Redstate

but what else is new from the 9th Circus?

what claim did the plaintiffs state in their complaint?  Was it based on a tort claim, violation of equal protection, due process?  Granted, I'm not exactly a practicing lawyer yet, nor am I very creative when coming up with potential avenues to sue (I will be working the defense side of things), but what was their claim?  They would have had to file it under something good in order to keep it from being dismissed under a very basic Federal Rules provision.  Just curious.

I heartily agree that the basic judgment of the school district in asking 7 year olds these questions was whacked out to say the least.

is simply obscene. Any parent living within the Ninth Circuit who still has their child enrolled in public school need their head examined.

I know the point you're getting at.  As I said over at Confirm Them:

I think the parents should have pulled their kids out of the schools, if they could afford it. I don't really know that it was appropriate for the parents to run off to court over this -- though clearly the school board was unconcerned with their concerns. But, I think the 9th Circuit painted too broad a brush with their opinion. Particularly on issues of sex, parents should be given wide lattitude on what their children are exposed to -- especially at seven years old.

to break up the 9th.  It should field cases from metropolitan SF only.

But can someone explain to me why all of the 9th Circuit Judges who voted thusly in this case shouldn't be impeached?!

These judges are clearly unfit to serve. No foolin'.

is an outrage!  And even more outrageous and disgusting than the verdict is the opinion cited.  Vomiting would be, in my opinion, the natural response to such a heinous ruling.

"there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children"

-this seems to be common sense, but since you bolded it and apparently disagree, where do you find the Constitution saying something to the contrary?  Or is it ok for the Court to manufacture some due process fundamental right in this instance only?  I don't recall seeing an educational gag order for the topics of sex and other "icky things" in the Bill of Rights.  If you don't want the schools teaching about sex, you need to get on the board of your local school and influence the curriculum or you need to pull the children out and teach them yourself.

"the public schools, according to the Ninth Circuit, can only expose children to sex. Exposing children to prayer or the Pledge of Allegiance would indoctrinate the children unfairly"

-if I'm not mistaken, there's a specific constitutional amendment (the first) with two clauses covering religion, but none prohibit or even mention the concept of "exposure of children to the reality of sex"

I was more thinking along the lines of the death penalty, but impeachment would do I guess.

Reading through the decision (briefly, as I should be reading environmental law right now, but sparring with you all is far more stimulating), I would agree with the court's first holding on there being no fundamental right to control the education of one's children, but I heartily disagree with their analysis under the privacy rights where they effectively gloss over the making intimate decisions point and the pertinent fact that the parents' decisionmaking power was removed from their grasp.  Not a great decision, no question.  It differs in a key respect from their pledge decision, however, in that this is something that is rectifiable through the democratic process (what I think you were alluding to Erick) and the court is not acting in an activist way here, but rather in a poorly reasoned reserved manner by not interfering with the institutions that the people arguably have some control over.  Don't like it?  Go get rid of the idiots who approved this nonsense.  And once again, I'll reitierate that I find it to be nonsense.  Legally, its not completely out of the park horrible though, just bad.

have to homeschool, given that I apparantly have no parental rights, as the school system has assumed them-they can teach my child about sex, they can take her to have an abortion, and not tell me, apparantly the schools can do anything they darn well please.

That is a scary thought.  Here's hoping that the 9th once again gets smacked down by some judges higher up.

but it seems from the ninth court statement that the parents wanted to have the right of review over what sexual matters were brought up in class.  They should have this and would in many regions of the country.  

However, the better approach, and one understood in the 9th circuit is to take a child to a psycologist and get a statement that the survey cause undo mental abuse and threaten to sue the school district for this in civil court.  (Heard this approach on the radio from a talk show hostess.  It seems this gets the attention of school boards.)

because now you're operating under a tort rubric, where emotional distress usually needs to be accompanied by physical injury.  However, this depends a lot on the jurisdiction, and ironically, given California's liberal tort laws regarding intentional infliction of emotional distress (I think they are still that way anyway) you could probably sue on this basis alone.

After all the yelling about judicial legislation (with which I agree, by and large), we're now upset because the court didn't invent a right for parents to be the sole provider of sexual education?  Don't get me wrong, that counsellor should be fired and the legislature should ban such crud, but I'm not sure that these parents are entitled to get money from the state because of this.  Or to play off a common theme, where to the words "childhood sexual education" or "parenting" appear in the constitution's text?

Or is it just that the Ninth Circuit isn't exactly known for its philosophy of judicial restraint, so why wouldn't it show it here?  That I can agree with.  I really hope its the latter complaint, more than the former.

the claim of the parents was that their right to privacy and their fourteenth amendment right to not be deprived of their liberty without due process of law were violated by the school's action.

