"Appeals Court Declares Parenthood Unconstitutional, Group Says
By Susan Jones
CNSNews.com Senior Editor
November 03, 2005

(CNSNews.com) - A new ruling from the 9th U.S. Circuit Court of Appeals is prompting cries of judicial activism.

On Wednesday the court dismissed a lawsuit brought by California parents who were outraged over a sex survey given to public school students in the first, third and fifth grades.

Among other things, the survey administered by the Palmdale School District asked children if they ever thought about having sex or touching other people's "private parts" and whether they could "stop thinking about having sex."

The parents argued that they -- not the public schools -- have the sole right "to control the upbringing of their children by introducing them to matters of and relating to sex."

But on Wednesday, a three-judge panel of the 9th Circuit dismissed the case, saying, "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children...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 while enrolled as students."".


First grade kids???


Lenin smiles...the leftist State marches on. Yet opposes the Patriot Act. Amazing.


http://www.cnsnews.com/ViewCulture.asp?Pag...L20051103b.html

My, how "progressive"!

Once again, the left wing defines freedom as "You have no say because we know what's best for you". Let me guess....this all falls under the banner of 'tolerance'. Have to root out those homophobes early you know!

It's beyond lefty-ism. It's just stoopid. I'm surprised that people whose primary interest is/should be the welfare of children (educators) thinks that this program is A-OK to begin with...

It would be justice served, if one of those 9th Circuit solons' 1st grade granddaughter visited, and said "Grampa, do you have a boner? Show me!!!".

Anyone who trusts the state to educate their kids takes a big risk. This sort of lunacy is bad, but nothing compared to educating to pass a test (No child left behind), which turns schools into Kaplan programs. Or the removal of phonics from classrooms (or is it back now-hard to follow the trends). Or mixing algebra, geometry, and calulus together in the cassarole approach to teaching math (a disastrous failure circa early 90s).

The role of schools is education. Full stop. Eff using them as sites for social surveys and social engineering. Unfortunately, there's almost no way to insulate education from the social bias of teachers. If you can afford private school, at least you have some choice in the bias (or commitment to a lack thereof).

...authored by one Teddy Kennedy.

And he'd be likely to show her. Costa Rica is looking better everyday.

And this decision was by the Ninth Circus?

What a shocker...

No Child Left Behind was the result of a standards-and-testing movement that began with the release of A Nation at Risk by the Reagan administration in 1983.

And it was co-authored by Kennedy, who then worked with Bush to see that it passed. It did, Bush signed it into law, and then he and the GOP Congress severely under-funded it thereby placing that the burden on individual states and school districts.

But that's Kennedy's fault too, right?

Hmm...missed the hue and cry from the loyal opposition re under-funding. Did you catch that?

Passed House of Representatives on December 13, 2001 by a vote of 381-41. It passed in the Senate by a vote of 87-10 on December 18, 2001.

Seems like a few (non-funding) Dem's voted for it...

I might be wrong, but I think the budget was gutted after it had been passed. And trying to justify the that GOP's involvement is "better" than that of the Dems won't work on me. I'm a fan of neither.

The Federal government should keep their noses out of education. Period.

On that, sir, we agree.

To quote my favorite movie: "Welcome to the party, pal."

It took entirely too long for that to be stated in this thread.

Yeah. Well. While we agree, I'm not so sure state governments are much better.

As to who passed no child left behind, WHO CARES? I didn't specifically impugn Dems or Repubilcans for this horror. The fact is that it is ridiculously implemented, even though the goal of teacher accountability is a good one.

Sometimes it looks like a retard rodeo around here, with everybody jumping into the ring to grind their favorite axes....

Is the school policy stunningly stupid? Absolutely - I wouldn't argue with that.

But this is not a ruling on the content. It is a ruling on whether parents have the exclusive right to control the information given to their children. They said no, and you guys are running around screaming at the federal court!

Suppose if I want to raise my kids by only telling them that, say, all catholics are pedophiles. Are you all suggesting that I have the right to prevent the government from exposing them to any information to the contrary? That's the implication of the parents argument.

