Today the most liberal judge of the most liberal circuit court (Reinhardt of the Ninth, the same circuit that ruled that children reciting the Pledge of Allegiance at school is unconstitutional), ruled that parents do not have the right to determine what their seven-year-old children learn about sex while in school.
Parents sued the Palmdale School District for giving a survey, which included questions about sex, to students between the ages of seven and ten, without informing the parents of the nature of the survey. The district had sent home a note to parents asking for consent to administer a survey that would cover “baseline . . . exposure to early trauma (for example, violence).” The note omitted any mention of sex.
The survey the district administed to children in the first, third and fifth grades, asked students to “rate the following activities”:
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
The horrified parents complained that they would never have consented to the survey had they known its true nature. The school brushed aside their concerns and the parents brought suit. The district court rejected their suit and today the Ninth circuit upheld the district court ruling thus:
We agree, and hold that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that 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.
Re-read that final sentence, remembering that it was this court that sided with those parents who objected to schools having children learn and recite the Pledge of Allegiance (and to pray, of course).
Fields v. Palmdale School Dist. can be accessed here
As much as I like San Francisco, if I lived in the 9th District and had children, I’d move.
Are you saying it’s incongruent to believe he got the pledge decision right, but this one wrong? I find myself falling into that camp.
Even if I *didn’t* have children, I’d move.
And we wonder why conservatives are so up in arms over judicial picks/philosophies?
This decision is completely outrageous. It’s going to be interesting to read the people on this board and elsewhere trying to justify this type of decision by a court.
This is only going to impact school districts that can politically afford such a survey, that is, the very liberal ones only.
Where is Kaimi’s beloved ACLU on this one?
OK, I’ll play the devil’s advocate.
Perhaps this is just an example of judicial restraint. What may be discussed in school should be left to the democratic process, not decided by judges. There is no explicit constitutional right for “parents to be the exclusive provider of information regarding sexual matters to their children,” unless you claim to see one among the penumbras.
(I agree, though, that these questions are outrageous. But I’m more angry at the school than I am at the 9th circuit.)
A few questions from a non-lawyer: 1)The Ninth circuit is pretty big, right? Doesn’t it include many western states? 2)Does this mean that schools now have free reign to give second-graders graphic sex surveys throughout that the Ninth circuit until (and if) this is overturned, or is this put on hold while it is possibly appealed?
Interesting, Matt. I’ll react from an international angle, or at least (North-West)-European. In our school systems parents have little or no say on what the school will teach on such matters as sex. Overall, information about sexuality is pretty direct and open, part of the curriculum. I presume it would shock some in the U.S. I think my daughter was 8 or 9 when at school those lessons were first given, with about everything there is to know, including info on AIDS, use of preservatives, etc. Even so, the information was presented, as far as we can tell, in terms and images appropriate for the age. There is a long tradition of such curricular materials per age group. Did it disturb us? Not really. It’s up to the parents to supplement with the religious and moral dimensions according to their respective faith. Which does not mean all Europeans will agree with the way it is done. But my general impression is that the problem, as you experience it in the U.S., or at least in the Ninth Circuit, is much less sensed as a problem in other cultural and educational traditions.
“What may be discussed in school should be left to the democratic process, not decided by judges.”
Except that in this case, Ed, the Circuit Court is upholding the school districts desire to keep the matter of such a survey outside of the democratic process. Obviously I don’t know the whole story here: perhaps the parents found themselves completely marginalized and powerless in the face of a school board and parent-teacher association which completely supported the survey, and so they sued because the democratic process failed them. But on the basis of the story which Matt has told us, it appears that the school district simply dismissed complaints our of hand, thus not opening their decisions up to democracy in the first place.
I tend to agree with Ed. I find the survey unconscionable. But I’m not sure the courts are the way to go here. It seems the election process is. It seems to me that the parents ought be up in arms at the schools. But if parents can ban these questions, can’t they ban any survey outright?
Actually, as outrageous as the survey is, and as much as I would disagree with it being given to my child, I don’t see what law was violated when the school gave it to the students. I am not aware of any constitutional right of parents to give line-item approval of what is taught in schools. That is carried out through the democratic process.
I do see consistency problems with the Pledge ruling (as well as the issue of Intelligent Design), but (without having read the opinion) I’m not convinced the court acted improperly.
The issue isn’t what is right or wrong. The issue is what the law says. We live in a democracy. If you don’t like the law, vote people into office to change it, or move somewhere else. Not all problems can or should be solved in the courts.
“I do see consistency problems with the Pledge ruling…”
What are they? The pledge issue falls under an establishment clause analysis and this case, without having read the opinion, would seem to fall under the 14A (substantive due process, I’m guessing). The only similarity that’s jumping out at me is that they both take place in schools.
Since the Ninth Circuit includes: Washington, Oregon, California, Hawaii, all the little islands, Arizona, Nevada, Idaho, Alaska and Montana, I guess we’ll have a lot of LDS folks moving then…
Too bad. The survey itself seems quite over the top. But the opinion wasn’t all NInth Circuit, mind you. Judge Lay, from the 8th Circuit was also on the opinion, as well as Judge Thomas, from Montana. I have respect for Judge Thomas – and frankly, for Reinhardt as well, having interacted with him and his clerks quite heavily last year as a fellow Ninth Circuit clerk. Oddly enough, however, I’m failing to see some of the problems with the legal theories of the opinion. This was brought under as a 1983 action, alleging a “federal constitutional right to privacy” (debate all you want about that one), and deprivation of civil rights. I’m still failing to see the exact deprivation of civil rights that everyone is up in arms over spelled out either in the law or the constitution – did the parents not get access to the courts? Their first amendment rights? Their right to possess guns? Their rights against unreasonable searches and seizures? One might argue that conservatives can’t rail against this opinion, and then call for strict judicial construction of the constitution. The contradiction is quite funny, actually.
That is why I love being in the middle. For an LDS lawyer, that works for me just fine. Too bad about the survey though – but doesn’t this mean that parents should be doing their jobs in the home anyway; teaching their kids in the right way about these things, not complaining that the schools are doing it wrong. At least I hope that is how I am once I start having kids.
Right on, Jonathan. The court didn’t rule on whether or not the survey was a good thing, it ruled on whether or not parents have the right to be the ultimate final say-so about what is taught in a public school, a right they’ve never had. The lower court dismissed not on the merits, but because the plaintiffs’ lack of a “cognizable legal theory.” Hence the affirmation.
It interpreted the existing law and didn’t go creating a new right. I thought conservatives were supposed to like that.
So Russell, you find the school board and PTA of Palmdale to be less democratic institutions than three unelected 9th circuit judges? I guess I just don’t understand you communitarians.
To add one more thing to the international angle. A fundamental reason why e.g. in European countries the system refuses parents the right “to be the exclusive provider of information” (OK, I’ll broaden the topic a little), is self-protective for society. Dates back in history, e.g. to the intense “school war” in France around 1900, when the State wanted to break the Catholic monopoly on education and its “subversive” action against the Republic. The issue has become vivid again in Europe with the emergence of Islamic schools, some with fundamentalist tendencies. The State, in it’s reasoning, cannot afford that the school (in this case defined by parents of one ideology) would educate the children as exclusive provider of information.
If you’re waiting for the ACLU to weigh in on the right of parents to control what their children are exposed to at school, don’t hold your breath.
If I lived in the Palmdale School District, I’d move.
The survey was clearly over the line, and the court didn’t express its approval. “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.” I think it’s also important to point out that the students were asked to “rate the following activities” as to frequency, from “never” to “almost all the time.” From Matt’s description above, one might think they were rating the activities for, say, approval or enjoyment. (“Having sex feelings in my body?”–I’d give it 10!)
Parents certainly do have a right to determine what their kids learn in school–they exercise that right by choosing a school, be it public, private, or home. Once they choose to send their kids to public school, they yield a sizeable chunk of control over curriculum to an entity they control only indirectly. I have a first grader in public school, and I’d be furious if he had been given this survey after the deceptive “disclosure” of its contents. I’d be looking for the principal’s head on a platter, or the school psychologist’s. But filing a lawsuit saying my constitutional rights were violated? Why not run for the school board instead?
Not having read the complete opinion, I have to tentatively agree with those who think the *result* in the case (having it dismissed) is potentially legitimate. I’m a strict constructionist and don’t believe the Constitution is a cure-all, though there are probably federal laws (but probably not Section 1983 — I don’t know how that would be relevant here) that could be employed, too.
