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New Jersey Court To Rule on Sex-Education Requirement

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The fate of mandatory sex education in New Jersey's public schools was placed in the hands of the New Jersey Supreme Court this month, as attorneys for the state board of education and a coalition of parents offered opposing arguments in a case that challenges the state's right to require sex education in the public schools.

The suit, Smith v. Ricci, was brought by a group of parents in response to a 1980 state board of education regulation that requires all districts to teach sex education, beginning no later than the sixth grade, by fall 1983.

The court's decision, which is expected within the next two months, may affect other states' plans to adopt mandatory sex-education programs, according to Mary Ann Burgess, the New Jersey assistant attorney general who represented the board of education.

Only New Jersey, Kentucky, Maryland, and the District of Columbia require sex education, according to the Alan Guttmacher Institute, a population-research organization. Most other states either "encourage" school districts to provide sex education, or have no formal policy.

Public Health Measure

Other sex-education cases, Ms. Burgess said, have held that sex education is a public-health measure that does not infringe on an individual's First Amendment rights.

The challenged regulation replaced a 1967 measure that made sex education voluntary. In 1979, a review committee of the state board of education found that 40 percent of the state's districts offered sex education. The board subsequently decided that, in view of the increasing rates of teenage pregnancy and venereal disease, a mandatory program was necessary.

The 1980 regulation requires that local districts develop guidelines for teaching sex education. It also requires that parents be notified of the curriculum and allowed to review the materials, and that students who object to the material taught in the "family-life program" be excused from class, according to state officials.

Soon after the state board passed the regulation, a group of parents opposed to mandatory sex education began to register their disapproval with the board. Later in 1980, organized as the Coalition of Concerned Parents, the group filed suit against P. Paul Ricci, then the president of the state board of education.

The case had not been heard by a court until this month, when oral arguments were presented to the state supreme court; the state attorney general sent the matter directly to the state's highest court, according to state officials.

The question the court must decide, according to papers filed with the supreme court, is whether "the regulations of the state board of education requiring family life education programs [pursuant to an item in the New Jersey state administrative code] violate the establishment of religion, free exercise, and due process of the United States Constitution."

Regulation Objected

The parents' group, led in the suit by Mary K. Smith of Belmar, N.J., objects to the regulation on several counts, according to Joseph F. Shanahan, the group's attorney.

The "religious atmosphere" surrounding the regulation is one reason for their disapproval, Mr. Shanahan said. The required material, he said, includes subjects that children of some religious persuasions--those that restrict sexual activity to marriage, for example--could find objectionable. Hence, he added, the discussion of the advantages and disadvantages of sexual activity at an early age would run counter to their religious beliefs.

"I felt that what they had put in was inhibiting to religion," Mr. Shanahan said. "It inhibited the practice of religion."

The state permits an "excusal period" for students who object to the material, he said, but "by the very fact that they have this, they admitted that there was more than was normally taught in the schools,'' he said.

'Excusal Period'

The same principle, according to Mr. Shanahan, led the U.S. Supreme Court to ban prayer in the public schools. "There was an excusal period" in the prayer case, he said, "but the Supreme Court said that that was not sufficient."

In addition to objections on religious grounds, the group also believes that the regulation violates the right to due process. Mr. Shanahan argued before the court on Feb. 8 that the state board had decided on a mandatory sex-education program before it held a series of four public hearings on the matter.

"My first objection was that the hearings were a sham," Mr. Shanahan said in a telephone interview. "The verdict was in before the witnesses were heard." He did not argue, however, that the state board attempted to conceal the decision from the public.

The question of "balancing of the state interest" also figures in the argument against the regulation, Mr. Shanahan said.

The board passed the regulation, according to the lawyer, to achieve an objective--lowering rates of teen-age pregnancy and venereal disease.

But the facts "as stated by the state board indicated that they had no statistics that showed any linkage between the one and the other," he said. "They practically admitted that it was purely conjecture."

Other arguments raised by the parents' group include the possibility that the regulation represents an "unconstitutional delegation of legislative power to the state board," Mr. Shanahan said.

Courses Necessary

The state, in response, has argued that courses in sex education are necessary as part of the state board of education's health-education mandate and do not interfere with a person's religion, the assistant attorney general, Ms. Burgess, said.

The board did not ignore the comments offered during the public hearings, she said. Rather, the regulation was changed substantially in response to that testimony.

"It does honor the concept of local control," she said. "It leaves a great deal to the local district. Parents have to be aware of the curriculum and review the materials. It requires more contact with parents."

A bill introduced--and defeated--in the 1981 New Jersey legislature would have changed the statewide sex-education program to an elective one, in which students would have "opted in" if they wanted to take sex education, rather than have "opted out" if they found the material objectionable. This compromise would have been acceptable to the plaintiffs, Mr. Shanahan said.

The state board of education passed the challenged regulation, state officials note, because voluntary sex education had not alleviated the problems of teenage pregnancy and venereal disease.

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