Citing School District's Authority to Protect and Promote the Mental Health of Its Students, Ninth Circuit Upholds Administration of a Psychological Survey to Elementary School Children That Probes Various Sexual Topics; Ruling Not Disturbed

Article excerpt

A graduate student in psychology worked with a California school district to develop and administer a psychological assessment questionnaire for first, third, and fifth grade students. The announced goal of the survey was to "establish a community baseline measure of children's exposure to early trauma." A letter was mailed to the parents of the children to be surveyed informing them of the nature and purpose of the questionnaire and requesting their consent. The letter did not specify that some questions involved sexual topics, although it did state that the survey questions were about "early trauma (for example, violence)." It also included a warning that "answering questions may make [the] child feel uncomfortable."

After receiving parents' permission to administer the survey, the graduate student gave the questionnaire during school hours to elementary school children aged seven to ten. When parents learned from their children they had been questioned about sexual topics such as the frequency of "thinking about having sex" and "thinking about touching other peoples' private parts," they brought a lawsuit in federal court asserting that school officials had: (1) violated their right "to control the upbringing of their children by introducing them to matters of and relating to sex" and (2) violated their right to privacy.

The Ninth Circuit sitting en banc dismissed the lawsuit. With regard to the parents' first claim, the court ruled that while parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Thus, once parents send their children to a public school, they do not have a constitutional right to prevent the school from providing any kind of information--sexual or otherwise--to its students.

The court acknowledged that parents may be legitimately concerned with the subject of sexuality, but determined that there is no constitutional reason to distinguish this concern from any of the myriad of moral, religious, or philosophical objections parents might have to other decisions of the school district to distribute information, including information about "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." The court continued that schools "cannot be expected to accommodate the personal, moral or religious concerns of every parent" as such an obligation would contravene the educational mission of the public schools and be impossible to satisfy.

With regard to the parents' privacy claim, the Ninth Circuit acknowledged that the United States Supreme Court has identified at least two relevant constitutionally protected privacy interests: the right to control the disclosure of sensitive information and the right to independence when making certain kinds of important decisions. The Ninth Circuit determined, however, that these children were not forced to disclose private information and the survey did not interfere with the right of parents to make intimate decisions. The court noted that the parents were notified before the survey was conducted, none objected, and all but one signed and returned the consent form. …