For the Ninth Circuit Court God Should Be Out of the Schools, But Sex Surveys Can Be In
Richard L. Cravatts Ph.D.
November 10, 2005
With yet another display of its uncanny ability to adapt Constitutional readings to its narrowly focused liberalism, the Ninth Circuit U.S. Court of Appeals recently shocked parents in California's Palmdale School District with the finding that they have "no fundamental right" to solely share information about sex to their children, "in accordance with their personal and religious values and beliefs." The public schools, the Court determined, were free to provide its own education on sexual matters to children, with or without the consent and participation of parents.
While Justice Reinhardt, speaking for the Court, disingenuously conceded that “parents have a right to inform their children when and as they wish on the subject of sex,” he summarily divested them of parental rights when he made this astounding statement: parents, decided, “have no constitutional right . . . 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.”
Justice Reinhardt is nothing if not consistent in the ideological way he interprets Constitutional law, save for the troublesome detail that in 1997, for instance, 27 of the Ninth Circuit’s 28 rulings appealed to the U.S. Supreme Court were reversed. This is the same court, it will be remembered, that fought assiduously to cleanse schools of the Pledge of Alliance because it contained the phrase “Under God,” legalized marijuana ‘clubs’ in California in violation of Federal law, found that the Second Amendment did not actually grant the right for individuals to bear arms, and ruled that two ex-spies could sue the Central Intelligence Agency.
The contested matter here was a survey, ostensibly designed to find incidences of ‘trauma’ in the lives of elementary school students, administered by Kristi Seymour, a “mental health counselor” finishing a master’s degree program at the California School of Professional Psychology. Despite the fact that neither the school district nor, apparently, Ms. Seymour had any notion of what the purpose, use, or value of the survey was, the Court found that the age-inappropriate, sexualized interviews had intrinsic value, “that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state.”
What health and welfare interests of the state could be achieved by asking seven year-olds questions such as, ‘Touching my private parts too much,” “Not trusting people because they might want sex,” “Having sex feelings in my body,” or “Can't stop thinking about sex,” actual components of this ‘psychological survey.
How could these salacious interviews be purported to fulfill some ‘legitimate interest of the state’ in furthering the educational needs of the schools? It was created randomly by an outside consultant with no mission greater than satisfying the requirements of graduate study. Neither she, nor apparently the School Committee, knew what the content, purpose, and findings would reveal. The true nature of the explicit survey was obscure, and its actual tone and substance was purposely hidden from parents prior to its administration. The survey’s stated purpose, to identify and to attempt to ameliorate events of ‘trauma’ in student’s lives by asking them titillating questions about sexual experiences, made the mistake of being more traumatic on its face than the likely findings such a survey would itself reveal. It is an example of what courts in other cases have characterized as “roasting a pig by burning down the house,” adversely affecting the rights of many for the sake of protecting a few.
The spurious nature of the survey notwithstanding, the Ninth District Court found that parents have no essential right to determine how and when information about sexuality is given to their own children. “We hold,” said the decision, “that there is no free-standing fundamental right of parents ‘to control the upbringing of their children of and relating to sex in accordance with their personal and religious values and beliefs’ and that the asserted right is not encompassed any other fundamental right.” That view is ironic, coming from a court that has assiduously supported a Constitutional reading that often relies on the “unenumerated rights” of the Ninth Amendment, protected rights that the Founders did not specifically list but were meant to be considered in granting rights.
One of these unenumerated rights is the right to privacy, the concept that Justice Brandeis described as being ‘left alone’ by the government, and which, in more recent findings, lead to the significant Griswold decision (allowing the use of contraceptives) and the more highly-charged Roe v. Wade case, which legalized abortion. This is a reading of the Constitution with which Judge Reinhardt would inevitably and strongly agree, when the issue is a socially progressive one and he wishes to preclude government involvement in decision making, and where the individual’s or family’s decisions trump government decisions. Not in Palmdale, however: here parents and their children have no right to privacy; and, according to Judge Reinhardt, there is no articulated basic right to guide the most private emotional growth of their children. This, however, is a concept very clearly affirmed in the 1972 Wisconsin v. Yoder decision in which the Court, pointing to the liberty clause of the 14th Amendment, described parental rights as fundamental, finding that the “primary role of the parents in the upbringing of their children is now established as an enduring American tradition.”
More important to the case at hand, there is not only no compelling state interest in the administration of the survey, there is arbitrary use and specious purpose to it, both of which attributes would condemn it through “strict scrutiny,” since in this instance California has seemingly diminished rights falling in the "privacy" cluster of marriage, child-bearing, and child-rearing,
Even in Meyer v. State of Nebraska, a case ironically cited and contorted by Judge Reinhardt in his own decision, the Court found that parents’ rights were more important than the good intentions of the state, “that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.” Certainly a survey, administered to young children by a quasi-professional consultant, designed without specific educational or scientific purposes, whose results were undetermined and spurious, falls short of providing “reasonable relation to some purpose.”
When schools deliver actual learning, and even education about knowledge which could be construed as outside the conventional realm of traditional teaching, they have a legitimate and important purpose. They may even be called upon to go beyond their expected reach in helping with broad public health concerns, where clear and profound dangers would exist absent their involvement.
But the state cannot both compel parents to enroll their children in its public schools and subsequently deny parental input or diminish parental authority, even with the most noble of intentions. “A state’s interest in universal education,” the Court found Wisconsin v. Yoder case, “however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children.”
