Friday, November 04, 2005

Palmdale: An Important Ruling on Parents' Rights

There was a very important court ruling a couple of days ago that will affect the entire discussion we are having here in Montgomery County over the implementation of a sex education curriculum. I'm no lawyer, but former citizens advisory committee chair David Fishback is. He has sent Vigilance blog a discussion of the legal implications of this ruling.
Parents do not have "a right to compel public schools to follow their own idiosyncratic views as to what information the schools may dispense. Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that itis appropriate to do so."

Fields v. Palmdale School District, decided by a unanimous panel of the United States Court of Appeals for the Ninth Circuit on November 2, 2005, affirming the decision of Bush II appointee, United States District Judge James V. Selna.

There may be a lot of press on this decision. You can read it at The portion quoted above is at page 15074.

Much will probably be made of the facts of the Palmdale case. Briefly, the school district decided to do a survey of elementary school children regarding trauma. No student was required to participate, and the letter seeking parental consent explained that the "goal of this assessment is to establish a community baseline measure of children's exposure to early trauma (for example violence),"and warned that "answering some of the questions may make [a child] uncomfortable."

The actual survey approved by the school district included questions about sex. When several parents who had given permission found out about those questions after the survey had been taken, they sued the school district.

Now, this case, on its facts, is not germane to anything in Montgomery County. Here, parents must give explicit permission to have their children take health education units addressing matters of sex, in particular the units on Family Life and Human Sexuality. Not only that, but the curriculum in those units is available to parents, and meetings are held to enable parents to ask questions of the health teachers before parents make their opt-in decisions.

The Palmdale plaintiffs brought their suit on an interesting theory: That the school district had violated a constitutional right of the parents "to control the upbringing of their children by introducing to them matters of and relating to sex." Of course, the clear opt-in provisions followed by MCPS are such that the plaintiffs' theory, if upheld, would never be applicable here.

What is significant for Montgomery County is how the courts decided the matter. The case first went to United States District Judge James V. Selna, who was appointed to the bench by President George W. Bush, following his service as a state court judge appointed by Republican former California Governor Pete Wilson. Judge Selna dismissed plaintiffs' claim, finding that they did not assert a violation of a cognizable constitutional right. A unanimous three judge panel of the United States Court of Appeal for the Ninth Circuit affirmed.

The Ninth Circuit explained that "it is not our role to rule on the wisdom of the School District's actions." I agree that, as a matter of good judgment, the school district should have been more specific about what would be in the survey, but that did not raise constitutional issues. In any event, the Ninth Circuit noted that "there are a number of cases that have upheld the constitutionality of school programs that educate children in sexuality and health," providing examples from the First, Second, and Third Circuit Courts of Appeals.

In Montgomery County, of course, the legal question was not whether MCPS could force children, without their parents' consent, to attend classes focusing on matters relating to sexuality, for that is already prohibited. Rather, the question was whether parents who would choose to withhold permission from their children (or may have already chosen to remove their children from MCPS altogether) could force, by means of litigation, everyone else's children to be deprived of such classes. Thus, contrary to the statements of CRC and PFOX, CRC and PFOX have no legal basis, in the words of the Palmdale decision, to "compel [MCPS] to follow their own idiosyncratic views as to what information the schools may dispense. . . . [T]hey have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so."

(I further would note that Palmdale was fully and deliberately litigated before a United States District Court and then was subject to full briefing and argument before a United States Court of Appeals. Thus, the parties had ample opportunity to make their cases, and show flaws in their opponents' arguments. Following this full airing of the issues, experienced jurists, both Republican and Democrat, agreed that plaintiffs' argument had no legal merit. Last May, in contrast, CRC and PFOX manipulated the system such that MCPS had no viable opportunity to respond to their arguments before the court ruled.)


Anonymous Anonymous said...

You're arguing with a straw man here, Jim. No one in Monkey Co is talking about the constitution controlling curriculum. (unless the schools discriminate in favor of their own religious beliefs.) We'll control the board the way we control the rest of government. About this time next year, the rascals will be tossed out.

The requirement that community reps review the sex-ed curriculum is a state law- and this board is in violation. There may also be some judiciary involvement necessary to ensure compliance.

November 04, 2005 11:09 AM  
Blogger Kay2898 said...

Anonymous said...

The requirement that community reps review the sex-ed curriculum is a state law- and this board is in violation.


Okay us where it says this in a modified school curriculum. Would community reps also already be on CAC in looking at modifications?

Are we talking core or non core curriculum?

November 04, 2005 11:32 AM  
Blogger andrea said...

You don't really expect Anon to actually research and cite anything? so much easier to claim there is a law and not back it up. Kind of like the "law" that all books must be approved before they are read in school.

November 04, 2005 12:14 PM  
Blogger Kay2898 said...

andrear said...
You don't really expect Anon to actually research and cite anything?

I am going to give this anon the benefit of the doubt. After what we found out about Jamison letter and that citing of a non existent law...anyone that says it should ante up.

November 04, 2005 1:21 PM  
Blogger andrea said...

I agree with you, Kay! I am finding that anytime we ask for a substantive answer, the anons stop answering on that topic.

