Law Update

Court Dismisses Suit Over a Sex Survey of Elementary Pupils

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A school district is not constitutionally barred from administering a survey to elementary pupils that includes questions about sex, a federal appeals court has ruled.

A group of parents of students at Mesquite Elementary School in Palmdale, Calif., had sued the Palmdale district, claiming that a survey administered in January 2002 violated the parents’ rights under the U.S. Constitution to privacy and “to control the upbringing of their children by introducing them to matters of and relating to sex.”

Parents of children at the 1,050-student school were sent a letter from a researcher in a Palmdale school district envelope in December 2001 describing the survey and its purpose, which was to collect data on psychological barriers to learning, according to court papers. The letter said the confidential survey would gauge “exposure to early trauma (for example, violence)” and warned that “answering questions may make [the] child feel uncomfortable.”

The letter did not mention that sex would be a topic, but in one section children were asked to rate the frequency with which they experienced “thinking about having sex,” “thinking about touching other people’s private parts,” and “getting upset when people talk about sex,” and several other items about sex.

Also, the students, who were ages 7 to 10, were asked whether they had ever, among other experiences, “been touched by someone, on your body, that made you feel uncomfortable?”

Some parents complained as soon as the survey was given, and Palmdale district officials immediately apologized, saying the questions were inappropriate for the ages of the children involved, said Dennis J. Walsh, an Encino, Calif., lawyer who represents the PK-8 district.

He said the officials had not known beforehand the specific items on the survey, which was administered by an outside counselor who was conducting it as part of a nationwide study. District officials “discontinued the survey and have not allowed a survey like this to occur again,” he said.

But the district had met California’s strict legal requirements for school surveys of students, including allowing parents to opt out, Mr. Walsh said.

The parents sued in U.S. District Court in Santa Ana, Calif. The district court ruled for the school district.

On Nov. 2, a three-judge panel of the U.S. Court of Appeals for the 9thCircuit, in San Francisco, ruled unanimously for the district, also dismissing the parents’ constitutional claims in Fields v. Palmdale School District.

U.S. Circuit Judge Stephen Reinhardt said in the opinion that “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children.”

The opinion also said that parents have no right to “override the determinations of public school as to the information to which their children will be exposed” and that the school district’s actions were “rationally related to a legitimate state purpose,” to address barriers to learning.

Yet Judge Reinhardt noted that it was not the appeals court’s “role to rule on the wisdom of the school district’s actions.”

The lawyer for the parents could not be reached for comment last week.

Vol. 25, Issue 12, Page 15

Published in Print: November 16, 2005, as Court Dismisses Suit Over a Sex Survey of Elementary Pupils

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