The Ninth Circuit Court may have its own agenda for implementing social change, but it should not expect that it can capriciously interpret the Constitution when it conforms to its own ideology and ignore it when its troublesome details prove an impediment to shaping social policy from the bench.
While Justice Reinhardt, speaking for the Court, disingenuously conceded that “parents have a right to inform their children when and as they wish on the subject of sex,” he summarily divested them of parental rights when he made this astounding statement: parents, decided, “have no constitutional right . . . 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.”
Justice Reinhardt is nothing if not consistent in the ideological way he interprets Constitutional law, save for the troublesome detail that in 1997, for instance, 27 of the Ninth Circuit’s 28 rulings appealed to the U.S. Supreme Court were reversed. This is the same court, it will be remembered, that fought assiduously to cleanse schools of the Pledge of Alliance because it contained the phrase “Under God,” legalized marijuana ‘clubs’ in California in violation of Federal law, found that the Second Amendment did not actually grant the right for individuals to bear arms, and ruled that two ex-spies could sue the Central Intelligence Agency.
The contested matter here was a survey, ostensibly designed to find incidences of ‘trauma’ in the lives of elementary school students, administered by Kristi Seymour, a “mental health counselor” finishing a master’s degree program at the California School of Professional Psychology. Despite the fact that neither the school district nor, apparently, Ms. Seymour had any notion of what the purpose, use, or value of the survey was, the Court found that the age-inappropriate, sexualized interviews had intrinsic value, “that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state.”
What health and welfare interests of the state could be achieved by asking seven year-olds questions such as, ‘Touching my private parts too much,” “Not trusting people because they might want sex,” “Having sex feelings in my body,” or “Can't stop thinking about sex,” actual components of this ‘psychological survey.
How could these salacious interviews be purported to fulfill some ‘legitimate interest of the state’ in furthering the educational needs of the schools? It was created randomly by an outside consultant with no mission greater than satisfying the requirements of graduate study. Neither she, nor apparently the School Committee, knew what the content, purpose, and findings would reveal. The true nature of the explicit survey was obscure, and its actual tone and substance was purposely hidden from parents prior to its administration. The survey’s stated purpose, to identify and to attempt to ameliorate events of ‘trauma’ in student’s lives by asking them titillating questions about sexual experiences, made the mistake of being more traumatic on its face than the likely findings such a survey would itself reveal. It is an example of what courts in other cases have characterized as “roasting a pig by burning down the house,” adversely affecting the rights of many for the sake of protecting a few.
The spurious nature of the survey notwithstanding, the Ninth District Court found that parents have no essential right to determine how and when information about sexuality is given to their own children. “We hold,” said the decision, “that there is no free-standing fundamental right of parents ‘to control the upbringing of their children of and relating to sex in accordance with their personal and religious values and beliefs’ and that the asserted right is not encompassed any other fundamental right.” That view is ironic, coming from a court that has assiduously supported a Constitutional reading that often relies on the “unenumerated rights” of the Ninth Amendment, protected rights that the Founders did not specifically list but were meant to be considered in granting rights.
One of these unenumerated rights is the right to privacy, the concept that Justice Brandeis described as being ‘left alone’ by the government, and which, in more recent findings, lead to the significant Griswold decision (allowing the use of contraceptives) and the more highly-charged Roe v. Wade case, which legalized abortion. This is a reading of the Constitution with which Judge Reinhardt would inevitably and strongly agree, when the issue is a socially progressive one and he wishes to preclude government involvement in decision making, and where the individual’s or family’s decisions trump government decisions. Not in Palmdale, however: here parents and their children have no right to privacy; and, according to Judge Reinhardt, there is no articulated basic right to guide the most private emotional growth of their children. This, however, is a concept very clearly affirmed in the 1972 Wisconsin v. Yoder decision in which the Court, pointing to the liberty clause of the 14th Amendment, described parental rights as fundamental, finding that the “primary role of the parents in the upbringing of their children is now established as an enduring American tradition.”
More important to the case at hand, there is not only no compelling state interest in the administration of the survey, there is arbitrary use and specious purpose to it, both of which attributes would condemn it through “strict scrutiny,” since in this instance California has seemingly diminished rights falling in the "privacy" cluster of marriage, child-bearing, and child-rearing,
Even in Meyer v. State of Nebraska, a case ironically cited and contorted by Judge Reinhardt in his own decision, the Court found that parents’ rights were more important than the good intentions of the state, “that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.” Certainly a survey, administered to young children by a quasi-professional consultant, designed without specific educational or scientific purposes, whose results were undetermined and spurious, falls short of providing “reasonable relation to some purpose.”
When schools deliver actual learning, and even education about knowledge which could be construed as outside the conventional realm of traditional teaching, they have a legitimate and important purpose. They may even be called upon to go beyond their expected reach in helping with broad public health concerns, where clear and profound dangers would exist absent their involvement.
But the state cannot both compel parents to enroll their children in its public schools and subsequently deny parental input or diminish parental authority, even with the most noble of intentions. “A state’s interest in universal education,” the Court found Wisconsin v. Yoder case, “however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children.”
The Ninth Circuit Court may have its own agenda for implementing social change, but it should not expect that it can capriciously interpret the Constitution when it conforms to its own ideology and ignore it when its troublesome details prove an impediment to shaping social policy from the bench.
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