November 04, 2005 3:14 PM  
Blogger Kay2898 said...

Tapes, Tapes...anyone seen the tapes?????? Does it take over a year later to transcribe those tapes???????????

I would like to know where the transcribed tapes are from the past CAC meetings that Regina Griggs refers to below:

Regina Griggs (PFOX) posted to Old Recall/CRC Message Board:

We have audio tapes of the last 12 meetings and are looking for someone to help transcribe them, do you no of anyone? We want to use the tapes to provide insight and the facts to the public and the families in Montgomery County.We will bring them to your December 4th meeting. The BOE knows about the audio tapes it didnt matter, the committe believed they had the BOE in their pocket and now so do I!

[Date=11-15-2004] Name:Regina Griggs


Retta Brown posted to Old Recall/CRC Message Board

Another thought, maybe we should get rid of this Citizens Committee. After all the BOE is supposed to appoint people for this committee that represents the community.

[Date=11-19-2004] Name:Retta ,

November 04, 2005 10:00 PM  
Anonymous Anonymous said...

Hey kids, I was down in the buckle of the Bible belt last week- on business down in Virginia Beach. Anyway, on the way home I was listening to a talk radio show and the host was discussing this ruling. Apparently this circuit is infamous for wild, wacko, TTF-friendly decisions. The Republicans calvalry is on the way though. They've tucked an amendment in an obscure budget bill to break this circuit up.

I guess it'll be an empty gesture anyway. Soon there will be a upright Supreme Court to appeal things to.

Took the weekend off so I didn't see this Andrea-Kay cackling until this morning. Have you gals lost your mind?

November 07, 2005 9:36 AM  
Blogger JimK said...


We're just reporting a court ruling that will affect the course of our controversy here in MC. Most TTF members would like to be notified and offered the chance to accept or decline something like this for our kids, just like we support the "opt-in" method for sex-ed. It is newsworthy though that the courts have found that this is not a constitutional right, that the schools are not bound to get parent's permission before they teach something.


November 07, 2005 10:42 AM  
Anonymous Anonymous said...


As I noted in my post, I believe that the Palmdale School District did not handle its survey properly. The Ninth Circuit panel did not pass any judgment on the wisdom of what the school district did because, as the panel noted, affirming the lower court ruling by a Bush II appointee, there was no CONSTITUTIONAL violation.

Everything I have seen from TTF people demonstrates that they understand the propriety of parental notification for the Family Life and Human Sexuality units. And everything MCPS has done over the years demonstrates that it has always been scrupulous in providing such notification. Let's remember, no student under 18 may take those units without parental or guardian permission, the curricula are always available to the parents, and each school conducts meetings to enable parents to learn about the curriculum and to ask questions before they give permission.

The part of the Palmdale decision relevant to the discussions in Montgomery County -- which follows decisions from other parts of the country -- is that the United States Constitution does not give small groups of parents the right to impose their views on entire school systems.

November 07, 2005 11:07 AM  
Anonymous Anonymous said...

"is that the United States Constitution does not give small groups of parents the right to impose their views on entire school systems."

I don't think anyone- including CRC- has ever taken this position. So the ruling is irrelevant.

Also, David, I'm not a lawyer but doesn't this ruling only apply to that circuit (which I believe is Northern California.)?

When opinions are taught as facts, though, some courts might find the schools are injuring students and reject that curriculum. A large majority of parents will support the court in doing so.

November 07, 2005 11:33 AM  
Anonymous Anonymous said...

Kay said: I am going to give this anon the benefit of the doubt. After what we found out about Jamison letter and that citing of a non existent law...anyone that says it should ante up

Well anonymous..cite us the law.

"anon free"

November 07, 2005 1:56 PM  
Anonymous Anonymous said...

"A citizen advisory committee broadly representing the views of the community shall consult with these educators in developing, implementing, and evaluating the program."

I don't know what game you're playing but here's the state law saying the committee should "broadly" represent the views of the community. I copied it from another part of this site.

On the comments of another post, I think Jim is saying that he represents TTF. I think they could have chosen better but, in any case, the anti-religious bias displayed frequently on this site, does not "broadly" represent the community and there are larger sections of the county than the "Whole Earth Catalog" crowd that are not represented.

To properly examine all this, the applications of those chosen need to made available for public scrutiny. Jim, if he has nothing to hide, should post his.

Again, what gay "facts" do kids need to be taught?

November 07, 2005 3:16 PM  
Blogger andrea said...

I am deeply religious- an actual religion-although which is not anon's business. I know the people here and we are not anti-religious- some of us spend a lot of time working with and for our denominations-and attend religious services(regularly) but we are against people pushing their particular religious beliefs on others.

November 07, 2005 3:41 PM  
Anonymous Anonymous said...

"pushing their particular religious beliefs on others."

Define "pushing".

You don't seem to mind "pushing" the idea that homosexuality is normal on anyone else's kids.

November 07, 2005 4:02 PM  
Blogger Kay2898 said...

Anonymous said... You don't seem to mind "pushing" the idea that homosexuality is normal on anyone else's kids.

Anonymous if you truly believe that the remedy is called.."OPT OUT.


