Day By Day© by Chris Muir.

Thursday, November 03, 2005

Big Brother is teaching your children for its own ends

Some parents in Palmdale, California were horrified to learn that their seven though ten year olds were being asked questions about their sexuality as part of a survey to discovery more about "learning blocks." They sued to stop the practice -- and lost. Perhaps I should let the 9th Circuit tell the story in its own words:

When parents of schoolchildren in Palmdale, California learned from their sons and daughters that they had been questioned in their public elementary school about sexual topics such as the frequency of “thinking about having sex” and “thinking about touching other peoples’ private parts,” some of them exercised their constitutional right to take their grievance to the courts. The questioning was part of a survey the Palmdale School District was conducting regarding psychological barriers to learning. The parents brought an action in district court against the School District and two of its officials 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.” They brought both federal and state claims. The district court dismissed the federal causes of action for failure to state a claim upon which relief could be granted and dismissed the state claims without prejudice to their right to re-file in state court. We agree, and hold that 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. [Fields v. Palmdale, 9th Cir. Case No. No. 03-56499 (2005).]
Did you get that? You, as public school parents, have absolutely no say in what the school is teaching your children about sexuality. I recognize that it's not a totally simple topic. At least since the 1950s, most public schools have been teaching "sex ed" to kids who are teens and older. But there are a few differences. The most obvious difference is that sex ed is a formalized class. Indeed, it used to be that the school needed the parents' permission before enrolling the child in the class, although that may no longer be the case. Here, while the school district requested permission from the parents before their children participated in the survey, the permission letter makes no reference whatsoever to sexually explicit questions:
Dear Parent or Caregiver: The Palmdale School District is asking your support in participating in a district-wide study of our first, third and fifth grade children. The study will be a part of a collaborative effort with The California School of Professional Psychology — CSPP/ Alliant International University, Children’s Bureau of Southern California and the Palmdale School District. The goal of this assessment is to establish a community baseline measure of children’s exposure to early trauma (for example, violence). We will identify internal behaviors such as anxiety and depression and external behaviors such as aggression and verbal abuse. As a result, we will be designing a district wide intervention program to help children reduce these barriers to learning, which students can participate in. Please read this consent letter and if you agree, please sign and send it back to your school’s principal no later than December 20, 2001. The assessment will consist of three, twenty-minute self-report measures, which will be given to your child on one day during the last week of January. This study is 100% confidential and at no time will the information gathered be used to identify your child. Your child will not be photographed or videotaped. You may refuse to have your child participate or withdraw from this study at any time without any penalty or loss of services to which your child is entitled. [—page break—] I am aware that the research study coordinator, Kristi Seymour, one research assistant, the Palmdale School District, Director of Psychology, Michael Geisser, and a professor from CSPP, will be the only people who have access to the study’s information. After the study is completed, all information will be locked in storage and then destroyed after a period of five years. I understand answering questions may make my child feel uncomfortable. If this occurs, then, Kristi Seymour, the research study coordinator, will assist us in locating a therapist for further psychological help if necessary. If I have further questions, I may contact Kristi Seymour at 1529 E. Palmdale Blvd., Suite 210, Palmdale, CA 93550 at 661.272.9997 x128. I understand that I will not be able to get my child’s individual results due to anonymity of the children, but I may get a summary report of the study results. I have read this form and understand what it says. I her[e]by agree to allow my child to participate in this district-wide study.” (emphasis in original). Additionally, two lines were made available on the “Parental Consent” form for the “Parent/Caregiver” to sign and date it.
Based on this generic statement, that gave no indication that questions would delve into sexuality, the school district asked the children questions that addressed:
8. Touching my private parts too much 17. Thinking about having sex 22. Thinking about touching other people’s private parts 23. Thinking about sex when I don’t want to 26. Washing myself because I feel dirty on the inside 34. Not trusting people because they might want sex 40. Getting scared or upset when I think about sex 44. Having sex feelings in my body 47. Can’t stop thinking about sex 54. Getting upset when people talk about sex
