By John w. Whitehead
“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.”— Fields v. Palmdale School District PSD, Ninth Circuit Court of Appeals (2005)
Do parents have a right to control the upbringing of their children, especially when it comes to what their children should be exposed to in terms of sexual practices and intimate relationships?
That question goes to the heart of the battle being played out in school districts and courts across America right now over parental rights and whether parents essentially forfeit those rights when they send their children to a public school. On one side of the debate are those who believe, as the U.S. Supreme Court has ruled, that “the child is not the mere creature of the state” and that the right of parents to make decisions concerning the care, custody and control of their children is a fundamental liberty interest protected by the U.S. Constitution. On the other side are government officials who not only believe, as the Ninth Circuit Court of Appeals ruled in Fields v. Palmdale School District PSD (2005), that “[s]chools cannot be expected to accommodate the personal, moral or religious concerns of every parent,” but go so far as to insist that parents’ rights do “not extend beyond the threshold of the school door.”
A recent incident in Fitchburg, Massachusetts clearly illustrates this growing tension over whether young people, especially those in the public schools, are essentially wards of the state, to do with as government officials deem appropriate, in defiance of the children’s constitutional rights and those of their parents. On two separate occasions this year, students at Memorial Middle School (MMS) in Fitchburg were administered surveys at school asking overtly intimate and sexually suggestive questions without their parents’ knowledge or consent.
Students were required to complete the Youth Risk Behavior Survey (YRBS) at school, a survey which asks questions such as “Have you ever tried to kill yourself?”, “Have you ever sniffed glue, or breathed the contents of spray cans, or inhaled any paints?”, and “With how many people have you had sexual intercourse?” Older students were also given the Youth Program Survey (YPS), which asks true/false questions about a student’s beliefs about contraception (“I feel comfortable talking with any partner I have about using a condom”) and sexual activity (“I have had oral sex at some point in my life”).
While the survey questions are explicit enough in terms of their content, the multiple-choice answers are actually quite informative—at least, in the sense that they educate young test-takers about a host of practices and terms with which they might not actually be familiar and provide them with suggestions on how to go about acquiring drugs, sex, etc. This is a not-so-subtle form of indoctrination into behaviors that no parent would want for their children. For example, the survey asks: “During your life, how many times have you used heroin (also called smack, junk, or China White)? …how many times have you used methamphetamines (also called speed, crystal, crank, or ice)? … how many times have you used ecstasy (also called MDMA)?” And for those not up on the various prescription drugs, the survey provides a handy list: “During your life, how many times have you taken a prescription drug (such as OxyContin, Percocet, Vicodin, codeine, Adderall, Ritalin, or Xanax) without a doctor’s prescription?”
One question asking how students acquired cigarettes suggested the following as responses:
A. I did not smoke cigarettes during the past 30 days
B. I bought them in a store such as a convenience store, supermarket, discount store, or gas station
C. I bought them from a vending machine
D. I gave someone else money to buy them for me
E. I borrowed (or bummed) them from someone else
F. A person 18 years old or older gave them to me
G. I took them from a store or family member
H. I got them some other way
As for sex, the survey asks, “The last time you had sexual intercourse, what one method did you or your partner use to prevent pregnancy?” The responses provided are an education in themselves.
A. I have never had sexual intercourse
B. No method was used to prevent pregnancy
C. Birth control pills
E. Depo-Provera (or any injectable birth control), Nuva Ring (or any birth control ring), Implanon (or any implant), or any IUD
G. Some other method
H. Not sure
Moreover, instead of acquiring written consent from parents, which is required under federal law, before subjecting students to these invasive surveys, MMS officials relied on so-called “passive consent,” by which parents are presumed to have given their approval if they do not return the opt-out form sent home with students. When challenged by a parent over this passive consent practice, a representative with the local social services agency administering the survey stated that the reason the “passive consent” system was adopted and why the method of obtaining consent would not be changed is that the agency needs a 98% participation rate in the survey in order to qualify for future government grants. In other words, recognizing that the participation rate would be 30% or less if a system requiring actual written parental consent were employed, test administrators adopt the fiction that a failure to respond is tantamount to parental consent in order to achieve the numbers needed to qualify for grant funding for their activities.
Unfortunately, Fitchburg, Mass., is not the only locality using young people as test subjects for the purpose of mining data and securing government funding. In fact, as of 2009, the only states that did not participate at all in the survey were Oregon, Washington and Minnesota. The national Centers for Disease Control and Prevention (CDC), the government agency responsible for creating and distributing the survey, states that the main purpose of the survey is to monitor “priority health-risk behaviors and the prevalence of obesity and asthma among youth and young adults.”