Along with the court, I am skeptical that the action by the Palmdale School District and Ms. Seymore violated either of these rights.

However, this case should send up a red flag for parents who tend to trust what the schools tell them.

This school district deliberately omitted any warning to the parents that their children would be asked about sex and masturbation.

Why?

Hmmm.  Maybe because a parent with any common sense would object to a stranger talking to his or her seven-year-old about masturbation.

It's usually a sex crime if the town pervert does it.  But if the town pervert happens to be working on his master's degree, it's ok.

It's usually a sex crime if the town pervert does it.  But if the town pervert happens to be working on his master's degree, it's ok.

Brilliant point.

Dennis Prager said, there have always been only two kinds of people: the decent and the indecent. And that never-ending war between the two sides is the story of all human civilization. That's what this little story brings to mind.

Why has no one mentioned that this is another reason to support parental choice and vouchers.

I would agree with the court's first holding on there being no fundamental right to control the education of one's children...

And this view is the ultimate reason why public education has failed.

It is the roots of the poisonous tree called modern "education" theory.

(Especially egregious when you consider that education is now a legal requirement. So you are now required to "educate" your kids (and most people are stuck with the public schools, for one reason or another), but you have no "fundamental right to control" the process of education there. Great. Wonderful. Fabulous...)

Calling for the death of people with whom you disagree is a little much, don't you think?

in that the parents' right to privacy was probably not violated.

As for whether the children's right to privacy was violated, that is a different matter and would have probably led to a different result had the parents pursued this argument and had better legal counsel.

But what the Palmdale School District allowed Ms. Seymore to do to these children is inexcusable.  If any of my three kids were asked by some government pervert how often he or she touches himself/herself, I'd file a police report against the pervert for child annoying.  (It is a misdemeanor in California to annoy or molest any child under the age of 18.)  While the law has not specifically spelled out what constitutes "annoying" a child, I'd say that asking a seven-year-old whether or not s/he touches himself/herself qualifies.

There's an error in the writeup.  It looks like the district court dismissed the state claims without prejudice, so the parents can refile in state court.  I just skimmed, so I might be missing something, but that's how I read it.

lays out what constitutes "child annoying".

I'd say that this qualifies especially because the children were asked these questions by a stranger.

It's one thing for a parent to give his children sexual information according to his own timetable.

It's a whole different issue if a stranger asks children about their "dirty thoughts", etc.

This is the kind of crap that got Michael Jackson and Paula Poundstone in trouble.

that being "fundamental".  As the court itself stated, there is a parental interest in how your child is raised, educated, etc., but it is not a fundamental all-encompassing and superceding right.  If it were, compulsory education laws that you cite in your post would be unconstitutional.  There is a limited interest there, but the question of whether it extends here is murky at best, especially since the parents signed a permission slip and this was not compulsory.  I would have ruled in reverse on the privacy issue, however, because I thought the court glossed over that the permission slips were surreptitiously made and by not informing the parents of what was going on, this violated their privacy rights within their family to determine matters of an intimate nature.

not too far from Palmdale, I would just like to thank the 9th Circuit Court for giving parents here more reason to send their young people to us.....

Please, someone remind me why anyone would want to send their children to a school that operates like this.

After all the yelling about judicial legislation (with which I agree, by and large), we're now upset because the court didn't invent a right for parents to be the sole provider of sexual education?

I second this.

Maybe they'll push it all the way to the Supreme Court where a Bush-appointed deliberately-non activist judge will find that there is no Constitutional backing for this lawsuit.

Doesn't this school have any elected officials?  Who voted for the school board and superintendent?

First---if my seven year old ever has to answer questions like this without my express written approval, there will be hell to pay.

However, the dismissal doesn't concern me yet.  The ninth circuit basically held that the parents can't sue under a "Basic constitutional right to control" their children's education.  

Someone will have to tell me where this right is in the Constitution.  More specifically, the parents will have to do so.  They failed.  They complained that their "privacy rights" had been violated.  These are the same rights, by the way, that are used to uphold Roe v. Wade.

However, in drafting their complaint, according to the trial court, the parents used language and law rooted in 14th amendment law, not in privacy.  The trial court dismissed because the 14th amendment standard had not been met.

Now, this is not surprising.  Parents attorneys think they have a privacy case, and try to couch their complaint as such.  Court reads it as a 14th amendment case, and, because the lawyers weren't writing a 14th amendment case, the complaint fails.  You would expect sloppy pleading in this instance.