November 07, 2005 4:48 PM  
Anonymous Anonymous said...

Anon said:

Also, David, I'm not a lawyer but doesn't this ruling only apply to that circuit (which I believe is Northern California.)?

My answer: The 9th Circuit covers all of California, as well as Alaska, Hawaii, Washington State, Oregon, Nevada, and Arizona. The decision cited a number of cases for the same proposition, including cases from the First, Second, and Third Circuits (all of those decisions were unanimous and two of the three cited cases were written by judges appointed by Ronald Reagan). Those circuits cover all of New England, New York, New Jersey, Pennsylvania, and Delaware. I suspect, but have not done the legal research, that no other courts of appeals have any authority that conflicts with the Palmdale decision. Remember, the lower court decision, which the Ninth Circuit affirmed, was written by a George W. Bush appointee.

Again, we must remember that the court exercised proper judicial restraint in not addressing matters not before it. The only thing before the court was whether the United States Constitution was violated. Just because a governmental agency acts improvidently (as I believe the Palmdale School District acted in all the circumstances there) does not mean that there has been a constitutional violation. I suppose an activist judge might have tried to twist the Constitution to find a violation in those circumstances, but, as I am sure you would agree, we do not want judges to be activists. I am sure Justice Roberts and Judge Alito would agree.

November 08, 2005 5:54 PM  
Anonymous Anonymous said...

Thanks for answering, David. I'm surprised this is a national news story when all those other districts have already made the same ruling. Our circuit, I presume , hasn't ruled yet so it's not law here.

In any case, as I said originally, unless there is an improper government action, such as favoring a certain denomination, parents should control school boards through elections.

Not a problem for you guys, though. All the parents here are so excited to have their kids taught about sexual variations, right?

November 09, 2005 1:20 AM  
Anonymous Anonymous said...

Anon said, "parents should control school boards through elections"

Yes, they should. And they did.

In Dover, Pennsylvania yesterday, eight of nine right-wing, pro-ID incumbent school board members were ousted in the elections.

Will you ever get it? If you want your children indoctrinated into your religion at school, find a madrassa and send them there.

Aunt Bea

November 09, 2005 7:06 AM  
Anonymous Anonymous said...

"Will you ever get it?"

Will you, Jim? Atheism, Secular Humanism and Darwinism are all religious viewpoints.

Our founding fathers never anticipated that government would take over every aspect of our lives(like education) and then secularize them by twisting the words of the Constitution.

Scientific observations that tend to support a religious view are just as valid as those that support another.

November 09, 2005 11:50 AM  
Anonymous Anonymous said...


I'm not miserable but it's true that evolution seems to contradict the Genesis account. There could possibly be some reconciliation but it seems it would be a stretch to me. Some people might say the Genesis story is a parable, which doesn't terribly bother me except that I don't think it jives with some other portions of scripture. I'm not worried because I don't see proof that evolution is true.

I'm Presbyterian and, no, I don't think other religions contain the complete truth. That's why I chose it. I do think there are some truths in most other religions but don't get too excited. The essential truths are within Reformed Protestant churches.

November 09, 2005 2:57 PM  
Anonymous Anonymous said...

Anonymous asked:
"Again, what gay 'facts' do kids need to be taught?"

In response to this question, Anonymous, I simply offer what was in the 8th and 10th grade curriculum revisions that were to be piloted last Spring:

Definitions of sexual orientation from the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychological Association.

That "all major professional mental health organizations affirm that homosexuality is not a mental disorder."

That “most experts in the field have concluded that sexual orientation is not a choice.”

That having fleeting same-sex attraction does not establish sexual orientation.

That "having homosexual parents/guardians does not predispose you to being homosexual."

That "different religions take different stands on sexual behaviors and there are even different views among people of the same religion."

That there are families in our community headed by same-sex couples.

These are facts. Ignoring these facts in the Family Life and Human Sexuality Unit of the Health Education Curriculum has been a serious omission, because the silence on these matters has isolated and marginalized people who are gay. The existing curriculum, as written, simply assumes that everyone is heterosexual.

Anonymous, if you believe that everyone can and should be heterosexual and/or that those who are homosexual should accept their "curse" and lead isolated, celebate lives, then I assume you would change the health curriculum to condemn homosexuality; advocate "reparative therapy" (nothwithstanding the American Medical Association's condemnation of RA); and tell our children that homosexuals, unlike heterosexuals, should be life-long celebates.
Have I accurately set forth your viewpoint?

You are free to believe that that is what MCPS should do to children who happen to be gay. My belief is that your approach (assuming I have set it forth accurately) would severely damage the health and mental well-being of so many of our children; silence is bad enough. But teaching children, in health classes, ideological/ theological condemnations in this area, which are in direct conflict with the conclusions of every mainstream American medical and mental health professional association, would be unconscionable.

November 10, 2005 10:23 AM  
Anonymous Anonymous said...

Thanks for the list, David. Makes it easier to copy. I will respond to this and, hopefully, all the insults, epithets and mischaracterizations on the other active posts here but I have some pressing stuff at the office today.

November 10, 2005 10:36 AM  

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