While it would be inappropriate for The Rutherford Institute to provide you with specific

legal advice under these circumstances, the Institute is pleased to provide you with the following

information regarding your area of concern.

This brief discusses several published court decisions which affect the right of parents to

obtain or withhold permission for his or her child's participation based on the content of the

curriculum.

Overview

Several decisions by the Supreme Court of the United States since the 1920's expressly

recognize a right to privacy under the Due Process Clause of the Fourteenth Amendment of the

United States Constitution, and that based on that right to privacy, a parent has the fundamental

right to instruct and direct the upbringing of his or her child. This parental right, however, generally

does not include the right to determine a child's public school curriculum. In addition, although

parents do not have the right to choose that their children opt out of a program, particularly if their

objection is purely secular, the Supreme Court has recognized that such a specific right exists when

the general parental right to direct the upbringing of a child has been asserted along with another

constitutional right such as the free exercise of religion. Nevertheless, the recent trend among the

courts has been to refrain from fully recognizing a parental right to control what their children may

hear and learn in public schools.

Parental Rights: Liberty Interest, Human Right, and Privacy Right

Almost eighty years ago, in Meyer v. Nebraska,1 the Supreme Court expanded the

constitutional concept of Aliberty@ in the Fourteenth Amendment of the U.S. Constitution to include

a parent's right to direct and control the Achild rearing and education of their children.2 Under

Pierce v. Society of Sisters,3 decided two years after Meyer, the Supreme Court determined that the

Compulsory Education Act of 1922 interfered with the liberty of parents and guardians to direct the

upbringing and education of their children by conflicting with the rights of parents to choose their

children's schooling. In Smith v. Organization of Foster Families,4 the Court also noted that this

Aliberty interest arises out of those rights that are considered intrinsic human rights and that this

liberty interest of family matters has been considered an intrinsic human right throughout the

country's history and tradition.

The Supreme Court has also held that a person's right to direct his or her child=s education is

a fundamental aspect of a person=s right to privacy over family matters. For example, in Paul v.

Davis,5 the Court described familial relationships as falling into a A zone of privacy creating rights

that cannot be infringed upon.6 In Santosky v. Kramer,7 the Supreme Court ruled that the right to

make one's own choices concerning family matters is a fundamental liberty interest protected by the

Fourteenth Amendment of the U.S. Constitution.

Ironically, the Court's finding of a right of privacy in the Fourteenth Amendment has also

formed the basis of its pro-abortion decisions. In Planned Parenthood v. Casey,8 for example, the

Court reaffirmed the concept of privacy in family matters and included within this right of privacy

the woman's right to choose an abortion. This may explain why in recent years, the Supreme Court

has remained suspiciously silent in revisiting the right of privacy as it pertains to parents. While this

is merely conjecture, it is possible that if the Court now regrets its basing of parental rights on a

constitutional right of privacy, then it is reluctant to openly declare this for fear that it would remove

the underpinning of its many decisions recognizing abortion as a privacy right. In the meantime, it

has been many years since the Court has vigorously defended the right of privacy in a parental rights

case.

Parental Rights and Free Exercise

Wisconsin v. Yoder,9 the 1972 Supreme Court decision dealing with Amish parents' refusal to

enroll their children in certain grades of public school, further established the role of parents to

participate actively and direct the course of their children=s education. In that case, the Court

recognized that the combination of the parental right to conduct one's child's education and the

fundamental right to exercise one=s religion freely outweighed the government's interest in

compelling a child to attend a public school.10 The Court established that when such a coupling of

fundamental rights occurs, the government must overcome the most difficult standard for justifying

its law or policy (i.e., the state must show a "compelling interest.") 11

Excusal

Earlier in the century, several state and federal courts recognized the right of parents to

request that their children be excused from a particular class or method of teaching.12 For instance,

in Vollmar v. Stanley,13 a Colorado court concluded that parents can refuse to have their children

taught what they think is harmful, except for what must be taught for A good citizenship. In

Hardwick v. Board of School Trustees,14 a California court held that parents do have the right to

control their children and this includes teaching their children to live by their teachings and

principles taught in their home that they think will best serve their children's welfare. The court

stated that to deny parents this right is to deny to parents the right to Agovern or control, within the

scope of just parental authority their own progeny.@15

Since Wisconsin v. Yoder, however, the Supreme Court has been reluctant to address

parental rights claims and most courts confronted with such claims have been reluctant to recognize

a parental right to control what children are taught in public schools. For example, in Davis v.

