California schools cannot inform parents if their children leave campus to receive certain confidential medical services that include abortion, AIDS treatment and psychological analysis, according to an opinion issued by the office of state Attorney General Bill Lockyer.
The opinion was prompted by resistance from teachers unions and groups such as Planned Parenthood to a Sacramento-based lobby group’s efforts to help schools enact a “parent-friendly” policy requiring parental notification and consent in the wake of “medical emancipation” statutes that allow students to confidentially seek medical help off campus.
Previously it was understood that schools were allowed to enact confidentiality policies, but now the state’s top lawyer is saying they are required.
In school districts across the state, contends Karen England of the Capitol Resource Institute, confidentiality rules, in practice, force staff even to brush off direct inquiries from parents who call to find out the whereabouts of a child.
“I couldn’t even find out if my child left or that would be breaking confidentiality,” England told WorldNetDaily. “The answer I might get is, ‘I don’t know where Susie is.’ Because if you have agreed there is confidentiality, you must honor that.”
Lockyer’s opinion says schools must tell “both students and their parents that students are allowed to be excused from school for confidential medical appointments without parental consent.”
Any school district that does not comply, he said, would “undermine the purposes and intent of the medical emancipation statutes.”
California law allows minors to receive abortions, drug treatment, psychological analysis, AIDS testing and medical therapy without informing parents or guardians.
England, who notes Planned Parenthood has been present at school board meetings around the state to contest adoption of “parent-friendly” policies, contends Lockyer has no basis in law for his opinion.
Capitol Resource Institute attorney Amy Koons said, “It is amazing that the attorney general can put out such an opinion despite the fact that there is not a single statute or any case law that prohibits school districts from letting a parent know when their child is going to leave campus.”
But Nathan Barankin, spokesman for the attorney general’s office, argued that, on the other hand, there is no statute which says parental consent is required.
He acknowledged it makes sense that parents would want to intervene in any decision about health-related care during school hours.
“I don’t know of any parent who does not want to know of any problem their child is enduring, so they can be there for their child and help them,” Barankin told WND. “But the statute is designed in part to protect children who don’t have parents they can rely on or trust. Perhaps the parent is the source of abuse.”
He said parents should build the kind of relationship in which the child comes to them first on such a matter.
“Why does the child feel he needs to go to the school for such things?” Barankin asked.
Mike Spence, president of West Covina Unified School District, said his schools have required parental notice and consent for more than 10 years.
Lockyer’s opinion, he asserted, is “simply a regurgitation of the arguments that we have shot down time and time again. The attorney general’s staff appears to have started with a desired policy and then desperately, and not very successfully, searched for a legal rationale.”
The opinion comes to its conclusion by combining two provisions of law and “construing” the intent of the legislature.
California law allows minors to obtain certain medical services without consent or notificiation of a parent or guardian, and the California Education Code states attendance is “excused” for certain purposes that include, but are not limited to, those medical services for which no parental consent is required.
Lockyer, therefore, concludes that because the Education Code requires parental request and school approval for other absences, “We construe this difference in language as signifying a legislative intent not to require parental consent in order to excuse a student for the purpose of obtaining medical services.”
Koons contends, however, the “use of the word ‘construe’ means that the statute doesn’t say what they want it to say, so they made it up.”
“There is not a word in [the education code] that even hints that you can not pick up the phone and call the student’s parent when they are away from school,” she said.
Attorney general spokesman Barankin argues “the ‘construe’ language is a legal term of art that has been applied by courts for decades for the purposes of legislative interpretation.”
“The interpretation we gave to the legal statute is the same interpretation that courts have been giving to legislative enactment for decades,” he emphasized.
Spence, the West Covina district president, agrees with Koons, asserting Lockyer “fails to realize” the code has little to do with the authority of a student to leave campus.
“It has to with whether or not a school could receive compensation,” he maintained. “Formerly, a school received funding based on average daily attendance. The distinction between ‘excused’ and ‘not excused’ was purely to decide whether the school would get compensation or not.”
Lockyer’s opinion relies on past decisions affirming a confidential relationship between a medical professional and a minor, but Koons argues that is not the issue.
“Nobody is disputing the confidential relationship between a doctor and a minor,” she said. “But there is no parallel confidential relationship between a minor and a 7th grade math teacher. A confidential relationship between the doctor and student does not give the student the right to disclose confidential matters to others and expect them to keep the secret.”
England said it has been universally accepted that a school has the discretion to create policy in which the parents would not be told.
“CRI felt that this was bad policy but legal. Now, the attorney general has joined in with those who believe that this is not discretionary, but required,” she said.
Spence believes, however, he can get the ‘opinion’ of many other elected officials to contradict Lockyer.
“The attorney general doesn’t get to dictate law,” he said. “It is simply an opinion. This is not the determination of the legislature or a court.”
Barankin says that while the opinion is not binding, it carries persuasive weight in court.
Practically, he says, it means “those school districts that have a policy on parental consent will need to take a fresh look at their rules as to how they can get in compliance with the law.”