The 9th Circuit Court of Appeals ruled yesterday against parents who sued their local school district after their elementary-age children were given a sexually charged survey, saying there is “no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children.”

The three-judge panel of the full court further ruled that parents “have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students.”

Six parents sued the Palmdale, Calif., School District after finding out their kids had been asked a series of sexual questions in class. They included asking the children about the frequency of:


Touching my private parts too much

Thinking about having sex

Thinking about touching other people’s private parts

Thinking about sex when I don’t want to

Washing myself because I feel dirty on the inside

Not trusting people because they might want sex

Getting scared or upset when I think about sex

Having sex feelings in my body

Can’t stop thinking about sex

Getting upset when people talk about sex

Judge Stephen Reinhardt wrote the unanimous opinion for the court [.pdf document]. Referring to the fact the parents lost their case at the district-court level, Reinhardt wrote:


We agree [with the previous ruling], and hold that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, we hold that the defendants’ actions were rationally related to a legitimate state purpose. [emphasis Reinhardt’s].

Carrie Gordon Earll is director of issue analysis with Focus on the Family Action.

“Anyone who wonders why pro-family organizations like ours have been so concerned about activist courts only has to look at this case,” Earll said in a statement. “The 9th Circuit did more than rule against parents who were upset that their elementary-school-aged children were being asked explicit questions about sex in class. They told all parents they have no right to protest what public schools tell their children.”

Continued Earll: “What the court did here is declare parenthood unconstitutional. It’s long been the liberal view that it takes a village to raise a child – but never before have the ‘villagers’ been elevated, as a matter of law, above mothers and fathers.”

The controversy began in 2001 when a volunteer “mental health counselor” at Mesquite Elementary School set out to conduct a psychological assessment test of students in the first, third and fifth grades.

A letter to parents asked for their consent to conduct the study but did not indicate that questions of a sexual nature would be asked. The survey included 79 questions divided into four parts. Ten of those questions were of a sexual nature.

According to the court’s opinion, the plaintiffs took action after their children participated in the survey and later told their parents about the sexual questions. Seeking damages and injunctive relief, the parents charged the district violated their federal constitutional right to privacy.

The lower court had ruled against the parents, saying the right “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” does not rise to the level of a fundamental right protected by substantive due process.

Wrote Reinhardt: “As with all constitutional rights, the right of parents to make decisions concerning the care, custody and control of their children is not without limitations. In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court recognized that parents’ liberty interest in the custody, care and nurture of their children resides ‘first’ in the parents, but does not reside there exclusively, nor is it ‘beyond regulation [by the state] in the public interest.’ For example, the state ‘as parens patriae’ may restrict parents’ interest in the custody, care and nurture of their children ‘by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.'”

Reinhardt also cited previous cases that upheld the right of schools to educate children about issues of sexuality.

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