The Federal Trial Court then dismisses the State Court Claims because the Federal Court doesn't have jurisdiction over these claims without the federal claim.  This is an easy move.  The Court is not saying there is no State Remedy.  It is simply saying there is no Constitutional remedy, and State claims belong in State Court.

So, to sum up.  The Federal Claim was either based on an expansive reading of the 14th amendment, which Scalia and other strict constructionists would NOT allow; or on a "right to privacy" which strict constructionists don't recognize.  So, conservatives would agree that there is no federal remedy here.

I, as a liberal attorney, would sue in State Court under a theory of negligence (which parents asserted, and will re-assert in State Court) and under any corruption of minor statute I could find.

If there is a federal statute against corruption of minors, I would use "No Child Left Behind" and its funding to boot-strap that statute into federal court.

There may be a lot to bemoan the ninth circuit on, but I fault the lawyers here.

Obviously vying to remain the most overturned circuit. With rulings like this one, they deserve that title.

Does anyone realize how big the 9th Circuit's jurisdiction is?

Let's put it this way: there are 13 circuits of the federal court. (plus the DC Circuit, the Federal Circuit, and a few other "specialized" circuits which deal with issues like taxes, bankruptcy, etc.)

The smallest jurisdiction (other than the DC Circuit) is the 1st Circuit.  The 1st Circuit covers Maine, Vermont, and New Hampshire.  About 4 million people are covered by the 1st Circuit.

The 9th Circuit covers: California, Hawaii, Alaska, Washington, Oregon, Idaho, Utah, and Arizona.

Add up how many people are covered by the 9th Circuit.  35 million people in California alone.  Then some 10 million people from the other 7 states.

Altogether, about 45 million people are at the mercy of the 9th Circuit.

The liberals on dKurse consider the 9th Circuit to be their last hope.  They'll fight tooth and nail to keep the 9th Circuit to be split into 2, or, more likely, 3 separate Circuits.

They want the same judges who review/control San Francisco laws to get to invalidate laws in Utah, Idaho, etc.

The time is right for the 9th Circuit to be broken up.  The Democrats are dead-set against it (as long as the Senate and the White House are controlled by Republicans).  Let's send a message to Senator Specter (the head of the Senate Judiciary Committee).  We want the 9th Circuit to be broken up as of immediately.  Let 3 circuits be formed, each controlling no more than 15 million people each.

I'm sure that there are laws that prohibit the "exposure of children to the reality of sex".

That is exactly what they did by exposing them to these questions.

7 years old? It is sick to think that someone could actually create such a survey knowing that the 7-year-old target group doesn't even know what sex is.

I hope that they appeal this all the way to the Supreme Court. Hopefully all hope isn't lost. These kinds of stories really sadden, and scare me.

keep conservative judges off of it.

And even though we control the Senate, we are helpless to stop the dems from their delay and destroy tactics.

We've got to put an end to this.  Send Senator Spector a letter or an email expressing your disgust with his complacency on breaking up the 9th Circuit.  The whole senate hasn't had a chance to vote on this issue because his committee, the Judiciary Committee, doesn't have the cajones to send it to the full senate.

http://specter.senate.gov/index.cfm?FuseAction=ContactInfo.Home

Feel free to cut, paste, and send Mr. Specter a letter.  He won't act until he realizes how outraged Americans are at his nonfeasance as the head of the Judiciary Committee.

This is the jackass who banned the pledge, and does not believe in the Second Amendment.

But they are state laws.  And they need to be pled in state court.  If there is a federal law, then the lawyers missed it, as they didn't plead it.

You can only bring the suit you draft.  And the lawyers only federal claim was a privacy claim/14th amendment claim.  They didn't plead it correctly, and it failed.  End of story.  

I doubt many judges would disagree with this ruling.  I doubt many judges would agree with teaching sex to 7 year olds.

But you have to plead correctly.  You mess that up, and you're gone.  

You learn this in year one of law school.

And it goes without saying that the school (in California and elsewhere) have determined that they must "educate" the children so that they can learn that alternatives to the normal family are as acceptible as single parent families. And that other relationships besides one man and one woman are deserving of recognition and support.  This survey sounds like a smooth way to bring up a lot of these topics for discussion in the classroom, (seventh grade -- yes this is a time when a lot of these questions do come up.)

Sounds really, really good right now.

Anybody have links to the school board recall campaigns, or elections following the original activities? I'm presuming the events occurred 3-5 years ago (time to make it through Dist. Ct. up to 9th circuit) and wonder who's in charge locally now?

It is a curious concept of local control vs. constitutional rights which the 9th seems set about elucidating.

...by these kind of rulings.

Then again, I'm an advocate of homeschooling anyway.

