Academic journal article Journal of Law and Education

Customizable "Sexual Orientation Privacy" for Minor Schoolchildren: A Law School Invention in Search of a Constitutional Mandate

Academic journal article Journal of Law and Education

Customizable "Sexual Orientation Privacy" for Minor Schoolchildren: A Law School Invention in Search of a Constitutional Mandate

Article excerpt

"Until now, I would have thought inconceivable a holding that the United States Constitution forbids even notice to parents when their minor child who seeks [an abortion] ... is able to convince a judge that the parents should be denied participation in the decision."

-Justice Stevens, dissenting

Bellotti v. Baird'

I. Introduction

In the summer 2013 issue of the Journal, Adam J. Kretz argued for a constitutional right of minors to "prevent [public] schools from informing their parents, or any other members of the school or local community, that they are gay, lesbian, bisexual, transgender, or any other sexual orientation or gender identity."2 This right would apply even to minors who reveal this information and related behavior, indeed flaunt it,3 on school premises. Kretz would establish public schools as "safe spaces"4 for gay, lesbian and transgender explorations by underage children- "safe," that is, from parents. A child's plea of "Please Don't Tell My Mom!",5 would become a constitutional imperative enforced by the "robust mechanism"6 of federal civil rights lawsuits under 42 U.S.C. § 1983. Of no account in Kretz's analysis is what the Supreme Court has described as "perhaps the oldest of the fundamental liberty interests recognized by this Court"-the "interest of parents in the care, custody, and control of their children."7

Kretz's unprecedented proposal would not involve mere confidentiality across the board concerning underage students' professed, tentative, experimental, or even delusional "sexual orientation" or "gender identity," which is bad enough, but rather a right "to control who is made aware of their sexual orientation or gender identity ... ,"8 In other words, Kretz advocated a right to pick and choose-even arbitrarily9-who may receive this information from school officials, which could be anyone in the world except a minor's parents. Kretz devised this customizable "sexual orientation privacy" right to address the unavailability of invasion of privacy remedies concerning information minors have failed to keep private yet still wish school officials to hide from parents, family members, and designated others.10

Part I of this article addresses the lack of Supreme Court authority for such a right. Part II demonstrates obstacles to its creation in the circuit court decisions Kretz found unsatisfactory. The Concluding Part, however, cautions that the Supreme Court's "substantive due process" doctrine, which has morphed into a free-floating invocation of "the right to liberty,"" may eventually furnish yet another result Justice Stevens would find "inconceivable."

II. THE UNCOOPERATIVE SUPREME COURT

A. The doubtful scope of "informational privacy"

First of all, the Supreme Court has never enunciated a general constitutional right to informational privacy, much less information concerning a minor's supposed "sexual orientation." For this reason, Kretz noted, the D.C. Circuit, pointing to the Supreme Court's decision in Whalen v. Roe,'1 has expressed "grave doubts as to the existence of a constitutional right of privacy in the nondisclosure of personal information."11 The Third Circuit has likewise observed that the Constitution "does not mention an explicit right to privacy and the United States Supreme Court has never proclaimed that such a generalized right exists," but only that there are "certain 'zones of privacy'. .. ."14

In Whalen, the Supreme Court held that New York's public registry for users of certain prescribed drugs did not invade "any right or liberty protected by the Fourteenth Amendment."15 The Court observed that cases recognize two different "zones" of privacy: "the individual interest in avoiding disclosure of personal matters, and . . . the interest in independence in making certain kinds of important decisions."16 As to informational privacy, however, the Court noted that it only "arguably has its roots in the Constitution," but only "in some circumstances. …

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