Palmdale: An Important Ruling on Parents' Rights

There was a very important court ruling a couple of days ago that will affect the entire discussion we are having here in Montgomery County over the implementation of a sex education curriculum. I'm no lawyer, but former citizens advisory committee chair David Fishback is. He has sent Vigilance blog a discussion of the legal implications of this ruling.

Parents do not have "a right to compel public schools to follow their own idiosyncratic views as to what information the schools may dispense. Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that itis appropriate to do so."

Fields v. Palmdale School District, decided by a unanimous panel of the United States Court of Appeals for the Ninth Circuit on November 2, 2005, affirming the decision of Bush II appointee, United States District Judge James V. Selna.

There may be a lot of press on this decision. You can read it at http://caselaw.lp.findlaw.com/data2/circs/9th/0356499p.pdf. The portion quoted above is at page 15074.

Much will probably be made of the facts of the Palmdale case. Briefly, the school district decided to do a survey of elementary school children regarding trauma. No student was required to participate, and the letter seeking parental consent explained that the "goal of this assessment is to establish a community baseline measure of children's exposure to early trauma (for example violence),"and warned that "answering some of the questions may make [a child] uncomfortable."

The actual survey approved by the school district included questions about sex. When several parents who had given permission found out about those questions after the survey had been taken, they sued the school district.

Now, this case, on its facts, is not germane to anything in Montgomery County. Here, parents must give explicit permission to have their children take health education units addressing matters of sex, in particular the units on Family Life and Human Sexuality. Not only that, but the curriculum in those units is available to parents, and meetings are held to enable parents to ask questions of the health teachers before parents make their opt-in decisions.

The Palmdale plaintiffs brought their suit on an interesting theory: That the school district had violated a constitutional right of the parents "to control the upbringing of their children by introducing to them matters of and relating to sex." Of course, the clear opt-in provisions followed by MCPS are such that the plaintiffs' theory, if upheld, would never be applicable here.

What is significant for Montgomery County is how the courts decided the matter. The case first went to United States District Judge James V. Selna, who was appointed to the bench by President George W. Bush, following his service as a state court judge appointed by Republican former California Governor Pete Wilson. Judge Selna dismissed plaintiffs' claim, finding that they did not assert a violation of a cognizable constitutional right. A unanimous three judge panel of the United States Court of Appeal for the Ninth Circuit affirmed.

The Ninth Circuit explained that "it is not our role to rule on the wisdom of the School District's actions." I agree that, as a matter of good judgment, the school district should have been more specific about what would be in the survey, but that did not raise constitutional issues. In any event, the Ninth Circuit noted that "there are a number of cases that have upheld the constitutionality of school programs that educate children in sexuality and health," providing examples from the First, Second, and Third Circuit Courts of Appeals.

In Montgomery County, of course, the legal question was not whether MCPS could force children, without their parents' consent, to attend classes focusing on matters relating to sexuality, for that is already prohibited. Rather, the question was whether parents who would choose to withhold permission from their children (or may have already chosen to remove their children from MCPS altogether) could force, by means of litigation, everyone else's children to be deprived of such classes. Thus, contrary to the statements of CRC and PFOX, CRC and PFOX have no legal basis, in the words of the Palmdale decision, to "compel [MCPS] to follow their own idiosyncratic views as to what information the schools may dispense. . . . [T]hey have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so."

(I further would note that Palmdale was fully and deliberately litigated before a United States District Court and then was subject to full briefing and argument before a United States Court of Appeals. Thus, the parties had ample opportunity to make their cases, and show flaws in their opponents' arguments. Following this full airing of the issues, experienced jurists, both Republican and Democrat, agreed that plaintiffs' argument had no legal merit. Last May, in contrast, CRC and PFOX manipulated the system such that MCPS had no viable opportunity to respond to their arguments before the court ruled.)