Strengthening Constitutional Self-Government

No Left Turns

The constitution and the family

Let’s hope that the parents appeal this decision. Here’s the most troubling bit, at least from what’s been reported (I haven’t yet read the whole decision):

"Parents have a right to inform their children when and as they wish on the subject of sex,’’ said Judge Stephen Reinhardt in the 3-0 ruling. "They have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise.’’

This is one reason why we home-school.

Update: There’s a very lively discussion of this decision over at The Corner. Here, for instance, is Rod Dreher’s comment:

This ruling gets at the fears people have about losing control of their children’s sexuality. It is within the privacy rights of a minor child to have an abortion without informing or receiving the consent of her parents, but it is not within the privacy rights of a parent to consent before their minor children are probed by strangers about their thoughts concerning touching the genitals of strangers. This ruling is incendiary because it has everything to do with the proper place of sexuality in American public life. It’s why we’re having a culture war. It’s why we get things like Prop 2, the anti-gay marriage amendment Texans will be voting on next week. And it’s why, Tom Frank, that Kansans keep electing Republicans.

Discussions - 17 Comments


I have to agree with the portion of the opinion you cited. There is nothing in the federal constitution giving parents any kind of right to control what schools teach their children: unless you want to argue for a substantive due process right. This seems to be what the lawyers argued because they argued the parents’ "right to privacy" had been violated. I suppose one could argue 1st amendment freedom of religion, but this seems like the school was asking nonreligious questions (they were gathering data, the child was free not to answer).

I am sure the parents could have fought the issue on the basis of a state statute authorizing public education, or on the basis of a school board ruling, claiming that neither authorized the school doing this.

The lawyers claimed a violation of a constitutional right in order to make this into a federal question so they could get access to federal courts. I am not sure why they would favor federal court over state court, perhaps they hoped to get a more libertarian panel of the 9th circuit than the state court would give them.

Can you offer any support for a federal constitutional right for parents to teach their children what they think is best for them, or rather, to prevent authority figures from asking them questions?


I didn’t say that I necessarily think the statement is wrong, but only that I am troubled by it. I’ve printed out the decision and plan to read it ASAP (my kids have home school swim team this afternoon, so that will be my reading material at the pool). And if it is, so to speak, good constitutional law, then we parents have to be much more vigilant in school board elections and PTAs, or else we have to pull out of the public schools.


Not to nitpick, but you did write that you hoped the parents appeal this decision. I assumed you meant the decision was wrong. If it were not wrong, then there would be no reason to appeal it.

I think the decision points to one of the primary problems for the right. Should the right use constitutional law that has no basis in the constitution in order to advance its agenda, or should it fight to repeal this constitutional law (such as the right to privacy) and then let the States do what they will? At some point it becomes a prudential argument: the right accepts it has lost the constitutional argument and then uses bad constitutional law to further its agenda.

I am often dismayed when people on the right argue for greater federal control over things because they think it will advance their agenda. The recent gun maker protection bill is a great example. In olden times, no one would have thought about interfering with State tort law, nor would they have thought the commerce clause gave them the power to do so, finally the bill dismissed all law suits pending, if one were serious about Eminent Domain (anti Kelo) then this would be unconstitutional. Hoping for consistency is probably too much in politics.

I concur with Steve.

The right of center central government may be better than left of center central government in my view, but it is inferior to localized state government, and further devolution within states.

The only positive effect of an overreaching right of center government is that many liberals may come to understand the importance of federalism

We should use this opportunity to teatch them, while they can see it. Federalism should not be a right only issue. It is anti-totalitarian.

According to this article, a sexual survey was given to the children, and they were asked about their sexual feelings. It does not appear that anyone was teaching sexual education. Most children will willingly provide information to adults because they innately trust them. I would NOT want my child to be given a survey about his / her sexual feelings without my foreknowledge. If it is my right to teach them about sex when and how I want to, how can it also be the right of a public entity to obtain information about my children’s awareness of sexuality without my knowledge?

We’re talking about first, third and fifth graders. Not high schoolers or even Junior High kids who will have a little more knowledge about sex. This is NOT about "right" or "left". This is about our kids growing up in a world where they are sexualized long before they can even understand it.