That said, I don’t imagine school districts send home consent forms for no reason. There are likely state and federal laws that require schools to receive parental consent before discussing particular subjects. Whether obligated by the law or only done as a gesture to parents, in sending the consent form to parents, the school apparently thought parents have the right to decide if their children participate in a survey dealing with violence.
I’d also guess that there’s a law against a strange 45-year-old California man from sitting down a bunch of seven-year-olds and asking them to respond to questions about touching their own and others’ private parts. At least I hope I’d have legal recourse were someone to discuss those things with my kids without my permission.
I guess I largely agree with the general principle affirmed by the ruling. Parents should not have the exclusive say on what is taught in public schools. Schools should be allowed to teach evolution, for instance, even if parents object to it.
Regardless of what the 9th Circuit did, the damage (if any) has already been done to the kids subjected to the survey. With the limited amount of facts that we have (I have not read the case) it appears that the school intentionally avoided informing the parents that the survey would have a sexual element to it (at least 10 questions related directly to sex). I’m not suggesting that parents have a line-item say on what is taught in schools, but this topic is highly more flammable than reading, writing, and arithmetic.
If the D.A.R.E. program failed miserably in its attempt encourage kids to not use drugs, I fear where this program will lead us.
Wilfried, I really appreciate you providing the (NW) European perspective — thanks! I’m curious: is there broad acceptance of the schools’ approach to sex education, even in predominantly Catholic regions? You imply in #9 that instruction on the use of contraceptives is commonplace (“preservatives” is one of those false cognates that occasionally trip up greenies new to the francophone mission field). Have the Catholics given up on that fight?
Ed (#16)–huh? Either I completely misunderstood your “devil’s advocate” post, or you completely misunderstood mine. My limited understanding of the case suggests that the 9th Circuit, in handing down this ruling, has backed up the claim of the school distict that they do not have to democratically work out a compromise with the parents in question–the sort of compromises that presumably involve, as Matt suggests, consent forms and such. In other words, as I see it, such a stringent due process defense of the school district undermines the ability of parents to democratically engage said district. In this case, it would be a matter of unelected judges endorsing and encouraging the least democratic instincts of a bunch of progressive educators.
Bryan,
No one believes parents should have the exclusive say on what’s taught in public schools, what most everyone believes is that parents should be free to exempt their kids from subjects they disagree with. If parents don’t want their child to cite the pledge, the school can’t make them, and if parents don’t want the school teaching kids about touching private parts, the school should exempt them, too.
What was the survey for, and why were the parents asked to give consent? From what I know about federal regulations on research with human subjects, there’s no way that the consent process described briefly in Matt’s post would ever have passed muster with an institutional review board. If the purpose was social science research of some kind, there’s a regulatory issue (not necessarily a legal one).
I’ve had a couple of people ask me what the difference is between homeschooling and teaching your children at home after they come home from public or private school. (see here for an answer I gave Jonathan Green). My current working definition of homeschooling is that as a homeschooling parent, I have final authority over the content that my children learn and the means of presentation. I may not actually do the teaching myself, but I make the decisions (ok, my wife makes the decisions).
Public schools, on the other hand, require that the decision making authority reside with the school. I think this is vitally important to the idea of public schools. The schools should communicate well with parents and respond to parental concerns, but I don’t think that the schools can do a good job without that authority.
I think it’s reasonable to object to the questions in the above cited survey as being outside the educational mission of the schools. I don’t question, however, the ruling that the schools should be the final arbiter of what information is presented, and how, to students within that mission.
re #20: I don’t get it Matt. You introduced this post with a scathing title, got people all riled up, and then later admit you didn’t read the case before you posted? If you didn’t read the opinion, then where did all the detail you originally posted come from? Is it just a regurgitation of some group’s talking points? I’d like to think the conversation here could be a little more intellectually honest than that.
Bad taste is not unconstitutional. Asking inappropriate questions of children is in bad taste, even rude. The Constitution tries to protect we the people against the abuses of governments. It does not, nor should, protect us against the tasteless, the clueless or the stupid. That is our own private responsibility.
It’s a court, not a Mommy or Daddy.
I am not feeling comfortable going in against the trend, but I’ll risk it. As stated in the post, the survey was done to discover “exposure to early trauma”. The questions dealing with sex had probably much to do with the detection of possible sexual abuse of children. Of course an abusing parent would not want his/her child to be questioned about such things. But we know child abuse is a real problem. Who then is to detect “exposure to early trauma” and how is this to be done? Must we not protect the right for outsiders to detect this? (how it is done properly is another question). There seems to be a significant difference between this kind of investigation and the right of parents to determine what their old children learn about sex in school.
We also hold that 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.
Does this language (translated by a lawyer) ‘prohibit’ parents exempting your child from anything they don’t want them to participate in …. oh … like the pledge … or unexpected sex surveys? Or does it just mean … ‘that’s a risk you take by sending your kids to public school’? If the parent doesn’t have the exemption right and the disctrict wants them to say the pledge (if tha’s legal, of course), they have to say it then? (I’m getting dizzy)
We homeschooled our kids until 2nd grade (and plan to with our 3rd) and are now testing the public school waters. I’ll be honest, I don’t ‘trust’ the public schools in regards to such things, but so far things are working out for us. We stay as tuned-in as possible with what’s going on in their schools.
Emergency Preparedness, as well as educating your children … you can’t rely on the government to do it. I’m not saying public school is the ‘whore of all the earth’, but this is a ‘risk’ that is run by putting kids in public school. I hope the community of common sense prevails on this one.
Russell,
I guess we have different definitions of “democracy.” I never knew that democracy requires that elected officials “work out” a compromise whenever a group of voters is unhappy. For example, I am not happy with the war in Iraq, but I wouldn’t expect the supreme court to force the Bush administration to “work out” a compromise with me on the issue, unless they had violated my legal rights in some way.
I don’t know whether state laws require consent forms, but you’ll be happy to hear that the decision explicitly allows that the parents may, if they wish, seek relief in state court for reasons of state law.
re #24: Bryce, I immediately wondered the same thing. What IRB allowed a consent document like that to be approved? I can understand wanting the protect the integrity of the questions by not publishing them beforehand, but certainly a warning that some of the questions that the 7-year-olds would be asked were of a sexual nature could still have been required.
For those who see this as a moral and legal outrage, here are the people you should write to. In your letter, ask them to impeach Judge Reinhardt and call on him to answer for his judiciary philosophy before the Senate Judiciary Committee.
Judiciary Committee chair:
Senator Arlen Specter
711 Hart Senate Office Building
Washington, DC 20510
Senator from California and Judiciary Committee member:
Senator Dianne Feinstein
331 Hart Senate Office Building
Washington DC 20510
Senate Majority Leader:
Senator Bill Frist
509 Hart Senate Office Building
Washington, DC 20510
Although I don’t agree with the ruling, maybe this will encourage many parents to get their heads out of the sand and actually talk to their kids about sex, abuse, drugs, etc.
Away from the legal aspect of this and more on the social side, it is interesting that Palmdale is a small isolated city on the edge of the Mojave Desert. The major economic features of the Antelope Valley are Edwards Air Force Base (birthplace of supersonic flight) and the Lockheed Skunk Works (where Mach 3 spy planes were once built). Burt Rutan’s Scaled Composites (creators of private space flight) is down the road 40 miles to the north. It’s not the sort of place where this kind of problem would be expected. If the solution is to move away from Palmdale, there’s no place to move to.
I quickly read through Reinhart’s opinion here, and although I am no expert on this area of the law, it looks to me as though he got it right. There are a number of cases where parents have tried to opt their children out of various forms of public education and been punished for doing so. In those cases — Pierce, Meyers, Yoder — the courts have occasionally struck down the punitive action against the parents. Reinhart seems to be correct, however, that there is no precedent to the effec that this right gives parents control over school curriculum as a matter of constitutional law.
A more interesting question would be whether you can sue the school officials on a theory of fraud or some other common law right of action.
The survey definitely seems problematic for the youngest children, and it should have been better described in the consent.
But I don’t see what the hysteria is about. The parents asked the court to expand either (1) the the right of privacy (the same right that was used to justify Roe) or (2) the right of parents to make decisions regarding the care of their children, well beyond what any other courts had previously held. The district judge, Judge Selna (a recent Bush appointee) dismissed the claim, and the appellate panel agreed.
The “moral and legal outrage” seems a bit misplaced here.
