[Mb-civic] Double-Edged Sword on Parental Rights - Ruth Marcus - Washington Post Op-Ed

[William Swiggard]

Double-Edged Sword on Parental Rights

By Ruth Marcus
Sunday, November 27, 2005; B07

Conservatives want courts to be stingy in creating and expanding 
constitutional rights -- except when they don't. Liberals want courts to 
be creative and expansive in interpreting the Constitution -- except 
when they don't.

This phenomenon was on display in a recent ruling from an appeals court 
involving the reliably volatile mixture of parents, children, schools 
and sex. The California-based U.S. Court of Appeals for the 9th Circuit 
normally serves as Exhibit A in conservative complaints about activist 
judges conjuring up new constitutional rights. This time around, though, 
the conservative indictment boiled down to the court's refusal to be 
expansive enough in applying protections not mentioned in the 
Constitution. It was, you might say, a case of judicial passivism. A 
liberal judge gave a narrow, even cramped, reading to the Constitution.

The dispute arose from a survey given to 7- to 10-year-olds in Palmdale, 
Calif. The school asked parents to sign a consent form and warned that 
answering questions might make the child "feel uncomfortable." It didn't 
tell them that the survey included inquiries about sex, including the 
children's frequency of "thinking about having sex," "thinking about 
touching other people's private parts" and "touching my private parts 
too much."

Not surprisingly, when some parents found out their children had been 
asked such questions, they went ballistic. Equally unsurprising, they 
went to court, contending that the school's action deprived them of 
their fundamental constitutional right "to control the upbringing of 
their children by introducing them to matters of and relating to sex in 
accordance with their personal and religious values and beliefs."

This case could illustrate the maxim that stupid school districts make 
bad law -- except that the court managed to get it right despite the 
school's boneheadedness. A three-judge panel, upholding a lower court, 
ruled unanimously that the parents, however legitimate their beef with 
the school, didn't have a constitutional claim.

That the ruling was written by Stephen Reinhardt -- one of the most 
liberal judges on a liberal court and one of those who ruled against 
"under God" in the Pledge of Allegiance -- only served to further 
inflame conservatives. Indeed, the judge seemed to go out of his way to 
do so: He wrote broadly that parents have no constitutional right "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." And he emphasized 
his allegiance to cases protecting abortion and gay rights -- "They 
symbolize the importance of our evolving understanding of the nature of 
the Constitution" -- even as he dismissed the parents' claim in this case.

Conservatives rose to Reinhardt's bait. "Perhaps the most abhorrent 
example of judicial tyranny

in American history," thundered Focus on the Family. Conservative talk 
radio had a field day -- days, actually. Last week the House of 
Representatives got in on the act, passing a resolution that calls

on the full 9th Circuit to rehear the case. The

court, said the principal sponsor, Pennsylvania Republican Tim Murphy, 
"declared parenting unconstitutional."

As over the top as this is, the case presents harder questions than 
either side acknowledges. The Constitution doesn't mention parents, but 
the court has recognized constitutional protection for parental rights 
since the 1920s, when it struck down a state law that barred the 
teaching of foreign languages, even in private schools, and another that 
required children to attend public school.

But it would have been stretching those precedents -- and going against 
the approach of at least three other circuits -- to find a 
constitutional claim here. It's one thing to say that parents have a 
right to educate their children as they see fit, another to give them 
the right to micromanage public schools. As the 1st Circuit said in a 
similar case, "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."

Yet, if conservatives don't actually have a zero-tolerance policy toward 
judicial activism, neither can liberals claim particular constitutional 
consistency. Those who believe, as Reinhardt does (and as I do), that 
the Constitution should be interpreted expansively enough to embrace 
protection for abortion and gay rights have a hard time explaining why 
that approach doesn't encompass a broad view of parental rights.

Yes, parents unhappy with the way the schools are teaching their 
children have recourse to the democratic process -- just ask the Dover, 
Pa., ex-school board. But we're not willing -- I'm not, anyway -- to 
leave, say, abortion rights up to the whim of majorities. The Palmdale 
parents didn't need the courts to safeguard them; the school said the 
survey was a mistake and called it off. "I would be upset myself," the 
superintendent said.

But it's not difficult to imagine a scenario in which constitutional 
protections seem more fitting. What about a school that required young 
children to attend sex education classes, even over parental objections? 
What about a conservative school district that had mandatory 
abstinence-only sex education classes? Is a parent in that situation 
really without constitutional recourse?

Defining fundamental rights is a tricky business -- something it would 
behoove both sides in the legal culture wars to admit more often than 
they do.
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/25/AR2005112500958.html
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