In the spirit of The Dispatch’s utter rejection of clickbait, you’ll all be proud to know that I resisted the urge to use the phrase, “hot, sexy, and safer” in my newsletter headline. But old-school Advisory Opinions listeners will know exactly why I would be tempted to throw those words on top of the page.
(Advisory Opinions is of course The Dispatch’s premiere podcast and the greatest legal podcast in the known universe.)
The absolute first constitutional law case I worked on in my life was a case called Brown v. Hot, Sexy, and Safer Productions, Inc., and if you think progressive school administrators are out of control now, let me introduce you to the year 1992. That’s when Chelmsford High School in Massachusetts invited a woman named Suzi Landolphi to give a safe-sex presentation at a school assembly. Attendance was mandatory.
I’ve debated whether to fully share the facts of the case. This is, after all, a family newsletter, but the facts matter, and so here they are. Look away if you’re easily offended:
Specifically, the complaint alleges that Landolphi: 1) told the students that they were going to have a “group sexual experience, with audience participation”; 2) used profane, lewd, and lascivious language to describe body parts and excretory functions; 3) advocated and approved oral sex, masturbation, homosexual sexual activity, and condom use during promiscuous premarital sex; 4) simulated masturbation; 5) characterized the loose pants worn by one minor as “erection wear”; 6) referred to being in “deep sh–” after anal sex; 7) had a male minor lick an oversized condom with her, after which she had a female minor pull it over the male minor’s entire head and blow it up; 8) encouraged a male minor to display his “orgasm face” with her for the camera; 9) informed a male minor that he was not having enough orgasms; 10) closely inspected a minor and told him he had a “nice butt”; and 11) made eighteen references to orgasms, six references to male genitals, and eight references to female genitals.
I think you can see why someone might object. I think you can see why someone might even file a lawsuit.
The plaintiffs were two 15-year-old students and their parents, and they objected to the school forcing their children to watch speech and conduct they claimed “shocked the conscience.” I was but a young law student, and I volunteered my time to assist in legal research.
It took my 2-L self about 15 minutes in the law books to know that we were toast. The students were going to lose. The case law was clear as could be. Two things were true at once. The state did not have the power to force kids into public schools, but once parents placed their kids in a public school, their power over their child’s education was limited indeed.
The right of parents to opt their kids out of public education has been established since at least 1925. In a case called Pierce v. Society of Sisters, the Supreme Court struck down Oregon’s compulsory public education requirement. The state could not require students to attend public schools. Pierce, combined with cases like Wisconsin v. Yoder (which permitted Amish parents to opt their children out of compulsory education after eighth grade), mean that “under our Constitutional scheme, ‘the custody, care and nurture of the child reside first in the parents.’”
But this brings us to the second true thing. The authority of the parent lies mainly in whether their children attend public school, not in dictating what they’re taught in that school. When the 1st Circuit Court of Appeals (very predictably) tossed the students’ case out of court, it described the law like this:
[T]he state does not have the power to “standardize its children” or “foster a homogenous people” by completely foreclosing the opportunity of individuals and groups to choose a different path of education. We do not think, however, that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children.
Those exact words, written the year after I graduated from law school (and well after I’d conducted my futile legal research) helped make me forever a champion of school choice.
I’m pulling that case from the Google archives because our nation is right now in the middle of another culture war over curriculum in public schools, and that culture war was exacerbated by Virginia gubernatorial candidate Terry McAuliffe in a debate with his GOP rival Glenn Youngkin. (By the way, note the classic “Republicans pounce” framing):
Former Virginia Gov. Terry McAuliffe handed his Republican gubernatorial opponent Glenn Youngkin a campaign ad on a silver platter during a Tuesday debate by stating that he would not allow parents to tell schools what to teach their children.
McAuliffe, a Democrat who is seeking a second, nonconsecutive term as Virginia governor in November’s off-year election, proudly acknowledged Tuesday that he vetoed legislation while governor that would have alerted parents when there was sexually explicit content in instructional materials.
“I’m not going to let parents come into schools and actually take books out and make their own decision,” McAuliffe said. “I don’t think parents should be telling schools what they should teach.”
That’s a bold statement, but it presents a fascinating insight into why public schools present increasingly unsatisfying options for parents and why an increasingly diverse nation will likely face more curricular clashes unless we can empower parents not so much to dictate public school curriculum but to send their kids to schools where they will thrive.
McAuliffe’s statement represents the virtual paradigm of the in loco parentis concept of education. The phrase means “in place of a parent,” and it communicates a concept of education where parents functionally delegate education and discipline so long as the child is in the custody of the school. It communicates an idea of schooling that leaves the education of your child to trained professionals and minimizes the voice of parents, either individually or collectively.
This is the practical, daily reality of most American public education.
Moreover, parents don’t really have a right to change that reality. As described above, the Constitution doesn’t give them that right, nor do practical politics at the state and local level. The reason is simple—parents don’t decide who runs schools. Voters do. Not all voters are parents, and not all parents are voters. But it is voters who elect school boards and the state legislatures and governors who exercise most of the ultimate authority over public schools.
The result can be reasonably satisfactory when parents are in the political majority in any given school district. They can join political allies to organize, campaign, and toss out of office school board members who are out of step with their jurisdictions. At the state level they can pressure state legislators to pass laws (not all of them are wise) that alter curricula in ways they like, and they can pass laws that grant parents the ability to at least have access to their child’s curricula and allow him or her to opt out of certain kinds of instruction.
But what if you’re in the political or religious minority? Then parents can often feel powerless and helpless. You can feel at the mercy of the “woke” or the “anti-woke” depending on where you live.
There are two broad ways in which parents are fighting the educational culture wars. One productive, one destructive. The productive way is to match American pluralism with increased American choice. Parents with resources can choose different schools. Kids who lack resources should be provided “backpack funding”—educational dollars that follow students to the school their families choose.
The destructive way is to try to use political majorities to dominate public schooling, to push the power granted by the state to its limit in the effort to advance (or suppress) the ideas you like (or despise). This is the path of the speech code, the book ban, and the radicalized politics of gender and race.
One path recognizes American pluralism and empowers it. The other path opposes that pluralism and seeks to squelch it. One path uses the liberty the Constitution preserves to protect the authority of parents in the American family. The other uses the powers the Constitution does not restrict to magnify the role of the state in the life of the child.
Parents often learn these truths late, well after they’re committed to schools where their kids don’t thrive. Fortunately, I learned it early, when Hot, Sexy, and Safer Productions came to a town close by.
One more thing …
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One last thing …
Ja Morant, readers. Ja Morant:
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