Unsurprisingly, the parents who filed this lawsuit "allege that if they had known the true nature of the survey, they would not have consented to their children’s involvement." It was in this context that the Ninth Circuit determined that the school district had no obligation to inform the parents that they would be asking young children detailed questions about sex and sexuality, nor was the school district stepping over the line in asking such questions. Instead, it's the parents' job to butt out. The Court's reasoning is dreadful, and represents a classic case of judicial abuse of the stare decisis doctrine. Let me walk you through this: The Court noted long-standing law that has allowed the state to exert control over children::
In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court recognized that parents’ liberty interest in the custody, care, and nurture of their children resides “first” in the parents, but does not reside there exclusively, nor is it “beyond regulation [by the state] in the public interest.” Id. at 166. For example, the state “as parens patriae” may restrict parents’ interest in the custody, care, and nurture of their children “by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.”
Please note that these scenarios envision exerting control directly for the child's benefit. That is, using the Court's own examples, the state will step in if a parent attempts to force inappropriate labor on a child ("You! Get into that coal mine") or tries to deny the child an opportunity to get an education ("Of course you can't go to school. You need to get to the coal mine."). The Court also points out that, as I've already noted, schools have traditionally had formalized sex education classes:
Finally, there are a number of cases that have upheld the constitutionality of school programs that educate children in sexuality and health.
Again, the idea (or social contract) behind those classes is that the state will step in with biology information in order to arm children with basic knowledge so that they understand puberty-based changes in their body, so that they are not vulnerable to inappropriate sexuality, and so that they can protect against the risk of early pregnancy. (Since we're existing in the rarified world of law, we'll forget that a lot of school districts have been pushing the margins on this one and have been attempting to impose their expansive views of sexuality on young children, or that teens are getting pregnant in droves.) In the context of its sex ed analysis, the Ninth Circuit was very excited about a case called "Brown, in which a compulsory high school assembly presentation aimed at educating students on AIDS and other health concerns included explicit references to sexuality." The First Circuit said the assembly was not unconstitutional, and used very broad language to do so
[T]he state cannot prevent parents from choosing a specific educational program — whether it be religious instruction at a private school or instruction in a foreign language. That is, the state does not have the power to “standardize its children” or “foster a homogenous people” by completely foreclosing the opportunity of individuals and groups to choose a different path of education. We do not think, however, that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. We think 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.” The first instance involves the state proscribing parents from educating their children, while the second involves parents prescribing what the state shall teach their children. If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools. [Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995)]
Despite Brown's broad language, however, because the context was AIDS education, the case still falls within the traditional parameters of recognizing that the state can step in to advance child safety -- even if, apparently, the state does so in a vulgar and graphic manner. It's also worth pointing out that Brown's facts took place in a high school, not an elementary school. The Ninth Circuit boiled the Brown lesson down to one sentence, which ignored the context in which Brown arose:
[O]nce 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.
In other words, the government forces you to pay taxes to support public school districts (and all sane people recognize that, absent vouchers, most families don't have the money to pay for private schools). Nevertheless, once the Government passively forces your children into public school, that's your "choice," and you no longer have a say over limiting certain sensitive curriculum matters. Yeah, I get it. I also remember Ford's promise that, when you bought a Ford, you could have any color car, so long as it was black. Anyway, it's these disparate bits of unexceptional law that enable the Ninth Circuit to conclude that parents, having been forced to pay tax dollars to the school districts, and not having the wherewithal to put their kids in private schools of their choice, need to shut up. Ultimately, what the Ninth Circuit did here was to take existing law that was clearly intended to protect the welfare of the greatest number of children (whether or not you agree with the means chosen to protect that welfare) and pervert it so that the school district could perform a poll for its own benefit. That's what gets me. Behind all the high sounding words and references to prior cases (it's the stare decisis thing), the Ninth Circuit managed to create an entirely new principle, which is that the school district can engage your young children in sex talk for its own purposes. And that's just appalling. Hat tip: Independent Women's Forum