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Parent-Rights Cases Against Schools Fail To Make Inroads

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Among those who disagree with public school policies on such troublesome issues as sex education, condom distribution, and school prayer, the buzzword these days is "parental rights."

But religious conservatives and other parents who assert that school districts are violating their right to direct their children's upbringing are not getting very far in the courts. Several recent decisions have upheld the authority of school districts against such accusations.

And during its current term, the U.S. Supreme Court has declined appeals from parents in three cases in which parental-rights claims were a central element. Though such denials of review are not rulings on the merits of each case, observers say the high court does not appear eager to delve into the issue. (See box, this page.)

"The Supreme Court has shown a big disinterest in taking any more school cases," said Anne-Marie Amiel, a lawyer with the Rutherford Institute. The Charlottesville, Va.-based organization has backed a number of challenges by parents to school district policies recently.

In lower courts, too, parental-rights claims have been taking a beating.

"They are saying that once the kids are past the school gates, the parents have no rights," Ms. Amiel said. She cited the case of an explicit 1992 AIDS presentation in the Chelmsford, Mass., schools, which the Rutherford Institute helped challenge.

Parents of two 15-year-old boys were upset that school officials did not give them the option to remove their children from a mandatory assembly in which an outside presenter used lewd, streetwise language. The parents filed a federal lawsuit alleging that the school's failure to obtain their consent violated their rights.

They lost in federal district court and in the U.S. Court of Appeals for the 1st Circuit.

The appeals court directly addressed the question of whether parents' right to direct their children's upbringing means they have a right to dictate the curriculum or learning their children will be exposed to in public schools. The answer, the court ruled, is no.

The rights of parents as defined in several decades-old Supreme Court rulings "do not encompass a broad-based right to restrict the flow of information in the public schools," the appeals court said.

The Supreme Court declined last month to review the 1st Circuit's ruling in that case, Brown v. Hot, Sexy and Safer Productions Inc.

'Rallying Cry'

In January, the high court declined a similar appeal from parents who objected to the Falmouth, Mass., district's policy of distributing condoms to junior and senior high school students who request them. (See Education Week, Jan. 17, 1996.)

The Supreme Judicial Court of Massachusetts, the state's highest court, rejected the parental-rights argument. The court also rejected an argument that the program infringed parents' First Amendment right to free exercise of religion.

"Mere exposure to programs offered at school does not amount to unconstitutional interference with parental liberties without the existence of some compulsory aspect to the program," the state supreme court said in Curtis v. School Committee of Falmouth.

Jay A. Sekulow, a senior lawyer with the American Center for Law and Justice, said the two cases are helping build support for a bill in Congress designed to bolster parents' rights in education.

The proposed Parental Rights and Responsibilities Act would require the treatment of parents' rights as a fundamental constitutional right, resulting in a tougher judicial standard for challenged practices that infringe that right, its backers say. (See Education Week, Dec. 13, 1995.)

Mr. Sekulow's Virginia Beach, Va., organization, founded by religious broadcaster Pat Robertson, often deals with education issues.

Although the Supreme Court customarily does not announce its reasons for refusing to consider a given appeal, Mr. Sekulow said he believes the justices have declined to accept a parental-rights case recently because the issue is being debated in Congress and in state legislatures.

He noted a related push by some groups to have states adopt laws or constitutional amendments backing parental rights.

What is the constitutional basis for the concept of parental rights in education? Advocates rely primarily on two Supreme Court rulings from the 1920s, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).

1920s Cases

In Meyer, the court struck down a Nebraska law that barred instruction in foreign languages because it interfered with the right of parents to obtain such instruction for their children. In Pierce, an Oregon law that required public school attendance, thus precluding attendance at parochial schools, was struck down.

The high court has since interpreted those decisions to mean that the "custody, care, and nurture" of children rest with their parents.

Ms. Amiel contended that lower courts are giving short shrift to that idea. She cited another recent case that was denied appeal by the Supreme Court.

In Newkirk v. Fink, the parents of a 3rd grader claimed school officials subjected their son to psychological counseling without their permission. The East Lansing, Mich., district denied the allegations. The suit was dismissed by a federal district judge. A federal appeals court upheld the judge without issuing an opinion, and the high court declined review in October.

But school officials respond that some parents are quick to sue over one-time events in which normal procedures broke down.

August W. Steinhilber, the general counsel of the National School Boards Association in Alexandria, Va., said parental challenges to curriculum and other school practices are nothing new.

"We're seeing an increased number of cases because certain groups are trying to encourage them," he said. The NSBA opposes the parental-rights bill in Congress.

"I find it ironic that some of the same individuals in Congress who want to make sure there is local control in education are backing proposals to tie the hands of educators at the local level," he said.

Public Schools and Parents' Rights

The U.S. Supreme Court this term has turned down three appeals from parents who argued that the public schools interfered with their constitutional right to direct the upbringing of their children.

Newkirk v. Fink

A classroom teacher in the East Lansing, Mich., school district recommended in 1989 that Jason Newkirk see the school counselor because he was having trouble interacting with other children. The 3rd-grade boy's father refused permission for any counseling, but the school allegedly sent Jason to a counselor anyway. The parents alleged that Jason suffered panic attacks and separation-anxiety disorder as a result of psychological tests used in the counseling.

The Newkirks sued the district and the counselor in federal district court, contending that the failure to get their consent for the counseling violated their parental rights. They also alleged that the district violated the Protection of Pupil Rights Amendment, a federal law that limits psychological testing of students.

A federal district judge rejected both claims and was upheld without comment by the U.S. Court of Appeals for the 6th Circuit. The Supreme Court last Oct. 30 declined to review the case.

Curtis v. School Committee of Falmouth

The Falmouth, Mass., school board adopted in 1991 a policy of making condoms available to students in its junior and senior high schools. They are distributed by the school nurse, who also provides pamphlets about aids prevention to students requesting condoms. The district also installed condom vending machines in the restrooms of Falmouth High School.

A group of parents challenged the condom policy in state court, alleging that it violated their federal constitutional rights to direct their children's upbringing and to free exercise of religion.

A state trial court and the Supreme Judicial Court of Massachusetts ruled for the school district. Because no student was compelled to accept a condom, the state's highest court said, there was no coercive or compulsory effect on the parents' right to raise their children. They remained free to instruct their children not to request condoms.

"Parents have no right to tailor public school programs to meet their individual religious or moral preferences," the state high court said. The U.S. Supreme Court rejected the parents' appeal on Jan. 8.

Brown v. Hot, Sexy and Safer Productions Inc.

Chelmsford (Mass.) High School conducted a mandatory AIDS-awareness assembly in 1992 that featured a streetwise, comedic approach by Suzanne Landolphi, an outside AIDS educator who worked out of her own firm, Hot, Sexy and Safer Productions.

Parents of two children who attended the assembly sued the Chelmsford district and Ms. Landolphi in federal district court, alleging that the parents were not given the opportunity to pull their children from the assembly as school board policy requires. The suit contended that the assembly burdened their parental rights and right to free exercise of religion. They lost in the district court and the U.S. Court of Appeals for the 1st Circuit.

"If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, 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," the appeals court said.

The Supreme Court rejected the parents' appeal on March 4.

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