There's no way I'd want anyone asking my seven year olds those kind of things.  I don't even know if I would want them asking my 14 year olds those kind of things.

"As a legal matter, the case was most likely rightly decided based on the law. But, we should all be outraged at the lack of respect the Ninth Circuit showed to parents..."

Do you believe there is a "fundamental right" for parents to be the exclusive provider of sexual information? Where is that right located?

Shouldn't this be a matter for the democratic process? Vote the bums out. Off with their electoral heads.

have not put a judicial stamp of approval on the the right of a school district to, with neither my permission or knowledge, have my community's 7-year olds deliberately exposed to sexual topics and probing questions by adults who are placed in authority over them.  

What a grotesque usurpation of basic parental rights.

are not found in the Constitution, of course.  But according to Article IX of the Bill of Rights:  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I would think that such personal matters as sexual education were considered by the Founders as coming under the umbrells of "rights retained by the people."  As well as a number of other topics.

Dear Senator Specter:

First of all, I would like to thank you for all of the hard work which you have done on the Judiciary Committee.  I feel that your position as the head of the Judiciary Committee is the most important position in the Senate short of, perhaps, the majority leader's position.

As the head of the Judiciary Committee, you must be as frustrated as I am regarding the overzealousness of the 9th Circuit.  Far from merely interpreting the law, this Circuit has acted many times to invent rights not found in the Constitution, ignore the rights and needs of parents, Christians, Jews, and other religious people, and put their own activist brand on nearly every major law passed in any of the 8 western states.

Please submit a bill to the full senate, asking that they realign the current boundaries of the Federal Court.  The 9th Circuit is the most overloaded circuit in the United States.  It needs to be split into two or three separate circuits.  Only then will people who currently live in the jurisdiction of the 9th Circuit see a more just and less activist judiciary.

Thanks again,

(my name)

---

I just sent him this letter via email.

Please do the same.

The 9th Circuit is a boil on the buttocks of all western states.  Please limit its jurisdiction by linking to Senate Specter and voicing your disgust.

Weren't the children's privacy rights violated? Sex is arguably the most private activity humans engage in. After all, the polite term for those organs in the undies is "privates", right?

Apparently this questionnaire was administered at school. I can't see a 1st grader trying to opt out of this exercise. Parents, as guardians, should have had a proper chance to opt their children out, but the school was dishonest (by omission, at least) about it.

I'm no lawyer, but I don't see how anyone can aruge that the parents' rights weren't violated.

submit these questions to first graders.

Many of them are only 6 years old!

Six-year-olds don't need strangers trying to probe into their private lives and talk to them about masturbation.

This is the kind of stuff that Clinton's nominee for surgeon general (Ms. Joycelyn Elders) tried to push.  Getting kids to talk about and participate in masturbation.  Even Clinton was embarrassed by her behavior.

One possible place we may end up moving when our time is up here in the Pacific NW, is Vacaville, CA.  

Scary and disgusting stuff.

No way do I want my kids in the California Public School system.

six-year-olds.

I have two six-year-olds.  If anyone from the school district asked them if they liked to touch their private parts, I'd place him under citizen's arrest and have the local police "escort" him to the city lockup.

And you better believe I'd press charges.

This is the only way the perverts will learn.

A civil action for violation of the parents' right to privacy will not work.  Not as long as the 9th Circuit is in charge.

Leave the matter up to the democratic process - what would be the desired result?  I cannot help but infer from the comments here that the preference of conservatives is that sexual education be banned from public schools.  Or, at minimum, that education be taught by majority vote rather than by accreditation and qualification.  Is that a good idea?  While we're at it, why not demand that science be left to parental instruction too.  That way, Intelligent Design would have no competition.

There is a strain of prudery in all this which is rank and gross in nature.

But, unfortunately, the parents didn't argue this in their complaint.

The parents listed themselves as the plaintiffs (probably to keep their children from having to endure the trauma of a trial in which they would undoubtedly be asked again about their private lives, this time in the presence of their parents and many more strangers).

I can sympathize with the parents who did not want to put their children through this.

The parents should have immediately acted by placing the government pervert under private person's arrest.

At a minimum, they should have immediately retained legal counsel and had a police report taken for child annoying (647.6 of the California Penal Code; makes it a misdemeanor to "annoy or molest" a person under the age of 18).

I knew I could count on you to join this discussion.

opt my kid out of anything that is personally objectionable, and I have the right to be fully informed of what is to be included in any survey my child is given that isn't even part of the actual curriculum being taught.

If the courts believe that I have no right to know what my child is being taught, and what kinds of questions an outsider brought in to administer a survey they are being asked, then I think we have fallen much further than we think.

