NOTES

PUBLIC SCHOOL SEX EDUCATION: DOES IT

VIOLATE PARENTAL RIGHTS?
I

INTRODUCTION
Since the beginning of this century, public schools have been teaching
children about sexuality. By the 1940's, some form of sex education was
prevalent in most American public schools.' Only during the last fourteen
years, however, have parents2 waged a constitutional battle against public
school sex education courses.
Perhaps the impetus to the parents' legal struggle was the gradual
metamorphosis in sex education curricula. Through the 1940's, sex educa-
tion affirmed the traditional values of most parents. Courses concentrated
on sex within the traditional family 3unit and moralistically mapped out
proper and improper sexual behavior.
By the early 1970's, sex education had been transformed into its present
nonjudgmental and individualistic form. 4 Rather than focusing solely on sex
within the marital unit, sex educators were providing information on a wide
range of sexual alternatives. Students were encouraged to make their own
moral decisions based on the information provided in the classroom. Tradi-
tional parents might have been antagonized by the diversity and free moral
choice emphasized in modern sex education curricula. 5
In the 1970's, parents, sensing that the courses had drifted from their
traditional moorings, took to the courts to challenge them. Most of the
parents' complaints alleged that sex education violated their rights of par-
enthood and the free exercise of their religion. They demanded that the
curricula be abolished. 6 Although these challenges have consistently been
rejected, only the free exercise claims have received a full and searching

1. Penland, Sex Education in 1900, 1940 and 1980: A Historical Sketch, 5 J. Sch.
Health 305 (1981).
2. The first recorded challenge was Cornwell v. State Bd. of Educ., 314 F. Supp. 340
(D. Md. 1969), aff'd, 428 F.2d 471 (4th Cir.), cert. denied, 400 U.S. 942 (1970).
3. See Penland, supra note 1, at 307.
4. Id.
5. See J. Hottois & N. Milner, The Sex Education Controversy 3-5 (1975).
6. See, e.g., Cornwell v. State Rd. of Educ., 314 F. Supp. 340 (D. Md. 1969), aff'd, 428
F.2d 471 (4th Cir.), cert. denied, 400 U.S. 942 (1970); Citizens for Parental Rights v. San
Mateo County Bd. of Educ., 51 Cal. App. 3d 12, 124 Cal. Rptr. 68 (1977); Medeiros v.
Kiyosaki, 52 Hawaii 436, 478 P.2d 314 (1970).

591

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OFLA W & SOCIAL CHANGE [Vol. X11h591

review by the courts. 7 In fact, one recently reported suit alleged only viola-
tion of religious rights, 8 perhaps in response to this cursory treatment of
parental rights. Yet the parental right is of constitutional dimension.
The Constitution protects a parent's right to raise her children. In 1923,
the United States Supreme Court recognized that parents have a constitu-
tional right to "establish a home and bring up children." ' Although the
constitutional source of this right is unclear, the modern Court has consist-
ently reaffirmed the cardinal constitutional right of parenting. Courts have
grounded the rights of parenthood in the fourteenth amendment's guarantee
of due process, 10 the penumbras of the Bill of Rights," or more generally, in
2
the right of privacy derived from these sources.'
Whatever its source, this right allows parents to direct the "education
of children under their control.' 1 3 Parental rights thus prevent the state
from prohibiting the teaching of German, 14 requiring public, rather than
private, school attendance, 15 and prosecuting parents who teach a Sunday-
school sex education course. 16 The parental right is not absolute, however.
The state has a substantial interest in the welfare of children.17 Conse-
quently, parents' rights have given way to state interests in using audio-
visual equipment 8 and corporal punishment 9 in schools. On some occa-
sions, parental rights must also be curtailed in the face of countervailing
interests of the child.20 Thus, parent, state, and child share sometimes
competing interests in the child's welfare.
This Note will attempt a more thorough and sensitive analysis of a
claim that sex education violates parental rights. Until recently, all parents'
suits sought to eliminate the curricula entirely. 21 Recently, some parental

7. See cases cited in note 6 supra.

8. Smith v. Ricci, 89 N.J. 514, 446 A.2d 501, appeal dismissed sub. nom. Smith v.
Brandt, 103 S. Ct. 286 (1982).
9. Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (statute prohibiting schools from
teaching German violates parental rights); see also Pierce v. Society of Sisters, 268 U.S. 510
(1925) (statute requiring children's attendance at public schools violates parental rights).
10. Meyer, 262 U.S. at 399.
11. Roe v. Wade, 410 U.S. 113, 211 (1973) (Douglas, J., concurring).
12. See, e.g., Runyon v. McCrary, 427 U.S. 160, 177-78 (1976).
13. Pierce, 268 U.S. at 534.
14. Meyer, 262 U.S. at 396-97.
15. Pierce, 268 U.S. at 534-35.
16. Unitarian Church West v. McConnell, 337 F. Supp. 1252 (E.D. Wis. 1972), aff'd,
474 F.2d 1351 (7th Cir.), vacated on other grounds and remanded, 416 U.S. 932 (1973).
17. E.g., Bellotti v. Baird, 443 U.S. 622, 633-37 (1978); Prince v. Massachusetts, 321
U.S. 158, 166-69 (1943) (neither parental nor free exercise rights are burdened when the state
forbids adults from supplying children with literature for distribution on the street).
18. Davis v. Page, 385 F. Supp. 395, 400, 405 (D.N.H. 1974).
19. Baker v. Owen, 395 F. Supp. 294, 299-301 (M.D.N.C. 1975), aff'd, 423 U.S. 907
(1976).
20. See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
21. See cases cited in note 6 supra.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-84] SEX EDUCATION

challenges to other public school curricula have sought only to have their
children excused from specific classes.22 Making these classes optional might
be more appealing to some parents, educators, and courts than curricula
abolition. Consequently, this Note will assess attempts by parents not only
to abolish sex education curricula, but, alternatively, to have their children
excused from such courses.
This analysis must begin with a critical evaluation of the parental right
involved. The parental right, as developed by the courts, will be shown to be
a collection of prerogatives and interests traditionally given constitutional
status by the courts. The cases concerning these prerogatives and the extent
to which each is implicated in the sex education issue, will be examined and
discussed.
The analysis next turns to a delineation of the interests and rights
against which those of the parents must be balanced: the interests of the
state and the rights of the child. The state interests enumerated must always
be weighed against the parental right. As will be seen, however, it is not
always clear that a child's interests are not synonymous with its parents'.
This Note will construct a threshold test to determine whether children's
rights should be thrown into the calculus and will show that in the area of
sex education children's rights do indeed pass this threshold.2
The next step is to weigh the parents' rights against these interests. The
preferred standard of review is a flexible and sensitive balancing test.2 4 The
weight of state interests required to justify sex education increases as the
weight of parental rights increases. The weight of these parental rights in
turn increases as the state intrudes deeper into the crucial activities of
parenthood.
Finally, this Note will examine the judicial decisions which have denied
parents' challenges to sex education. This will demonstrate the inadequacy
of the current treatment of the parental rights issue and suggest an alterna-
tive analysis. The suggested approach, a sensitive balancing of the interests
of parent, child, and state, reveals that a parental challenge to the sex
education curriculum itself must fail. However, when proper attention is
paid to these constitutional parental interests, the parents' right to remove
their children from sex education classes must be upheld.

II
PARENTAL INTERESTS BURDENED BY SEx EDUCATION
The first question is whether placing a child in sex education classes
burdens the parent's right to raise her child. To make this determination, we

22. See Moody v. Cronin, 484 F. Supp. 270 (C.D. I11.1979).

23. See section IV infra.
24. See section V infra.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

must both identify those parental interests protected by the Constitution,

and determine whether compulsory sex education burdens any of them.25
Indeed, the failure to identify which parental interests are burdened will
result in the dismissal of a suit seeking their protection. In Davis v. Page,20
parents sought to have their children excused from both health and music
classes. Parents alleged violation of both their religious and parental rights.
The parents, however, could not identify just how the classes interfered with
their parental rights. A pastor, for instance, could voice no more than
distaste for some of the subject matter. 27 This was not enough to move the
federal district court to hold that parental rights were burdened; the chal-
lenge was dismissed. 2 The plaintiffs must therefore be able to identify and
articulate the parental interests burdened by compulsory sex education.