Blast the local schoolboard, not the courts.

eh - maybe retard rodeo was too strong. But I do think nearly everybody's outrage is missing the real target.

No, it wasn't.

I just re-read this.

Wait a minute... When I was in school, my parents could write a note to excuse me from damn near anything they didn't agree with. Do mine eyes decieve me, or did the Ninth Circus Court just strip even that?

It is unclear to me from the report, and we don't have enough information on the actual ruling. I would be surprised (as you are) if their ruling implied that you could not remove your child from anything you objected to. This is different from the interpretation that I assumed, which is that they want a veto over the content. But we really can't tell precisely what right the parents are arguing for from that one line description.

What does the 'No Child Left Behind' "act" have to do with the 9th circuit decision that basically said the "state" trumps the parents' authority on what their kids will be taught?

The court did not say the state trumps parents authority on what their kids will be taught. It said that the school board trumps the parents authority. The school board is in turn answerable to the parents.

It's like this. The legislative branch can make a law that effects your children: they can't drive untill they are 16, say. The courts will (unless there is a constitutional reason to do otherwise) rule that you have to live with it.

In this case the school boards put together some dubious curricula. The courts ruled that you have to live with it (though it's not clear what that really means). If you don't like the curricula, change it through the political process. But you can't claim a constitutional right to control what they are taught if you choose to have them attend.

(Please note that I'm only going by the one piece I've read - I will have egg on my face if I read in tomorrows paper a drastically different account.)

I haven't had time to read the entire opinion. I did read however that the school district sent a letter home to all the parents about the survey asking for their consent before having their child participate in the study.

read the entire ruling

And while you continue your search for nuance, a first grade teacher is asking a kid about his willy.

Sometimes wrong is just wrong.

All the parents who sued in the case had signed a consent form for their child to participate in the study. Further, the parents acknowledged that there was absolutely no case law supporting their legal position, they were inviting the Ninth Circuit to invent one. Interstingly, one of the three judges who decided the case was from the Eighth Circuit. Also, the case was first decided by the District Court which had reached the same conclusion the Circuit Court ultimately did, The Circuit Court affirmed the lower court's opinion on the case. The Ninth Circuit's ruling was based on the First Circuit's holding in Brown v. Hot, Sexy & Safer Prods., Inc., [I'm not making this up!] 68 F.3d 525 (1st Cir. 1995) The idea that this was a rouge decision by an activist court is just not accurate. In fact, given the precedents on this issue, the "activist" decision would have been to rule in favor of the parents. The key issue in the case was the Parent's assertion of a constitutional right to exclusive control. Some quotes from the opinion:

"It is clear, and the parents agree,
that no court has ever held that parents have a specific fundamental
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.”"

"We note at the outset that it is not our role to rule on the
wisdom of the School District’s actions. That is a matter that
must be decided in other fora. The question before us is simply
whether the parents have a constitutional right to exclusive
control over the introduction and flow of sexual
information to their children."

"The Supreme Court has held that the right of parents to make decisions
concerning the care, custody, and control of their children
is a fundamental liberty interest protected by the Due
Process Clause."

"As with all constitutional rights, the right of parents to
make decisions concerning the care, custody, and control of
their children is not without limitations. In Prince v. Massachusetts,
321 U.S. 158 (1944), the Court recognized that parents’
liberty interest in the custody, care, and nurture of their
children resides “first” in the parents, but does not reside there
exclusively, nor is it “beyond regulation [by the state] in the
public interest.” [emphasis in the original].

