Since the beginning of this century, public schools have been teaching children about sexuality. By the 1940’s, some form of sex education was prevalent in most American public schools. Only during the last fourteen years, however, have parents waged a constitutional battle against public school sex education courses.
Perhaps the impetus to the parents’ legal struggle was the gradual metamorphosis in sex education curricula. Through the 1940’s, sex education affirmed the traditional values of most parents. Courses concentrated on sex within the traditional family unit and moralistically mapped out proper and improper sexual behavior.
By the early 1970’s, sex education had been transformed into its present nonjudgmental and individualistic form. Rather than focusing solely on sex within the marital unit, sex educators were providing information on a wide range of sexual alternatives. Students were encouraged to make their own moral decisions based on the information provided in the classroom. Traditional parents might have been antagonized by the diversity and free moral choice emphasized in modern sex education curricula.
In the 1970’s, parents, sensing that the courses had drifted from their traditional moorings, took to the courts to challenge them. Most of the parents’ complaints alleged that sex education violated their rights of parenthood and the free exercise of their religion. They demanded that the curricula be abolished. Although these challenges have consistently been rejected, only the free exercise claims have received a full and searching review by the courts. In fact, one recently reported suit alleged only violation of religious rights, perhaps in response to this cursory treatment of parental rights. Yet the parental right is of constitutional dimension.
The Constitution protects a parent’s right to raise her children. In 1923, the United States Supreme Court recognized that parents have a constitutional right to “establish a home and bring up children.” Although the constitutional source of this right is unclear, the modern Court has consistently reaffirmed the cardinal constitutional right of parenting. Courts have grounded the rights of parenthood in the fourteenth amendment’s guarantee of due process, the penumbras of the Bill of Rights,” or more generally, in the right of privacy derived from these sources.
Whatever its source, this right allows parents to direct the “education of children under their control.” Parental rights thus prevent the state from prohibiting the teaching of German, requiring public, rather than private, school attendance, and prosecuting parents who teach a Sunday-school sex education course. The parental right is not absolute, however. The state has a substantial interest in the welfare of children. Consequently, parents’ rights have given way to state interests in using audio-visual equipment and corporal punishment in schools. On some occasions, parental rights must also be curtailed in the face of countervailing interests of the child. Thus, parent, state, and child share sometimes competing interests in the child’s welfare.
This Note will attempt a more thorough and sensitive analysis of a claim that sex education violates parental rights. Until recently, all parents’ suits sought to eliminate the curricula entirely. Recently, some parental challenges to other public school curricula have sought only to have their children excused from specific classes.22 Making these classes optional might be more appealing to some parents, educators, and courts than curricula abolition. Consequently, this Note will assess attempts by parents not only to abolish sex education curricula, but, alternatively, to have their children excused from such courses.
This analysis must begin with a critical evaluation of the parental right involved. The parental right, as developed by the courts, will be shown to be a collection of prerogatives and interests traditionally given constitutional status by the courts. The cases concerning these prerogatives and the extent to which each is implicated in the sex education issue, will be examined and discussed.
The analysis next turns to a delineation of the interests and rights against which those of the parents must be balanced: the interests of the state and the rights of the child. The state interests enumerated must always be weighed against the parental right. As will be seen, however, it is not always clear that a child’s interests are not synonymous with its parents’. This Note will construct a threshold test to determine whether children’s rights should be thrown into the calculus and will show that in the area of sex education children’s rights do indeed pass this threshold.
The next step is to weigh the parents’ rights against these interests. The preferred standard of review is a flexible and sensitive balancing test. The weight of state interests required to justify sex education increases as the weight of parental rights increases. The weight of these parental rights in turn increases as the state intrudes deeper into the crucial activities of parenthood.
Finally, this Note will examine the judicial decisions which have denied parents’ challenges to sex education. This will demonstrate the inadequacy of the current treatment of the parental rights issue and suggest an alternative analysis. The suggested approach, a sensitive balancing of the interests of parent, child, and state, reveals that a parental challenge to the sex education curriculum itself must fail. However, when proper attention is paid to these constitutional parental interests, the parents’ right to remove their children from sex education classes must be upheld.
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