A. ParentalControl Over Religious and Moral Values

The Constitution protects certain parental prerogatives over the raising
of one's child. 29 First, parents have the prerogative to teach their children
values-the principles that guide their life choices. The early Supreme Court
decisions, taken together, protect this prerogative. In Pierce v. Society of
Sisters,30 parents successfully attacked a state statute prohibiting them from
sending their children to private schools. The statute was held unconstitu-
tional because it unreasonably interfered with the "liberty of parents and
guardians to direct the upbringing and education of children under their
control."' This parental control of the "upbringing and education" of
children would seem to include the right to teach values.
Even when giving primacy to state interests, the Court has recognized
this parental right to inculcate values. In Princev. Massachusetts,3 2 a guard-
ian unsuccessfully attacked the constitutionality of a statute which prohib-
ited her from supplying her child with religious pamphlets to distribute to
the public.3 3 The statute was held to interfere with the guardian's right to
teach her child values-"the way he should go." ' 34 The Supreme Court thus
recognizes the parent's interest in the child's training.

25. See Note, The Constitution and the Family, 93 Harv. L. Rev. 1156, 1180-83 (1980).
26. 385 F. Supp. 395 (D.N.H. 1974).
27. Id. at 404.
28. Id.
29. Of course, these must still be balanced against state interests. But here we are only
determining whether or not parental rights are burdened; that is, whether there is in fact
anything to balance against state interests.
30. 268 U.S. 510 (1925).
31. Id. at 534-35.
32. 321 U.S. 158 (1944).
33. Id. at 160-63.
34. Id. at 164-65. The Court found, however, that these interests were outweighed by
those of the state. Id. at 166-71.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-84] SEX EDUCATION

More recently, lower federal courts have recognized that public school
education often interferes with the parent's control over her child's values.
In Davis v. Page,35 for instance, Apostolic Lutherans unsuccessfully sought
to have their children excused from class during audio-visual presentations.
By compelling attendance, the school interfered with the parents' right to
protect their children from a device they believed was immoral. Hence,
equally powerful religious and parental rights were at stake.30 Thus, al-
though the parental interests were held to be outweighed by state interests,
those parental interests were, at least, acknowledged.
In Moody v. Cronin,31 parents successfully vindicated their right to
have children excused from co-educational physical education classes. Co-
educational classes, ruled the court, interfered with the efforts of the par-
ents, Pentacostal Christians, to teach their children the value of modesty.33
Again, both the rights of parenting and religion were burdened. 39
In fact, as moral values in our society often have a religious base, most
of the cases in this area intertwine the parental right of control with the
parents' free exercise rights. However, there is authority for the proposition
that parents retain control over their children's secular, as well as religious,
values. 40 In what might be considered dicta, the Supreme Court's opinion in
Wisconsin v. Yoder4 l recognized a secular parental right to teach values. In
holding unconstitutional a statute compelling high school attendance at
approved schools, the Court recognized a "cardinal constitutional right" of
parenthood, independent of religious rights, which includes control over the
child's values. 42 Amish parents adhere to the virtues of community welfare,
separatism and spiritual rather than worldly satisfaction. By compelling
high school attendance, and thus exposing impressionable youngsters to the
contrary values of individualism, competition, and worldly success, the state 43
interfered with the parent's right to control her child's value development.
Admittedly, the primacy of the parents' free exercise rights may have
rendered the parental control rights unnecessary to the holding. This would
make the secular parental rights recognition mere dicta. Whether or not this

35. 385 F. Supp. at 400-01. Again the parents' claim was rejected not because parental
rights were not violated, but because state interests were paramount.
36. Id. at 399.
37. 484 F. Supp. 270 (C.D. Ill. 1979).
38. Id. at 276.
39. Id. Note that the court was considering two independent rights: the parental right to
direct the child's religious and educational upbringing, and the parents' own free exercise
rights.
40. See Note, supra note 25, at 1351-52. Even were this not the case, these cases are still
relevant to establishing a parental right of control in the sex education context, as many of
the challenges to these curricula are based on religious grounds. See, e.g., Unitarian Church
West, 337 F. Supp. at 1253-56.
41. 406 U.S. 205 (1972).
42. Id. at 234.
43. Id. at 210-11, 235.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OFLA W & SOCIAL CHANGE [Vol. X11:591

recognition was necessary to the holding, however, the fact remains that the
Court clearly declared that the teaching of "moral standards,"44 is an "en-
during American tradition" that is constitutionally protected.
Public school education inherently burdens the parent's prerogative
over her child's values. In the area of sex education specifically, parents may
wish to provide values to guide their children's choices between sexual
involvement and restraint, openness and modesty, traditional and alterna-
tive activities. These choices influence how the child functions as an individ-
ual, a mate, and a member of society.
While advocates of sex education may contend that such classes are
value-free, even those courses designed only to provide information neces-
sarily transmit values. 45 This disturbs many parents. Simple openness about
sexuality conflicts with traditional values of privacy, intimacy, and modesty
which many parents espouse. In addition, nonjudgmental discussions imply
that sexuality is a matter of personal free choice, unfettered by the moral
taboos in which many parents still believe. 40 Finally, the courses advocate a
pragmatic morality in which sexuality dilemmas are resolved by a rational
consideration of the consequences.47 This form of situation ethics is adverse
to the traditional emphasis on absolute moral and religious ethics. 48 Thus,
by transmitting contrary values, schools interfere with the parental preroga-
tive over the child's moral development.
At least one federal court has recognized that sex education involves the
parent's prerogative over her child's values. In Unitarian Church West v.
McConnell,49 parents were teaching sex education in Sunday schools, using
explicit, but not obscene, materials. 50 The local district attorney threatened
prosecution under the state's anti-obscenity laws. The court recognized and
respected the parents' wish to educate their children in "the facts of life
within a proper ethical, moral, and religious context," and it enjoined the
state's prosecution. 5' By attempting to prohibit the course, the state had
tried to frustrate the parents' efforts to shape their children's values, a
52
course the court would not permit.

44. Id. at 232-33; see also Burt, The Constitution of the Family, 1979 Sup. Ct. Rev. 329,
332-41 (insisting that the "conservative justices" are preserving parental authority in a
society where authority is otherwise crumbling). On the issue of parents' secular right of
control, see also Pierce, 268 U.S. at 534-35.
45. See J. Hottois & N. Milner, supra note 5, at 3-5.
46. For example, parents may view homosexuality as objectionable. (Note that this is
not necessarily the position of the author.) Many courses, in contrast, might imply that the
individual is free to choose according to his individual psyche and preference.
47. J. Hottois & N. Milner, supra note 5, at 3.
48. Meyer, 262 U.S. at 390.
49. 337 F. Supp. 1252 (E.D. Wis. 1972), aff'd, 474 F.2d 1351 (7th Cir.), vacated on
other grounds and remanded, 416 U.S. 932 (1973).
50. Id. at 1253-56.
51. Id. at 1258.
52. See id. Again, both the rights of parenting and religion were involved.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-841 SEX EDUCATION