Is there a possibility that this decision could be interpreted to mean that the schools don’t have to allow parents to opt their children out of certain lessons? I’m not a lawyer, but I agree with the decision with this particular case in mind. My worry has to do with other situations that may be affected by this ruling. Or I am overreacting?
Keryn: The answer is probably not. Under the Supreme Court’s decision in Wisconsin v. Yoder, parents have a right to opt their children completely out of compulsory education after (I believe) the 8th grade. The real issue would be the meaning of Yoder and other cases (Meyers and Pierce) rather than this opinion.
b bell: “And we wonder why conservatives are so up in arms over judicial picks/philosophies?”
Ever wonder why some people suspect that with conservatives isn’t really isn’t just process and form but result that really matters? The outrage here seems to have nothing to do with the legal reasoning and everything to do with “what it would be like to live in the 9th district” [Even from Matt]. I readily admit that there a plenty of good conservative positions that might take issue with the reasoning, but that’s not what driving sales of a book like _Men in Black_, or what would motivate a sitting U.S. senator to sympathize with people who kill judges. Many, many conservative voters would no doubt feel betrayed by a textualist or so-called “strict constructionist” making an argument like Nate does, that perhaps such a decision might be right one. And with some reason–they’ve been led to believe that “strict constructionism” is a code word for the culturally conservative result. Scalia, Thomas, and Alito almost surely don’t believe this but it’s not a stretch to say that George W. Bush does. [Which is not to say I wouldn't also move out of the 9th district--which should lead us to consider: perhaps results do matter, at the very least the results of different kinds of process alongside results in general].
I would never claim that this point is the end-all of the debate about judical nominees, nor that it’s even the most important point. But it simply must be admitted it in order to speak frankly about the intersection between cultural politics and judicial politics in the U.S.
Keryn, I think the psychologist would argue that she did give parents a chance to opt out because only students whose parents signed the consent form would be interviewed. I think that’s a cop out personally. The consent form pushed the boundaries of being “informed consent” when it’s aouthor neglected to inform that some of the questions elementary students would be asked were of a sexual nature IMHO.
Wilfried: I am persuaded by your post #26, which will come as no surprise to those who know me as the most liberal Mormon they’ve ever met ;-). There is good that could come from such a survey, even administered to children so young, but I’d rather the consent form was more straightforward.
Laudable intent, horrid execution.
To add to my previous comment, the late X-15 pilot Pete Knight was mayor of Palmdale and later represented the area in the California Assembly and in 1996 went to the state senate. He’s the one who introduced Proposition 22 AKA the Knight initiative.
35,
Hi Jeremiah.
Its all about the results for both sides of the political spectrum. I am living in the real world. SCOTUS decides all the important cultural issues. Conservatives want “our guys” in there.
Nitpicking over the law/judicial philosophy is for lawyers that care and for academics. Want SSM mandated by SCOTUS? Elect Liberals to the presidency. Put more Ginsburgs and Breyers on the court.
My dad called me on Nov 3 last year and told me that Bush was a moron on Iraq, spent to much $$ and pretty much sucked all around. Then he said but he appoints good justices so I voted for him. My Dad is looking for RESULTS from Conservative jurists the guys on our team.
Lets just keep it real.
Thanks for the answers, Nate and Chad Too. That helps me feel better about supporting the decision.
Jeremiah J.: All I can say, is that I am just glad that it is only conservatives who occasionally seem to have inconsistent rhetoric on the issue of judicial nominees. I am just glad that the left never resorts to scare mongering, willful misrepresentation of cases, character assination and the like in an effort to defend a few key precedents that they agree with on substantive grounds despite the fact that twenty or thirty years on even committed leftist constitutional scholars cannot seem to offer a consistent or compelling justification for.
Chad Too (Comment 20),
I saw the opinion linked in a news report this morning, and only had time to skim it before leaving home, but the paragraph I quoted riled me up and so I wanted to write a quick post. Sorry to disappoint you even more, but my computer at work can’t open Adobe files so I still haven’t read the whole thing. As for the title, consider it changed to say that if I lived in their school district, I’d home school!
Jimbob,
The First Amendment rationale for the Pledge cases relies on the “impressionable” ages of the children in question, as no one believes congress establishes a religion when California school children cite the pledge. It is that rationale that gives impetus to the parents outrage — if children are too impressionable to say “under God,” why let schools teach kids about people wanting to touch their private parts? And because the only way the court gets to the First Amendment analysis in the Pledge case is through the 14th Amendment, it makes sense for the parents to root their complaint in the same 14th Amendment jurisprudence that gives rise to the parents’ claims in the Pledge cases. (Though the parents in this case are presumably suing only to protect their right to consent, and not for an absolute prohibition, as the Pledge case did.)
Nate,
Since you’ve read the disposition and I don’t have access to it here, do you think Reinhardt believes state officials who show pornography to school children would be protected? (I take it this was the rationale of the parents’ Section 1983 claim.)
What I don’t understand is why the parents didn’t pursue some kind of tort action. The School officials clearly sexually harassed those children. If anyone with the color of authority in my office circulated a questionaire like that, s/he’d face immediate disciplinary action for sexual harassment–and would likely be terminated. What gives any adult the right to sexually harass a child?
The courts are a good venue, they just pursued the wrong claim.
Okay, now the lawyers can correct my faulty logic.
Matt: Section 1983 does not provide any substantive rights. It is simply a procedural device that allows you to sue state officials for violation of some other federal law.
I suspect that Reinhart would say that parents had no due process right that would be violated if school officials showed their children pornography. I think that he would probably be right. Note, this is a different question than whether or not the goverment could forbid the parents from withdrawing their children and a different question than whether such an action might violate some other federal law.
Jason: Actually I think that you would be hard pressed to argue that circulating this questionaire to adults as part of a sociological study to which they consented (albeit without perfect knowledge) would constitute harrassment under federal employment law. Harrassment has to be so pervasive and severe that it effects the terms and conditions of your employment. This means that except for the most egregious situations one-time offensive action generally cannot consitute harassment.
The more I think about this case, the more skeptical I am. What was the point in going to court? In the town that elected Pete Knight to one office after another, the parents couldn’t resolve matters with school administrators? What was to be gained by carrying on legal action for four years? In the Antelope Valley Press web site, I can find nothing on this case, so it seems to have been of no importance in the community. Were a few parents just playing the lottery?
Matt: I daresay that if you lived in their district, you’d run for School Board after this one!
Thanks Nate. I’ll have to wait until I read the whole opinion to discuss it further. It does sound like the parents pursued the wrong legal paths. And are you saying in your earlier comment that Reinhart reached the right conclusion based on his or your jurisprudence? It’s one thing for judges to routinely invoke substantive due process and expansive interpretations of the “liberty interest,” but it’s wrong for them to go textualist when weighing parents complaining that the schools are talking about sex.
Having now read the consent form and a description of the study, I think the fault lies with the IRB that approved a bad consent process. Unfortunately, there’s not much recourse for the parents – all the feds can do is say, “don’t do it again, or we’ll pull your NIH funding.”
(not a lawyer or compliance professional, although I do database work for Duke’s IRB).
Matt: I am saying that it looks to me as though Reinhart got it right under currently controlling law. I am more than willing to admit that there are times when Reinhart ignores currently controlling law, or plays fast and loose with it. This does not seem to have been one of those times.
BTW: It is the 9th Circuit, not the 9th District.
Ed is right. This is probably a list of questions that was never asked or asked in only one classroom in the whole school district. Those rare cases are the ones that drive the laws. They are also the cases that stir up controversy. So, 1000 teachers can be doing a sane job, and one teacher is an idiot. So, why don’t the parents keep the kid home that day? Why don’t they complain to the principal? Twenty-five complaints from parents in that class would make some changes, you can be sure.
This is like the coffee spilled/Mcdonald’s suit. Generated a lot of crazy publicity, and then the monumental amount was reduced later. Much ado about nothing, but it really propells the conservative cause.
Those wishing to move away are probably going to have to move pretty far…it wasn’t just Reinhardt, the two other circuit judges on the panel agreed with him, as did the Bush-appointee district judge. Even Nate Oman agrees with Reinhardt. So I suspect you’d get a similar ruling in other circuits. According to Wilfried, moving to Europe won’t help either. Perhaps you could try one of the Arab countries?
(By the way, it’s Reinhardt, not Reinhart.)
Ed,
Hopefully the problem of school administrators disregarding parental complaints about teaching first grade students about (mutual) masturbation exists only in Palmdale School District. It shouldn’t be too hard for anyone to move that far! (Or homeschool, as I’d prefer.)