Parents should not be left out of the education loop, their children are compelled to be in school, but this shouldn't mean that parents have no say in what their kids are being taught and what things they want their children opted out of.

This has taught me one thing-I will never give permission for my child to be administered any type of survey in school, of any type-because obviously the school felt the need to deceive parents as to what was to be included in the survey.  If the schools will lie about this survey, they will probably lie about others.  My only choice as a parent, if the schools won't be honest about the survey, is to not permit my child to participate in any of them.

but a lot of people around here allegedly don't.

You can't say you believe in strict constructionism and then say that you have Constitutional rights to knowing what your child is being taught and what kinds of question and outsider brings in.  At least you can't criticize the 9th Circuit for not recognizing these rights.

To submit a topic to your submission and/or approval would be a herculean task, given the amount of data - and the methodology with which it is distributed -  that flows from student to teacher.  In fact, I would submit that much more controversial topics and subjects are discussed regularly.  Why?  Simply because teachers often work on the fly, much like talk-radio hosts.  Interacting.  Counseling.  Probing. Teaching.  Certainly some topics are prone to rise to a level of importance or specificity that a parent be needs to be brought into the discussion, but such occurances are rare.  They have to be.  Otherwise, a teacher would spend more time justifiying their work to parents - which is always a hectic experience for teachers (more so than for parents, who tend to wallow in their self-righeous sense of propriety).

think the job of the Federal judiciary is to determine whether a law is Constitutional or not.  It is NOT their job to determine whether something is right or wrong.

With this said:

"As a legal matter, the case was most likely rightly decided based on the law"

Why is there more discussion? Would that not be legislating from the bench? Or is that the point?

doesn't mean crap.

And I am bothered by the fact that apparantly a school can lie to parents, and get away with it.

Maybe they can vote the bums out, but local politics can be just as difficult to flip as national politics.

I also think the school deserves a big fat lawsuit, and the school district should lose.  It may not be a federal court issue, but there is no way you can convince me that a school district should have the right to deceive parents, and ask extremely sexual questions to a minor child.  

Nicely put.  However, the discussion has careened quite predictably into the realm of legislation.  If folks disagree with a court, they advocate changing the law.  Result?  More law.  Legislation from the legislature to curb and manage the bench becomes the bailiwick of those who would not grant the judicary it's due.  This is the inevitable result of picking a fight with a co-equal branch of government.

But now there is a new precedent with explicit language stating that parents have no right to control the sex education of their own children. All because the parents had a cruddy lawyer.

And what about this:

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.

Seems the Ninth has just declared, in very broad language, that parents can't complain about anything the schools decide to teach their children.

I can understand how someone can say that the court should have ruled in favor of the defendants if the plaintiffs' lawyers argued the wrong points. But the language the court used doesn't indicate this. Rather, it eviscerates any rights that parents may have had in the proper upbringing of their children.

I served my time as a teacher, and I know all about those herculean tasks.  But this little escapade was not a result of teacher overwork.  As Erick stated, permission was requested (and granted) to ask about certain things.  the topic of sex and molestation was very conveniently left out.  Why, do you suppose?  Eh?  Because the perpetrators knew that being honest about their intentions would cause a huge uproar.

And as for this assertion of yours

much more controversial topics and subjects are discussed regularly

surely I am misconstruing your meaning.  You can't possibly mean that.  On a bet I could not think of something more 'controversial' (I like the word 'outrageous' here, actually) than having some school psychologist engaging my 7-year old in topics such as:

8. Touching my private parts too much
   
   
17. Thinking about having sex
    
    
22. Thinking about touching other people's private parts
    
    
23. Thinking about sex when I don't want to
    
    
26. Washing myself because I feel dirty on the inside
    
    
34. Not trusting people because they might want sex
    
    
40. Getting scared or upset when I think about sex
    
    
44. Having sex feelings in my body
    
    
47. Can't stop thinking about sex
    
    
54. Getting upset when people talk about sex

However, the "lie" you refer to was a lie of omission.  While that may carry little weight with you, it is somewhat germaine.  Keep in mind that the questions above were selectively pulled from a larger list; buried in other questions, each question would not, even for an adult, bear the importance or incindiary weight of a stand-alone list.  I suppose they could've mentioned "sex", and I agree they ought to have, but I hardly see how any child could be substantially harmed by these questions when buried in a host of others.