"Likewise, lower courts have recognized the constitutionality
of a wide variety of state actions that intrude upon the liberty
interest of parents in controlling the upbringing and
education of their children. See Littlefield v. Forney Indep.
Sch. Dist., 268 F.3d 275 (5th Cir. 2001) (upholding school
district’s mandatory school uniform policy); Hooks, 228 F.3d
at 1036 (upholding state statute denying speech therapy services
to home-schooled children); Hutchins v. District of
Columbia, 188 F.3d 531 (D.C. Cir. 1999) (plurality opinion)
(upholding a municipality’s curfew ordinance that was only
applicable to minors); Swanson v. Guthrie Indep. Sch. Dist.
No. 1-L, 135 F.3d 694 (10th Cir. 1998) (upholding school district’s
full-time attendance policy); Herndon v. Chapel Hill-
Carrboro City Bd. of Educ., 89 F.3d 174 (4th Cir. 1996)
(upholding school district’s mandatory community service
program)."

Finally, there are a number of cases that have upheld the
constitutionality of school programs that educate children in
sexuality and health. See, e.g., Leebaert v. Harrington, 332
F.3d 134 (2d Cir. 2003) (upholding school district’s mandatory
health classes against a father’s claim of a violation of his
fundamental rights); Parents United for Better Sch., Inc. v.
School Dist. of Philadelphia Bd. of Educ., 148 F.3d 260 (3d
Cir. 1998) (upholding school district’s consensual condom
distribution program); Brown v. Hot, Sexy & Safer Prods.,
Inc., 68 F.3d 525 (1st Cir. 1995) (upholding compulsory high
school sex education assembly program); Citizens for Parental
Rights v. San Mateo County Bd. of Educ., 51 Cal. App. 3d
1 (1975) (upholding school district’s non-compulsory health
and sex education program against parental challenge).

Neither Meyer nor Pierce provides support for the view
that parents have a right to prevent a school from providing
any kind of information — sexual or otherwise — to its students.
As the Brown court said, “Meyer and Pierce do not
encompass [the] broad-based right [the parent-plaintiffs seek]
to restrict the flow of information in the public schools.” Id.
at 534. Although the parents are legitimately concerned with
the subject of sexuality, there is no constitutional reason to
distinguish that concern from any of the countless moral, religious,
or philosophical objections that parents might have to
other decisions of the School District — whether those objections
regard information concerning 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. Schools cannot be expected to accommodate
the personal, moral or religious concerns of every parent.
Such an obligation would not only contravene the educational
mission of the public schools, but also would be impossible
to satisfy.

They didn't rule that it trumped their authority. What you are missing is the fact that the parents involved here signed consent forms for their kids to participate in the study. Thus, the district in fact gave control over the issue to the parents from the git-go. The reason the parents got ticked and sued is that when they signed the form they didn't know all the questions that were going to be asked in the study. The only way they could get around the consent forms they signed was to argue that they had a right to exclusive control. Accordingly, they argued, the school had to send them the entire test, not just an info sheet on the test.
Any involvement by the school would be a problem under their claim for exclusive control. There is a long, long line of precedent that grants the right to bring up your kids the way you want as a fundamental right but it doesn't translate to exclusive control over the curriculum. Their remedy was to not have their kids participate in the study and they were given that choice.


If you hear something that sounds too stupid to be believed, it probably shouldn't be believed. I think that is the case here.

The parents who sued all signed a consent form for their kids to participate in the study. The decision followed a long line of precedents, the parents conceded this and simply argued for the Court to invent a new right, one not recognized by any other case. They followed almost verbatim the opinion in a First Circuit case and the District Court that first heard the case also dismissed the parent's action. One of the three judges who decided the case was on loan from the Eighth Circuit. This was a very non-activist decision and it is one that would have been made in any of the Circuits based on the plentiful precedents in this area of the law.

Ummm.....the parents in this case all signed a consent form for their kids to participate in the study.

Congratulations on helping me with my pet theory that many conservatives are better described as reactionary insult machines.

Don't you think it is interesting that the article you cited failed to mention the fact that all the parents involved signed a consent form? Isn't that kind of an important detail to leave out, assuming honest journalism as opposed to propaganda is the goal?

Which part is lunacy, the test or the parents having consented for their kids to participate in the study and then sued over it?

All thjose posts and I forgot to link the opinion I keep telling everyone to read. Whoops. Here it is:

Fields v. Palmdale School District

the problem as i see it is....who is in charge that says we want to give 1st graders this survey in the first place?