B. ParentalControl Over Behavior

A second protected parental activity is control over behavior. Whereas
the values prerogative concerns the inculcation of beliefs, control over
behavior allows parents to direct their children's actual physical activities.
For instance, the early cases protected parental control over the languages
learned, 53 schools attended,5 and publications read by the child.0 In some
cases, the threat to parental control over the child's values rests side-by-side
with a threat to parental control over behavior. In Wisconsin v. Yoder, the
Amish parents were concerned that their children would be compelled or
induced to engage in objectionable high school activities.5 The more recent
lower court cases recognize that parents who send their children to public
schools do not automatically relinquish control over their behavior: parents
still have an interest in whether their child dresses immodestlys' or watches
and listens to audio-visual demonstrations. s
The extent of parental control is effectively illustrated in another con-
text: the commitment of children to mental institutions. In Parham v.
J.R., 59 the Supreme Court upheld a statute allowing parents to commit their
children to mental hospitals without an adversarial hearing.c" The child did
have substantial interests in physical liberty and in not being falsely labelled
unfit.6 1 These rights, however, were directly limited by parental right of
control.6 2 Thus limited, the child's rights did not merit a full adversarial
hearing prior to commitment.6 3 The situation in Parham v. J.R. does,
however, differ from the sex education cases. In Parham, the state and
parent are allied against the child; in sex education cases, the parent opposes
the state and, perhaps, the child. Despite this distinction, Parhamserves to
illustrate the extent of the parent's control over her child's behavior.
Control over behavior is demonstrated in yet another context: the
challenges to statutes which restrict the minor's ability to have an abortion
or to use contraceptives. Children, like adults, have a right of privacy which
protects their procreative choices.6 4 The child's privacy right is limited,

53. Meyer, 262 U.S. at 390.

54. Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).
55. Ginsberg v. New York, 390 U.S. 629, 638 (1968).
56. 406 U.S. at 210-11.
57. Moody, 484 F. Supp. at 276.
58. See Davis, 385 F. Supp. at 399-400. Nevertheless, in this instance the state's interest
and the child's interest in an education outweighed the parental right. Id. at 400.
59. 442 U.S. 584 (1979).
60. Id. at 601-04.
61. Id. at 601.
62. See id. at 603-04. These rights were further limited by the medical nature of the
commitment decision.
63. Id. at 606-13. Parental control over behavior does not always override the child's
fundamental liberty interest. See Danforth, 428 U.S. at 74 (state may not reinforce parental
authority by requiring parental consent to all minors' abortions).
64. See, e.g., Danforth, 428 U.S. at 52, 74.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

however, not only by the state's parenspatriaefunction, but by the parents'

right to control their child's behavior. 5 The state may reinforce this control
by requiring that doctors notify parents before performing abortions on
certain minors. 66 Thus, statutes may place greater restrictions on the child's
procreative choices than on the adult's rights. 67 As in Parham, the parents'
interest in controlling their children's activities may be sufficient to over-
come even interests of constitutional dimension.
Mandatory sex education courses impede the parents' control over
behavior, as they require that children learn about sex in school against the
wishes of their parents. Despite parental objections, these courses may
require children to openly discuss, listen to, and view objectionable subject
matter. The school's impact on behavior in such an instance parallels the
situations in Moody68 and Davis,69 in that the child is exposed to an environ-
ment containing what the parent considers to be objectionable material. In
addition, it has been claimed that openness about sex, combined with peer
pressure and the adolescent desire to explore might also influence teenagers
to engage in sexual activities against their parents' wishes. But the scanty
evidence available seems to refute this indirect causation theory. Moreover,
parents can still exert control over their children's behavior outside of
school, for example by imposing a curfew.
C. ParentalControl Over Lifestyle
The Constitution also protects the prerogative over family individual-
ity; the parents right to choose a unique family lifestyle. When the state
attempts to bypass this choice by standardizing the child, it invades the
parental prerogative over family individuality. 70 Family individuality safe-
guards the American tradition of pluralism. 7 ' By limiting the state's interfer-
ence in the parental prerogative over family decisions, the Constitution

65. See, e.g., Bellotti, 443 U.S. at 637-39.

66. H.L. v. Matheson, 450 U.S. 398, 409-10 (1981) (state may require notification to
parents of their child's request for an abortion).
67. See id.; see also Bellotti, 443 U.S. at 637-39.
68. See 484 F. Supp. at 276.
69. See 385 F. Supp. at 399-401.
70. See, e.g., Meyer, 262 U.S. at 401-03 (the state's attempt to standardize children by
prohibiting the foreign language instruction is an illegitimate state end); Pierce v. Society of
Sisters, 268 U.S. 510 (1925) (the state is prohibited from standardizing children by compel-
ling public school education).
71. See cases cited in note 70 supra; see also Yoder, 406 U.S. at 218-20, 233 (striking
down compulsory high school education because statute would bypass Amish parents'
choices to raise their children in the Amish traditions); Bellotti, 443 U.S. at 638 ("affirmative
sponsorship of particular ethical, religious, or political beliefs is something we expect the
state not to attempt in a society constitutionally commited to the ideal of individual liberty
and freedom of choice"); cf. Davis, 385 F. Supp. at 397-400 (Apostolic Lutheran parents);
Unitarian Church West, 337 F. Supp. at 1257-59 (Unitarian parents).

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-84] SEX EDUCATION

restrains the state's attempt to create a monistic, rather than pluralistic

72
society.
The Constitution offers special protection to the parental prerogative
over family individuality to families who live apart from the American
mainstream. For example, the Supreme Court in Yoder was especially care-
ful to protect the choices of Amish parents to raise their 73children in a
community isolated from the American cultural mainstream.
Families who do not, like the Amish, seek to totally isolate their
children from the American mainstream, and who thus do not remove their
children from public school altogether may be hard pressed to justify a
heightened protection of family individuality in the sex education class-
room. Nevertheless, parents might argue that sex education uniquely in-
vades their prerogative over family lifestyle by attempting to standardize
instruction in value choices critical to the child's moral and physical devel-
opment. Just as prohibiting German instruction impermissibly bypasses the
family's choice to maintain individuality,74 enforcing sex education might
undermine American pluralism by countering a parent's attempt to instruct
her child.

D. Presumption That ParentsAct in Their Children'sBest Interests

Another interest protected by parental rights is not so much a preroga-
tive but a sociological premise. The courts have persistently presumed that
parents are best equipped to raise their children.7 5 They have, further, given
this sociological conclusion the force of law on the assumption that parents
possess greater bonds of affection for, and sensitivity to the needs of, their
76
children.
This judicial-sociological conclusion is effectively illustrated in the con-
text of procedural due process. In Parhamv. J.R., the Supreme Court held
that a child has no right to an adversarial hearing prior to being committed
to a mental hospital by his parents. 77 The Court presumed that parents act in
their children's best interests, 7 thus making the adversarial hearing unneces-
79
sary for the protection of those interests.

72. See authorities cited in notes 70-71 supra.

73. See Yoder, 406 U.S. at 209-13, 218-20. Chief Justice Burger seems to marvel at the
continued success of the separatist community and to be concerned with its survival.
74. Meyer, 262 U.S. at 401-02.
75. See Bellotti, 443 U.S. at 637-38; Parham, 442 U.S. at 602; Yoder, 406 U.S. at 232-
33; Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844
(1977); Ginsberg,390 U.S. at 639; Prince, 321 U.S. at 165-66; see also Note, supra note 25, at
1214.
76. See cases and authorities cited in note 75 supra.
77. 442 U.S. at 617-20.
78. Id. at 602.
79. See id.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OFLA W & SOCIAL CHANGE [Vol. X11:591

In procedural due process cases, presumptions must be rebuttable.