Just see heterosexual couples as breeding stock. I guess the 9th Circuit is part of that mindset.

and more cogently lays out what I was trying to say upthread in my agreement with the first holding and my strong disagreement with the privacy holding, though you are correct in that it doesn't look like they really argued a privacy case and instead tried to couch it as a 14th amendment claim.  Anyway, just wanted to give you some props.

parents and their children before.  Is it your contention that parents have absolutely no rights regarding their children?  I am not familiar with case law, but I think it is probably a huge leap to say that parents have no rights regarding things that involve their children.  After all, I am required to sign all sorts of release forms and other things regarding them.  Apparantly the government-state or federal has recognized that I have rights to determine certain things regarding my child.

Basically, the ruling didn't say-parents don't have standing on this issue-it went on to say parents had no say in matters regarding what educators chose to teach the children in their care.

The 14th amendment etc may not be the place to argue, and the federal courts may not be the place to argue, but you are going to have a hard time convincing me that the state can require my child's attendance at school, but then also claim the right to tell me nothing about what they are teaching my child, lie to me about things they are exposing my child to, and then telling me I have no say in these matters.

Nope sorry, I am not swallowing the piece of crap you are trying to sell me.

...but I hope Arlen gets my point as well.

---

The 9th Circuit is out of control (see Fields v. Palmdale School Dist., -- F.3d-- (9th Cir. 2005)). If their imperial decisionmaking is "good conduct" as required by the Constitution, what on Earth would constitute bad conduct?

It is your responsibility and duty to address the misdeeds of this panel of so-called judges and put an end to their tyranny. Examine the record and impeach the offenders. Or at the very least, realign the boundaries, split the 9th, and minimize the damage of their cancerous influence.

You're an embarassment to any thinking Republican, and I really don't expect much action from you. But I'd be thrilled if you could surprise me and do something productive.

that in this case, it wasn't sexual education, it wasn't education at all of the students.  It was a survey administered by a college graduate student, and the survey included several questions about sexual activity.

The school sent home a permission slip, it mentioned the fact that there may be topics that included violence, but said nothing about the sexual content.  Basically the school lied to the parents, in order to deceive them about what was on the survey.

Apparantly schools now not only have the right to teachyour kid anything they please without your knowledge, but they also have the right to lie to you, all the while your child's attendance is compelled by state law (unless you can afford private school or you are able to homeschool).

As for sex education-I am a conservative, I am not opposed to it, but I think it should be age appropriate, and doesn't belong in the elementary school at all, especially in a survey that isn't even about educating my child.

I served my time as a teacher too - of 6th and 7th graders.  They themselves have brought up topics much more virulent that these rather banal questions.  They're smart, curious and conflicted.  Furthermore, they often come from homes that are not only less attendant to their concerns that they ought to be, but (sometimes) damagingly negligent and even abusive.

you must hang around some conservatives.  Are they starting to rub off on you, or are you just engaging in a little irony here?

But this case is not about the constitutionality of a law, per se, it's more about some competing rights - on first blush, the rights of parents to have some semblance of say-so regarding what happens to their children at school, vs a school administration's right to ...to.... I'm having trouble with this.... to foist whatever kind of secular humanistic values that it chooses on the children under it's care.  

The legalistic niceties are of some interest to me, but the main point of my note (to which you apparently object) was not a legal one, but an expression of moral outrage.  Actually I agree with alot of the sentiment on this page that there are methods of relief that involve, in one way or another, 'throwing the bums out', via school board elections, or what have you.  

the parents DON'T have a FEDERAL parental rights.  

that there is not CONSTITUTIONAL parental rights.  Laws can be made that CREATE parental rights, especially in the State legislature.  But the Constitution doesn't speak to it.  The lawyers in this case tried to make this a Constitutional matter.  It wasn't.  The 9th said so.  End of discussion.

I agree with you that such a contentious survey should never be given to children that young without explicit parental consent.  I also think that the school board and administrators should be punished for this.  But that's up to the Palmdale school district voters, not the 9th circuit.

should refer the student to the parent - NOT provide their views on the subject without the parents permission!

Honestly I agree with many Conservative AND Liberal principles when it comes to the judiciary.  

I'm fine with the moral outrage.  I completely understand it.  But the outrage should be directed at the school board, not the 9th.  

Well, glad to see that you speak from a perspective of personal knowledge.  Good for you, that's God's work you do (whether or not you recognize any deity, just please take that as a compliment).  But these are 6th-7th graders, and they are bringing up these topics.  Yes, those questions would be quite banal (and pretty humorous, actually) to 7th graders.

But these are SEVEN YEAR OLDS.  And they are NOT asking the questions, they are having their personal lives pried into, on topics that are CLEARLY not age-appropriate.  Do you not see anything wrong with that, Nar?  Can I call you Nar, or perhaps Boink?  You can call me E, or Pluribus, or EPU if it suits you.  