Thanks. Now I have a clearer understanding of why that decision is bull sh--. Christ...the court all but admits that the parents weren't fully informed and couldn't give proper consent...then whitewashes it by saying they didn't have the right to grant or withhold consent.

Great court...they decide that no parent can interfere with a school exposing their children to sexual information, while they decide that one parent can keep all schools from exposing any children to the phrase "under God". There's some consistent rulings, the friggin' lunatics...

I basically said as much in an earlier post, but now learning that the parents wanted their kid to particiapate in the study/survery - or at least allow them to by signing consent forms - I'd say they suffered a lapse of judgment as large as, or larger than, that of the school's.

In an effort to keep the thread from overflowing, I erased some of your quote. It was not meant to discount the deleted sections.

I guess my overrding feeling on this is that those claiming it is unwise to have kids in public school are correct. For many, that is not an economic option. This is truly unfortunate for all of us.

As for the case stuff, I have to admit to being a little confused. The court says it is not for the court to decide...it is for a separate fora. Could they be a little more helpful and spell the proper fora out or is that too much for a citizen to ask of his government? Maybe they could just have people call up and then put them on hold for a half hour before transferring them to the department of determination of departments.



Let me see if I have this right. The parents come first. There will be conflicts between parents and the state. When confilcts arise the state will decide.

The parents come first? That seems more like second, no?



So that basically says a school can do whatever it wants, whenever it wants but the parents can cling to the illusion of being first?

Mickey, what part of that consent form indicated in any way whatsoever that 1st graders were going to receive a sexuality survey? I certainly wouldn't have assumed that because the form stated "answering questions may make my child feel uncomfortable" that the 1st graders (heck, the 3rd or 5th graders either) would be asked questions of a rather "adult" sexual nature. Would you have interpreted the consent form that way?

I also take extreme exception to the Court's ruling stating "we also hold that the 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 WHILE ENROLLED AS STUDENTS." I am surprised that you do not have an issue with this. As CTM mentioned, that does seem to render the whole idea of parental consent forms as being superfluous, as it does appear that parents cannot grant nor withhold consent.

The other thing I thought was interesting in this whole matter is that the lady who administered these questionaires was a "volunteer". The friggin' school board is letting random people come in and ask some really inappropriate questions, but since it was "rationally relagated to a state purpose" I guess that it is ok.

I will be shocked if any members of that imbecilic school board get reelected. I am not shocked that the 9th Court thinks this is ok. It actually seems par for the course.

Don't pick on this court, they were following endless precedents on the issue. Plus, one of the three judges was from another circuit. The decision to dismiss was made by the District Court Judge and the controlling precedent was out of the First Circuit.

The parents consented in the first place and could have asked for more information in the second place. The alternative was to send all of the tests out to all of the parents so they could read each and every question to see if it passed their muster. That is what they meant by "exclusive" control on the issue. If a parent had that right, you couldn't have disciplinary rules at the school, a whole host of problems would arise. You would have to get a consent form to play dodgeball that was 25 pages long explaining every rule. The only reason this is even getting any media attention is because the word "sex" is involved.

I understand that the consent form and information sheet sent home was not as accurate as it should have been but there is no constitutional fundamental right to perfectly accurate handouts.

The holding in this case was that they failed to state a claim upon which relief could be granted. That is the easiest standard to meet to avoid dismissal in all of the law. It means that even if every factual allegation made by the plaintiffs was absolutely accurate, they still lose on the law. This was wasn't even close Tom, there are lots of cases like this on different school issues, this one is notable only in that it involves sex. I can't get the link to work to get back to the case but my recollection is that there were 2 or 3 tests involved with lots of questions, only a few (3 or 4?) having anything to do with sex. It was not a "sexuality survey" as some are hysterically calling it.

