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Mass. Court Upholds Condom-Distribution Program

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A Massachusetts school district's condom-distribution program does not violate parents' religious rights or their right to control their children's upbringing, the state's highest court has ruled.

The Supreme Judicial Court of Massachusetts unanimously upheld the Falmouth district's plan in which 7th through 12th graders can obtain condoms at school. The ruling last month was the first by a state high court to allow a school condom-distribution plan to proceed without requiring parental consent, legal experts said.

A lawyer for the parents who challenged the program said last week that they plan to appeal to the U.S. Supreme Court.

The Falmouth plan was instituted in 1992 in an effort to slow the spread of AIDS and the rate of teenage pregnancy. Students at Lawrence Junior High School can request condoms from the school nurse, who also counsels them about AIDS and other sexually transmitted diseases. Students at Falmouth High School can obtain condoms from the nurse or for 75 cents from vending machines in student restrooms.

The program was challenged by a group of parents who argued they should have the right to "opt out" and keep their children from receiving condoms or be notified if their children request them.

The American Center for Law and Justice, a Virginia Beach, Va., organization affiliated with the religious broadcaster Pat Robertson, is representing the parents. The plaintiffs argued that the program intrudes on their rights to parental liberty and family privacy by giving their children unrestricted access to contraceptives.

Not Coercive

In its July 17 ruling, the state high court held that the program is not coercive because no student is required to request or accept condoms. "Parents are free to instruct their children not to participate" in the program, Chief Justice Paul J. Liacos wrote.

"Although exposure to condom vending machines and to the program itself may offend the moral and religious sensibilities of the plaintiffs, mere exposure to programs offered at school does not amount to unconstitutional interference with parental liberties without the existence of some compulsory aspect of the program," he wrote in Curtis v. School Committee of Falmouth.

The court noted a conflicting 1993 ruling by a New York State appellate court, which struck down a condom-distribution program in the New York City schools because it did not include a parental opt-out provision.

The Massachusetts court noted that the New York ruling was based in part on a state law that required parental consent for medical treatment. The New York court erroneously concluded that condom distribution is a medical service, Chief Justice Liacos said.

Larry L. Crain, the lawyer who represented the Falmouth plaintiffs, called the Massachusetts district's program "the most aggressive condom policy in the country" and said his clients would appeal.

"This ruling says schools are free to do whatever they like so long as students aren't required to participate," he said last week. "Parents are totally left outside."

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