Hell, why don't we just have them watch some kiddy porn, and ask them if it makes them uncomfortable watching films of some adult shoving his #### up a little boy's ### .  But let's be sure we get parental permission, tell the parents you'll be watching films on 'family relationships'.

Yep, my outrage is primarily directed at the school board.  But I don't hold the 9th blameless.  They don't exactly have alot of cred built up with us socons.

there is also no explicit comment in the Constitution supporting Federally funded public schools either.....

This case should be exhibit number 1 the next time the discussion of vouchers is brought up.

I thought I would look up what the SCOTUS has said regarding parental rights and intrusion by the state within them.

Found this link with a variety of cases decided bythe court.

I am off to bed, and don't have time to read them-especially to sense where they would fit within a strict constructionist or originalist frame of reference (although I think you can infer that parents had a lot of rights regarding the care of their children at the time the constitution was written, hard to make the same case for something like abortion).  An originalist may take that status into account, when deciding.

http://www.liftingtheveil.org/supreme-court.htm

Oh, and I should also say I haven't got a clue who runs the website, but since they list the actual cases, fact checking isn't too difficult.

What ruling would you WANT the 9th to have made?   Would you want them to create Constitutional rights?

The lawyers, it would seem, made a really bad argument.  The 9th would have both needed to ASSIST the lawyers and then doing some judicial acrobatics to get to a ruling that you would have liked.  

just the father of two girls, so I can't speak authoritatively on the legal fine points of the ruling. But it seems to me that the Court went way beyond simply rejecting the appeal. They could have done that without launching into

...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.

Had they stopped at "We agree" I could accept the argument the parents and/or their lawyers missed the boat. But they seemingly couldn't be content at that and had pontificate on the rights of parents.

Seems to me as a perfect example of judicial overreach.

Texas will take ya in spite of who you root for.

With this ruling, they imposed the states right to teach whatever they please.  If this holds true, then the parents have no overriding authority on the state regarding the teaching of their own children.  I can't imagine it getting much worse than this!

Wow.  Well, it seems to me that you bring up an interesting point.  At what point in a classroom should issues be brought to parental notice?  That is the question begged by the original point, right?  Who decides this?  Perhaps it should be left to "common sense," as subjective as that term is.  There are good teachers and bad teachers.  There are "age appropriate" questions are there are not.  We may disgree on what those are, but I can assure you we are not alone.  Most everyone disagrees.  That's the problem.  Some slimeball questionnaire can slip through - that does not a crisis make (unless we're talking about a blog thread).  

I simply side with teachers on principal, largely because most teachers I've worked with (and studied under) are caring people without zealous political scores to settle.  These are the people that are hobbled by over-zealous, and, yes, hyperactive parents.  When I taught I was focused on my subject - not the issues of the day.  I didn't preach the gospel of any political party, belief, or psychology.  I taught my subject.  Period.  What's the answer to our problem?  It's the same as it was 40 years ago: relegate the teaching of sex (and other emotionally charged issues) to a separate course, submit it for parental approval, and end up with a watered-down, lowest-common-denominator ciriculum that teaches, well... sludge.

you can bet that if you started asking seven year old kids in the local mall about touching their private parts you'd end up in the slammer PDQ.

The complaint that seems to be running throughout the comments is that somehow the court should have punished the school and this counselor for exposing children to sexual topics at exceptionally young ages.

But that's not how courts work.  Others above have pointed out, and it seems pretty clear, that the lawyers in this case did a poor job.  The court isn't there to mete out punishment when people are offended--the plaintiff has to make a prima facie case that something illegal happened.  The Court is just saying that the plaintiff's theory of the case doesn't stand up.

And this statement:

As a legal matter, the case was most likely rightly decided based on the law. But, we should all be outraged at the lack of respect the Ninth Circuit showed to parents -- who should be the the only party introducing seven year olds to issues of sex.

That should throw up red flags for anyone and everyone concerned about judicial activism.  

Right there, Erick says, "Hey, it doesn't matter what the law was, the 9th Circuit should try not to offend parents.  Why? Well, because I think something that's not in the law should be."

Wake up!  This is your chance!  If it's not in the law and you want it to be, then it's time to legislate it.  That's what the legislature is there for.  

This problem can be solved at the local level through the democratic process.  

Do you really believe the courts should be making these sorts of judgments?  Or do you just want the courts to effectuate your beliefs?

Outstanding link!

Seems that the Ninth's declaration 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" is at odds with the Supreme Court's statement that "choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as "of basic importance in our society," Boddie, 401 U.S., at 376 , rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect".