One interesting facet of this is that those usually complaining the loudest about judicial acitivism want this court, in this case, to embrace activism by creating a new fundamental right long denied by a list of precedents a mile long. As I have always said, the "judicial acitivism" complaint is a canard.

http://caselaw.lp.findlaw.com/data2/circs/9th/0356499p.pdf

Prior to administering the survey, Seymour mailed a letter to the parents of the children to be surveyed informing them of the questionnaire’s nature and purpose, and requesting their consent to its administration.1 The parental consent letter was enclosed in a School District envelope and was mailed using School District postage. The letter did not explicitly state that some questions involved sexual topics, although it did specify that the survey questions were about “early trauma (for example, violence)” and there was a warning that “answering questions may make [the] child feel uncomfortable.”

Parents here, please tell me, any of you, who would be OK with this survey being given to your child in the first grade?

I'm just curious to know if you are really OK with this or you are just being confrontational because if you disagree with the 9th circuit you are somehow on the same "side" as people, many of whom, agree with conservative ideas.

These are appropriate topics for first graders?

The sexual references are:
8. Touching my private parts too much
17. Thinking about having sex
22. Thinking about touching other people’s private parts
23. Thinking about sex when I don’t want to
26. Washing myself because I feel dirty on the inside
34. Not trusting people because they might want sex
40. Getting scared or upset when I think about sex
44. Having sex feelings in my body
47. Can’t stop thinking about sex
54. Getting upset when people talk about sex

To be asked by non-parental-units?

The answer is "NOTHING" !!!

Except for those of you who would rather parse the context of whether parents rights were being trumped by the "state" or by the "school board".

It wasn't a "sexuality survey" and it is disingenuous to call it such.

The language you are screaming at me above doesn't at all effect consent. Having the right to pull your kid from school the day they are teaching about slavery is not the same as insisting that the school not be permitted to teach about slavery at all because it offends you. Certainly you can pull your kid, you just can't tell the school what to teach and what not to based on a constitutional fundamental right. You can do all sorts of things to control you schools curriculum from being on the school board to the PTA. This isn't about that, its about having an actionable, fundamental right to control the curriculum via a federal case.

I am sure you understand that the right to raise your kid is still yours, you can send him to school or not if they are doing something that day that concerns you. You just can't tell them that they have to call the whole lesson off for the whole school because you think it is a bad lesson.

Try and imagine how things would work if what you suggest was permitted, if the school needed a fully informed consent from every parent on every lesson before it could be taught. The school here wasn't trying to force a sexuality survey on ususpecting kids as part of some sick joke they had a hankering to play. This psychologist came up to them and asked for permission to do this research that could benefit kids who have trouble learning due to emotional and psychiatric reasons. Among the several tests and many, many questions, were a few about sex. It got by them. They weren't out to idoctrinate kids into a porn ring. They screwed up, it happens. Lets not let one goofy idea at one lousy school district about an obscure research project give rise to a brand new fundamental constitutional right that makes it impossible to play duck-duck-goose during recess whithout each child making a written waiver in the presence of a court appointed attorney.

Mickey.

Just a yes or no here if you please...


Would you have wanted your little girls taking that test, survey, or what ever you call it?

Just a yes or no, thanks.

He's a lawyer. Answering yes or no is impossible for him.

Certainly not appropriate to ask without getting parental consent first which in fact was done here. The problem is that the information sheet on the test used by the parents to make the decision wasn't very detailed, especially on these things. They didn't override parental instructions, they just did a lousy job getting consent. That is a problem easily remedied at the next PTA meeting or School Board election, it doesn't give rise to a constitutional fundamental right not recognized by any other court or judicial opinion.

Call your congressman.

NOT !!!

I heard on the radio (have not confirmed it yet) that a list of the questions was sent to the parents. It did not include the sex questions.

No, but I also won't let my daughter play dodgeball, do I have a constitutional right to shut down dodgeball at the entire school? Court cases aren't about what is right and what is wrong, they are about what is so wrong its actionable. In the constitutional realm, that bar is as high as it can get.

Not everything that is right or wrong is a fudamental constitutional right giving rise to a federal case for monetary damages?