A Liberal Education

Intending to “establish a community baseline measure of children’s exposure to early trauma (for example, violence),” the Palmdale public schools developed a "psychological assessment questionnaire" for local kids. Palmdale being in California, the questionnaire "asked children if they ever thought about having sex or touching other people's 'private parts' and whether they could 'stop thinking about having sex'" and was distributed to "students in the first, third and fifth grades." Some parents sued to block the survey.

In Fields v. Palmdale School District, No. 03-56499 (9th Cir. Nov. 2, 2005), Judge Reinhardt (yes, that Reinhardt!) affirmed dismissal of all claims, holding (Slip Op. at 15063-64):

there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, we hold that the defendants’ actions were rationally related to a legitimate state purpose.

Don't get me wrong--courts can't tinker with public school curricula:

There's no limit to the mischief the judiciary could do if allowed. If parents disagree with the decision, they can fire the administrator responsible. Of the two principles at stake, protecting the principal is the more important.

Rather, my objection is to this portion of Reinhardt's opinion (Slip Op. at 15070):

The question before us is simply whether the parents have a constitutional right to exclusive control over the introduction and flow of sexual information to their children. It is clear, and the parents agree, that no court has ever held that parents have a specific fundamental right “to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs.” In fact, no such specific right can be found in the deep roots of the nation’s history and tradition or implied in the concept of ordered liberty. See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Thus, whether the parents have a constitutional right to exclusive control over the introduction and flow of sexual information to their children depends entirely upon whether the asserted right is encompassed within some broader Constitutional right.

The Glucksberg case upheld (properly) a state law prohibition on assisted suicide. But Reinhardt's citation perfectly illustrates the problem with inventing new and non-textual Constitutional rights--they mean whatever one says they mean. And since the rights aren't written, they vary over time and between Judges. The scope of the "double secret probation" privacy right -- I could tell you what it protects, but then I'd have to kill you -- shields the libertine but rarely the moral. Glucksberg invoked broad protections:

In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S., at 278 -279.

By contrast, the 9th Circuit here says parents have no right to privacy vis-à-vis their children. So, public school sex-ed is ok--but keeping kids from smut is verboten:

The real issue is the left's discriminatory, dead-end concept of a living Constitution. Liberals give it life to change with the times. But the course of change is neither fixed nor one-sided. If liberal Judges can add "non textual" provisions, so can conservatives:

How can the left attack the strict scrutiny of Bush's judicial nominees, yet insist on unquestioned adherence as soon as a 5-4 Supreme Court augments the Constitution with yet another plank from the liberal platform de jour? In stark contrast to a women's right to choose, liberals protect the "living" Constitution while gestating, but sign a death certificate of un-changeability once each new "right" is born.

Only a liberal could insist Constitutional text is flexible--in one direction. Only a liberal could demand change--but only in a lefty direction. Only a liberal could turn the law into a one-way ratchet--that can't revert.

It's not just Reinhardt. It's the whole "I know it when I see it/depends on what I had for breakfast" leftist jurisprudence of Stevens, Souter and Kennedy. Oh yeah, Democrat-appointed Justices do it too.

Judge Alito will make four (maybe they'll take cert.?). Five to go (and possibly reverse?).

MORE:

Raging Right Wing Republican:

What galls me is the way they interpreted the "right to privacy." The court here decided that privacy did not extend to what information a parent wants their 7 year old exposed to in school. Yet, the courts think that privacy extends to terminating a pregnancy, and think it's an undue burden for a woman to notify a spouse of an abortion. Plus, in this case the court said that a school district has the right to "baseline" the mental health of its students, and speaks of an almost limitless permissibility of what the school can do absent a parent's consent.