I don't think the Ninth Circuit Court has the authority to overturn the Supreme Court.

with the questionaire, which was dealing with early trauma. As according to studies, a significant percentage of both boys and girls, experience some type of sexual trauma before the age of 12.

It was innapropriate for the school not to inform the parents of the entire context of the questionaire, and was rather naive of the parents to not request to see the questions in advance.

I disagree that parents should be "the only party introducing seven year olds to the issues of sex."

Many parents do not instruct their children regarding issues such as "good touch, bad touch," which could open children to those that wish to prey upon them.

But I dont even think this questionaire had anything to do with instruction.

And it is not the first of it's kind.

Many of the like are given to school age children...mostly connected to schools of psycholgy engaged in research.

In undergrad psych, I gave out such a questionaire....albeit to children above the age of 10....but all parents were well informed as to the context of the questionaire, and were offered the opportunity to see the questions in advance.  

The parents have a few options.

They can convince their school board to change it's policies.

They can push to have the school board changed.

They can pull their children from public school and either home school them or put them into private schools.

They can move to a new district.

Then again this is the way it has ALWAYS been here.

is "we agree" with the lowew court. There was no need for them to embellish it with some diatribe like

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

It was simply unnecessary.

The kind of questions that they ask have no bearing on sex education!  Only through their deceit did they get parental consent.  These type of questions are way beyond this age group.

of the court manufacturing some new right. They manufactured the lack of a right. The nonsense about "no fundamental right..." was simply unnecessary to the purposes of affirming or overturning the lower court.

The 9th Circuit ignored SC precedent, only the SC would be able to find that "parenting is not a constitutional right" as it had previously found that "parenting is a fundamental constitutional right". It would be like the 9th Circuit had said "abortion is illegal in this country as of now". They have no authority to do so.

In the early 1920s, the United States Supreme Court first reviewed the rights, liberties and obligations of parents to direct the upbringing of their children. Two important decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, established a legacy which was followed by a series of decisions holding that parenting is a fundamental constitutional right, and among "the basic civil rights of man."

Choices about marriage, family life, and the upbringing of children are among those rights the Court has ranked as "of basic importance in our society," and as sheltered by the 14th Amendment against the State's unwarranted usurpation, disregard, or disrespect.

link

is bound by SC precedent. They ignored that. Lower courts cannot overturn the Supreme Court.

it would also stand to reason that if the school did inform the parents of the full contents of the questionaire that the mostly likely to have suffered such trauma would be the ones most likely to disallow their children from participating in the survey. This would probably have an effect on the outcome of the survey.

So could you point to the part of this opinion which said that there is no fundamental right to parenting?

Thank you.  Very astute and accurate.  I completely agree.

"there is no fundamental right of parents to be the exclusive provider of information"

Sounds like the definition of parenting to me.

with your comment!  What if the Supreme Court upholds this?  Then there is no alternative except home schooling.  The content control of teachers should be at the local level ONLY.  That is the only way that Parents can have a say in the curriculum. The State and Federal government control should be very general at best.

as those who refuse to see:

We 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.

I think it's pretty clear that parents don't have a "fundamental right" to absolute control over the information their children recieve.  And we conservatives should recognize the incredible dangers present in expansive fundamental rights jurisprudence (i.e. Griswald, Roe, Lawrence, etc.).  The Ninth Circuit made the right decision.

However, the political process should take care of these school board jokers with dispatch, just as Justices Scalia and Thomas would have it.  

So you think that parents should be able to sue TV networks for providing information they don't want their children to have?

If a parent wishes to be the "exclusive" provider of information, they can.  They can home school their children.  But if they choose to send their child to public school they abdicate that exclusivity.

Exclusivity is the issue here, not the righ to parent.  We all have the right to provide information.  Heck, that's what you're doing.

Do you think that parenting is a due process right?  Or do you think it is a privacy right?

mentioning that Scalia (with the strict constructionist philosophy that seems to be popular around here) has generally argued against what was articulated in Pierce v. Society of Sisters (and has done so publically in debates with the ACLU president Nadine Strossen).  See Troxel v. Granville, 530 U.S. 57, 91 (Scalia, J., dissenting) (arguing that the concept of unenumerated parental rights established in earlier cases such as Pierce v. Society of Sisters, 268 U.S. 510 (1925), should not be entitled to strong stare decisis protection).  Just a word of warning to all those strong proponents of strong originalism.

the kids had to get parents to sign the (fraudulent) permission slips to participate.

Why did the school have to get (the fraudulent) permission slips in the first place?

Scalia resides on the proper court in which to overturn precedent.