Surveys in America's Classrooms: How Much Do Parents Really Know? Some Further Perspectives

Journal of Law and Education, Jul 2009 by Dahl, Tara

Kathleen Conn and Maxine Eichner introduced several interesting issues to the debate surrounding parental control over education in their counterpoints to a 2008 article entitled, Surveys in America's Classrooms: How Much Do Parents Really Know? (Surveys).1 Surveys focused on two cases involving sexually explicit surveys administered in the public school system.2 Notwithstanding the established precedent of parents' rights to control the education and upbringing of their children, the Ninth Circuit declared that parents lose their voice in controlling what their children are exposed to once the children arrive at a public school, even when inappropriate, nonacademic surveys are at issue.3 Conn focused on the public schools' authority to maintain complete control over the cur- riculum.4 Eichner focused on the state's role in education, specifically, ensuring that children preserve their autonomy and learn civic virtues and allowing the state to establish the curriculum for public schools.5 Conn, Eichner, and Surveys generally agreed that genuine cooperation is need- ed between schools and parents to propel children to be the best in their fields and to be upstanding citizens.6 This article will respond to the coun- terpoints offered by Conn and Eichner and provide some additional thoughts regarding the ultimate issue, parental consent.

I. A REVIEW OF SURVEYS IN AMERICA'S CLASSROOMS: HOW MUCH DO PARENTS REALLY KNOW?

Surveys addressed parental rights in the administration of nonacademic surveys in the public school system.7 It provided an overview of the deeply rooted history of parental rights recognized under both American case law and English common law8 and focused on the rights and responsibility of parents to direct their children's education and upbringing.9 In many states, parents also have the right to be informed of the planned administration of nonacademic surveys that pry into closely held beliefs or personal topics before they are circulated in public schools.10

The focus of and inspiration for Surveys was derived from Fields v. Palmdale School District.11 Fields involved a lawsuit filed against a California school board by several disgruntled parents after a nonacadem- ic, sexually explicit survey was administered to first, third, and fifth grade students.12 A volunteer mental health counselor administered the survey, and parents were told that the purpose of the survey was to establish com- munity baseline standards of the students' exposures to trauma such as violence.13 The parents, however, were not informed of the sexual nature of several questions in the survey.14 After the survey was administered, and several parents discovered the sexually explicit nature of the survey, the parents unsuccessfully petitioned the school board for assistance; a suit was then filed in federal court alleging constitutional and state law viola- tions.15 The district court dismissed the suit, and the parents appealed to the Ninth Circuit, which affirmed the lower court's dismissal.16 In its opinion, the Ninth Circuit stated that parents have no constitutional right "to pre- vent a public school from providing its students with whatever informa- tion it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so."17 In addition, according to the court, neither Meyer nor Pierce supported the proposition that parents had a right to prevent the school from providing any information it wanted to its students.18 Even though the Meyer-Pierce right allowed parents to select the school their children would attend, "it was only because the par- ents had selected the school they did that their children were asked the questions to which the parents objected."19 The parents requested a hear- ing en banc, which was denied via a written per curiam opinion; this subsequent opinion reined in some of the more controversial language in the Ninth Circuit's original opinion.20 The court held that the alleged right to privacy did not give the parents the right to prevent the schools from providing "information that the schools deemed to be educationally appropriate."21 In addressing the second claim, that the fundamental right was improperly categorized, the court held, in considerably less restrictive language, that the Meyer-Pierce right did not include the "right to restrict the flow of information in the public schools."22 The court's ultimate holding was that parents had no fundamental right to control the information public schools disseminated to their students.23

In conjunction with a review of Fields, Surveys24 also reviewed CN. v. Ridgewood Board of Education?5 While Ridgewood contained a similar holding, it involved markedly distinguishable facts. In Ridgewood, the Third Circuit reviewed whether a survey administered to junior high and high school students on topics such as violence, sexual activity, and drug use violated the parents' right to privacy.26 Even though it ultimately held that no privacy violation had occurred, the court distinguished its holding from that of the Fields court and declined to follow Fields' overreaching pronouncement that "the Meyer-Pierce 'rubric does not extend beyond the threshold of the school door.'"27 The court also distinguished the situation it confronted from Fields on a factual basis: The Ridgewood students were much older, junior high and high school age; the parents were informed of the sexual topics in the survey; and the parents were allowed to exempt their children from participation.28