Accordingly, in Parham the presumption that parents act in their child's
best interest could be rebutted by a showing of neglect. 0 In substantive due
process decisions the courts appear to be similarly willing to abandon the
sociological premise that parents invariably act in their child's best interests.
For example, the court may override a parent's refusal to consent to an
immature minor's request for an abortion if it determines that the surgery is
in the child's best interest; 8 ' thus, when the parents have actually failed to
protect the child's interests, the state may act on the child's behalf.82
In the area of education, especially, the state serves as the primary
protector of the child's best interests. Consequently, it may command that a
child receive institutional rather than home education. 3 Likewise, schools
may continue to employ audiovisual equipment as an aid to education, an
aid parents can not match.8 4 Only where parents have been unusually suc-
cessful in raising well-adjusted, law-abiding children has the Court allowed
those parents to take over primary responsibility for their children's educa-
tion. 85 If the Amish parents in Yoder had been less successful in their child-
rearing, the Court may have mandated compulsory education.
In the area of sex education, many parents may not be acting in their
children's best interests; thus, the parental presumption in this area may
have been rebutted. Indeed, many parents are incapable of helping their
children cope with sexuality. Some are too embarrassed to discuss sex with
their children.86 As the American Medical Association discovered, many
parents themselves are "abysmally ignorant of the basic facts." 87 In an era
of changing sex roles and preferences, sexuality has become much too
complex for many parents to understand, let alone explain., s Perhaps as a
result teenage pregnancies and instances of venereal disease have soared
dramatically."9 Of course, the sociological data is open to conflicting inter-
pretations. Nonetheless, this evidence that parents may not be acting in the
child's best interests in sex instruction might influence a court to abandon its
judicial-sociological support of the parental prerogative.
In sum, parental rights are burdened by compulsory sex education. In
varying degrees, public school sex education interferes with the parental

80. Id.
81. Bellotti 443 U.S. at 644; see also Prince, 321 U.S. at 166.
82. This is in keeping with the notion that the contemporary validity of values protected
by substantive due process must be continually evaluated. Note, supra note 25, at 1179-80.
83. See Yoder, 406 U.S. at 213.
84. Davis, 385 F. Supp. at 400-01.
85. Yoder, 406 U.S. at 222.
86. American Medical Association, Human Sexuality 151 (1972).
87. Id.
88. H. Kilander, Sex Education in the Schools 14-15 (1970).
89. See notes 93-96, 100-02 and accompanying text infra.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-84] SEX EDUCATION

prerogatives over the child's values, behavior, and family individuality. Sex
education further threatens the presumption of parental authority, although
evidence that parents are not acting in their children's best interests in
obtaining sex education may weaken this last protection of parental rights.

III
STATE INTERESTS
The state has a special interest in the health and well-being of minors.90
Because the child is both vulnerable and inexperienced, the state may inter-
vene to safeguard her welfare.1 Of course, even this special state interest
must be weighed against the impact on parental rights.92
The major objective of sex education is to promote the health and
safety of children, and primarily of adolescents. Teenage sexual activity has
spawned alarming health and social problems. A New Jersey court recently
highlighted the problem of teenage pregnancies, citing a report of the Fam-
ily Life Committee of the New Jersey State Board of Education:
In the U.S. one in five births is to a teenager between 15 and 19; in
1977 one million babies were born to girls between the ages of 10
and 18; in New Jersey in 1977, twelve thousand babies were born to
girls between 15 and 19; 60% of these girls were unmarried .... 3
The report also showed that children born to teenage mothers are more apt
to be premature, underweight, and slow to develop. Because teenage moth-
ers often have few means of support, their children are often born into
poverty. The mothers suffer as well; eighty percent drop out of school and
never return, and if they do return, they are often embarrassed and ostra-
cized. 94 A further health problem exacerbated by the increase in teenage
sexual activity is the rapid rise of veneral disease among youth.95
In short, teenage sexuality has resulted in severe health and social
crises. Educators believe that these crises are the result of ignorance about
sex. By providing information the state hopes to enable teenagers to make

90. Ginsberg, 390 U.S. at 640-43; Prince,321 U.S. at 165,168; accord, Keitzer, Privacy,
Children and Their Parents, 66 Minn. L. Rev. 459, 499-501 (1982).
91. Bellotti, 443 U.S. at 634; see Note, supra note 25, at 1199-1201 (state has strong
parenspatriaepower over the welfare of less capable members of society--especially true for
children who lack maturity).
92. See, e.g., Pierce, 268 U.S. at 534-35; accord Note, supra note 25, at 1201.
93. Smith v. Ricci, 89 N.J. 514, 517, 446 A.2d 501, 503 (1982) (citing August 1979
Report of the Family Life Committee of the New Jersey State Board of Education), appeal
dismissed sub nom. Smith v. Brandt, 103 S. Ct. 286 (1982).
94. Id. Some educators believe that the rise in teenage pregnancies alone justifies sex
education. See, e.g., Teenage Pregnancy: The Best Argument for Sex Education, 19 Curricu-
lum Rev. 130, 130-31 (1980).
95. Smith 89 N.J. at 517, 46 A.2d at 504.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

educated decisions and, should they choose to become sexually active, to

96
deal with the health consequences.
The role of educators is especially important when parents themselves
have failed. In Yoder, parents were already fulfilling the state's functions;
the Amish children were being provided, at home, with an education result-
ing in stable, productive adults, making state interference unnecessary. 0 7 On
the other hand, the Davis parents were incapable of providing their children
with the audio-visual instruction provided by public schools, instruction the
court had deemed necessary to these children's education. 8 The state thus
had a stronger mandate to interfere with the Davis parents' prerogatives, as
these parents were deemed to be inadequate substitutes for the state. 9
The rise in teenage pregnancy and venereal disease indicates that parents
may be incapable of countering the effects of teenage sexual activity. 100
Perhaps as a result of this lack of parental aid, students themselves are
seeking information.10 ' A 1977 Gallup Poll found that ninety-five percent of
teenagers polled favored sex education courses. Sex education teachers have
found a thirst for information among their students, especially in the areas
of pregnancy and venereal disease. 102 The state has an interest in providing
this information.
Further, the teaching of values important to the survival of the Repub-
lic is a well-recognized function of public education.10 3 While school author-
ities may not attempt rigid indoctrination, they are charged with teaching
values. 104
Sex educators are primarily transmitting information in order to rem-
edy sexual ignorance. Nonetheless, the transmission of values is a second-
ary, albeit inevitable, side effect of sex education. Yet the paramount value
taught in sex education classrooms is freedom of choice, the very antithesis
of indoctrination. 0 - Sex education courses allow latitude for a wide range of
choices; within the consequence-based decision, children can still consider
the consequences of violating or conforming to their parents' beliefs and
lifestyle. Indeed, some educators believe that "information furnished by

96. H. Kilander, supra note 88, at 16-17, 21-34.

97. 406 U.S. at 234.
98. 385 F. Supp. at 400-01.
99. See id.; cf. Note, supra note 25, at 1201-02 (the state's interest in the child increases
as the parents' ability to care for the child decreases).
100. See notes 93-95 and accompanying text supra.
101. See Brick, Sex Education Belongs in the School, 38 Educ. Leadership 390 (1981);
Student Perceptions of the Need for Family Life and Sex Education, 101 Educ. 279 (1981).
102. Brick, supra note 101, at 390.
103. See, e.g., Yoder, 406 U.S. at 221-29; Zykan v. Warsaw Community School Corp.,
631 F.2d 1300, 1305 (7th Cir. 1980).
104. Zykan, 631 F.2d at 1306.
105. See note 5 and accompanying text supra.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-841 SEX EDUCATION

school sex educators will liberate the parents from the discomfort of fur-
nishing this information and allow the parents to do what they do best, the
inculcation of specific moral values."'108
In addition to the strong concern for health and safety and the need to
foster societal values of freedom of choice, is the state's mandate to provide
education. Public education, the cornerstone of American democracy,"0 is
"perhaps the most important function of state and local governments."' 03
While the schools may not trammel parental rights in fulfilling this state
function, 10 9 they nevertheless must be allowed significant freedom to per-
form this crucial task. 10
Not all the interests of the state, however, militate in favor of mandat-
ing sex education classes in the face of parental objection. The state has an
interest in maintaining the model of the nuclear family. According to this
model, parents are the dominant family members, and exercise authority
over their children."' In Yoder, for instance, Justice Burger, writing for the
majority, was impressed by the strength of parental authority within the
traditional Amish family."12 By exercising this authority, the Amish raise
disciplined new adults." 3 The state, claimed Burger, should not upset Amish
family institutions by leading children astray from their parents' author-
ity. 14 Likewise, in Parham v. J.R., 15 the Court worked to preserve the
family model. It felt that adversarial hearings would subvert the model by
pitting, on equal footing, parent against child"" and subverting parental
dominance.1 7 Even the dissenters in Parhamsafeguarded the family model.
By requiring only post-admission hearings, the dissenters hoped to avoid