Matt,
With all due respect — and for all I know you may be trying to get a job as a pundit on Fox news or as a fact-checker for the Drudge Report — you do yourself and this site a disservice by making such a provactive post without at least reading the opinion.
Matt Evans: “The First Amendment rationale for the Pledge cases relies on the ‘impressionable’ ages of the children in question, as no one believes congress establishes a religion when California school children cite the pledge.”
How could there be a 1A rationale at all if no one believed that there was a violation of the establishment clause? The last paragraph of the decision says, “In conclusion, we hold that (1) the 1954 Act adding the words “under God” to the Pledge, and (2) EGUSD’s policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause.” Clearly at least two judges thought it violated the Establishment Clause.
Accordingly, my point still stands: one case is about not letting the government estabish religion, which the constitution clearly covers (how it covers it is still up for debate, I guess), and the other is about whether or not parents have the right to monitor cirricula in schools, which the constitution only covers if someone can figure what right was violated. If your argument is that they both were about what can be said in a school to young minds, I guess I would agree, but I think that that’s a level of generalization that’s not particularly helpful, at least legally.
Let’s hope that we don’t look at the courts as the ultimate makers of our law. The way to fix the problem with this questionnaire (for the parents who thought it a problem) was to raise hell in the school board meetings, and then to go out and get themselves elected to the school board so they could get their views carried out int he schools. If they couldn’t muster a majority, they’d have to live with it.
As an old Brit said once, when asked why he was voting against the party in power “To throw the buggers out.” If we believe in our constitutional form of government, that should be our mantra.
By the way, Nate. You left an “ass” out of assassination. I’ve been trying to think of something witty to say about that, but have failed.
Matt, don’t let the nattering nabobs get you down. Here is what the Family Research Council has to say about this, an opinion with which I agree:
“U.S. Circuit Court of Appeals is the most overruled circuit in the country. For off-the-wall liberalism, it has no peer. And Judge Stephen Reinhardt often plays ringmaster to this out-of-control circus. Judge Reinhardt thinks “Under God” in the Pledge is unconstitutional, but sex surveys of seven-year-olds are not. The circus has now ruled that the Palmdale school district in California can ask first, third, and fifth graders intrusive questions about “touching my private parts too much,” “getting scared or upset when I think about sex,” “can’t stop thinking about sex,” etc. Parents in the Palmdale school district were not informed that such sexually offensive questions would be asked of their little children. When they brought suit, Judge Reinhardt brought down the gavel on them. “There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children,” Reinhardt ruled. Further, he writes, “parents have no due process or privacy right to override the determinations of public schools…”
It is hard to imagine that any of those sitting judges who issued this infamous ruling ever had a seven-year-old child. This outrageous and offensive result must be overturned. It is one more horrible example of what happens to parents’ rights when liberal judicial activists are unchecked. Whatever happened to the child’s right to be a child? Long ago, the U.S. Supreme Court recognized parents’ rights in the landmark case of Pierce v. Society of Sisters (1925). There, the high court said: The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Those who “nurture” the child and “direct his destiny” are commonly called parents. Eighty years ago, the Supreme Court showed great respect for parents’ rights. Today, the Ninth U.S. Circuit Court of Appeals showed nothing but contempt. “
Geoff B:
Why do you think the Family Research Council is so hard on Reinhardt, but doesn’t mention the Bush-appointed district court judge who ruled exactly the same way? Could it be that they are not giving you a full picture of the facts and law? If you were the judge, which right would you have expanded in order to let the case go forward?
Geoff, I don’t know what kind of “research” the Family Research Council is conducting, but this is pure demagoguery. The decision can’t be reasonably called “activist,” it’s quite the opposite.
Here’s something maybe we can agree on: this kind of thing demonstrates another reason to favor expansion of vouchers and/or charter schools.
Attention Nate Oman and all Ivy League Educated Lawyers,
I find it difficult to believe that for all the legal expertise here, no one would even attempt to formulate a legal rebuttal to this decision. Doesn’t every first year law student learn that as soon as you start to think there’s a definite answer, you’re probably wrong? Does anyone smarter than me dare to put forth a legal theory against the 9th circuit’s decision?
Jimbob (and StealthBomber),
The Establishment Clause analysis is different for school children than it is for adults. That’s why, for example, its okay for the California State Legislature to have an opening prayer but not a graduating high school class. That’s why I think Pierce, coupled with first amendment dicta regarding the delicate impressionability of school children, can string together a federal case. Rather than rely on substantive due process, however, I’d allege a violation of the parents’ 14th amendment liberty interest and the privileges and immunities clause.
StealthBomber,
It’s very likely the parents have a valid suit in state court, as most laws surrounding schools, parents, and sex are state laws. The Ninth Circuit ruling only through out the federal case based on federal law.
I think it’s funny that whenever a court recognizes some “right” that conservatives don’t agree with, we scream judicial activism, but when our own conservative interests are injured we want the court to start expanding the rights protected by the constitution. The truth is, when I first read Matt’s post, I too was outraged. But then I realized that the outrage did not stem from the judicial opinion (which I later read), but rather from the underlying facts of the case. The school’s judgment in this case was outrageous. The court’s judgment, on the other hand, was not.
Like most political battles, the injured party tried to take this one to the courts on some vague constitutional ground. Conservatives (myself included) should be happy that it was thrown out. Let’s take this battle to the school board, to the city council, local legislatures, etc. Let’s pass a law establishing the rights of parents to have a say in the sexual education of their children (not an unreasonable thing in my opinion) before we try to enforce such a right.
We should all maintain outrage over the facts of this case, but in my opinion, that outrage needs to be redirected away from the courts.
.
Palmdale School Dist is right next to Lancaster, part of Los Angeles County (it is a big county) and a pretty conservative part of the high desert. I’m amazed, though you could move right next door to Lancaster and be out of Palmdale. It is fairly healthy as a metropolitan core (last time I looked in the six figures for population).
My parents have had their house in Lancaster since the 1970s.
It’s not the sort of place where this kind of problem would be expected. no kidding.
What an interesting ambush. Guess the next thing is political process.
Ambush referring to the questions, not the opinion.
I guess I’m in the vast minority, but I’m not quite sure why this situation demands outrage. I have a daughter rapidly approaching first grade, and none of these questions seem particularly troubling to me. They don’t seem, as some have argued, to teach–much less advocate–masturbation, mutual or otherwise. My daughter is five. We teach her to care for her body and to make sure that others respect her boundaries.
I’d tend more toward outrage at questions about violence, such as were cited in the ruling: have you seen someone get shot; have you been chased by a gang, have you ever wanted to kill yourself…
If I’m the only one to whom it’s not patently and concretely obvious why I should be outraged, please ignore my comment. If there are others, however, who are puzzled, perhaps one of those who have taken umbrage would explain why.
NOTE: I’m not saying that you shouldn’t be outraged, or that your outrage is unjustified. Just that I’m not feeling it, and there hasn’t been much concrete discussion of why outrage is warranted.
I would be upset if this happened to my kids because the families were informed about the questions regarding violence and trauma, but not about those involving sex. This despite the fact that issues of violence are generally discussed in the open with children from the time they are small (don’t hit, you shouldn’t shoot people with that toy gun, etc.). Whereas, every family treats the timing for discussing issues of sex differently. When do you start? At what level of generality? What types of discussions are appropriate in a school setting (i.e. outside the family)? What types of discussions at what age? These are all difficult decisions that ought not to be made without parental involvement. Moreover, if I think the public school system is moving to quickly in introducing sex to my 7 year old, then I ought to be able to keep her home from school that day. As a parent, I at least want to be able to be involved in making the difficult decisions regarding the questions above.
Outrage might have been an overstatement for me. But there is no question that I would have joined those families who were upset over this situation, and would do what I could to pressure the school board to make sure it doesn’t happen again.
1. What happens when the child doesn’t know the meaning of “sex” and asks for clarification? Should students be told what sex is in the middle of school without warning the parents beforehand? It can be confusing and embarrassing to hear about sex for the first time. Usually parents want to be able to put it in a particular context and let their kids ask questions.
2. What if a child has been molested? A survey with these questions could be extremely upsetting for those children. The child should talk about their experiences and feelings with professionals or with their family or trusted adults, not with anyone who comes along.
