Counterpoint Introduction- School Sex Surveys and Parental Consent

By Zirkel, Perry A. | Journal of Law and Education, January 2009 | Go to article overview

Counterpoint Introduction- School Sex Surveys and Parental Consent


Zirkel, Perry A., Journal of Law and Education


In the April 2008 edition of the Journal, attorney Tara Dahl criticized the Ninth Circuit court's decision in Fields v. Palmdale School District' as "incorrectly decided."2 In Fields, the Ninth Circuit held, as amended upon denying a rehearing en banc, that "the Meyer-Pierce due process right of parents to make decisions regarding their children's education does not entitle individual parents to enjoin school boards from providing information the boards determine to be appropriate in connection with the performance of their educational functions."3 Specifically, the information at issue was a district-wide survey of first, third, and fifth graders that included several sexually explicit items, such as a Likerttype frequency rating of "touching . . . private parts"4 and "thinking about sex."5 The school sent a letter to the parents requesting permission but not specifically notifying them of the sexual content of the questionnaire, and all but one parent provided the requested permission.6

Although broadly characterizing the Ninth Circuit's decision as constituting a "virtual relinquishment of a parent's ability to have a voice in what his or her child would be exposed to during the course of the school days, regardless of whether the information was part of the curriculum,"7 Dahl specifically took issue with the court's failure to require the parents' informed consent.8 Dahl's reasons were that 1) various states have recognized parental awareness for sex education and other sensitive subjects of the curriculum;9 2) the Palmdale survey was not part of the curriculum;10 and 3) the Palmdale students were "much younger and more impressionable"11 than the secondary school students typically subjected to sex education courses.12 Finally, Dahl distinguished the Palmdale case from the related decision in CN. v. Ridgewood School District,13 wherein the Third Circuit denied parents' constitutional claims against a survey of secondary school students the sexual content of which the school authorities had partially informed the parents,14 and traced the similarly limited vitality of federal and state laws protecting student privacy. She suggested more militancy for stronger state laws throughout the country and at least more powerful authority for the Family Privacy Compliance Office (FPCO), which enforces the Family Education Rights and Privacy Act (FERPA) and related federal statutes.15

In the accompanying Counterpoint, Kathleen Conn, who has had extensive public school experience including having been a curriculum director, asserts that "[c]ontrary to the assertions of Dahl as to the pernicious and anti-parental nature of the Fields decision, the final opinion of the Ninth Circuit accords with the long line of court decisions upholding the shared rights and obligations of both parents and public schools."16 1 invite you to read Dahl's analysis and Conn's countering treatment and make your own assessment both as a judicial matter, in terms of whether the Ninth Circuit was correct, and as a political matter, in terms of whether stronger federal and/or state legislation is needed. Avoiding the undue influence of the emotional reaction to the specific subjects and young objects of the Palmdale survey, while retaining the import of the integral parental role in the education and socialization of our citizenry, is difficult. …

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