Counterpoint and Rebuttal Introduction-School Surveys of Students: A Triangle that Comes Full Circle

Journal of Law and Education, Jul 2009 by Zirkel, Perry A

In the April 2008 issue of the Journal, attorney Tara Dahl criticized the Ninth Circuit court's decision in Fields v. Palmdale School District as "incorrectly decided."2 In Fields, the Ninth Circuit held, as amended upon denying a rehearing en banc, that "the Meyer-Pierce due process right of parents to make decisions regarding their children's education does not entitle individual parents to enjoin school boards from providing information the boards determine to be appropriate in connection with the performance of their educational functions."3 Specifically, the information at issue was a district-wide survey of first, third, and fifth graders that included several sexually explicit items, such as a Likerttype frequency rating of "touching . . . private parts" and "thinking about sex."4 The school sent a letter to the parents requesting permission to administer the survey but not specifically notifying them of the sexual content of it, and all but one parent provided the requested permission.5

Although broadly characterizing the Ninth Circuit's decision as constituting a "virtual relinquishment of a parent's ability to have a voice in what his or her child would be exposed to during the course of the school days, regardless of whether the information was part of the curriculum,"6 Dahl specifically took issue with the court's failure to require the parents' informed consent.7 Dahl's reasons were that (1) various states have recognized the need for parental awareness for sex education and other sensitive subjects of the curriculum; (2) the survey was not part of the curriculum; and (3) the students were "much younger and more impressionable"8 than the secondary school students typically subjected to sex education courses.9 Next, Dahl distinguished Fields from the related decision in CJV. v. Ridgewood School District10 In Ridgewood, the Third Circuit denied parents' constitutional claims against a survey of secondary school students for which the school authorities had informed the parents of the sexual content of some of the items." Finally, Dahl traced the similarly limited vitality of federal and- in most jurisdictions, including California-state laws protecting student privacy. As a result, she suggested more militancy for stronger state laws throughout the country and at least more powerful authority for the Family Privacy Compliance Office (FPCO), which enforces the Family Education Rights and Privacy Act (FERPA) and related federal statutes.12

In a Counterpoint in the last issue of the Journal, Kathleen Conn, who has had extensive public school experience in such roles as curriculum director, asserts that "[c]ontrary to Dahl's assertions as to the pernicious and anti-parental nature of the Fields decision, the Ninth Circuit's final opinion accords with the long line of court decisions upholding the shared rights and obligations of both parents and public schools."13 Conn clarified that she was referring to the Ninth Circuit's per curiam opinion, which tempered the view adopted in the earlier decision that was the target of Dahl's analysis.14 The tempering consisted of amendments that (1) were less limiting of the Meyer-Pierce right of parents while explicitly recognizing the political rights of parents in relation to school boards, and (2) distinguished between the rights of parents to make intimate decisions regarding their children and the prerogative of school boards to disseminate general information on subjects of public interest to children.15 In Conn's view, the Fields decision provides a proper balance between parents' right to choose between an increased range of public and private schools and the public schools' expanded in loco parentis responsibilities to children in our current complex era.16

The accompanying two pieces constitute a new step in the evolution of Counterpoint as a forum for intellectual interchanges on current issues in education law. In the first piece, Maxine Eichner, who is a law professor at the University of North Carolina, provides a second Counterpoint and, thus, a third view to that of Dahl's original article and Conn's Counterpoint. Concluding that the balancing of parental and state interests is more delicate and difficult than either Dahl or Conn portrays, Eichner suggests a well-crafted statutory solution to accommodate the multiple competing interests.

Second, as a new and exciting step, the other piece provides Dahl's rebuttal to both Counterpoints, thus providing a reexamination of her views after challenges from the perspectives of Conn and Eichner, respectively.

I recommend reading the entire succession, starting with Dahl's original article for your own assessment of the proper resolution of sensitive school surveys. This array of multiple perspectives provides a refreshing and reasoned exercise akin to the qualitative research concept of "triangulation."17

1. 427 F.3d 1197 (9th Cir. 2005), reh'g denied, 447 F.3d 1187 (9th Cir. 2006).

2. Tara Dahl, Surveys in America's Classrooms: How Much Do Parents Really Know?, 37 J.L. & EDUC. 143, 183 (2008).