Wednesday, November 16, 2005

The 9th Circus Strikes Again: Teach Seven-Year Olds About Sex

I finally found something sufficiently infuriating for me to break my semester-long silence on the Fed Society blog. I hope our dearly beloved president Misha will be happy to see this.

On November 2, the 9th Circuit ruled in Fields v. Palmdale School District (2005 WL 2861946) 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.” (emphasis in original). This shocking revelation that parents should not be allowed to protect their seven- to ten- year old children from being exposed to sexual content at their schools came from the same court who just three short years ago informed us that the Pledge of Allegiance “impermissibly coerces a religious act.” Newdow v. U.S. Cong., 328 F.3d 466 (9th Cir. 2002).

I realize that I live under a rock during the law school semester, but I certainly did not hear the public outcry about this case that I would have expected. Hence, my need to end my hiatus from this blog.

It’s nice to know that we can always count on the 9th Circuit to straighten us out when we think that the words “under God” are not a coercive state endorsement of religion and when we expect that our elementary school children will not be required to answer a survey that asks how often they think about sex. Apparently it is acceptable for a school to inculcate children with values about sex but not for a school to begin the day with recitation of the Pledge, which, of course, is not mandatory.
Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.
Many people subscribe to different views about the moral import of sex, but parents should have discretion about how they address such weighty matters with their young children. Parents have a fundamental right to instill their values in their children, and when the school district has final say on when and where to perpetuate its own values, that right is undermined.

Hopefully the Supreme Court will grant cert in this case and, once again, put the 9th Circuit in its place. Meanwhile, the right of parents to raise their children in the way they see fit continues to be eroded by those who believe that the State knows best. I close with what I find to be chilling words from the NEA in 1885 (reprinted in Judith Areen, Family Law 1175 (4th ed. 1999)):
The first step of the State should be to get possession of the minds of men; get control of their ideas…. This can be accomplished by a system of uniform, well-organized and liberally supported public schools…. The power of education, rightly conducted, is almost omnipotent.


paleocon said...

This issue is properly left to state legislatures and these parents should fight this issue in a campaign to replace the elected school board. If I'm not mistaken, Justice Scalia would agree. (He has expressed reservations about Pierce.)

GULC Law Student said...

What exactly is the problem with sex education? What about sex education is different from history or current events? It's a class that teaches something that the local community feels should be taught, why should the courts pull it out of the classroom unless its a violation of the Constitution?

That being said "under god" most certainly is a violation of the Constitution. As a libertarian who was threatened by several members of the public school staff for not standing during the pledge (on precisely these grounds) while in high school, I have some confidence in asserting that it really wasn't optional.

But even if it was optional, it's an endorsement of a religious belief. The government (through the schools) has no business endorsing any religious belief. Thankfully we have that written down in the 1st Amendment. It's one thing to teach about religion, it's another to ask your student to recite a belief in god.

Some of us don't, and we don't like being ask to say otherwise.

As good conservatives, shouldn't you want the government to have less control over your lives? Is there really something more central to your personal life than religion? Does government have any business in religion at all?

"Under God" and "In God We Trust" have been around for far too long now. The time to change that is getting closer."

Misha Tseytlin said...

My crazy solution to both the pledge and sex education problems: abolish all public education and give all parents vouchers for students. Therefor, you can send your kid to any accredited school- some offering sex education, some offering pledges. This was there would be no (serious) first amendment or substantive due process problems.

As for the particular issues here- its hard to parse them out. I guess I would say both the pledge and mandatory sex education are close enough constitutional questions that the courts should not step into the decisions made by the school officials.

GULC Law Student said...


I'm willing to take a step back on sex education, we can leave that one up for debate. But do you really think there's a possibility that government has a place asking each and every student in a public school to vocally declare their belief in god? Voluntary or not, you're being _asked_ to participate.

Doesn't that really seem like exactly the sort of government interference in personal religious life that the Constitution, and sound policy, would like us to avoid?

If you can honestly say that you'd give the same answer (that the courts shouldn't be involved) if all public schools opened with a voluntary prayer to Satan, Buddha, Allah, or Mother Nature, then I'll stop pestering you. If this belief is Christian (or Judeo-Christian) only, then it's problematic.

Misha Tseytlin said...

Law student-
I am an agnostic, and not religious. My high school had the optional pledge and I thought it was FAR more patriotic than religious. I do not think that the non-establishment clause is so broad that it, all the time, means god cannot be mentioned in schools. Like I said, having an optional pledge, with only one mention of god and most of it toward patriotism, is a close case in my view.