106. J. Hottois & N. Milner, supra note 5, at 7.

107. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 493 (1954).
108. Id., see also Yoder, 406 U.S. at 213 ("Providing public schools ranks at the very
apex of the function of a State.").
109. See, e.g., Yoder, 406 U.S. at 213-14; Pierce,268 U.S. at 534; Moody, 484 F. Supp.
at 276. Consequently, courts are cautious about interfering with educational policy decisions.
See, e.g.. President's Council v. Community School Bd., 457 F.2d 289, 292 (2d Cir. 1972).
110. See cases cited in note 109 supra.
111. E.g., Matheson, 450 U.S. at 409-10; Ginsberg, 390 U.S. at 639 ("[C]onstitutional
interpretation has consistently recognized that the parents' claim to authority in their own
household to direct the rearing of their children is basic in the structure of our society."). In
some cases the state attempts to reinforce, rather than subvert, parental authority. This state
objective, while protecting one parental interest, might violate a general family interest in
privacy from state intrusion. See Keitzer, supra note 90, at 493. But by implementing sex
education, the state is confronting, rather than reinforcing, parental authority. Thus, the
state is not torn between the desire to protect parental authority while not invading the
family's privacy. Rather, the state is endangering both parental authority and privacy.
112. See 406 U.S. at 210-13. Through the whole majority opinion Burger seems im-
pressed with Amish parental authority. See Burt, supra note 44, at 338-40.
113. 406 U.S. at 222.
114. Id.; accord Burt, supra note 44, at 338-40.
115. 442 U.S. 584 (1979).
116. See id. at 610; accord Burt, supra note 44, at 484.
117. Parham,442 U.S. at 603-04.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OFLA W & SOCIAL CHANGE [Vol. XII:591

deterring parents from18

exercising their rights for fear of direct confrontation
with their children. 1
Nonetheless, the state at times chooses to sacrifice its interest in the
nuclear family model in favor of some other interest. Thus, in all those cases
in which the state and parent oppose one another for control of the child's
activities,"19 the state has determined that some interest it has in the child
outweighs its interest in the family structure. A decision that it is necessary
to remove a child from her parents' custody, or an order that she receive
medical treatment against her parents' wishes, or view audio-visual mate-
rials without her parents' consent, necessarily implies a decision to sacrifice
whatever benefit society receives from the nuclear family model.
Mandatory sex education in public schools threatens this family model.
As in Yoder, parental authority may be subverted when the school compels
children to take sex education courses, in direct opposition to their parents'
dictates. Nonetheless, the state interests furthered by sex education are
deemed, by the state, to outweigh the damage to its interest in the nuclear
family model. The state is providing sex education in response to a severe
health crisis. This interest is heightened by the apparent inability of many
parents to remedy the health crisis. These concerns have reached sufficient
proportions to outweigh, from the state's view, the competing state interest
in maintaining the model of absolute parental authority in such matters.

IV
THE CHILD'S INTERESTS

The early parents' rights cases did not balance the child's rights against
those of her parents.12 0 The Court either failed to recognize that children
may assert rights against their parents, or reflexively aligned the child and
parent against the state.12 ' The modern Court seems increasingly willing,
though still hesitant, to consider the child's separate interests when she is
122
mature enough to understand and assert them.
In Yoder, the majority did not consider the child's independent inter-
ests because the Amish children manifested no objection to remaining home
after the eighth grade.1 23 But Justice Burger cautioned that the holding did
not cover situations in which children do object:

118. Id. at 633 (Brennan, J., dissenting).

119. See, e.g., cases cited in notes 13-19 supra.
120. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923).
121. See cases cited in note 120 supra.
122. See Note, supra note 25, at 1383. According to the author, mature children may
assert their rights against their parents in situations which are "grave" and "nondeferable,"
such as the decision to abort a child.
123. 406 U.S. at 230-31.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-84] SEX EDUCATION

Our holding in no way determines the proper resolution of

possible competing interests of parents, children, and the State in
an appropriate state court proceeding in which the power of the
State is asserted on the theory that Amish parents are preventing
their minor children from attending high school despite their ex-
pressed desires to the contrary. Recognition of the claim of the
State in such a proceeding would, of course, call into question the
traditional concepts of parental control over the religious upbring-
ing and education of their minor children recognized in the Court's
past decisions. It is clear that such an intrusion by a State into
family decisions in the area of religious training would give rise to
grave questions of religious freedom comparable to those raised
here and presented in Pierce v. Society of Sisters.
The State's argument proceeds without reliance on any actual
24
conflict between the wishes of parents and children.1
The message is ambiguous. On the one hand, the Burger opinion repeats
three times that this case does not involve conflict between parent and child,
implying that should children object, their interests might be considered. On
the other hand, it states that conflict between parent and child would "call
into question traditional concepts of parental control," indicating that par-
ental rights would dominate the child's interests.
Dissenting in part, Justice Douglas took a different approach. He noted
that while one of the children testifying agreed ith her parents' position,
other parents had raised claims involving the religious liberties of their
children without providing any evidence of their children's views.'2
Douglas concluded that these views should be considered.Ico The evidence
indicated that many Amish high school-aged children were mature enough
to form their own opinions on religion and its role in their lives. 27 Because
they were mature enough to comment on a statute which directly concerned
a crucial element of their lives-education-the Amish children's indepen-
dent interest should have been weighed.'2
In Davis v. Page,the district court appeared willing to follow Douglas's
lead by considering the child's interest in remaining in class during audio-
visual demonstrations.12 9 But the court considered the children, elementary
school students, too immature to understand the implications of their par-
ents' objections. 30 Because the children could not maturely assert their own

124. Id. at 231-32 (citations omitted).

125. 406 U.S. at 243 (Douglas, J., dissenting in part).
126. Id. at 246.
127. Id. at 241-46.
128. Id.
129. 385 F. Supp. at 395. See also Moody, 484 F. Supp. at 276.
130. 385 F. Supp. at 398.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

interests, the court did not consider their independent rights. 131 In Moody v.
Cronin, the court declined to consider the interests of high school students
because there was no conflict between parent and child over the propriety of
32
physical education classes.1
In cases examining the procreative-choice rights of minors, the Su-
preme Court has drawn a more distinct line between mature and immature
minors. These cases involve a conflict between parental authority, rein-
forced by the state, and the child's independent right to decide not to
become pregnant. 133 The state may reinforce jaarental authority by requiring
34
parental notice and consent to abortions performed on immature minors.1
Mature minors, however, have a right to choose abortion unfettered by
state-enforced parental consent. 35 The Court defines maturity only in terms
of the girl's ability to make an informed decision, in consultation with her
physician, independently of her parents' wishes.13 The rest is left to ad hoc
determination:
The nature of both the State's interest in fostering parental
authority and the problem of determining "maturity" makes clear
why the State generally may resort to objective, though inevitably
arbitrary, criteria such as age limits, marital status, or membership
in the Armed Forces for lifting some or all of the legal disabilities
of minority. Not only is it difficult to define, let alone determine,
maturity, but also the fact that a minor may be very much an adult
in some respects does not mean that his or her need and opportu-
nity for growth under parental guidance and discipline has ended.
As discussed in the text, however, the peculiar nature of the abor-
tion decision requires the opportunity for case-by-case evaluations
37
of the maturity of pregnant minors.
The procreative rights cases, coupled with Davis v. Page and Moody v.
Cronin, indicate that, since Yoder, the courts have adopted Justice
Douglas's position considering the independent interests of those children
mature enough to assert their own rights.
This maturity threshold sensitively protects the often competing poli-
cies behind the constitutional protection of the family. To allow the imma-
ture child to stand against her parents would subvert the family interests
protected by the Constitution. Parents' control over their child's values and

