Appeals Court Upholds School's AIDS-Prevention Talk

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A Massachusetts high school's decision to hire a company to give its students a streetwise, extremely explicit talk on AIDS prevention without notifying parents may not have been a wise one. But it didn't violate the rights of parents to direct their children's upbringing, a federal appeals court has ruled.

In 1992, Chelmsford High School officials hired a company called Hot, Sexy and Safer Productions Inc. to deliver a 90-minute program to two mandatory assemblies. According to court documents, students were told the presentation would "talk about AIDS, but not in the usual way."

The presenter took a comedic approach that included sexually explicit skits and references to masturbation, condoms, and homosexuality. The program also included dialogue with students, such as asking one boy to display his "orgasm face."

A school physician had screened a promotional video by the company and had recommended the program to administrators. But school officials later said the presentation went too far.

The parents of two 15-year-old boys sued the company, the school board, and school officials, claiming the presentation violated, among other things, their privacy rights and their right to "direct and control the upbringing of their children."

The suit also charged that school officials failed to obtain parental permission for a lesson on human sexuality, as a school board policy required.

A federal district judge dismissed the suit. In an Oct. 23 ruling in Brown v. Hot, Sexy and Safer Productions, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit unanimously affirmed the dismissal.

The opinion by Chief Circuit Judge Juan R. Torruella states that although U.S. Supreme Court rulings have given parents a right to control their children's upbringing, that right does not "encompass a broad-based right to restrict the flow of information in the public schools."

"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 judge wrote.

The school's failure to obtain parental permission may have displayed "a certain callousness," the court said, but it was not a legal or constitutional violation.

The court also rejected arguments that the presentation was a form of sexual harassment in school or a violation of the parents' rights to free exercise of religion.

The families' lawyers, including the Charlottesville, Va.-based Rutherford Institute, have said they will appeal the ruling to the Supreme Court.

Since Colonial times, most public employees in New Jersey have had to swear their loyalty to the government. A 1799 statute, for example, provided that any "schoolmaster" who neglected that duty would be docked $4 a week in pay until "he shall take and subscribe the said oath."

To this day, all public school teachers in the state must pledge that they will support the U.S. and state constitutions and "bear true faith and allegiance to the same."

In the face of a challenge from a would-be substitute teacher in the Neptune Township district, a small district in central New Jersey, a state appeals court recently upheld the loyalty oath. Stephen John Gough claimed the oath was an unconstitutional chill on a teacher's right to free speech.

According to court documents, Mr. Gough was in line for a job as a substitute teacher in Neptune, but was never hired because he had added several qualifying statements to his oath before signing it. A school official said that because Mr. Gough refused to take the oath as prescribed by state law, he could not be hired.

Mr. Gough lost his case before an administrative-law judge and, in a Nov. 17 ruling, before the appellate division of New Jersey Superior Court. The three-judge court unanimously ruled in Gough v. State of New Jersey that the state's oath does not infringe on a teacher's First Amendment rights.

The court noted a 1972 U.S. Supreme Court ruling that said the government may not condition employment on an oath that impinges on an applicant's free-speech rights or bars a person from associating with people who share his political beliefs. The New Jersey oath, however, would not have those effects, the court said.

Mr. Gough had argued that the New Jersey oath is vague because it does not indicate what sort of conduct is prohibited or required.

But the court said the oath is "plain, straightforward, and unequivocal. ... The affiant simply recognizes that ours is a government of laws and not of men."

School districts seldom find themselves caught up in trademark litigation, but a Louisiana district recently lost a court battle with a nearby private institution over school names.

A state appeals court ruled Nov. 9 that the St. Tammany Parish school board could not use the name Chinchuba Middle School for a new school building in Mandeville. The name would infringe on the rights of the private Chinchuba School, a nationally known institution for deaf and hearing-impaired students in nearby Marrero, the court said.

The appeals court reversed a trial court ruling that said the school board did not intend a commercial use of the name and thus had not violated the private school's trademark. Although the term Chinchuba was a geographic designation, the appeals court said it had acquired a secondary meaning through the reputation of the 105-year-old school for the deaf.

--Mark Walsh

Vol. 15, Issue 15

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