☆ Santa Clara law prof: School sex ed opt-outs don't extend to “community”-based content
Continuing an exclusive Opp Now series, constitutional law expert Dr. Margaret Russell parses CA'n Education Code provisions to answer a hot question about opt-out programs: Can parents opt their kids out of content they're morally opposed to, such as controversial sexuality-based lessons? Unlike CRI's Karen England, Russell concludes (below) that students can legally withdraw from “instruction in human development and sexuality” but not community-specific teachings.
There are very significant legal and policy issues regarding parents' rights when they want to "opt-out" and exclude their children from instruction in certain topics in public school curricula. Often, the specifics of a right to "opt-out" are set forth in state law. In California, Education Code provisions state that parents must receive written notice about, and have the opportunity to object in writing to, instruction of their children in these health education topics: comprehensive sexual health education (including instruction in human development and sexuality, including pregnancy, family planning, and sexually transmitted diseases) and HIV/AIDS prevention education (including instruction on the nature of HIV/AIDS, methods of transmission, strategies to reduce the risk of HIV infection, and social and public health issues related to HIV/AIDS.
These legislative exceptions are narrow and limited; they are not intended to exclude communities. Constitutional issues arise when parents and others advocate for the right to "opt-out" in a broader way, particularly with regard to any material about LGBTQ+ individuals and communities. Some argue that the First Amendment right to free exercise of their religious beliefs allows them to claim exemptions from and to "opt-out" of curricular materials well beyond the two categories listed above (i.e., comprehensive sexual health education and HIV/AIDS prevention education).
These advocates claim that much of today's curricula is "ideological" with respect to LGBTQ+ rights and is inimical to their religious beliefs. I think that it would be unconstitutional to add "opt-outs" that intrude on the equality rights of LGBTQ+ individuals and the First Amendment rights of students to receive information critical to their education. Decades ago, those who wanted to abolish the teaching of evolution in public schools lost their cases before the U.S. Supreme Court because religion cannot be used as an excuse to exclude topics from the curriculum.
There are some topics that parents have a right to notice about and the right to opt their children out of. Outside of these specific topics, however, parents do not have any general right to notice about or to veto or exempt their children from topics included in public school curricula. Parents must receive written notice about and may opt their children out of the following topics of instruction in public schools:
• Comprehensive sexual health education. This includes instruction regarding human development and sexuality, including education on pregnancy, family planning, and sexually transmitted diseases [California Education Code §§ 51931(b), 51933]. If a school chooses to provide such education, parents have the right to notice at the beginning of the school year, an opportunity to review the instructional materials, and an opportunity to request in writing that their children be exempted from such education. This is a passive consent (“opt‐out”) process in which parents must request in writing that their student not receive the instruction. Districts may not require active consent (“opt‐in”) by requiring that students return a permission slip in order to receive the instruction [California Education Code §§ 51937, 51938.1].
• HIV/AIDS prevention education. This includes instruction on the nature of HIV/AIDS, methods of transmission, strategies to reduce the risk of HIV infection, and social and public health issues related to HIV/AIDS [California Education Code §§ 51931(d), 51934]. Schools must provide such education at least twice during grades 7-12, and may provide it in other grades. Parents have the right to notice at the beginning of the school year about such education, an opportunity to review the instructional materials, and an opportunity to request in writing that their children be exempted from such education [California Education Code §§ 51937, 51938].
• Surveys, tests, research, and evaluation. Parents must opt in by giving written permission for students to participate in any survey or test containing questions about students’ or their families’ beliefs or practices concerning sex, family life, morality, or religion [California Education Code § 51513]. However, only notice and the opportunity to opt out is required for voluntary, anonymous, and confidential surveys concerning students’ health behaviors and risks, including attitudes or practices relating to sex [California Education Code § 51938(b)].
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