131. Id.
132. 484 F. Supp. at 276.
133. See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
134. Bellotti v. Baird, 443 U.S. 622 (1979) (consent).
135. Id. at 642-43.
136. Id. at 643.
137. Id. at 643-44 & n.23. The opinion reserves the decision on such "grave" and
"indelible" measures as termination of pregnancy to mature minors. Although the gravity of
the decision influenced the Court, it is the maturity of the child which is the threshold
between subordination to parental authority and the freedom to decide.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-841 SEX EDUCATION

behavior is greatest when the child is in the early stages of development. The
family model of parental authority is closer to empirical reality when the
child cannot reasonably assert her own interests. In such a situation, pitting
the immature child against the parents would topple the family model. 38
Likewise, the sociological premise that parents act in their children's best
interests is most valid when the child is young and requires the greatest
attention and care. Finally, the immature child cannot articulate her own
interests; thus, the state, either judicially or legislatively, must do it for her.
Yet this state interference in the family would threaten family individuality
by standardizing the perceived interests of children.
In contrast, allowing the mature child to assert her interests poses a
much lesser threat to constitutionally protected parental interests. First,
parents have been given time, prior to this age of maturity, to control the
child's development. Second, the validity of the parental model decreases as
the child matures and becomes, by definition, more independent and less
susceptible to her parents' authority. Third, the mature child generally needs
less nurturing and attention from her parents than the immature child; thus,
the consequences for the child of disrupting the parent-child relationship at
this stage are less severe. Fourth, the mature child is capable of articulating
her own interests. Because the state need not interfere, there is less risk of
standardizing children. In sum, by considering the interests of the mature
minor, the court can vindicate the rights of the child while simultaneously
posing little threat to those of the parent.
Determining whether a child is mature enough to articulate her own
interests in receiving sex education is no easy task, and many factors might
be considered. The child's age is certainly relevant. Psychological and socio-
logical evidence might also be considered. For instance, widespread teenage
sexual activity, in defiance of many parents' desires, indicates that many
youth are already making their own choices on sexual matters. Indeed, the
polls indicate that most children understand their own need for information
and thus most desire some form of sex education. 3 9 This type of objective
data might be preferable to psychological evidence because of both the
emotional costs of litigating each child's maturity and the threat to the
parent-child relationship posed by such litigation. 40 Yet whether they rely
on objective or subjective data, courts must make this judgment on an ad
4
hoc basis.1 1
Once a court decides that a child is mature, it should consider her
constitutionally protected interests. Because this Note focuses on parental

138. See note 118 and accompanying text supra.

139. See notes 121-23 and accompanying text supra.
140. Note, supra note 25, at 1380.
141. See Bellotti, 443 U.S. at 643-44 & n.23.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

rights, a detailed examination of the interests of the mature child is beyond

its scope. However, such interests might include:
(1) First amendment rights of freedom of speech:142 The first
amendment protects the student's right to receive information at
school.14 3 Parents objecting to sex education seek to restrict the
44
child's access to information.1
(2) The child's substantial interest in receiving an education:
While education is not a fundamental right afforded strict scrutiny
under the equal protection clause, 45 it is nevertheless undisputed
that education is a crucial government function. 40 Children have a
47
substantial interest in participating in this process.
(3) The child's acute need for sex education: The health
problems created by teenage sex have reached crisis proportions.148
Sex education is designed to alleviate these problems. 49 Children
themselves seem to thirst for information on sex. 50
In sum, children have substantial interests in obtaining sex education.
These interests must be weighed against the parents' interest in preventing
them from receiving such education.

V
BALANCING THE INTERESTS
In many different contexts implicating parental, state, and child inter-
ests, the Supreme Court has balanced these competing interests."' The
difficult question is how to weight the scale. In other words, how do we
determine when the state's and child's interests are sufficient to override the

142. E.g., Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 511-14 (1964)
(Children have first amendment right of free speech which allows them to wear armbands to
school for political protest provided they neither impinge upon the rights of others nor
substantially interfere with school operations.).
143. Board of Educ. of Island Trees Union Free School Dist. Number 26 v. Pico, 457
U.S. 853 (1982).
144. But see Hirschoff, Parents and the Public Curriculum: Is There a Right to Have
One's Child Excused from Objectionable Instruction?, 50 So. Cal. L. Rev. 871, 920-23
(1977). Hirschoff contends that the right to information is not burdened by excusal because
only some children are excused. But she neglects to consider the informational rights of those
children excused.
145. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
146. See notes 97-102 and accompanying text supra.
147. For whom else is education designed?
148. See notes 93-103 and accompanying text supra.
149. See note 96 and accompanying text supra.
150. See notes 100-02 and accompanying text supra.
151. See, e.g., Bellotti, 443 U.S. at 633-51; Parham, 442 U.S. at 600-17; Yoder, 406
U.S. at 215-34; Prince, 321 U.S. at 165-71.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-84] SEX EDUCATION

parent's rights? At first glance, the cases seem to haphazardly use the
means-ends analysis germane to equal protection claims, requiring either
compelling' 52 or permissible state interests to overcome parental rights.5
By carefully examining these cases, however, we can discern a balancing test
in which the degree of state interests required is adjusted by a number of
factors.
One factor the Court has considered is whether the burdened activity is
essential to the parenting function.'-' Protection increases as the state's
interference with the parent's ability to function as a parent increases.Y5 For
instance, the first and most crucial parental action is deciding whether or
not to give birth to a child. Consequently, the abortion decision is given
maximum protection, requiring compelling state interests to overcome an
individual's decision not to become a parent.' 56 Similarly, when a state
terminates parental rights it completely destroys the right of parenthood.14
How can a mother or father act as a parent when the family is dismem-
bered?158 Parents thus receive maximum protection when the state attempts
to terminate parental rights. 59 On the other hand, few would argue that
teaching a foreign language is crucial to parenting. Thus, the prohibition
against teaching German need only be reasonably related to legitimate state
60
ends.1
Another consideration is the presence of an additional constitutionally
protected right. In Yoder, for example, the Court indicated that even if
religious interests were ignored, the secular interests of parents warrant
protection against unconstitutional state interference.',' But the right of
parents to direct the religiousupbringing of their children must receive even
greater protection.162 When religious rights are implicated, other rights take
on added import.0 3 Thus the parents' right to control their child's religious
64
development is afforded special scrutiny.
152. See, e.g., Roe v. Vade, 410 U.S. 113, 155, 163 (1973).
153. See, e.g., Meyer, 262 U.S. at 401-03.
154. Cf. Note, supra note 25, at 1179 (A right is fundamental when it is recognized that
the "essential core" of the protected right should be free of state interference.).
155. Id. at 1353-57.
156. See, Roe, 410 U.S. at 155, 163; accord Note, supra note 25, at 1185-86.
157. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651-52 (1972) (father must be provided a
formal hearing when the state seeks to remove a child from his custody); Santosky v.
Kramer, 455 U.S. 745 (1982) (a preponderance of the evidence standard for the termination
of parental rights violates the parent's fourteenth amendment rights).
158. Stanley, 405 U.S. at 658.
159. E.g., Santosky, 455 U.S. at 748.
160. Meyer, 262 U.S. at 400.
161. Yoder, 406 U.S. at 234.
162. Id.
163. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943) (free speech rights of
those spreading religious beliefs are greater than those disseminating commercial informa-
tion).
164. The Court also accorded greater weight to the parental rights because of the
parents' religious beliefs in Prince,321 U.S. at 165. The federal district court followed suit in
Moody, 484 F. Supp. at 276.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE (Vol. X1I:591