Page,16 a case occurring during the mid 1970's, members of the Apostolic Lutheran faith objected to

the Amode and manner in which the educational process is conducted in a New Hampshire school

district.17 Specifically, the families objected to the humanist approach to education and the increased

prevalence of Asexually oriented teaching programs, the open discussion of personal and family

matters, and the receipt of advice of secular guidance counselors (these objections included the use

of all audio-visual equipment).18 For a period of time, students who objected to any classroom

activities based on religious objections were allowed to leave the classroom. Because of the number

of students who asked to leave the room and the discipline problems that arose, the school

discontinued this practice. Parents of one of one of the children sued the school district. The federal

district court ruled in favor of the school district, reasoning that the parents failed to demonstrate

that they were preparing their children for life in an isolated, independent community as was

demonstrated by the Amish families in the Supreme Court's Yoder decision (discussed above).19

Additionally, the court also held that because what these parents found objectionable was

pervasive throughout the educational program of the school district, it would be impractical to ask

the school district to change this to accommodate these families; to allow students to be exempted

from an objectionable class would frustrate the school's educational mission to such a large degree

that it would no longer be able to teach these children.20

In a more recent adverse outcome for parents, the U.S. Court of Appeals for the First Circuit

in Brown v. Hot, Sexy, and Safer Productions, Inc.21 officially acknowledged the right of parents to

direct the upbringing of their child, but stated that this right did not extend to telling a school district

what it may or may not teach.22 This case involved a sexually explicit lecture in the assembly hall by

a self-proclaimed sex expert and MTV comedienne, who used profanity and requested volunteers

from the young audience to participate in sexually symbolic acts which many found vulgar,

inappropriate and violative of the children's free speech rights. The First Circuit, however, ruled:

"[T]he state does not have the power to 'standardize its children' or 'foster a homogenous people' by

completely foreclosing the opportunity of individuals and groups to choose a different path of

education. . . . We do not think, however, that this freedom encompasses a fundamental

constitutional right to dictate the curriculum at the public school to which they have chosen their

children."23

The court found that parents have no right to inform the state, "You can't teach my child

subjects that are morally offensive to me."24 The parents, of course, were actually most distressed by

the fact that the school did not give them any fair warning of the type of presentation that their

children were attending and provide them with the opportunity to opt their children out of the

presentation. Unfortunately, the Brown court apparently saw no difference between parents who try

to tell a school what to teach and parents who seek to excuse their children from offensive

coursework.25

In Herndon v. Chapel Hill-Carrboro City Board of Education,26 a North Carolina court

refused to invalidate a mandatory community service program on the parental right to direct the

education of one's children.27 The court determined that, notwithstanding Supreme Court

precedent, the Aright of individual parents to exert pre-emptive control over the curriculum of public

schools is not a fundamental one subject to strict scrutiny28 The court then determined that

the board of education was able to substantiate that its community service program bore a rational

relationship to its educational objective and therefore was not unconstitutionally arbitrary.29

In a very similar case, Immediato By Immediato v. Rye Neck School Dist.,30 parents in New

York brought a challenge to a mandatory community service program. This court ruled that there is

Ano federal case law which recognizes a constitutionally protected parental right for students to opt

out of an educational curriculum for purely secular reasons.31 This court also ruled that schools

have a legitimate interest in educating students in the manner they deem best and that it is a poor

public policy decision to allow parents to take their children out of this education program on purely

secular grounds.32

In one recent case, parents asserting both parental rights and free religious exercise rights

achieved limited success. In Ware v. Valley Stream High School Dist.,33 the high court in New York

ruled that a trial court had erred in granting the school district's motion for summary judgment (i.e.,

judgment without the necessity of trial) against parents who challenged an AIDS education program

based on religious objections.34 These students desired to opt out of the entire education program

but the school district would only allow them to opt out of a portion of the program.35 The program

was based on a state law requiring all students to be educated about AIDS but allowing an opt-out

provision for the portion of the program addressing prevention if a student's legal guardian(s)

requested this.36 Plaintiffs, however, requested to have their child excused from the entire AIDS

program.37

The court ruled against a dismissal of the parents' case, stating that they would win at the

trial level if they could show that: first, the school's goal of educating and preventing AIDS among

schoolchildren would not be seriously undermined since the nature of the plaintiffs' religion would

make the teaching of such information completely irrelevant and unnecessary for their children

