It is quite obvious that parents themselves are divided about sex education for their minor children in school. I think that there should be a search for a compromise somewhere. Since what is involved is a conflict of rights and obligations, a look at the principles involved should be helpful.
Educational institutions themselves, whether private or public, have the constitutional duty to “strengthen ethical and spiritual values, develop moral character and personal discipline.” The manner of carrying out this duty, however, is not specified. There is room for the creative formulation by the state of plans and programs that can be acceptable to all.
However, the duty and responsibility to “strengthen ethical and spiritual values, develop moral character and personal discipline” belongs primarily to parents. As the fundamental law puts it, “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.” What is clear from this is that the primary right and duty belongs to parents and the role of government is subsidiary. Hence, some rational way of cooperation must be found whereby government can satisfy the views of disagreeing parents.
Indeed, modern society recognizes the indispensable role which the modern state has to play in the field of education. Parents need the help of the state in the proper formation of children for civic and social life. This role of the state is performed either through state established schools or through state regulation of private institutions of learning. This subject is now treated by the Constitution more fully than it ever was in earlier constitutions. Moreover, the role of parents has been strengthened but the role of government is specified as in support of the natural right and duty of parents. The law has added the adjective "primary" to modify the right of parents in order to emphasize that the right of parents is superior to that of the state.
The root of all this, of course, is the basic philosophy of liberty guaranteed by the due process clause. There is ample jurisprudence on this as applied to education.. For instance, a statute prohibiting the teaching of German to students up to a certain age was declared invalid. The US Supreme Court said: “For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: ‘That the wives of our guardians are to be common, and their children are to be common, and no parents is to know his own child nor any child his parent . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or the better when they chance to be deformed will be put away in some mysterious, unknown place, as they should be.’ In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.”
Another decision invalidated a law requiring children up to a certain age to go to public schools only. The Court said: “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
This is not to say, however, that the only things parents have are rights. They also have obligations. And the state, as parens patriae, has the duty to insure that parents perform their civic duty to prepare their children for life in society and to protect their health. Thus, in a case where a law required parents to send their children to school up to a certain age, the parents were excused when it was seen that the families themselves were adequately preparing their children for civic life.
This brings me back to what I said about the need to look for a formula that can satisfy the rights of parents and the duty of the state in the rearing of the youth for civic life. I believe that a formula, with necessary modifications, may be found in what is said about religious instruction in public schools. The Constitution says: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.” For many parents sexual morality is all part of religious upbringing. Sex is such an important subject that something similar to what is done for religious instruction might be worked out for sex education.
19 July 2010