The Volokh Conspiracy - An Odd Sort of "Activism":

"Appeals Court Declares Parenthood Unconstitutional, Group Says," reads an item on CNSNews.com:

A new ruling from the 9th U.S. Circuit Court of Appeals is prompting cries of judicial activism.

On Wednesday the court dismissed a lawsuit brought by California parents who were outraged over a sex survey given to public school students in the first, third and fifth grades.

Among other things, the survey administered by the Palmdale School District asked children if they ever thought about having sex or touching other people's "private parts" and whether they could "stop thinking about having sex."

The parents argued that they — not the public schools — have the sole right "to control the upbringing of their children by introducing them to matters of and relating to sex."

But on Wednesday, a three-judge panel of the 9th Circuit dismissed the case, saying, "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." . . .

"Anyone who wonders why pro-family organizations like ours have been so concerned about activist courts only has to look at this case," said a spokesman for Focus on the Family. . . .

Carrie Gordon Earll, an issues analyst with Focus on the Family Action, called the ruling "one of the most abhorrent examples of judicial tyranny in American history. . . .

Earll said the court essentially declared parenthood unconstitutional. . . .

The panel's decision is not activism, under any sensible definition of activism. If "activism" has any substantive meaning, then activism is what the plaintiffs were asking the court to do.

The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools' authorization) from asking their children about sex. That's not in the copy of the Constitution that I have; nor is it in the Court's jurisprudence of parental rights, a rather "activist" creation of the Court's (which incidentally used the same "substantive due process" framework that many conservatives fault the Court for using in the abortion cases). Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don't include a constitutional right to send your kids to public school yet block the school from asking the kids about sex.

"Activist," as I've argued before, is a pretty ambiguous term (see also Orin's posts on the subject, and Larry Solum's) — but no definitions of it, other than the purely rhetorical and unsubstantive "judges not adopting the legal rules that I think they should adopt," encompasses what the Ninth Circuit did here. Sometimes "activism" is used to mean "willingness to overturn precedent," but the Ninth Circuit didn't do that. Sometimes it's used to mean "willingness to overturn the judgment of legislators and executive officials," but the Ninth Circuit refused to do that; it's the plaintiffs who sought such a result. Sometimes it's used to mean "willingness to use remedial schemes that aren't traditionally judicial," such as coming up with legislative-looking rules (such as the Miranda principles) or executive-looking supervisory schemes (such as taking over a prison or school system), but the court surely didn't do that. There's nothing "active" about the court's refusal to recognize a new constitutional right that would trump the politically accountable branches' actions.

Perhaps the plaintiffs could fault the court for being unduly passivist — for refusing to take an active role in defending what the plaintiffs see as their legal rights. As it happens, I think that even this would be substantively mistaken, since I don't think that the Constitution ought to be interpreted as securing a right to be free from public schools' talking to your kids about sex. But at least such an argument would acknowledge that the court's alleged failure is undue passivity, not undue assertion of its own power; failure to stand up to what plaintiffs see as executive tyranny, not an example of judicial tyranny; refusal to prevent supposedly unconstitutional encroachments on parenthood, not a declaration of parenthood or parents' actions as being unconstitutional.

I am not defending here what the school did; perhaps its actions were proper and perhaps they were wrong (I express no opinion on that here). But if the plaintiffs don't like what their school district is doing, they should go to the polls and elect a school board that's more to their liking; elect state legislatures that would enact laws banning such actions by the school board; propose such a law by initiative; or otherwise act through the political process. They aren't entitled to have judges impose their will (the parents' and the judges') on the school district. And they certainly shouldn't be unfairly criticizing the judges' actions, and mischaracterizing allegedly excessive passivity as "activism."

UPDATE: Whoa! Now this is shocking. "Reconsider[ing a] position"? Because you've read an argument, of all things? That's just not allowed.

	[Eugene Volokh, November 4, 2005 at 12:09pm] Trackbacks An Odd Sort of "Activism": "Appeals Court Declares Parenthood Unconstitutional, Group Says," reads an item on CNSNews.com: A new ruling from the 9th U.S. Circuit Court of Appeals is prompting cries of judicial activism. On Wednesday the court dismissed a lawsuit brought by California parents who were outraged over a sex survey given to public school students in the first, third and fifth grades. Among other things, the survey administered by the Palmdale School District asked children if they ever thought about having sex or touching other people's "private parts" and whether they could "stop thinking about having sex." The parents argued that they — not the public schools — have the sole right "to control the upbringing of their children by introducing them to matters of and relating to sex." But on Wednesday, a three-judge panel of the 9th Circuit dismissed the case, saying, "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." . . . "Anyone who wonders why pro-family organizations like ours have been so concerned about activist courts only has to look at this case," said a spokesman for Focus on the Family. . . . Carrie Gordon Earll, an issues analyst with Focus on the Family Action, called the ruling "one of the most abhorrent examples of judicial tyranny in American history. . . . Earll said the court essentially declared parenthood unconstitutional. . . . The panel's decision is not activism, under any sensible definition of activism. If "activism" has any substantive meaning, then activism is what the plaintiffs were asking the court to do. The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools' authorization) from asking their children about sex. That's not in the copy of the Constitution that I have; nor is it in the Court's jurisprudence of parental rights, a rather "activist" creation of the Court's (which incidentally used the same "substantive due process" framework that many conservatives fault the Court for using in the abortion cases). Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don't include a constitutional right to send your kids to public school yet block the school from asking the kids about sex. "Activist," as I've argued before, is a pretty ambiguous term (see also Orin's posts on the subject, and Larry Solum's) — but no definitions of it, other than the purely rhetorical and unsubstantive "judges not adopting the legal rules that I think they should adopt," encompasses what the Ninth Circuit did here. Sometimes "activism" is used to mean "willingness to overturn precedent," but the Ninth Circuit didn't do that. Sometimes it's used to mean "willingness to overturn the judgment of legislators and executive officials," but the Ninth Circuit refused to do that; it's the plaintiffs who sought such a result. Sometimes it's used to mean "willingness to use remedial schemes that aren't traditionally judicial," such as coming up with legislative-looking rules (such as the Miranda principles) or executive-looking supervisory schemes (such as taking over a prison or school system), but the court surely didn't do that. There's nothing "active" about the court's refusal to recognize a new constitutional right that would trump the politically accountable branches' actions. Perhaps the plaintiffs could fault the court for being unduly passivist — for refusing to take an active role in defending what the plaintiffs see as their legal rights. As it happens, I think that even this would be substantively mistaken, since I don't think that the Constitution ought to be interpreted as securing a right to be free from public schools' talking to your kids about sex. But at least such an argument would acknowledge that the court's alleged failure is undue passivity, not undue assertion of its own power; failure to stand up to what plaintiffs see as executive tyranny, not an example of judicial tyranny; refusal to prevent supposedly unconstitutional encroachments on parenthood, not a declaration of parenthood or parents' actions as being unconstitutional. I am not defending here what the school did; perhaps its actions were proper and perhaps they were wrong (I express no opinion on that here). But if the plaintiffs don't like what their school district is doing, they should go to the polls and elect a school board that's more to their liking; elect state legislatures that would enact laws banning such actions by the school board; propose such a law by initiative; or otherwise act through the political process. They aren't entitled to have judges impose their will (the parents' and the judges') on the school district. And they certainly shouldn't be unfairly criticizing the judges' actions, and mischaracterizing allegedly excessive passivity as "activism." UPDATE: Whoa! Now this is shocking. "Reconsider[ing a] position"? Because you've read an argument, of all things? That's just not allowed.