It is difficult to determine, however, how the courts value these

"strengthened" rights. Although not explicit on this point, the Yoder Court
used a codeword of the means-ends analysis-"compelling interests."' 10
Other courts faced with a combination of parental and religious rights have
been similarly ambiguous in the weight given to these dovetailing interests.
In Davis v. Page, for instance, the court determined that the parental and
66
religious rights deserved the same degree of protection.1
Another crucial factor is the nexus between the legal results sought by
the competing parties and their competing interests. In Yoder, for instance,
the state's objectives would not be significantly advanced by requiring high
school attendance. The significant state interests in education, according to
the Court, were already substantially fulfilled by a combination of formal
elementary education and successful Amish child-rearing. 6 7 The endan-
gered parents' rights outweighed the already satisfied state interests.10 8
While keeping children out of high schools was crucial to the Amish par-
ents' child-rearing methods, as long as Amish children grew into law-abid-
ing citizens, keeping them in school was not crucial to state objectives. 09 On
the other hand, in Davis v. Page, the use of audio-visual aids was essential
to fulfilling the educational goals of the state, and thus effectuating a crucial
government function. 70 Parents could not substitute for the state's activi-
ties.' 7 ' In contrast, the parents' interests in raising their children was not
dependent upon keeping those children from viewing audio-visual demon-
2
strations.17
In conclusion, to resolve the sex education question the courts must
carefully balance the interests of child, parent and state. To determine
whether the state's and child's interests justify interference with parental
rights, they must consider these factors: (1) the importance of the burdened
activities to the ability of mothers and fathers to exercise their parental
rights; (2) the possible presence of additional constitutional rights; and (3)
the nexus between the legal result sought and the objectives desired.

VI
Tm SEx EDUCATION CASES

The sex education cases decided to date have failed to carefully balance
the interests of parent, child and state. The first reported challenge to sex
165. Note, Parental Rights: Educational Alternatives and Curriculum Control, 36
Wash. & Lee L. Rev. 277, 284 (1979).
166. Davis, 385 F. Supp. at 395.
167. 406 U.S. at 221-31.
168. Id.
169. See id. at 218-19.
170. 385 F. Supp. at 400-01.
171. Id.
172. Compelling Amish children to attend high school threatens the entire effort to keep
the children as members of the separatist society. See 406 U.S. at 218-19. On the other hand,
the use of audio-visuals threaten but one tenet of the parent's faith, albeit an important one.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 1983-841 SEX EDUCATION

education was dismissed on the ground that plaintiff had offered no case
law in support of her theory that parents have an exclusive right to teach
their children about sex. 7 3 Another early challenge, Medeiros v. Kiy-
osaki,174 further demonstrates the inadequate attention to parents' rights
which characterizes these decisions. In Medeiros, the Hawaii Supreme Court
could discern no parental right of control.175 According to the court, the
seminal parents' rights cases-Meyer v. Nebraska7" and Pierce v. Society of
Sisters 77--protect only "the explicit freedoms of speech and press. 178
Thus, sex education courses do not violate a constitutional right to parent-
hood since, according to the court, no separate right of parenthood exists. 79
Yet it is clear that Meyer v. Nebraska and Pierce v. Society of Sisters do
indeed stand for the protection of parental rights. In both of those cases, the
Supreme Court expressly upheld a parent's right to raise her children. The
Medeiros court's construction of Meyer and Pierce, in contrast, is based on
Justice Douglas's assertion in Griswold v. Connecticut60 that these cases
might be viewed as first amendment cases, prohibiting the state from con-
tracting "the spectrum of available knowledge."' 18 But in a subsequent
right to privacy case, Roe v. Wade,8 s2 Douglas himself recognized that the
right to raise children is independent of freedom of information concerns. 83
Indeed, in still other cases, the Court has held that the state may reinforce
parental authority by restricting the flow of information to minors.'z If
Meyer and Pierce indeed rest solely on free speech grounds, parents would
not be allowed to restrict the child's access to information.
In Medeiros, the Hawaii Supreme Court also determined that, even if a
parental right of control did exist, the Hawaii sex education program posed
no threat to that right, 85 since parents could withdraw their children from
the program by submitting a written excuse.1 68 Also, parents could pre-
screen the films used in the course and withdraw their children from specific
classes. 187 Because these policies enabled parents to limit or prevent their

173. Cornwell, 314 F. Supp. at 342.

174. 52 Hawaii 436, 478 P.2d 314 (1970).
175. 52 Hawaii at 441, 478 P.2d at 317.
176. 262 U.S. 390 (1923).
177. 268 U.S. 510 (1925).
178. 52 Hawaii at 441, 478 P.2d at 317.
179. Id.
180. 381 U.S. 481 (1965).
181. 52 Hawaii at 441, 478 P.2d at 317 (quoting Griswold, 381 U.S. at 481).
182. 410 U.S. 113 (1973).
183. Id. at 211-13.
184. Ginsberg v. New York, 390 U.S. 629 (1968) (state may prohibit distribution of
non-obscene offensive materials to minors).
185. 52 Hawaii at 438-44, 478 P.2d at 316-18.
186. Id. at 440, 478 P.2d at 316.
187. Id. at 440, 478 P.2d at 316-17.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

children's participation in the program, the court found no interference with

parental control. 88
The opinion, however, fails to examine the possibility that the sex
education program presents the parent with a constitutionally prohibited
choice between the exercise of a constitutional right and the receipt of a
public benefit. In Sherbert v. Verner, 89 for instance, the state unconstitu-
tionally denied Verner unemployment benefits because she refused to work
on Saturdays. Because the state presented a choice between her religious
beliefs (which forbade work on Saturdays) and public benefits (which re-
quired work on Saturdays), the state was violating Verner's right to the free
exercise of her religion. 90 This prohibition against a state-enforced choice
between constitutional rights and public benefits is equally applicable to
other rights, such as free speech.' 9' Thus, it would seem possible to extend
the unconstitutional choice prohibition to parental rights.
The Hawaii court in Medeiros should have considered whether the
excusal policy created such a constitutionally prohibited conflict between
receipt of a public benefit and exercise of a constitutional right. The Me-
deiros court should have engaged in a fact-finding analysis to determine
whether the excusal policy in fact unconstitutionally compelled parents to
choose between exercising the right to raise their children and the benefits of
public education.
In Citizensfor ParentalRights v. San Mateo Board of Education,102 the
California Court of Appeals engaged in a more searching, though seriously
flawed, examination of a parent's challenge to sex education. Employing a
novel approach, the court divided parental rights into three distinct interests
and then dismissed the importance of each. First, adopting the Medeiros
court's erroneous conclusion that the federal case law establishing parental
rights protects only freedom of information, the court rejected the parental
right of privacy.193 The second interest identified, the parental right of
control, was summarily dismissed.1 4 Finally, the court found that the plain-
tiffs cited no precedent supporting an exclusive right of parents to teach sex
education. 19 5

188. Id. at 440-41, 478 P.2d at 316-17.

189. 374 U.S. 398 (1963); see also Schampp v. School Dist. of Abington Township, 177
F. Supp. 398 (E.D. Pa. 1959), vacated and remanded, 364 U.S. 298 (1960).
190. 374 U.S. at 404.
191. This is especially true in light of the fact that no one constitutional right is to be
given priority over any other. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
192. 51 Cal. App. 3d 12, 124 Cal. Rptr. 68 (1975).
193. 51 Cal. App. 3d at 30, 124 Cal. Rptr. at 90.
194. Id. at 31-32, 124 Cal. Rptr. at 91 (relying on the unpublished opinion of the court
below).
195. Id. at 32-33, 124 Cal. Rptr. at 91-92.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-841 SEX EDUCATION

The California court's divide-and-conquer approach, however, is mis-

guided. Admittedly, there is disagreement on the constitutional source of
parental rights."' But in the leading parental rights cases, the United States
Supreme Court has found no reason to divide parenthood and privacy.29
03
Whatever its defined source, the boundaries of the right are the same.1
Parental privacy rights do exist; their parameters are found in the parental
control cases. Thus, parental rights of privacy and parental rights of control
must be examined together. Indeed, in the Supreme Court's one attempt at
bifurcation, it intimated that parental privacy and control were but one
right.1 99 Thus, Citizensfor ParentalRights is flawed both because it unnec-
essarily divides parental rights into three separate categories and because it
adopts the mistaken reasoning of Medeiros in defining the limits of those
rights.
The remaining sex education cases shed no brighter light on parental
rights. Some parental challenges have relied solely on free exercise of reli-
gion,20 0 while others have alleged that the statutes authorizing sex education
illegally delegated power to local school boards.2-0 Parental rights, however,
merit far greater attention than these cases, or those previously discussed,
give them.