(because of their strong religious convictions against all of the causes of AIDS); second, the public

school's AIDS curriculum would pose a threat to the continued existence of plaintiffs' Brethren

church community.38 Here, unlike the cases dealing with community service programs, the court

recognized the fundamental interest of the parents' free exercise of religion. At the same time, the

New York court's decision established a very high standard for parents to meet, particularly when it

required the parents to establish that the school program poses a threat to the continued existence of

his or her entire church community.

Meanwhile, an intermediate level court in New York ruled in Alfonso v. Fernandez,39 ruled

that a condom availability program was violative of parental rights to rear their children.40 The court

found that parents were being compelled, through compulsory education requirements, to send their

children into an environment where they will be Apermitted, [and] even encouraged, to obtain a

contraceptive device, which the parents disfavor as a matter of private belief ... [s]tudents are not just

exposed to talk or literature on the subject of sexual behavior; the school offers the means for

students to engage in sexual activity at a lower risk of pregnancy and contracting sexually

transmitted diseases.41 They also found that the policy was not Aessential and that by excluding

parental involvement, the condom availability component of the program impermissibly trespasses

on the petitioners' parental rights by substituting the respondents in loco parentis, without a

compelling necessity.42

Yet this was also a limited victory because the court in Alfonso found that the program did

not violate the parents' free exercise claim.43 In so ruling, the court specifically determined that the

threat that students may succumb to peer pressure does not rise to the level of a constitutional

violation against religion.44

In an adverse 1995 decision, the Massachusetts Supreme Court in Curtis v. Falmouth 45

decided that a condom distribution program did not violate the constitutional rights of parents.46

While the program did not provide for an opt-out provision, the court ruled that parents= rights were

not violated because participation in the program was not mandatory.47 Specifically, the court found

that students were not required to Aseek out and accept the condoms, read the literature

accompanying them, or participate in counseling regarding their use.48 It also noted that students

are free to decline condoms with no penalty, parents may still instruct their children not to make use

of them, and the school in no way seeks to advise children on moral or religious issues.49 The court

argued that mere exposure to school programs that offend Athe moral and religious sensibilities@ of

individuals does not rise to the level of a constitutional violation.50 It is important to note that, in

this case, the parents did assert a free exercise claim, yet the court still held that the parents had not

met their burden of proving that the program violated their fundamental rights.

More recently, the Third Circuit faced a similar factual scenario in Parents United for Better

Schools, Inc. v. School Dist. of Philadelphia51. In that case, two parents sued the school board for

distributing condoms to students, claiming that the high school condom distribution program

violated their Fourteenth Amendment right to bring up their children without unnecessary

governmental interference. As with Curtis, the court sided with the school board because the

condom distribution program did not demand student participation, and gave parents the option to

exclude their children from receiving condoms.52

Finally, in a less controversial opt-out topic - school uniform policies - the Fifth Circuit held

that the district=s uniform policy did not entangle parents= fundamental due process rights in the

upbringing and education of their children, and in fact was justified by a rational basis.53

Furthermore, the policy's opt-out procedure, which required parents with bona fide religious

objections to apply for exemption by filling out a questionnaire designed to measure the sincerity of

their beliefs, did not violated First Amendment free exercise and establishment clauses.54

For a more detailed analysis of the Ware, Alfonso and Curtis decisions, please request

Freedom Resource #B-12, entitled Parental Consent for AIDS/HIV Education in Public Schools.