3. Some of these behaviors described are not considered appropriate behavior (thinking about touching other people’s private parts). And many children have never even considered or thought about these behaviors. Some parents feel that the school should not be “suggesting” these behaviors to their children.
4. It sends a confusing message to these children. Parents try to warn their children about people who act or talk sexually with them. These people are breaking the rules. So when they encounter sexual questions on a “test,” they may feel confused as to whether it is appropriate. But, as we all know, children are easily controlled and follow the “directions” of adults, especially adults in authority. This sort of “survey” done by a neighbor or stranger, without my knowledge, would be considered very, very wrong. The fact that schools did it makes me upset.
http://www.dallasobserver.com/Issues/2005-10-27/news/feature_2.html
I’m not sure I’m in for this type of homeschooling either.
I just finished reading the full opinion and think it is ripe for reversal or remand.
The court, referencing prior cases, says that the parental rights outlined in Pierce are not divisible: a parent has the right to keep a child out of public school all together, but when they choose to enroll a child in school they relenquish all control of the child’s instruction to the school, “[W]e affirm that the Meyer-Pierce right does not extend beyond the threshold of the school door.”
In limiting the Pierce right, the court says, “[Parents] have no constitutional right, however, to prevent a public school from 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,” and “[n]either 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.”
I see two problems. First, I can’t imagine the court would use such absolutist language about the schools perogative to teach “whatever information it wishes to provide” if that information were something egregious to the court, like KKK pamphlets (to think of something obviously egregious). It’s inconceivable this panel of judges would have told parents who hadn’t been allowed to exempt their children from a classroom discussion promoting the virtues of the KKK that the parents had relinquished all control over the instruction of their children at “the threshold of the school door.” Nor would the court condescendingly advise them to take the issue to the school board of their small Alabama town. (To prevent one line of attack on the hypothetical, imagine that all of the school’s students are white and that the policy is rational because a study shows that it improves student self-esteem.)
Second, the court overlooks the coercive elements inherent in public schooling. This issue has surely been litigated many times, but by requiring that everyone pay for public school, parents who don’t like their students being taught from KKK pamphlets have to pay for two schools, the racist public one and the decent private one. (Notice that everyone must pay to support the racist public schools, whether or not they have children or children in the racist schools.) As a practical matter, many families could not afford to send their children to a non-racist school or to teach them at home.
In that circumstance I do not believe Reinhardt would insist that the Pierce right is all or nothing, and I think enough justices on the Supreme Court might see this fact pattern as being strong enough to make that clarification necessary.
Stephen M –
Not to threadjack, but it works for some people.
The problem, once again, is our knee-jerk reaction to things not going our way: “Sue the bastards.”
We live in what should be (and perhaps once was) a democratic republic. Our first response should not be to go to law, but to go to politics. Rather than trying to invent new “rights”–rights jurisprudence results in drastic, black/white decisions rather than shades-of-gray compromises–we should, as my British “friend” said above, make our rallying cry “Throw the buggers out.”
Matt, I’m certainly no lawyer, but it seems to me that you can insert the word “evolution” for “KKK” and you’d find that this fight has been fought many times over.
Thanks, Todd and JKS, for the explanation. I see where you’re coming from better now, and I don’t object to your discomfort or find it in any way unwarranted.
As to the informed consent issue–yes, I agree completely that the consent documents should have been more explicit so that parents who didn’t want their kids participating could make other arrangements. (Even better, perhaps, would have been reversing the situation and making the survey something that parents would have to make arrangements for their kids to take.)
I think my not understanding the outrage stemmed more from my assumption that kids (even good Mormon kids) know–at least in the general terms employed in the survey–what sex is enough to answer these questions. I’m still not convinced that the questions are even suggestive of immoral behavior: I have to remind my five-year-old not to grab her crotch several times a week (and no, it’s not sexual).
As far as the reaction of an abused child: I’m not an expert, and I welcome correction by any who is, as this is certainly the most troubling issue to me. Seymour (the woman doing the survey), I assume, had enough training (as a graduate psychology student) to recognize and report signs of abuse that might be manifest by the survey experience. That is, it seems as if it might potentially do as much good as harm by helping educators spot possible problems.
I’d like to see the entire survey, to know whether the questions had “I don’t know” answers built in, and what sort (if any) procedures Seymour had if kids started to demonstrate unease.
And I agree with Mark B.
Justin H, the abuse detection argument can be used against the survey as well. Suppose a child has a past history of being abused, a history which is known to the parents and has been dealt with. Further suppose that being confronted with questions about such abuse is a likely trigger for further trauma in the child. In such a case, the abuse would not be detected by the survey, but rather, its effects would be aggravated by it.
Bryce,
That’s why I stipulated that the challenged teaching in my hypothetical is one that the court’s judges would find egregious! I think the judges ruled on this case as though it concerned evolution, and used absolute and universal language with that in mind. Had he considered my hypothetical, Reinhardt would have written a different opinion, no doubt narrowing the language about a school’s right to teach “whatever information it wishes to provide” to still allow schools to teach first graders to feel guilty about touching their privates yet prevent schools from teaching racist doctrines.)
I dunno, Matt. That puts the courts in charge of determining what is and isn’t appropriate for classroom curricula, and except where that intersects with things like establishement of religion, it seems to me like the courts would simply butt out and leave it to the legislature (or the executive even — I don’t know that state curriculum standards are legislated).
Bryce I (78): Agreed, conditionally. Again, I’m not a trained professional, but might the child’s continuing discomfort indicate that the abuse was not sufficiently dealt with and thus indicate the need for further treatment? (Sincere question for anyone qualified to answer authoritatively.)
John Bryan (23), thanks for your questions & helpful language hint (sorry it took so long to get your comment out of moderation – infancy trouble of the system — but it also messes up the numbering, as approved posts get squeezed in between others according to original time of posting). Anyway, these were your questions:
“Wilfried, I really appreciate you providing the (NW) European perspective — thanks! I’m curious: is there broad acceptance of the schools’ approach to sex education, even in predominantly Catholic regions? You imply in #9 that instruction on the use of contraceptives is commonplace. Have the Catholics given up on that fight?”
Well, I can only talk about the Low Countries (Belgium & Holland) with full certainty. There is a very broad acceptance of the schools teaching about sex. Catholic schools are just as “liberal” in this as any other school. But it’s pretty well defined by the curriculum for each age group. My daughter was in a Catholic school and got sex education (including demonstration of how a condom is placed) at age 8 or 9. Traumatic? Inappropriate? Not for her, not for us. In a culture where it has become pretty natural to talk about sex, without complexes or fear, but also tying it with values of love and respect, and with warnings pertaining to the risks of sexual behavior, it becomes part of life. I can understand this is difficult to understand for those who grow up in a different culture, with ingrained reactions to the topic. We (including my wife and daughter) have had to adapt to the taboos surrounding the topic, while being in the U.S.
Catholicism and contraception? In Belgium and Holland I don’t think there are any Catholics left who have a problem with the use of contraceptives. It is quite common that young Catholics, man and woman (student age) live together for a few years, of course using contraceptives, and then decide to get married in the Church. It’s accepted as common practice. In all this one must realize, however, that there is not one “Catholic Church”. The Belgian Catholic Church, and the Dutch, are considered pretty “rotten apples” by Rome. Had our Cardinal Danneels been elected pope, probably the ending of the celibacy of priests would now be discussed…
Goeff B writes:
“Judge Reinhardt thinks ‘Under God’ in the Pledge is unconstitutional, but sex surveys of seven-year-olds are not.”
Goeff, I’m curions where you find the constitutional provision that prohibits sex surveys. Give me an amendment, please. Myself, I’m not aware of constitutional provision that reads “School districts shall give no sex surveys.”
Just a note: once the kids have been exposed to the survey (or pornography, as one hypothetical above posited), the damage has already been done. That is what is outrageous about both the survey itself and the ruling that precludes a parental right of confidence that the school will not ambush their first grader with questions about “touching other people’s private parts.” I am naive enough to hope that, even in our day of openly flaunted pornography, a seven year old child is not touching other people’s private parts or even thinking about it. But the child will do so after taking this survey. Thus, resorting to the democratic process to remedy this offers little comfort to the parents whose children have already been damaged by this act and to the kids who will be damaged while the activity continues until the democratic process takes care of it. Thus, a resort to the court will have to be made anyway, in the form of a TRO or similar measure to ensure that no other kids will be damaged by this ambush until the democratic process resolves it.
