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Education Reporter

Federal Courts Hit Parents Again
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A few weeks after the Ninth Circuit, in Fields v. Palmdale School District, ruled that the right of parents "does not extend beyond the threshold of the school door" (Education Reporter, Nov. 2005), the Third Circuit on December 1 upheld another privacy-invading, sex-and-suicide questionnaire in C.N. v. Ridgewood Board of Education. This case had been in litigation for many years, and parents thought they had won it in the Third Circuit four years ago. (See especially Education Reporter, Jan. 2002) But the school was relentless in its attempt to assert its primary authority, and the court finally ruled in favor of the school.

At issue was a 156-question survey called "Profiles of Student Life: Attitudes and Behaviors," which probed students about their personal lives and activities. The survey included questions about sex, drugs, suicide, incriminating behavior, tolerance, and other personal matters.

Questions 92-93 in this survey given to Ridgewood children demanded to know "how many times" they "had used cocaine" in their lives, or during the last 12 months, and the answer choices were 0, 1, 2, 3-5, 6-9, 10-19, 20-39, and 40+. This gave students the false impression that casual use of cocaine is common and acceptable. Parents know that misleading questions can have a powerful effect. But judges who routinely uphold lawyers' objections to improper questions in court think it is okay to ask offensive questions of children in school.

In the Ridgewood decision, the Third Circuit admitted that the students' participation in the survey may have been mandatory, and conceded that the leading questions could be suggestive to students, but nevertheless ruled that parents' and pupils' rights were not violated.

On November 28, the U.S. Supreme Court refused to review another parental rights case, Crowley v. McKinney. In this Term, the High Court will be hearing a slew of cases about prisoners' rights (even about the alleged right of prisoners to read pornographic magazines), but rejected the appeal by the parent to protect parental rights concerning schools.

In Crowley v. McKinney, the Seventh Circuit had ruled against the parent on March 11, 2005, saying that the school has a constitutional right of "the autonomy of educational institutions." The parent had appealed to the Supreme Court to recognize the settled law of Pierce v. Society of Sisters, which in 1925 recognized the constitutional right of parents to control the education of their own children.

The parent in Crowley was a divorced father who sought the school records about his two elementary school children (which Illinois law requires to be provided) and protection for his son who had been bullied on the playground. The Seventh Circuit decision was so hostile to the father that it elicited a strong dissent from Judge Diane Wood, accusing the majority of effectively terminating a noncustodial father's parental rights over the most important activity in which children under the age of 18 engage: their education. Judge Wood wrote that the court's decision tried to claim that the famous cases of Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Wisconsin v. Yoder (1972) "concern only the rights of parents acting together. But there is nothing at all in those decisions that hints at such a distinction."

Continuing, Judge Wood wrote, "the majority's rule courts disaster for an enormous number of children in this country whose parents have become divorced. . . . the majority implies that a noncustodial parent's fundamental rights are not entitled to the same degree of protection as those of the custodial parent. Nothing in the Constitution, however, supports such a proposition."

It hasn't grabbed the attention of the Supreme Court that the Third, Seventh and Ninth Circuits have ignored the settled law of Meyer, Pierce, and Yoder. Many courts appear to have adopted the notion that the "village" (i.e., in these cases, the schools) should raise children. Judges prefer to side with schools and against parents.

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