Conclusion

Although the Supreme Court has stated a right of parents to control the education and

upbringing of their children, more recent court decisions have expressed reluctance in granting this

right. Schools are given wide latitude to educate students as they see fit and are given the

presumption of having nearly much of an interest in educating children as parents have in educating

and upbringing these children. Meanwhile, recent court decisions appear to merely pay lip service to

parents' rights to rear their children. Specifically, the right to opt out of a portion of an educational

program has largely been ignored as a fundamental constitutional right deserving of the highest

protection. There does appear to be a chance, however, that a court could recognize a fundamental

constitutional right in opting out when the parental rights claim is combined with a constitutional

right such as the free exercise of religion. The Rutherford Institute, of course, will continue to litigate

parental rights issues in this arena in an effort to reverse the recent dangerous trend undercutting

parental rights in public education.

Endnotes

1. 262 U.S. 290 (1923).

2. Id. at 399.

3. Pierce v. Soc. of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).

4. Smith v. Org. of Foster Families For Equality and Reform, 431 U.S. 816, 842 (1977).

5. Paul v. Davis, 424 U.S. 693 (1976).

6. Id. at 713. In Hawaii Psychiatric Soc., District Branch of America Psychiatric Assoc. v.

Ariyoshi, 481 F.Supp. 1028 (D. Hawaii 1979), a federal district court determined that it would be

enough to infringe upon these Azone of privacy@ rights which have been determined to include

marriage, procreation, contraception, family relationships, and child rearing and education. Id.

at 1038.

7. 455 U.S. 745 (1982). See also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (state may

not intrude in this protected area).

8. 505 U.S. 833 (1992)

9. 406 U.S. 205 (1972).

10. Id. at 215.

11. Id.

12. Moody v. Cronin, 484 F.Supp. 270 (D.C. Ill. 1979); Grove v. Mead School District No. 354,

753 F.2d 1528, 1533 (9th Cir.) (1985); Spense v. Bailey, 465 F.2d 797, (6th Cir. 1972).

13. 81 Colo. 276, 255 P. 610, 613-614 (1927).

14. Hardwick v. Board of School Trustees of Fruitridge School Dist., Sacramento Cty., 205 P.

49, 54 Cal.App. 696 (1921).

15. Id. at 54.

16. 385 F.Supp. 395 (D.N.H. 1974).

17. Id. at 397.

18. Id.

19. Id. at 401.

20. Id.

21. 68 F.3d 525 (1st Cir. 1995).

22. Id. at 533.

23. Id. at 533.

24. Id. at 534.

25. Other courts had preceded Brown in rejecting objections to sex education courses. Cornwell

v. State Bd. of Educ., 314 F. Supp. 340 (D. Md. 1969), aff'd, 428 F.2d 471 (4th Cir. 1970) (per

curiam); Hopkins v. Hamden Bd. of Educ., 289 A.2d 914 (Conn. 1971).

26. 899 F.Supp. 1443 (M.D.N.C. 1995), aff'd, 89 F.3d 174 (4th Cir. 1996).

27. Id. at 1455.

28. Id. at 1450.

29. Id. at 1453.

30. 873 F.Supp. 846 (S.D.N.Y. 1995), aff'd, 73 F.3d 454 (1996).

31. Id.

32. Id.

33. 550 N.E.2d 420, 74 NY2d 114 (N.Y. 1989).

34. Id. at 430.

35. Id. at 422.

36. Id.

37. Id.

38. Id. at 430.

39. 195 A.D.2d 46, 606 NYS2d 259 (1993), leave to appeal dismissed by 637 NE2d 279, 83

NY2d 906 (1994).

40. 195 A.D. at 56.

41. Id. at 55-56.

42. Id.

43. Id. at 59.

44. Id. at 59.

45. 420 Mass. 749, 652 N.E.2d 580 (1995).

46. 420 Mass. at 757.

47. Id.

48. Id. Criticizing the Alfonso decision, the Falmouth court reasoned that the outcome of Alfonso

was wrongly decided on the basis of a New York state law requiring parental consent for any form of

medical treatment. In actuality, the portion of the Alfonso lawsuit focusing on parental rights was

determined purely on an analysis of constitutional parental rights, and not any New York state law.

49. Id. at 758.

50. Id.

51. 148 F.3d 260 (3rd Cir. 1998).

52. Id.

53. Littlefield v. Forney Ind. School Dist., 268 F.3d 275 (5th Cir. 2001).

54. Id.