VII
RESOLUTION
A. Suing to Abolish the Program
As this Note has explained, public school education significantly bur-
dens the parental prerogatives over a child's value development and behav-
ior. Both prerogatives are important to effective parenting. Sexual values
are especially important to the child's development, and thus to the child's
parents. Any choice in the area of sexual lifestyles is necessarily personal,
making family individuality in this choice another interest significant to
parenting.
The abolition of sex education, however, is not crucial to these parental
interests. Admittedly, preventing children from receiving sex education and
thus giving the parents exclusive control over the child's sexual values and

196. See notes 10-12 and accompanying text supra.

197. See, e.g., Yoder, 406 U.S. at 213-34. But see Runyon, 427 U.S. at 176-79 (federal
statute prohibiting private schools from denying admission to blacks does not violate paren-
tal rights).
198. Runyon, 427 U.S. at 176-79.
199. Id. at 178, n.15; accord Note, supra note 165, at 280 n.24.
200. See Smith v. Ricci, 89 N.J. 514, 446 A.2d 501 (1982); Valent v. New Jersey State
Bd. of Educ., 114 N.J. Super. 63, 274 A.2d 832 (1971).
201. Id.; Hobolth v. Greenway, 52 Mich. App. 682, 218 N.W. 2d 92 (1974).

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OF LA W & SOCIAL CHANGE [Vol. XII:591

behavior is one way of achieving parents' objectives. But even if children

attend the classes, parents can instruct children in what they consider to be
the proper values and family lifestyle, and control their children's behavior
outside the classroom. Sex education leaves room for children to follow
their parents' guidelines. 2
On the other end of the balance, sex education is crucial to the state's
pressing concerns in the health and welfare of its children. Sex education
provides the single most effective way to remedy the severe health crises
resulting from teenage sex. Therfoqurts should not second-guess the public
educators' conclusion that sex edttbation will aid in remedying these prob-
lems.20 3 The judiciary is justifiably reluctant to impose its views of educa-
tional policy upon the experts entrusted with this complicated task. 204 In
addition, courts avoid superceding the representative body, be it a state
legislature or a local school board, which produced the curriculum. 203 While
the sex education problem involves constitutional rights rather than just
policy, courts should still grant the educational process and educators
breathing room.
The independent interests of the child further weigh against parental
rights. 20 6 The child's interests in education, particularly in sex education,
certainly bolster the state's interests in providing such education. This addi-
tional interest should give courts even greater pause in disturbing the estab-
lished public school curriculum.
Yet another significant interest militates against abolishing public
school sex education programs. American society values the free flow of
information,2 07 and has given constitutional voice to that value in numerous
first amendment decisions .20 8 To restrict the flow of information by abolish-
ing sex education programs violates this value. Consequently, courts weigh-
ing challenges to sex education are right in refusing to close off this source
of information to the majority of students to protect the minority whose
9
parents object to it.20

202. See notes 103-04 and accompanying text supra.

203. See Note, supra note 165, at 294.
204. See Epperson v. Arkansas, 393 U.S. 97, 104 (1968). Some contend that deference
to educators reflects the belief that "parents are no longer considered to be the primary
judges of their child's educational interests." Note, supra note 165, at 294. This conclusion,
however, is too broad. Rather, it reflects the notion that once the parents' right of education
is outweighed by state interests, the state should be free to pursue those interests.
205. Accord Epperson, 393 U.S. at 104 ("By and large, public education in our Nation
is committed to the control of the state and local authorities"); Note, supra note 165, at 295
(citing Cary v. Board of Educ. Adams-Arapahoe School Dist., 427 F. Supp. 945, 952 (D.
Colo. 1977)).
206. See generally text accompanying notes 142-47 supra.
207. See U.S. Const. Amend. I.
208. See, e.g., Epperson, 393 U.S. at 105; Citizensfor ParentalRights, 51 Cal. App. 3d
at 31, 124 Cal. Rptr. at 90; Medeiros, 52 Hawaii at 441-42, 478 P.2d at 317-19.
209. See, e.g., Medeiros, 52 Hawaii at 441-42, 478 P.2d at 317-19.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
1983-4] SEX EDUCATION

Finally, courts should be extremely reluctant to abolish these programs

when a less drastic alternative exists. While giving parents the option to
remove their children from sex education classes does not entirely remove
the interference with parental rights, it does, as noted below, reduce it
significantly.210 The availability of an alternative which reduces interference
with the parental right, while having but a limited effect on the state's and
children's interests, must defeat an attempt by parents to abolish sex educa-
tion.

B. Suing to be Excused from the Program

In Moody v. Cronin,2 1 a federal district court allowed students to be
excused from physical education classes despite the state's interest in pro-
moting health and fitness.212 Similarly, parents who so desire should be
allowed to have their children removed from sex education classes.
Excusal is an appealing alternative because it protects minority interests
without burdening the majority. On one hand, the majority will continue to
benefit from the state's efforts to advance its crucial interest in providing
sex education. On the other, those parents who feel that their parental role is
seriously undermined by these classes may insulate their children from them.
them.
Admittedly, this solution will completely satisfy neither the parent's,
the child's, nor the state's interests. State interests are frustrated in that
213
many parents who themselves are incapable of providing sex education
may remove their children from the classes, in effect denying those children
the benefits of such education and thwarting the state's interest in providing
those benefits.214 Parental interests suffer as well; the parent is now faced
with the difficult task of removing a child from class and thus subjecting her
to possible stigmatization by her peers. And, as has been noted, the excusal
right may force upon parents a Hobson's choice between the right to have
one's children educated and the right of parental control. Finally, children
who are removed may have their own interests in receiving sex education
stymied.
But the courts must adjudicate among these three independent sets of
interests, rather than simply allowing one interest to ride roughshod over the
others. The Constitution mandates that the interests be sensitively bal-
anced. 215 Nothing in the Constitution requires that the state be allowed to

210. See Medeiros, 52 Hawaii at 441-42, 478 P.2d at 317.

211. 484 F. Supp. 270 (C.D. Ill. 1979).
212. Id. at 277.
213. See notes 98-102 and accompanying text supra.
214. See note 97 supra. Children who receive adequate instruction from their parents
are by definition in less need of sex education classes.
215. See notes 151-72 and accompanying text supra.

Imaged with the Permission of N.Y.U. Review of Law and Social Change
 REVIEW OFLA W & SOCIAL CHANGE [Vol. Xli:591

attain all of its goals. Some, like the sex education of those children who are
removed, may have to be sacrificed. Likewise, nothing in the Constitution
guarantees parents complete control over the children's education. In some
instances parental interests in the child's values, individuality, and behavior,
may have to be compromised. Excusal allows both state and parent to
pursue their goals, while sacrificing as little of their interests as possible.

VIII
CONCLUSION

As this Note has shown, serious parental rights are implicated by

mandatory sex education courses. Current case law gives short shrift and
improper analysis to these rights. Their importance merits attention by the
courts.
When these parental rights are examined and weighed against the com-
peting state interests and possible interest of the child, it is clear that they are
insufficient to overcome the state and child interests in having sex education
curricula. They do, however, mandate a removal right for parents who do
not wish to have their children participate in mandatory sex education
classes. It is time that these interests were raised by claimants and addressed
by the courts.
NEAL DITTERSDORF

Imaged with the Permission of N.Y.U. Review of Law and Social Change