I think that Matt has made an excellent point with the KKK hypothetical. I cannot possibly imagine Reinhardt or any other judge, for that matter, allowing the school to teach a seven year old about the KKK under the rule of law laid down in this case, namely that “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.” But somehow it seems valid when the school is asking first graders about how much they think about sex (if they had never done so before, they certainly will after the survey).
john fowles (87): once the kids have been exposed to the survey (or pornography, as one hypothetical above posited), the damage has already been done.
I don’t think you’re giving enough credit to kids or parents. And this survey is in no way pornographic, nor does it seem (again, I’d have to see it all) to endorse, advocate, or in any way encourage immoral behavior. To suggest any substantive link seems more rhetorically inflammatory than rational.
Which is also where the KKK pamphlet analogy seems to break down–there’s apparently no evidence that these kids are more depraved, defiled, or damaged after the survey than they were before. These kids are not being taught to have sex, to touch other kids, or anything of the kind.
Quick threadjack: Before I return to lurkerhood, let me thank those who respectfully and sincerely responded to my questions. Next time anyone posts on whether blog discussions ever accomplish any good or change anyone’s mind, s/he can cite me as an example. Because of the responses to my question, I came to understand other viewpoints better, and I thank Todd, JKS, and Bryce I for their thoughtful responses.
To anyone who has been affected by abuse and who felt my comments insensitive or baiting, I apologize.
“Jeremiah J.: All I can say, is that I am just glad that it is only conservatives who occasionally seem to have inconsistent rhetoric on the issue of judicial nominees. I am just glad that the left never resorts to scare mongering, willful misrepresentation of cases, character assination and the like in an effort to defend a few key precedents that they agree with on substantive grounds despite the fact that twenty or thirty years on even committed leftist constitutional scholars cannot seem to offer a consistent or compelling justification for.”
Nate: As you surely realize you’re obviously putting a bunch of words in my mouth. You’re writing my comment off as a mere cheap shot when it’s not. Or perhaps you’re simply noting that both political camps are less than scrupulous in judicial politics. In which case I agree (though Cornyn’s outrageous statment was not, despite what you may think, “politics as usual” on the floor of the senate for either party). But that’s not my point. The situation isn’t symmetrical. There may be plenty of bad behavior, even a roughly equal amount, but there situation isn’t symmetrical, not by a long shot.
There is a fundamental difference in rhetoric. The left wing rhetoric on judical philosophy and judicial nominees is, by and large, one which refers to rights and regulations which are valued by much of the public. It focuses on results but makes some reference to the fact that they’ve been recognized by the courts for some time. That rhetoric by and large matches up with the ultimate aims of elected Democrats and liberals in general.
There is a big cognitive disconnect in general between conservative mass and conservative elite which simply isn’t there on the other side. That’s not a swipe–for the most part it’s simply an observation that is crucial to understanding how judicial politics works right now. Conservative mass: judical politics is about outlawing abortion and gay marriage; Harriet Miers should have been confirmed; Saddam had WMDs and we found them; Bush is a great conservative. Elites: Judicial politics is about correcting the process, not achieving certain results; Miers was an out and out disaster; the Iraq was is about democratization not WMDs, Bush really isn’t that great of a conservative. Perhaps as you claim conservatives have superior juridical arguments than the left does. But their judicial politics is less coherent. I think it’s a perfectly sensible obervation that is important for what we’re talking about.
Matt (#75):
With all due respect, I think you aren’t thinking through the logical issues of what a reversal actually requires. I’ll admit, the KKK analogy is quite egregious, but we wouldn’t be getting that in the real world at all. Rather, what we have in this case is, albeit egregious as well, a survey on potential sexual trauma from child abuse (which a number of people on this post have noted is definitely something that needs to be dealt with, both in and outside school and other institutions). But, in reality, you are asking the court to ‘find’ a new constitutional right, which I’ll bet the new court, EVEN with Alito, wouldn’t find.
Think about it. For reversal, you need 5 out of 9. I don’t think Scalia and Thomas would be with you – they generally loathe to “create new rights” out of thin air. And that is what this would do – you need to find a constitutionally-protected right has been violated to win a 1983 case. I also doubt that Ginsburg or Roberts would be with you – having interviewed with Roberts and read most of his opinions and briefs, he doesn’t strike me as the type of guy who likes to “create constitutional rights out of thin air either.” Then, you’ve got Kennedy, Souter, Breyer, Stevens and O’Connor/Alito. My bet would be on Alito sticking away from “creation of rights,” but I haven’t read much of his stuff. Kennedy, as far as I can tell, has no discernible judicial philosophy, as acknowledged by one of his clerks that I know, so I’m not sure where he would stand. It would be hard to see Breyer and Stevens going with you on this either – and Souter probably wouldn’t too. So, maybe you’d get O’Connor, if she were still on the bench, but I couldn’t see her voting to overturn either.
So, while it might be “ripe for reversal” in your mind, I disagree. Given the current composition of the Court, I really can’t see this coming down on your side. If we could get a whole bunch of libertarians on there, than maybe, but since Richard Epstein is light years from being confirmed (by either side), then I think you’ll have to wait a long time for an actual reversal.
Stew,
Thanks for your comment. I didn’t mean to suggest that I thought the court would reverse, only that I think it should. As for creating new rights, I would simply have the court strike the language about parents relenquishing all control “at the threshold of the school door” by making the Pierce right divisible (the greater right to pull your child from school entirely would include the lesser right to exempt what she’s exposed to in school). Parents would retain the right to exempt their child from particular forms of information absent their consent, and I should point out, since Reinhardt argued otherwise, that exempting a kid from particular subjects isn’t the same as letting parents “dictate the curriculum.” The school can still teach whatever it wants, the parent just has the right to say that every time they teach kids that they should feel guilty about touching their private parts, or racist doctrines, that they want their child exempted. The modified Pierce right would function like the free exercise clause does now, as schools can’t force children to recite the Pledge of Allegiance against the wishes of their Jehovah Witness parents. Under my proposed jurisprudence those JW cases would no longer need rooting in the exercise clause, as they could be resolved via the parents’ Pierce right.
Democracy does have a say in this matter. This is a classic reason why people should actually care about who they elect to their local school boards. The parents who brought suit against the school board should ramp up their efforts now to “clean house” on the school board during the next few elections.
From Robert Alt in the Corner today:
“I’ll be on Fox News’ “Big Story Weekend” this Sunday at 10 pm to discuss the Ninth Circuit’s sex-survey-for-seven-year-olds case. I generally agree with Andy’s conclusion yesterday that the court was right in not finding a new or modified Substantive Due Process right in the Constitution for parents to control material to which their children are exposed at school (indeed, this properly limited understanding of Substantive Due Process is why I respectfully disagreed with Andy’s appeal to Substantive Due Process as a ground for relief in the Schiavo case). The problem with Judge Reinhardt’s opinion is that it quite simply does not comport with his own Substantive Due Process jurisprudence. This is a judge who has found a Substantive Due Process right to commit suicide and for prisoners to ship semen (with the facilitation of prison officials) to their girlfriends so that they can procreate while behind bars. Yet somehow when he is confronted with a case that seeks to extend in a far more modest way some of the earliest Substantive Due Process cases—cases which recognized a right to send your child to private school and preventing the state from dictating private school curricula—he finds religion. Again, I think that he reaches the right decision based on the law, but I also think that he is disingenuous when he states that the court makes this decision based on law rather than policy preferences. Based on the rank inconsistency in Judge Reinhardt’s Substantive Due Process jurisprudence, the only reasonable conclusion is that his decision was predicated specifically on his liberal policy preferences. “
Geoff: First you cut-and -paste the PRC, which sidesteps whether or not the ruling was right by stating only that it should be overturned (you will note they also give no real hook on which to overturn it other than the Ninth Circuit is liberal and Judge Reinhardt is liberal), now you post another right-wing pundit who’s problem is not that the ruling was wrong, but that it was out of character with liberal Judge Reinhardt’s past and then regurgitates rulings from the past that he disagrees with as evidence of how liberal this judge is.
I don’t think it will come as a shock to any court watchers here that the “Nutty Ninth” skews to the left. Still, most on this board who have read through the ruling and considered it realize that the poor case presented by the parents all but demanded the initial dismissal. Which was made by a Bush appointee, something conveniently left out of your experts’ analysis. We’re all internet literate here, if we want the PRC or Alt’s spin, we can get there.
Are you interested in honest discussion about this ruling? Tell me what you think was wrong with the decision and defend it.
