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N.J.'s Sex-Education Requirement Sustained by High Court

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In a unamimous decision, the New Jersey Supreme Court last week upheld a state regulation requiring that public schools provide sex education, stating that the regulation does not violate the U.S. Constitution by impinging on the free exercise of religion or by denying due process.

In addition, the justices ruled, the state board of education did not permit a "procedural irregularity" in the process of passing the rule.

But the plaintiffs in the suit, a group of parents led by Mary K. Smith of Belmar, N.J., plan to appeal the decision to the U.S. Supreme Court, according to Joseph F. Shanahan, attorney for the group. "We're not going to let it die, not without a final decision," Mr. Shanahan said. They plan to file the appeal, probably within a month, on the same grounds on which they originally brought suit: violation of the due-process and establishment clauses, according to Mr. Shanahan.

The parents who brought the suit, which is called Smith v. Ricci, objected to a 1980 state board of education regulation that mandates sex education, beginning no later than the sixth grade (see Education Week, Feb. 24, 1982).

The ruling is the first court decision to be handed down on the case, which, because of its controversial nature, was sent directly to the state supreme court by the state attorney general.

The plaintiffs objected to the regulation on several counts, both religious and procedural, according to Mr. Shanahan. They charged that the regulation established a "secular-humanist" religion, thus violating the Establishment Clause of the First Amendment, and that it interfered with the free exercise of other religions--those that restrict sexual activity to marriage, for example.

They also contended in their suit that, in passing the regulation, the state board violated their right to due process. The board had decided to pass the regulation before holding public hearings, making the hearings a "sham," according to Mr. Shanahan.

Justices Disagreed

The justices, however, did not concur with any of these allegations, according to a spokesman for the New Jersey Supreme Court.

In the 20-page decision written by Associate Justice Robert Clifford, the court ruled that the regulation did not violate the right to free exercise of religion, since it includes a clause that allows students who find the material objectionable to be excused from the class. That clause, the justices ruled, eliminates any possible infringement on the religious beliefs of students or their parents.

Nor did the regulation establish secular humanism as a "state religion," according to the opinion. "There is absolutely nothing in the regulation or in the curriculum guidelines that gives even the slightest indication that the program favors a 'secular' view of its subject matter over a 'religious' one," the opinion states.

The decision also exonerated the board of education of any "procedural irregularity" and stated that the board's action did not violate due process.

The decision cited two recent cases in California and Hawaii, where mandatory sex education had been upheld, provided that students who objected to the material be excused. The New Jersey regulation does provide such an "excusal period," according to the state education department.

In similar cases, the courts have ruled that sex education is a public-health measure that does not infringe on students' constitutional rights.

New Jersey is one of three states that require sex education; Kentucky and Maryland have similar requirements, as does the District of Columbia.

In New Jersey, the 1980 regulation replaced a 1967 board action that "encouraged" districts to teach sex education. By 1980, 40 percent of the districts did so. The board passed the more stringent requirement in response to the rapidly escalating rate of teen-age pregnancy in the state.

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