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Back to Dec. Ed Reporter

Education Reporter
NUMBER 239 THE NEWSPAPER OF EDUCATION RIGHTS DECEMBER 2005

Ninth Circuit Decision Denies Parents' Rights
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Parents and politicians alike were shocked when the U.S. Court of Appeals for the Ninth Circuit ruled on Nov. 2 that parents' fundamental right to control the upbringing of their children "does not extend beyond the threshold of the school door," and that a public school has the right to provide its students with "whatever information it wishes to provide, sexual or otherwise."

The Ninth Circuit decision in Fields v. Palmdale School District upheld the lower court's broad ruling that the fundamental right to direct the upbringing and education of one's children does not encompass the right "to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs." A three-judge Ninth Circuit panel unanimously ruled against the parents. One judge had been appointed by Jimmy Carter, one by Bill Clinton, and one by Lyndon B. Johnson.

The case was brought by parents who discovered that their seven- to ten-year-old children had been required to fill out a nosy questionnaire about such matters as "thinking about having sex," "thinking about touching other people's private parts," and "wanting to kill myself." The decision claimed that the purpose of the psychological sex survey was "to improve students' ability to learn."

The Ninth Circuit decision further stated that "there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children" and 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."

The school had sent out a parental-consent letter, but it failed to reveal the intrusive questions about sex. The letter merely mentioned concerns about violence and verbal abuse, adding that if the child felt uncomfortable, the school would provide "a therapist for further psychological help." First, third and fifth-grade children would be provided with therapists to enable them to cope with a classroom activity.

The Ninth Circuit court said that since the government has put limits on parents' rights by requiring school attendance, therefore, the school can tell the students whatever it wants about sex, guns, the military, gay marriage, and the origins of life. The judges emphasized that once children are put in a public school, the parents' "fundamental right to control the education of their children is, at the least, substantially diminished."

The decision appears to be inventing a judicial argument for the new federally proposed mental health screening of all schoolchildren. The court's opinion casually included the comment that the school's power extends to "protecting the mental health of children."

Palmdale Questionnaire Typical 
Many parents are surprised at the extent of the national outrage over the Palmdale decision. The questionnaire used in this case is typical of nosy questionnaires that have been widely used by schools for decades. The court's opinion didn't defend the nosy questionnaire itself. The court made no mention of any need for informed parental consent or a right to opt out of an activity the parents deem morally objectionable.

The use of nosy questionnaires was one of the reasons for the passage of the Protection of Pupil Rights Amendment in 1978. In urging passage of that law, then-Senator Samuel Hayakawa warned that the schools were succumbing to "a heresy that rejects the idea of education as the acquisition of knowledge and skills . . . [and] regards the fundamental task in education as therapy."

The Protection of Pupil Rights Amendment (PPRA) (20 U.S.C. §1232h; regulations: 34 CFR Part 98), passed in 1978, states that schools may not interrogate students about political affiliations or beliefs of the student or the student's parent; mental or psychological problems of the student or the student's family; sex behavior or attitudes; illegal, anti-social, self-incriminating, or demeaning behavior; critical appraisals of other individuals . . .; religious practices, affiliations, or beliefs of the student or student's parent; . . . without prior informed written parental consent.

The public school system and the National Education Association have bitterly — and in most cases effectively — fought enforcement of this law. Nevertheless, PPRA was reaffirmed and strengthened in the No Child Left Behind Act. The Department of Education has sent a letter to every school superintendent setting forth the school's obligations.

Many parents believe that Congress should make compliance with the law about parents' rights a condition of federal funding to schools just like other civil rights requirements.

Congress Defends Parents 
On Nov. 16, Congress rose to the defense of parents by passing H.Res. 547 with a vote of 320-91. The resolution set forth quotations from major Supreme Court cases affirming that "the fundamental right of parents to direct the education of their children is firmly grounded in the Nation's Constitution and traditions."

The resolution has no legal effect, but it does show that Congressmen are starting to understand that Americans do not want schools to overrule parents on moral issues or judges to legislate from the bench and change what has been settled law throughout our country's history.

During the debate on H.Res. 547, the Democrats accused Republicans of "court bashing," but House Judiciary Committee Chairman James Sensenbrenner (R-WI) replied, "The question here is whether this decision is right or wrong. It is wrong, and that is why the resolution ought to be passed." Rep. Joe Pitts (R-PA) added, "Make no mistake: if this ruling stands, not only will parents lose the right to choose what lessons their children will learn; it will not be long before they will not even be allowed to know what is being taught in the classroom."

The lengthy resolution states in part:

. . . the United States Court of Appeals for the Ninth Circuit deplorably infringed on parental rights in Fields v. Palmdale School District. . . .

Whereas in Meyer v. Nebraska (1923) the Supreme Court recognized that the liberty guaranteed by the 14th amendment to the Constitution encompasses "the power of parents to control the education of their [children]";

Whereas the Supreme Court in Pierce v. Society of Sisters (1925) . . . emphasized that "[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations";

Whereas in Wisconsin v. Yoder (1972) the Supreme Court acknowledged that "This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. . . . The duty to prepare the child for 'additional obligations', referred to by the Court [in Pierce] must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship";

Whereas a plurality of the Supreme Court has stated, "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children" (Troxel v. Granville, 2000).

Whereas the rights of parents ought to be strengthened whenever possible as they are the cornerstone of American society: Now, therefore, be it

Resolved, That it is the sense of the House of Representatives that — the fundamental right of parents to direct the education of their children is firmly grounded in the Nation's Constitution and traditions . . .


 
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