Parental Rights Lose in Lexington, Mass.

The Lexington, Mass. case that Fr. Araujo recently discussed has been decided against parental rights.  The federal district court dismissed the parents' complaint that they had a constitutional right to receive notice and an opportunity to remove their kindergarten and first-grade children from sessions reading books that presented same-sex sexual relationships or marriage as morally positive.  Parker v. Hurley, 2007 WL 543017 (D. Mass. Feb. 23, 2007).

Although the age of the children is quite young here, the decision seems unfortunately consistent with most of the recent precedent -- including this from the Ninth Circuit --holding that once parents send their children to public school, they have no constitutional rights whatsoever to opt them out of any objectionable curriculum.  A prominent rationale in these decisions is that if the parents wanted a curriculum congenial to their moral views, they could have chosen a private school -- an argument, of course, that in its disregard for the economic realities of modest-income families, ought to appeal more to anti-tax libertarians than to the politically left-ish people who typically make it.

As I understood the situation around the country, opt-outs from sex-education programs have been widely granted by school districts over the years.  Massachusetts has such a provision requiring notice and an opportunity to opt out of curriculum that "primarily involves human sexual education or human sexuality issues."  Mass. Gen. Laws c. 71, section 32A.  On the issue of homosexual conduct, the Lexington school district (and likely others as well) sought to avoid this duty to accommodate by claiming that the issue is one of teaching tolerance rather than teaching about sexuality.  The district court did not decide this state-law dispute; having dismissed the parents' claims, it also dismissed the claim under the state statute without prejudice to the plaintiffs suing in state court.  This was proper under the law of federal jurisdiction, but it does of course leave the parents objecting to same-sex marriage to the tender mercies of the Massachusetts state court system that (in the Goodridge ruling) has declared such objections irrational and hateful.

Not a bright picture for parental rights, in other words, except for a thin silver lining.  The parents objected that their children were being "indoctrinated" into approval of the morality of same-sex sexual relationships.  The district court answered that this was nothing more than an "epithe[t]": "'Indoctrination' is a pejorative term for teaching," and "[i]t is, obviously, the duty of the schools to teach."  Some of you will remember the several Supreme Court opinions (most notably Lemon v. Kurtzman) that forbade state aid to Catholic and other religious schools on ground that they engaged in "indoctrination" of students.  Critics of the Court sometimes pointed out that this was simply a nasty word for teaching, which all schools do -- public and private -- and should admit to doing.  Now, in the cases that we know are still upcoming about the permissibility of aid programs (i.e. school choice) under state constitutions, there's at least a district court opinion to cite and quote to support this argument for school choice.

So this decision continues the unfortunate trend of denying parents any option of partial exit from state controlled education.  But at least it provides a small bit of authority to help defend the broader exit option of school choice -- to bolster the case for permitting modest-income parents who choose religiously grounded "teaching (not indoctrination)" to receive the same state assistance in educating their children as parents who choose secular "teaching (not indoctrination)." 

Tom