D said...

The 9th Circuit never said the words “under God” are a “coercive state endorsement of religion.” What they said was that “[t]he school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates.”

Maybe the public outrage you yearned for never materialized in part because many legal scholars agreed with the 9th Circuit. It’s reasoning, logic, and reliance on precedent (including the Supreme Court’s own precedent) were unassailable. That might explain why the Court itself took the easy way out, and punted on the standing issue.

And no, Misha's point about the Pledge being just a little religious and mostly patriotic doesn't change the issue at all.

-Dave Lane

Misha Tseytlin said...

Honestly, the pledge stuff is so incredibly silly. This is the text:

"I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all."

so lets see- patriotism- (1) flag; (2) U.S.; (3) republic; (4) nation; (4) indivisible (6) liberty; (7) justice

religion- (1) under God

Combine this with its voluntary nature, and the outrage of the pledge shown by many on the left is almost laughable to me, even as a completely unreligious person.

Like I said, at WORST, its a close question- and I think the Supreme courts should not overrule decisions made by political actors unless it is confident in its judgment (and given the paucity of the religiousness in the pledge, I cant see how someone could be sufficiently confident).

D said...

By "political actor" I assume you're referring to the Governator? Sorry, couldn't resist.

Look, since when did the relative proportion of religiosity become relevant? Would you be just as happy with:

I pledge alegiance, to the flag, of the United States of America, and to the Republic, for which it stands, one nation, under Satan -- to whom I I pledge my heart and soul, indivisible, blah, blah, blah.

Misha Tseytlin said...

The pledge is to the United States, not to God... not an apt response.

And I think it is incredibly important the portion that "god" plays in the pledge. Say the pledge was 20 pages long with only one reference to god the entire time- wouldnt that be an easier case? What if god was mentioned 10 times in 30 words- that would be an easier case the other way...

D said...

I confused the issue by using "pledge" language. Let me make it easier:

I pledge alegiance, to the flag, of the United States of America, and to the Republic, for which it stands, one nation, under Satan, indivisible, and justice for all.

You're ok with that right? If not, why not? As Abernathy would say -- get up on that psychiatrist's couch.

Misha Tseytlin said...

David my constitutional methodology is such:

1. Is the action unconstitutional?

2. Is (1) a close question? If it is close, the judges shouldnt substitute their judgement for elected officials. If is it not close, they should strike it.

I think it is questionable whether the real pledge or your satan pledge are unconstitutional (i would say they are both probably constitutional, but the opposite argument is by no means frivolous). I do think the answer to #2 is easy- this is a close constitutional question (both for real pledge and for satan) and the courts thus have no business stepping in.

GULC Law Student said...

Ok, let's try this from another direction: if having God in the pledge is not an endorsement of religion, then why is it there at all?

It was added to the pledge in 1954. The only change made to the pledge in 1954 was to add the words "under God." It's not like somebody thought it sounded good when it was originally written and it's been a holdover ever since... this was specifically added because the government in the 1950s felt we didn't have enough God in our public life.

Misha, if the pledge didn't have the words "under God" in it today, and those two words were added tomorrow (with no additional changes), would you find that action Constitutional? Or would that seem like a breach of the First Amendment?

GULC Law Student said...

"[W]hen President Dwight D. Eisenhower signed the act adding 'under God,' he said, 'From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.'"

Seems kind of suspicious, eh?

From here.

Misha Tseytlin said...

If there was an optional pledge where one of 8 concepts in it is related to god, while the other 7 are patriotic and it was optional for anyone who did not want to say it, i would say that this is not something that is clear enough to justify the supreme court striking down.

I agree that the historical evidence of why god was added is the only reason i think this is a CLOSE case (without tha evidence, it would be a very easy case). In any case, I think my general point stands.

D said...


You don't think the Court should ever decide close constitutional issues? I thought that's what it was there for. Cases that reach that level tend to have decent arguments on each side. Even a Federalist must concede that its the Court's job to say what Constitution means.

In any case, I don't think the Pledge issue is close. What's that -- you don't agree? Hmmmm...I bet that happend a lot. That's one reason we have the Court.

J. Li said...

Deborah, aren't you glad we stayed so focused on your original post?

Have a Happy Thanksgiving, everyone! [That's constitutional to say, right?]

Misha Tseytlin said...

Dave- I believe the Court should allow some "play" in the political process, and use its power of judicial review in cases where the political actors gets out of line. This is actually a rather mainstream view, shared by both liberals and conservatives broadly, I believe.