Parents' Right to Direct Their Children's Education and Student Sex Surveys
Conn, Kathleen, Journal of Law and Education
Sex is a "hot-button" topic for many Americans, and exposure of students to sex-related information in American public schools is even more inflammatory, especially for parents of elementary school students. Commentator Tara Dahl played on these parents' sensibilities, achieving shock value by her assertion in her April 2008 article1 that the Ninth Circuit Court of Appeals' decision in Fields v. Palmdale School District2 usurped the right of parents to direct the care and upbringing of their children. Dahl asserted that the majority opinion in Fields wrongly confused the doctrine of in loco parentis with parens patriae,3 contrary to long-standing jurisprudence upholding parental rights in their children's education. However, the Fields decision actually affirmed the right of parents to direct the education of their children while clarifying that right in the face of current parental demands regarding public school curriculum decisions. This counterpoint will review Dahl's analysis and present a re-evaluation of the Fields decision in light of judicial precedents critiquing parents' right to educate their children in the context of public education.
In Fields, as Dahl related, a California school district permitted a volunteer mental health counselor at Mesquite Elementary School to administer to first-, third-, and fifth-grade students a survey allegedly designed to establish a community baseline measure of children's exposure to early trauma.4 Of the 79 questions in the survey, ten probed students' private sexual thoughts, fears, and experiences. One of the ten referred to the frequency of students' self-stimulation or masturbation; the other nine dealt with their discomfort with thoughts of sex, feelings of mistrust of others, and scared or upset feelings about sex-related thoughts.5 Neither the counselor nor the school district explicitly told parents that the survey contained sexual questions; the disclosure simply indicated that the survey might make some students feel "uncomfortable."6 When a group of parents discovered the nature of the questions, they complained to the Palmdale School Board which dismissed their complaints. The parents initiated a lawsuit alleging violations of their right to privacy, civil rights violations, and negligence.7
The district court dismissed the parents' suit.8 The parents appealed, and the Ninth Circuit affirmed the district court.9 Dahl leveled her most severe invective at the majority decision, which held that parents have no fundamental right to be the exclusive provider of information about sexual matters to their children.10 Perhaps inelegantly,11 the majority concluded that "the Meyer-Pierce right does not extend beyond the threshold of the school door."12 On a petition for rehearing en banc, the court declined to rehear the suit, but issued a per curiam opinion reaffirming their earlier decision and clarifying the language of their first opinion.13
I. DAHL'S ANALYSIS OF THE FIELDS LITIGATION
Although the Fields litigation concerned a one-time, school-administered survey in which the Ninth Circuit's final decision unequivocally affirmed the right of parents to control their children's upbringing,14 Dahl combed the sequence of decisions for evidence to support her sweeping contention that public schools now have the court-sanctioned right to deny parents "the authority to tell school officials 'what to teach or what not to teach' their children."15 Harking back to the writings of Benjamin Franklin and Thomas Jefferson, Dahl traced the Founders' views of the primacy of parental rights in children's education to such venerated legal commentators as Sir William Blackstone and Charles Secondât, Baron de Montesquieu.16 She tracked the judicial development of parents' substantive due process right to direct the education of their children through the Supreme Court's seminal decisions in the Meyer-Pierce-Yoder trilogy,17 and cited the Court's decision in Troxel v. …