CT and VC, Sitting in a Tree

Okay, devil’s advocate time. The Supreme Court has said that there is a right to privacy that has special application to sex, procreation, contraception, and abortion. The court has alsoa recognized the unique privacy rights of the family and the rights of parents to control the education of their children.

Here, the court holds: “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.”

I have some trouble with this. It seems to me that I have a legal obligation to send my children to school- yet I have no say over what the state can teach my children with respect to sexuality, an area of human life that has been accorded a special and unique privacy right? I think it would be a natural extension of existing privacy law to recognize that the state has a very limited interest in providing sex education to my children- an interest that is overriden by my privacy right to educate my children in matters of sex as I choose to educate them.

It seems to me that I have a legal obligation to send my children to school…

I don’t think you do, actually. Presuming you have the economic wherewithal to do so (and I realize that’s a big presumption), you can move to a school district more in line with your own educational philosophies, you can homeschool your kids, or you can send them to a private school of your choice.

yet I have no say over what the state can teach my children with respect to sexuality, an area of human life that has been accorded a special and unique privacy right?

Sure you do. Where do school boards come from? Where do the legislators (national, state, local) who influence what gets taught in schools come from?

The 9th Circuit is quoted above as saying “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children.”

That’s a long way from “I have no say over what the state can teach my children with respect to sexuality.”

How do you know that there is no “right to privacy” which allows parental control of teaching about sex?

Because giving students information in a public setting does not invade their parents’ privacy, perhaps?

So, whose definition of “activism” do you think has actual political influence- Volokh’s or Focus on the Family’s?

Isn’t Volokh striking a blow for the “judigicial activism = judgifiying I don’t like” equation?

As I understand it, the criticism the equation embodies is that any time someone whines about judicial activism they’re really just complaining about results they don’t like. Or are there principled opponents of activism out there somewhere?

JR, I strongly suggest you read the decision – http://tinyurl.com/8pbkh for the pdf link. The excerpt made is, in my opinion, the wrong one – though it’s certainly the most provocative one.

I rather preferred a different one as the more important one. “As with all constitutional rights, the right of parent to make decisions concerning the care, custody, and control of their children is not without limitations.”

It supplements that with a cite of Prince v Massachusetts, with:
“…[P]arents’ liberty interest in the custody, care, and nurture of their children resides “first” in the parents, but does not reside there exclusively, nor is it “beyond regulation [by the state] in the public interest.'”

Kirk- we passed like ships in the night. Thanks very much for the link. I agree that that parental rights are “not without their limitations.” Note that this is in the discussion of the parents’ liberty interest. Then the court goes on to discuss their privacy interest. It recognizes that there is a special privacy right regarding sex, but it says that the survey at issue “simply did not interfere with the right of parents to make intimate decisions.”

Whenever you see “simply” in a judicial opinion, you know that you’re about to be conned. It’s a slight of hand word. The timing and content of information about sex provided to children is in and of itself an “intimate decision” that historically has been left to parents. The bald assertion that it isn’t is unpersuasive.

As a longtime non-partisan proponent of the “democratist” argument against judicial activism–that the Constitution exists to define and protect democratic government, not to undermine it–I certainly concur with Volokh’s point. But it’s far less clear, Belle, how to interpret your embrace of his position. Are you opposed to judicial activism by some definition–whether overturning of past judicial precedent, expansive re-interpretation of the Constitution, or overruling of democratically enacted legislation? And if so, are you also ready to condemn the whole catalog of adored Warren-era decisions–Brown, Miranda, Sullivan, Roe, etc. etc. etc.–each of which was, by any of these definitions, an example of rank judicial activism?

Or are you simply engaged in a tu quoque–“sure, we’re judicial activists, but then, so are they”? And if so, why bother complaining that the “judicial activism” accusation is unfair–not that there’s anything wrong with it?

“How is teaching about sex different from teaching multiplication? That’s ‘sex education‘, a school subject, not viewing porno films.”

In this case, first, third and fifth graders were asked questions like, “How often do you think about touching other people’s genitals?” and “do you distrust people because you think they want sex?”

You ever heard of push polling? Or try this: Don’t think of an elephant!!

These are intrusive questions. They unquestionably violate the privacy of the children. They introduce young children – 5 and 6 year olds – to ideas that they should not be considering. Everybody on this thread agrees that the questions are inappropriate. The question is, did asking them violate a right of privacy protected by the Constitution. The court said no. Why not? Because- well, because. The reasoning is, no other court has recognized this right, so we won’t either.

