On Wednesday, I wrote this post about the Ninth Circuit opinion dismissing a lawsuit by parents seeking to stop a California school district from asking elementary school children questions about sex and related issues. At the time, I equated it with yet another example of judicial activism from the 9th Circuit and expressed the hope that this decision would be overturned on appeal.
After reading this post from Eugene Volokh, however, I believe that I need to reconsider that position.
The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools’ authorization) from asking their children about sex. That’s not in the copy of the Constitution that I have; nor is it in the Court’s jurisprudence of parental rights, a rather “activist” creation of the Court’s (which incidentally used the same “substantive due process” framework that many conservatives fault the Court for using in the abortion cases). Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don’t include a constitutional right to send your kids to public school yet block the school from asking the kids about sex.
Perhaps it was a visceral reaction to the effect of the decision that motivated my original reaction, but I think Volokh is right here. If you object to the curriculum that your children are being taught in public school, then you have two options. Either work within the democratic process to change that curriculum through the elected school board, or take your child out of the public schools entirely. This all goes back to a point I’ve made several times recently —- that the Courts are increasingly being used by interest groups to accomplish things that are the proper purview of the democratic process.
The final paragraph of the post says exactly what I think is the correct lesson to draw from this decision:
I am not defending here what the school did; perhaps its actions were proper and perhaps they were wrong (I express no opinion on that here). But if the plaintiffs don’t like what their school district is doing, they should go to the polls and elect a school board that’s more to their liking; elect state legislatures that would enact laws banning such actions by the school board; propose such a law by initiative; or otherwise act through the political process. They aren’t entitled to have judges impose their will (the parents’ and the judges’) on the school district. And they certainly shouldn’t be unfairly criticizing the judges’ actions, and mischaracterizing allegedly excessive passivity as “activism.”
That said, I must now admit that my initial evaluation of the Court’s ruling was incorrect.
Welcome Volokh Conspiracy readers ! And thanks for the link, Eugene.