Wilfried (85): I was under the impression that Luxembourg was also a Low Country, but you left that out of your analysis. Then again, I’ve been known to be geographically challenged. Or maybe you just have something against incredibly small European states.
This is my take also:
http://corner.nationalreview.com/05_10_30_corner-archive.asp#081823
As an interpretation of the Constitution, the decision is right. As a liberal policy preference with the Constitution as a figleaf, it is not.
Thanks, jimbob (96). True, I used the term Low Countries as referring to Belgium and the Netherlands, but there is more, much more… to it. It’s indeed a fluid concept according to the point of view and the historical moment. See here for those who are interested. Far from me to want to exclude our good Luxemburgers who populate the GRAND Duchy of Luxembourg.
I just scanned the above almost 100 responses, didn’t read every last word. Hope this helpful suggestion is not redundant.
I live in a very liberal county (Cynthia McKinney, the cutest little commie in congress is our representative) with a school board that does not often share my political viewpoint. One thing that we did was to get control of the PTA in our local school, then we got the best battle axes who share our outlook elected to the offices in the PTA, then we took back our school. It required several years.
I am describing not some theoretical plan, but the actual history of what happened in the grade school and junior high where my children attend. What the good parents out in that 9th district on the left coast need to do is take back their PTA, then their school and then ignore this nonsense.
Principles can be put into a vice between the iron jaws of the county administration with their social agenda and the steel jaws of the local PTA. Some will quit, some will side with the county and if the pressure from the PTA continues, they will usually move to other schools with a weaker less threatening PTA. And some will side with the PTA, especially if they have children in the school system and share our values. When that happens then the schools improve. The parents and principle share the values, that we are going to promote an atmosphere of discipline and learning in our school and ignore as much of this other social ax grinding crap as possible.
And guess what? The best teachers in the system will want to teach in the schools where the PTA is strong and willing to buck the administration and willing to insure strict discipline in the classroom. Many teachers would rather teach than grind social axes and will gravitate to where they can best teach. We had the option of “chartering” the schools which I understand is decreasing its dependency on the county school administration and we chartered our schools. Finally property values soared when certain schools gained a reputation for excellence. Young families moved into the area regardless of the age of the homes (30-40 years old in our case) and the excellent schools are starting to get too crowded and it becomes more difficult to sustain it.
If a survey like this was given to the children at the elementary school in my neighborhood, the PTA president would have both the principle’s and the poor teacher’s heads on a platter by sundown. The key is lots of money (I think that last year our grade school PTA raised over $200,000 dollars) and the ability of the PTA to get enough power to eliminate teachers and principles.
We don’t string people up in trees any more and the principle technically works for the county so we really can’t fire her out right. But a very vocal and powerful PTA can make it so miserable that they move, until we get a principle who is on the same page with the PTA and will batttle the administration. So the survey would never see the desk top of a student in our neighborhood school because the principle is on the same page as the PTA. The best way to deal with it once you have a principle on board is passive-agressiveness. The survey could be delayed until next week and the next week, indefinitely. You would be amazed at the federal mandates and rules and regulations that are ignored when they are deemed stupid by the PTA/principle.
The one good thing we have going for us is that the racail issue is the top priority of our liberal mostly black county administration. As long as we go along and enthusiastically support all of the racial oriented programs, such as Black history month, more time spent talking about Martin Luther King than George Washington and Abraham Lincoln, etc. they don’t jam a lot of this other crap on us. If you live in Mormon Utah, espect to hear about Brigham Young and if you live in a county that is 70% black, expect to hear about Black people in history. We pick our battles and race is not one of them. Violence and sexuality in the school is worth fighting for. And the Blacks in this county can be surprizingly (to me ) conservative on some issues such as discipline and promiscuity of teenagers.
I have noticed that many of the local Mormons are not on the front lines of this battle. They are too busy with heavy church callings and endless home/visit teaching routes. I consider my and my wife’s duties for the PTA and other school related responsibilities to be as important as any church calling. In fact if you approach the PTA as a sort of church calling, you will find your church experience to be quite valuable. We should be in the middle of this battle and even leading it when possible, not on the sidelines because we happen to live in a dysfunctional ward. A woman in our ward recently received an award for her service in the PTA and a collective yawn passed over our congregation. We should have given her the same respect and accolade as a retiring Relief Society president.
Take back your school!
Antelope Valley Press has its Friday articles up now.
Let’s see. The JetHawks baseball team has a new owner. There’s some borax mining news. Neil Armstrong may or may not join his old Edwards colleagues for a social in his honor. The superintendent of Palmdale’s maintenance department resigned “for personal reasons” after buying an overpriced truck for the city from a relative.
The only legal news is that Ray Montes was sentenced to 40 years to life. The Ninth Circuit ruling received a few lines in the New York Times, but in Palmdale it wasn’t newsworthy.
Mike,
That was the best rant in the history of the bloggernacle.
While I’m out-gunned by Nate, Adam, et al., and just a dirty champerty believing plaintiff’s lawyers, I don’t find it a stretch at all to argue that between Meyer & Pierce, that parents do indeed have a constitutional right regarding the education of their children. If we are stuck with SDP, then at least let it be used for good as well as evil.
“Lefty” Eugene Volokh’s take on the matter . . . .
http://volokh.com/posts/1131127788.shtml
Jeremiah: I didn’t mean to put words in your mouth, only to point out that there is plenty of extreme and duplicitious rhetoric to go around. For myselt, I think that abortion is ruining the federal judiciary. We are getting into the spiral of politicization and really vicious personal attacks all in order to defend a constitutional holding based on specious reasoning (or rather non-existent reasoning) which was ultimately not even necessary to achieve 90 percent of the political goals of the pro-choice movement. We now have people seriously discussing whether or not to supeona Alito’s former law clerks. Sheesh!
Justin H (#88)-
I think you are just plain wrong to trust children that much. You are correct that children are able to sort to a degree, but part of what makes children so impressionable is the relative scarcity of information in their minds. To suggest the idea of touching of others’ privates to a child’s mind is to embed it there, and while the child may have the ability to feel that it is wrong, children often lack the ability to articulate what they feel, and will have that idea in their mind as a good thing unless you have gotten to that subject in your Family Home Evenings already.
As an example, I had taught my four year old son that he should never let other people touch his private parts — only mommy and daddy in the bath, etc. — and more than 4 or five months later, my son, out of the blue, looked at me earnestly with his big blue eyes and said, “Daddy, we don’t let other people touch our privates, do we? Only Mommy and Daddy, right?” He had obviously been thinking about it. We underestimate the impressions that are left on our children’s minds. Don’t give them so much credit for being able to sort, Justin H, because their inability to sort is one of the very things that makes them a child, and we have to guard very zealously the things that enter their precious little minds, because, as President Hinckley has said (and I paraphrase here), being slightly off on a small matter of doctrine can have huge effects down the line. We may be able to correct it later, but possibly not before damage is done. If children were so able to sort, you wouldn’t have normal, healthy children with wonderful, righteous parents scared to tell their parents when they’ve been sexually abused (and I know of several instances of this among very close friends).
I am, quite frankly, surprised that with the incredibly educated and intelligent Mormon women out there in different areas that we don’t see more Mormon homeschooling, etc. With the exception of systems like Mike’s, most public school has gone to hell in a handbasket (and even then I think we are talking about making it acceptable, not making it great). After all, the single most effective schooling has always been a mentor/tutor type of education, and it is that type which a vast number of the greatest men in history, including the Founders, enjoyed. I trust my smart little boy, but I don’t assume that he can sort the good from the evil right off, especially when he finds it at the mouths of the authority figures in his life.
Matt’s rant rocks.
Matt? or Mike?
Daniel, I’ve noticed that too with my own kids–they are constantly processing what they are told by authority figures and incorporating it into a (naturally) unexamined worldview. They are, after all, just kids.
I meant to say Mike. Matt’s is good too, though.
” I have respect for Judge Thomas – and frankly, for Reinhardt as well, having interacted with him and his clerks quite heavily last year as a fellow Ninth Circuit clerk.”
Howdy, Stew. Wish I could say your reaction was universal.
Daniel and Mike,
You’ll be heartened to learn that the Mormon women of Montgomery County, Maryland, were instrumental in getting our leftist school board to drop the offensive sex ed curriculum it adopted last year.
Here’s an odd follow up. That terrible, terrible Kristi Seymour is now working in southern Utah. She’s a clinical therapist and equine manager at a small ranch/residential treatment center for troubled teenage girls. Do you suppose she liked that Robert Redford movie?