Currently used in at least 45 states, the YRBS test takes approximately 35 minutes to complete, with questions on everything from how much television the student watches to thoughts on suicide, sexual activity and drug use. For example, the 2011 middle school questionnaire includes such questions as: “Have you ever seriously thought about killing yourself?” “Have you ever made a plan about killing yourself?” “Have you ever used marijuana?” “Have you ever used any form of cocaine, including powder, crack, or freebase?” “Have you ever had sexual intercourse?” “The last time you had sexual intercourse, did you or your partner use a condom?” “Have you ever sniffed glue, or breathed the contents of spray cans, or inhaled any paints or sprays to get high?” “Have you ever taken any diet pills, powders, or liquids without a doctor’s advice to lose weight or to keep from gaining weight?” “Have you ever vomited or taken laxatives to lose weight or to keep from gaining weight?”
Developed in 1990 by the CDC, the Youth Risk Behavior Surveillance System is similar to other mental health screening programs that have been creeping into the classroom since President George W. Bush’s New Freedom Commission on Mental Health recommended mental health screenings for all school-aged children, including those in preschool. However, while the supposed goal is to identify and prevent risky behavior among young people, many parents are understandably up in arms over these tests.
First, there are concerns about how the tests are administered. Health screening tests like YRBS are often given to students without parental knowledge or consent. While the CDC insists that local parental permission procedures are followed prior to administering the test, many school systems use the passive parental notification procedures, which assume that parents have given their consent unless they notify the school of an objection. But passive notification is merely a surreptitious way to avoid obtaining written parental consent. And in the end, whether due to the child losing the notification form or forgetting to give it to the parents, parents are often left in the dark, unaware that their children are being subjected to such invasive tests.
Second, the manner in which these tests are administered puts them in violation of the Protection of Pupil Rights Amendment (PPRA), a federal law that was intended to protect the rights of parents and students. PPRA, which covers educational entities that receive federal funds, applies whenever students are asked to submit to any survey, analysis or evaluation that seeks private information about the student, such as political affiliations, sexual activity, illegal activities or religious beliefs. The PPRA allows parents to inspect their children’s instructional materials and requires that schools obtain “written parental consent” before schools engage in such programs as mental health screening.
Third, critics of these risk assessment tests insist that they’re aimed at advocating antidepressant drugs for teenagers. For example, TeenScreen, which is similar to YRBS in its intent to identify suicidal tendencies and social disorders, has been labeled by the Alliance for Human Research Protection as a “duo-drug promotion scam” that declares “otherwise normal children to be mentally ill.” As a result, an increasing number of children are being medicated with antidepressants, despite FDA warnings about the increased risk of suicidal thinking and behavior in children who take them. All the while, pharmaceutical companies rake in the profits.
Finally, legitimate questions remain about whether such tests really help students achieve healthier lifestyles. TeenScreen, for example, has an 84% false-positive rate. This means that 84% of teens diagnosed as having some sort of mental health or social disorder are, in fact, perfectly normal teenagers. Furthermore, although the CDC insists that there is no danger in asking students highly suggestive questions about sex, drugs and suicide, most parents prefer to decide the timing and content of such a sensitive discussion.
Helping America’s teens make positive, healthy and responsible lifestyle choices is a worthy goal, but it must start with parents within the home. If the schools are to be part of the process, they must ensure that parents are fully informed and involved at every step of the way. In turn, parents should demand that they be notified about mental health evaluations and that the evaluations not be given unless they have provided express written permission, which is required under federal law. Parents should also be provided an advance copy of the screening questionnaire in order to make an informed decision about whether they want their child to be screened.
As Elliott M. Davis, writing for the Harvard Journal of Law & Public Policy, concludes in his analysis of the Ninth Circuit’s Fields decision:
The right of a parent to control the upbringing of his child is fundamental. Though public schools can and do usurp many parental choices, this right—which encompasses “the inculcation of moral standards”—vests first in parents. When a child passes through the public school doors, he does not become a “mere creature of the state.” Judicial interference in public schools should be minimal because legislatures are primarily charged with crafting policy; courts, however, should not stand idly by as public schools violate fundamental rights. As the Supreme Court declared in West Virginia State Board of Education v. Barnette, “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted.” Although the public school exerts a high level of control over its students, its control is not absolute. American constitutional jurisprudence affirms that this society is not one where children are wholly disconnected from their parents and educated entirely by the state. If the Meyer-Pierce parental right is to have any real meaning, it is to preclude the public school from egregiously usurping the parental role in matters of the utmost importance.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at firstname.lastname@example.org. Information about the Institute is available at http://www.rutherford.org.