Not very satisfying, is it?

Yes, out of line enough that electoral opposition shouldn’t be particularily difficult to achieve.

Precisely right, Peter H. And that’s why it seems to me that liberals would want the case to come out the other way- to make a very small but logical step extending the right of privacy to protect families from intrusive state action. I wouldn’t think that privacy is only about non-procreative sex. Or does privacy protect only sex for fun, and not actual family ties that arise from sex for procreation?

Remember, devil’s advocate-

Volokh is right. If we want to solve the problems the Supreme Court has created, we have to support decisions like this and go after those who made the original policy we object to.

The courts are still messed up, but this one was right this time. If we could get them to quit handing out political victories to those, like the ACLU, who distrust democracy and self-rule, and get them to give up insisting that those policies they have established must be returned to the democratic arena, we could have a nomination that doesn’t become a Borking frenzy.

I think that parents do have the right to object to stuff like this, but it’s not a right identified in the Constitution. All of these uninumerated rights belong to the people, not individually, but through the democratic political process.

jr wrote,

Course it does. I’m positing a privacy right to educate my children regarding sex and sexuality. Sex and family life are at the core of the privacy right established in Griswold. Teaching my kids about sex in a way I don’t like invades my family’s privacy.

Nope.

Jr,

You said 5th and 6th graders were asked these questions, then turned around and said that 5 or 6 year olds shouldnt have to consider these ideas. 5th or 6th graders are 10 – 12 yrs old (sorry, may be off by a year — living in Norway, not the US).

You are participating in a discussion of children’s knowledge of sexuality having a _small_ amount of actual experience with 5th graders, right? Have you ever seen a 6th graders MSN chat log? Or their SMS log? It seems to me — having actual experience of this age group — that these questions are pretty tame.

I had a friend who said that any half-baked lawyer could come up with an excellent Constitutional “right to privacy” argument on anything

Any half-baked lawyer can come up with an argument for anything. Coming up with a persuasive argument, well-grounded in existing law, is a whole nuther issue.

jr, you should read Griswold, because you are not characterizing it accurately.

Liberal – “Nope” is not an argument.

Mythago- I have read Griswold. Many times. Here is what is says:

“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life… [I]t is an association for as noble a purpose as any involved in our prior decisions.”

So, as I said, Griswold teaches us that sex and family life are different and specially protected.

John – the questionnaire was administered to first graders, who are between 5 and 7 years old.

And yes, I know all about what 5th and 6th graders know about sex. I have two children, 13 and 15, and I know what they know and how they react to discussions about sex.

Oh, also, I think it’s wrong to call this “teaching sex”. It’s not teaching when you ask questions but never provided the right answers, or any other information.

It’s a survey. The only thing it teaches is how to answer survey questions.

Kids who fill out the survey are unlikely to end up with any more information than they started with.

Since when did a right to privacy, which I believe in, have anything whatsoever to do with what information individuals receive during school time? It’s about what information the government is allowed to know about individuals.

And on a less legalistic note, surely we can agree that parents are on average abysmal at teaching their children about sex, which is precisely why developed nations have sex education. If you think the state doesn’t have a legitimate interest in preventing the public health catastrophe that sexual home schooling would cause, then you’re far too libertarian for me.

Seems like this is yet another go at “preferred reality” versus real reality. Some parents would prefer to fill their children’s minds with whatever half-learned, out of date nonsense they believe to be true about sex and physiology, or worse, with nothing at all. They assert this as a right: “I can teach my children what I believe to be best.”

Schools, on the other hand, (should) attempt to provide a current, scientifically valid, medically accurate view of sex in fairly mechanical terms, with mainly an eye on safety and reproductive responsibility. They don’t assert this as a right, they just look at the best data and pass it along.

The problem is that what many otherwise functional adults “believe to be best” on any given topic (especially ones as complex as sex and reproductive health) is, in truth, harmful crap that really should have been corrected two generations back, not handed down like a family treasure.

Ironically, the same people who would, say, never hop in an airplane and attempt a takeoff for lack of piloting skills feel perfectly at home opining about incredibly complex and fluid subjects like medicine, pharmacology, psychology, you name it. They even become angry when you point out that their ill-informed opinions may actually cause harm, and should be kept to themselves.

Thank goodness that the court asserted that parents have no explicit right to cut off their kids from people who might know more than they do. They may have just saved countless children from “heirloom ignorance.”