Kolob Canyon
Nice sleuthing, John!
Adam,
Good to hear from you. Hope you are enjoying NM. I’m not saying that I agree with everything that Judge Reinhardt does, etc, but I do have to say that he was quite respectful of our Judge and I was pretty darn impressed with a lot of what he did when we were on panel with him. Say what you will about his judicial opinions, etc, (and I know that he and your judge don’t get along that well, so I’ll give you that one), but for what we did on panel with him, during some fairly ideology driven cases on calendar, I was actually impressed. I guess maybe I had such low expectations, and he turned out to be pretty darn good on a lot of things (and, one of my best friends from law school was clerking for him at the time, and I learned a lot about him through her).
My only point through this whole thing is that, while I really think that school board gone done wrong… I fail to see the constitutional right (and I think a lot of people have said that as well). The lawyers on this should have gone for a good ol’ state tort action – intentional infliction of emotional distress, etc – and maybe would have had a prayer. But the reasoning – or at least the way the law is right now, I fail to see the 1983 action – and even if there was a violation, that darn school board would have qualified immunity, because it wasn’t clearly established that they had violated some constitutional right. In that sense, I think the opinion is pretty darn bulletproof, and I can bet you that most conservative judges would have seen it the same way. But, now that I’m a lowly district court clerk, I’m not privy to those lofty discussions anymore, so I only get my two cents here. I’ve enjoyed the discussion – and thanks to Matt for pointing this all out in the first place – I’m sure that we could get a rousing EQ discussion going tomorrow in church on this.
Adam – hope NM treats you right (and I’m just biding my time till I see you come out there as Senator or Congressman Greenwood…)
Hugs and kisses from the district of Utah…
“My only point through this whole thing is that, while I really think that school board gone done wrong… I fail to see the constitutional right (and I think a lot of people have said that as well). The lawyers on this should have gone for a good ol’ state tort action – intentional infliction of emotional distress, etc – and maybe would have had a prayer.”
That’s the long and short of it.
I concur with those who condemn the parents in this affair as overly litigious. If it were me, my litigation strategy would rather have been limited to the narrower goal of defending myself against the criminal assualt charges that would have been brought against me for throttling a principal.
Robert Alt posted the following at National Review online in “The Corner.” If what he says is true, then the means is possibly more frightening than the ends:
MORE ON THE 9TH CIRCUIT [Robert Alt]
I’ll be on Fox News’ “Big Story Weekend” this Sunday at 10 pm to discuss the Ninth Circuit’s sex-survey-for-seven-year-olds case. I generally agree with Andy’s conclusion yesterday that the court was right in not finding a new or modified Substantive Due Process right in the Constitution for parents to control material to which their children are exposed at school (indeed, this properly limited understanding of Substantive Due Process is why I respectfully disagreed with Andy’s appeal to Substantive Due Process as a ground for relief in the Schiavo case). The problem with Judge Reinhardt’s opinion is that it quite simply does not comport with his own Substantive Due Process jurisprudence. This is a judge who has found a Substantive Due Process right to commit suicide and for prisoners to ship semen (with the facilitation of prison officials) to their girlfriends so that they can procreate while behind bars. Yet somehow when he is confronted with a case that seeks to extend in a far more modest way some of the earliest Substantive Due Process cases—cases which recognized a right to send your child to private school and preventing the state from dictating private school curricula—he finds religion. Again, I think that he reaches the right decision based on the law, but I also think that he is disingenuous when he states that the court makes this decision based on law rather than policy preferences. Based on the rank inconsistency in Judge Reinhardt’s Substantive Due Process jurisprudence, the only reasonable conclusion is that his decision was predicated specifically on his liberal policy preferences.
Posted at 07:49 AM
Allow me to edit “ends” to read “end.” There, that should do it.
Thank you for all of your kind comments.
I would like to add an encore to my rant. Everything is not as good as it should be. Not even close.
In the Elememtary school the kindergartens grew from 2 classes to 7 classes in the last 7 years because of our success. A small older red brick building was once crowded but adequate. Now half the students are in trailers. The school has one of the highest average scores on national achievement tests in the state and stacks up well academically against almost any school in the country and still attracts the best teachers in the system. It does have about 10-15% of students bused in from the less affluent neighborhoods with high numbers of dependent minorites. No plans on the board to expand the physical buildings of the school. PTA can raise some money but not enough to rebuild the entire school building.
The Jr High had a retired marine officer for a principle for a couple years. He was a large extremely intimidating African American guy. He kicked about a third of the studentbody out, most of them literally. He was greatly feared and was not above using military discipline tactics. Yelling loudly, push-ups, grabbing hoodlums around the neck and putting them up against a wall. He solved the discipline and drug problems. My hat is off to him. But eventually he went too far and had to step down for being too abusive too often. He was replaced by a tough woman who uses other psychological methods which are legal but don’t work as well.
The Jr High building is falling down. Every Spring the teachers are told, this is the last year the building will be used and they allow the students to go wild with spray paint on the last day of school. Then to the chagrin of everybody the money for a new building disappears and we get one more year with the old building. This has happened three times and they are digging a hole in the footballl field right now so maybe this will be the last year. For now the building seems like a prison or a dungeon. It has a leaky roof, the heating and AC don’t work. When it rains hard the basement classrooms flood. The orchestra room had a few inches of water on the floor for several days last spring. Musicians defiantly wore beach flip-flops and shorts to school. Katrina refugees should feel right at home this year. Good thing the cellos had those long metal spikes on their lower end, it keeps them up out of the water. The football players who were hitting each other over the head with their basses also found it quite amusing and convenient to fill the bases up with water from the floor and then dump it on some poor probably Asian musician up on the front row. For the record this Jr High orchestra won first place in the state in Savannah last Spring in spite of their difficulties and my daughter was the first violinist. Jr High is a crazy time.
The high school is only slightly better, the building is as old. Following Katrina about 200 extra students quietly enrolled in the school sending the individual class rosters over 40 in nearly every case. No extra money is forthcoming from FEMA for this added expense. Armed police and the drug “puppies” are a regular fixture. About 50% of the students walking around the halls look just like the worst street thugs/sluts in the inner city. The county decided to save money this year and did not have any AC in August when school started. Some days were 90 degrees F with 90% humidity, although most of the time the humidity/temperature has been pleasant. This morning I notice the temperature dropped to 29 degrees F and the County policy is that they will not turn any heat on in the schools until after Thanksgiving. Kids will wear mittens and sweaters to class today. The smart asses will wear those fur lined Alaskan parkas or Nazi style trench coats and get away with it. Violins will not be in tune in the orchestra.
The PTA is raising cain on all of these fronts and it is a continual battle with some victories and some defeats. It is hardest at the high school level and least successful. I think the high school is rather crappy and I have mixed feelings about it.
For me the key is that the school has this track system. Both of my kids are in the most advanced track where they get the best teachers who really want to challenge and teach these kids and the class size is around 15. I look at the situation class by class and I can’t see where I could do any better with a private school in the crucial areas like math, science, english. They could have a nicer physical facility and be away fom their friends of many years. In public schools my kids see the problems rampant in every large city; at lunch time, in PE classes, at assemblies and the extra-cirricular activities but not in the important classes. I think it might be good for them to learn at a very young age how to deal with the violent dependent whiny American underclass and it has made them into very conservative little republicans in spite of their parents’ moderate/liberal leanings. You’d think they listen to Rush but I know they are in school at that time.
My kids seem to be thriving for the moment and do really well on national achievement tests and they have selected out good friends. If they were more interested in competitive sports they might have a better chance at a smaller school, some of the athletes in this high school will make it at the college and possibly even at the professional level. We have spent 10 years working hard in non-LDS volunteer orgainzations like cub/boy/girl scouts, sports, music and it has paid off. If my kids were getting into trouble, or not getting good grades, or having problems with drugs, truancy, or other forms of delinquency (beyond the occasional sassy mouths common at that age) I would second mortguage the house if necessary and put them in a private school. Both of them have this odd pride in not being “preppie” and yet doing well academically. The continual threat of being “demoted” to an expensive prep school keeps them working hard. It works for us so far. But it would not work for everybody.
Over all it seems to me that American public education is creaking to a slow death and it will be a big blow to the future hopes of this great nation. When and where to run like rats from the sinking ship and when to fight and make it work and when is that only like straightening out the chairs on the Titanic is hard to tell. More of us need to fight to save this tottering ship.