Palmdale and "Rights Talk"

In response to my post on Fields v. Palmdale School Dist., a couple of readers have pointed out that, as of 2003, federal law forbids local schools from requiring any student, "as part of any applicable program, to submit to a survey, analysis, or evaluation that reveals information concerning . . . sex behavior or attitudes" without parental consent. 20 USC 1232(h).  (Parental consent was obtained in this case, but the parents were not informed of the nature of the survey's questions.)  This statute wasn't enacted in time to help the Palmdale parents, but does this take care of the problem?  Should the courts stay out of it?  As Eugene Volokh argues,

Whether or not the school district's decision may have been wrong, foolish, or harmful, it wasn't unconstitutional. The proper remedy for the district's failure is through the elected branches of government, not through the federal courts setting educational policy.

On one hand, depending on the elected branches of government to validate rights that should be recognized as part of the natural order of society provides little comfort to those concerned with state encroachments on the family.  On the other hand, expecting extralegal normative claims to be embraced by courts is a high-wire act in today's environment of bitterly contested normative claims offered from a variety of anthropological perspectives.  This raises a familiar concern for Catholic legal theorists: should we advocate for robust conceptions of the unenumerated constitutional rights we favor, like parental rights, or should we resist "rights talk" across the board for fear of where that path may lead (and has already led)?

Rob