In Palmdale, California, public school officials and a psychology graduate student administered a survey to students aged seven to ten. The parents had previously consented to the administration of the survey, but to their surprise, their kids came home and told them that the survey included lots of questions about sex. One group of parents found this absurd, intrusive, and offensive; they consequently sued the school district, claiming that the administration of the survey was a violation of their rights. The District Court dismissed the case, holding that the parents had not raised a valid claim under the law. On appeal, the Ninth Circuit affirmed the lower court's dismissal, stating in their opinion that "there is no free-standing fundamental right of parents 'to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs'"1.

As you can imagine, this decision irked a lot of people, including some religious conservatives who immediately tarred it as another loopy liberal decision from the Ninth Circuit. This description is a bit off the mark: The Ninth Circuit actually refused to "discover" or "invent" a new Constitutional right, which is a stance normally thought of as conservative (or at least constructionist). To be fair, some conservatives did acknowledge this point.2 Others, however, were less calm. Teeth were gnashed, garments were rent, and the imminent death of society was predicted; the more excitable commentators fumed that "school administrators...[had] arrogate[d] to themselves the right to raise such topics with [a] child,"3 and that the state had seized the power to to completely override the parents' wishes in the matter.

That is not a correct interpretation of this decision. To understand why not, you first need to understand what a United States court actually does in a case like this. Conceptually, it's fairly simple: The parties to a case bring a question before the Court, which does its best to provide an answer based on precedent, existing law, and general legal principles. With some important exceptions, particularly at the level of the Supreme Court, the Court only answers the question it's asked and does not spontaneously volunteer answers to other questions. (Sometimes it drops hints, though.) In other words, there may be several valid claims that the parents could raise, but they--not the Court--must bring them up.

With that in mind, here is the question that the Court was asked:

  1. If you are a parent of a child in public school, does the Fourteenth Amendment give you the right to be the sole provider of information about sex?

That sounds a bit less contentious and a bit more technical, doesn't it? Just to drive the point home, here are some questions the Court was not asked:

  1. If you are a parent of a child in public school, does the First Amendment give you the right to be the sole provider of information about sex?
  2. If you are a parent of a child in private or parochial school, or if you home- school, does the Fourteenth Amendment give you the right to be the sole provider of information about sex?
  3. Shouldn't they have notified the parents that the questionnaire asked about sex?
  4. Aren't these obnoxious questions to ask of a seven-year-old?
  5. In fact, isn't this questionnaire completely asinine?

The answer to these questions could be "Yes" in every case, but the Court would still have arrived at the same decision. In fact, I have not researched the first two questions at all, but I suspect that the answer to questions three and four is "Yes." As for question five, the sex-related questions appear to come from the Trauma Symptom Checklist for Children (or the Young Children variant), which is in fact a published and well-utilized survey. I have never used this instrument and cannot speak to its utility at all. Frankly, though, I have my doubts: Seven-year-olds often have some pretty weird ideas about what sex is, and even if they do know, they're most likely to spend their time doodling gigantic penises in the margins of their answer sheet.

But none of this is really relevant--what about the question before the Court? To judge by the opinion (which is not always a safe thing to do), the parents' argument is extraordinarily weak. The basic reasoning goes something like this: Parents have the right under the Fourteenth Amendment to make decisions about their children's care, custody, and control. This right is not absolute, however, and can be regulated by the state to some degree, particularly with regard to kids in public school. The administration of a questionnaire falls well within the range of activities permitted to the schools and their regulators, and therefore there is no legal basis on which to restrict it. Likewise, parents have a right to privacy, defined here as the right to make important decisions about their child's welfare, but again that right does not allow--and has never allowed--parents to prevent schools from providing certain information to students. (I think this is a bit wide of the mark, since the survey was really asking questions instead of disseminating information, but that only makes the parents' argument weaker.) Thus, the Court unanimously--and quite appropriately--affirmed the lower court's dismissal of the case.

~**~

Does it end there? Maybe, but as I suggested earlier, the Court's dismissal doesn't mean that the parents have absolutely no case whatsoever. Perhaps I'm influenced by my experience as a researcher, but I think the real issue here involves informed consent. In almost every case, researchers must obtain the informed consent of the people who will be participating in a study (45 CFR 46.116). When children are the participants, as is the case here, their parent or guardian must provide informed consent on their behalf (45 CFR 46.408)4. Most of the time, participants must at the very least read a document explaining the study and sign a statement agreeing to participate.

The parents in this case provided informed consent for their children to participate. They could have refused--I strongly suspect that other parents did--but they did not. Questions of privacy and due process are rather irrelevant once consent is provided. You can hardly consent to something and then claim that it violates your right to privacy--if, that is, the consent process was adequate.

In my view, however, the consent process was not adequate at all. Federal laws and regulations state that the consent form must provide "a description of the procedures to be followed" (45 CFR 116(a)(1)), but they do not establish how detailed that description should be. The specifics are left up to the Institutional Review Board (IRB), which is a group of researchers, lawyers, clinicians, and ethicists affiliated with the researcher's institution. In general, IRBs maintain that the consent form should provide all the information that a "reasonable person" would want to know about the study; said reasonable people should not end up unpleasantly surprised by anything that happens. Along similar lines, California state law requires researchers to give participants a copy of the Research Subject's Bill of Rights, which states that participants have the right to an explanation of "discomforts and risks reasonably to be expected." Normally I loathe the vagueness of the "reasonable person" standard, but in this case it seems clear: I strongly suspect that nearly every parent, regardless of his or her political orientation, would want to be informed that his or her child would be asked questions about sex. In my experience, most IRBs would require language to that effect; your average IRB takes a very broad view of what "reasonable" means and generally insists on the fullest possible description of the study procedures. The consent form's warning that "answering questions may make [your] child feel uncomfortable" doesn't cut it. Sex is different, and the consent form should have included specific language to that effect.

So the parents might have a case if they raised this issue--but then again they might not. The relevant law is far from clear, and there seems to be very little case law on this topic. What is clear, however, is that this particular case is mostly trivial; it simply reaffirms existing law, and it is nothing to get upset about in the slightest.

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1Fields v. Palmdale School District (9th Cir. 2005), 03-56499, as downloaded from www.ca9.uscourts.gov on 11/4/05.

2Specifically, Andy McCarthy and Robert Alt, who were writing on National Review's "Corner." See corner.nationalreview.com, 11/3/2005.

3Rod Dreher on National Review's "Corner." See corner.nationalreview.com, 11/3/2005. One could argue that the Court would have been happy to create a new right if the politics of the situation had been different. For example, one might suspect that if the researchers had been advocating abstinence-only sex-ed, the Court would magically have found something in the Constitution that would allow parents to opt out. I have no idea if this is true, and the commentators probably don't either. In any event, this was not the prevailing opinion among those who opposed the Ninth Circuit's decision.

4The children must also assent to the research if they are able to understand what is going on. "Assent" simply means that the child agrees to participate in the research (see 45 CFR 46.402). The use of the term "assent" instead of "consent" indicates the difference in legal status between children and adults. The law recognizes that children should not be allowed to consent by themselves, but it also recognizes that they're perfectly capable of telling you when they don't want to do something.

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