Who decides what children will be taught about sex? The Ninth Circuit Court of Appeals served notice on America's parents this week, ruling that parents of elementary-aged school children have no right to be the "exclusive providers" of sex information to their children.
The Ninth Circuit Court of Appeals is generally considered to be America's most left-wing court. Nevertheless, the decision handed down on November 2 represents one of the most outrageous infringements upon parental rights ever made by an American court.
The case originated in California, where a group of parents filed suit against the Palmdale school district because their elementary-aged children had been asked questions about sexual topics without parental notification or control. In its decision, the court simply told the parents they had no right to complain.
The case was sparked by a survey the Palmdale school district had conducted in order, school officials said, to evaluate psychological barriers to learning. The schools had used volunteer mental health counselors to develop and administer a psychological assessment questionnaire for children in the first, third, and fifth grades. According to the district, the goal was to "establish a community baseline measure of children's exposure to early trauma." Parents had been sent a consent letter which did not explicitly mention that any question would involve sexual topics. The parents discovered the sexual content of the questionnaire when their young children came home troubled by the experience.
Most parents would be shocked to know that these first, third, and fifth graders had been asked to evaluate whether they have been traumatized by, for example, "touching my private parts too much." The survey also asked the children their feelings about thoughts related to "touching other people's private parts," "thinking about sex when I don't want to," "having sex feelings in my body," and "getting upset when people talk about sex." We can be fairly confident that most parents would be upset when people talk about sex with their young children.
After all, how many first graders have any concept of sex? Most parents would see these young children as needing protection from the very knowledge of sex, much less the intrusion of questions related to their own sexual feelings and perceptions.
The parents sued the school district contending that the right to "determine when and how their children are exposed to sexually explicit subject matter" is a fundamental due process right. They argued that, as the children's parents, they have a 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."
When the case was appealed to the Ninth Circuit, the three-judge panel dealt the parents a serious blow. The court's written decision, written by Judge Stephen Reinhardt, declared that "the right of parents to make decisions concerning the care, custody, and control of their children is not without limitations."
Judge Reinhardt went on to argue that the federal courts "have upheld the constitutionality of school programs that educate children in sexuality and health."
What about the rights of parents? Judge Reinhardt, citing a precedent from the First Circuit, simply declared that "once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished."
This is an incredible statement. America's parents are now being told that, if they choose to educate their children in the public schools, they forfeit any fundamental right to control the education of their own children. The right of parents to control the education of their children "does not extend beyond the threshold of the school door," the judge stated. Why were these children asked about sex in the first place? The school district claimed that the children were asked these questions in order to measure their exposure to early trauma. Most parents would undoubtedly see this as an unwarranted and harmful intrusion--an abuse of state power that robbed their children of innocence and security. Nevertheless, Judge Reinhardt declared that the survey was part of "a legitimate educational objective."
Amazingly, Judge Reinhardt simply declared that the survey was legitimate because the school district said that it was. The opinion of the parents was judged to be irrelevant. Instead, the school district was judged to possess a recognized educational expertise that enabled its officials to decide what is and is not a legitimate educational objective. As the judge explained, "The School District's administration of the survey was rationally related to its legitimate state interest in effective education and the mental welfare of its students."
Note carefully the final paragraph of Judge Reinhardt's decision: "In summary, we hold that there is no free-standing fundamental right of parents 'to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal religious values and beliefs' and that the inserted right is not encompassed by other fundamental right. In doing so, we do not quarrel with the parents' right to inform and advise their children about the subject of sex as they see fit. We conclude only that the parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select. We further hold that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state. Accordily, the parent-appellants have failed to state a federal claim upon which relief may be granted."
Invented within those sentences are landmines of tremendous legal significance. The public schools are now declared to have a right to present matters of sexuality to students of any age "in any forum or manner they select." This sweeping statement represents one of the most devastating assaults upon parental rights ever encountered in our nation's history.
Citizens who still doubt the urgency and magnitude of our legal crisis need only consider Judge Reinhardt's statement that "there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children."
This claim takes on an additional layer of concern when it is realized that these were seven, nine, and eleven year olds. The subject matter had nothing to do with human reproduction, science, or any direct education of the children. Instead, the sexual information was forced upon the children through the administration of a psychological survey.
America's public institutions--ranging from the courts to the public schools--have increasingly come under the sway of social revolutionaries who see their role as the liberation of children from the authority of their parents. Clearly, the public schools have become the focal arena for this process of liberation.
How can parents see Judge Reinhardt's statement that "once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children, is, at the least, substantially diminished," as anything but an open threat? Send your children to the public schools, and you forfeit the right to protect them from assault by premature exposure to sexual content and information.
The "personal and religious values and beliefs" of parents are not protected by constitutional rights, and the schools are now free to ignore the complaints and concerns of parents. After all, once the children cross the threshold of the public schoolhouse, the parents lose their say.
Will America's parents hear this wake-up call? Can they possibly ignore this declaration by Judge Reinhardt: "Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school form providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so."
That kind of statement might be expected from a court under the Soviet regime of the past, but it hardly seems possible that an American court could hand down such a decision in the present.
This case is almost certain to be appealed to the U.S. Supreme Court. There is no assurance that the nation's high court will take the case, but the Ninth Circuit has one of the worst records of any court in terms of decisions later reversed.
Nevertheless, the big lesson here is the fact that a federal appeals court dared to hand down such a decision and to cloak its assault on parental rights in language that gives government officials virtual carte blanche over the sexual education of children. If this doesn't lead to outrage among America's parents, what will?
R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky. For more articles and resources by Dr. Mohler, and for information on The Albert Mohler Program, a daily national radio program broadcast on the Salem Radio Network, go to www.albertmohler.com. For information on The Southern Baptist Theological Seminary, go to www.sbts.edu. Send feedback to [email protected].
See also the most recent entries on Dr. Mohler's Blog.