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
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
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:
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:
- 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?
- 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?
- Shouldn't they have notified the parents that the questionnaire asked about sex?
- Aren't these obnoxious questions to ask of a seven-year-old?
- 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.
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,
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
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