Just a quick response, based on a quick reading of the opinion. However outrageous a bald statement of the lack of parental rights may be, it seems to be supported by the preponderance of Appeals Court opinions (not just the very liberal 9th). The two most apposite Sup Ct cases (Pierce and Meyer) are plausibly distinguishable in that the narrow view of their holdings is that the state can’t compel parents to send their children to public schools, though I’d have to go back and re-read them to see whether such a narrow reading comports with their own argument and "spirit." In other words, an appeal to the Supreme Court would likely be the longest of long shots.

If this Court is right and parents who send their children to public schools essentially give up any constitutional ground for complaining when the school substitutes its judgment for their’s, then parental supervision has to be political, above all else. Of course, considering how much authority we’ve ceded to the state in all areas, the Court’s argument is troubling in what it implies for the family across the board: if we want the state’s help in carrying out our parental responsibilities, then we can only complain politically, not judicially. (I’ll have to think about whether I’m completely O.K. with that.)

There is one last point: the consent letter the parents signed said nothing about questions regarding sex. The school authorities were incredibly (actually, in my experience, all-too-credibly) high-handed here. They knew that if they had disclosed that there would be questions about sex in the survey, parents wouldn’t consent. The parents who are offended ought to put a lot of pressure on the school board to discipline those responsible for thus misleading them.

All in all, this is another argument for home-schooling and vouchers.

How does this case compare with the pledge of allegiance case? It would seem to me that if there are no parental rights as stated then Newdow has no more to complain about than these parents, even if he had had custody of his child.

I think the parents should bring a civil suit (assuming the Statute of Limitations has not ran). This is clearly a case of lack of informed consent. I’m uncertain how it applies to psychologists, but doctors that do certain things without informed consent are subject to suit.

Such a suit would do more towards preventing this thing than the creation of new, vague constitutional rights.

Newdow can at least try to make a First Amendment argument. The argument, such as it is, is in this case more "originalist" or "traditional" than strictly textual.

I know first-hand of psychologists who have lost bids for tenure, and their grant-writing privileges, due to dishonesty about informed consent. We take informed consent very seriously!

Amen, Deb. Let’s stop sexualizing children and teen-agers. Joe, I wonder if this is a reason to home-school or a reason to stop an intrusive court system into family issues. Maybe it’s both.

Amen Deb and Hizzoner!!!

There is absolutely no reason for any person under the age of 19 to be exposed to any materials, "educational" or otherwise, regarding sex. The police should raid that school and haul away the parties responsible for this.

"Parents have a right to inform their children when and as they wish on the subject of sex,’’ said Judge Stephen Reinhardt in the 3-0 ruling. "They have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise.’’

This is just another illustration of Judicial Arrogance or Judicial Supremacy. Here’s a half-wit who’s controverted the fundamental axiom of our democracy: "government of the people, by the people, for the people," to ......government of the courts, by the courts, for the people.

To this idiot, it’s the bureaucrats who rein supreme... not the people.

As an educator at a university it’s hard for me to believe that this survey made it’s way through an institutional review board. If it did, someone needs to make a big stink. If it didn’t, someone needs to make a bigger stink. Clearly this study involved human subjects and just as clearly it hid the most sensitive portions of the survey. The supervising faculty member needs to be challenged about the failure of the consent letter to accurately portray the content. Suggesting that a child might be "uncomfortable" with some of the questions is like suggesting that drowning victims might experience moisture.

Here’s hoping that your idea of home "schooling" doesn’t include intelligent design as part of a biology class.


I’m going to assume your post meant any teaching of ID is bad because it referenced home schooling. I read the article, and so what? It really means very little to the argument of whether or not intelligent design is an argument worth discussing in regards to creation.

All I see is the two authors asserting that controversy (arguing both sides) is an educational strength, and then claiming as a result that the controversy within the evolution doctrine is sufficient to satisfy any good arguing both sides may bring about. That seems to be a fallacy.

There point in regards to what class should teach ID is a good point. I would tend to agree that ID should not be taught in Biology. However, given a couple of assumptions (as is evolution), and any system can be built consistently, or close to it.

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