How far do parental rights go?

Earlier this week we told you about the two SCOTUS cases from the 1920s that established that parents have a constitutional right to have some say in the education of their children. But how far does that go?

If you want to find out, here’s one cookbook recipe:

  1. Set up a student assembly to address safe sex and AIDS awareness.
  2. Make it mandatory.
  3. Don’t tell the parents about it.
  4. Hire a company called Hot, Sexy and Safer Productions, Inc.
  5. Stand back and watch what happens.
  6. Get some popcorn.

This actually happened in 1992 in Massachusetts (not the popcorn).  The aforementioned HSS Productions put on a very lively presentation for 90 minutes.  In the lawsuit, the plaintiffs alleged that the presentation was sexually explicit, including simulations of sexual activity.  The suit claimed that the speakers endorsed oral sex, masturbation, homosexuality, and premarital sex.  There were 18 references to orgasm, six to male genitalia and eight to the female variety.  Looks like someone was counting.

The parents who sued the district alleged that the school’s decision to require attendance at this assembly, without parental notice or the opportunity to opt out, violated their substantive due process rights under the Fourteenth Amendment.   Of course they cited the two Supreme Court cases from the 1920s in support of their argument. But the 1st Circuit found this case to be different from the earlier ones:

If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school's choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.

The parents lost their case because the constitutional right that they cited did not extend as far as they would like.  The Supreme Court was not willing to recognize a constitutional right for parents to dictate school curriculum. However, many states, including Texas, have now adopted statutes that allow a parent to opt their child out of a program, activity or class that the parent finds offensive.  You can find our statute at T.E.C. 26.010.

Thus today, if a Texas school was going to have a student assembly to discuss sensitive matters, such as adolescent sexuality, each parent would have the opportunity to have their child excused from the assembly. This is not a right rooted in the Constitution, but rather, in the Texas Education Code.  Schools would be wise to make sure parents are aware of any such assembly so that they can exercise that right.

The case of Brown v. Hot, Sexy and Safer Productions, Inc. was decided by the 1st Circuit Court of Appeals on October 23, 1995.  We found it at 68 F.3d 525.


Tomorrow: “Please don’t tell my mom!”