upheld the constitutionality of school programs that educate children in sexuality and health,” including Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995), which rejected a challenge to a compulsory high school sex education assembly program.

Educational Choices

While the U.S. Supreme Court in Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), upheld the right of parents to choose to have their children educated privately, Reinhardt said, neither of those cases “provides support for the view that parents have a right to prevent a school from providing any kind of information — sexual or otherwise — to its students.”

He continued:

“Although the parents are legitimately concerned with the subject of sexuality, there is no constitutional reason to distinguish that concern from any of the countless moral, religious, or philosophical objections that parents might have to other decisions of the School District — whether those objections regard information concerning guns, violence, the military, gay marriage, racial equality, slavery, the dissection of animals, or the teaching of scientifically-validated theories of the origins of life. Schools 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.”

The jurist added:

“As the First Circuit made clear in Brown, once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished. The constitution does not vest parents with the authority to interfere with a public school’s decision as to how it will provide information to its students or what information it will provide, in its classrooms or otherwise.”

In a footnote, Reinhardt pointed out that the parents had not asserted that either their rights or their children’s were violated “because the children were compelled to disclose personal or sensitive information.”

He commented:

“Thus, we do not consider any question of compulsory disclosure of such information here.”

He also noted that the parents were not claiming the survey violated their religious rights under the First Amendment.

In the absence of a fundamental right, the district’s survey needed only to be rationally related to a legitimate state interest to survive judicial scrutiny, Reinhardt said. Protecting the mental health of students and improving their ability to learn was a legitimate goal, he said, and it was not unreasonable for the district to think administering the survey would promote it.

Reinhardt’s opinion was joined by Senior Judge Donald P. Lay of the Eighth Circuit, sitting by designation, and Judge Sidney R. Thomas.

The case is Fields v. Palmdale School District, 03-56499.


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