The Volokh Conspiracy - House of Representatives Urges Ninth Circuit To Be More Activist,

By a 320-91 Vote: Two weeks ago, a Ninth Circuit panel rejected a parent's claim that a school district's allowing children to be surveyed about sex violated the parent's constitutional rights. Today, the House passed a resolution asking the Ninth Circuit to rehear this decision en banc, "in order to reverse." (Thanks to How Appealing for the pointer to the House vote.)

It seems to me that the Ninth Circuit's decision was quite right. 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.

Nothing in the U.S. Constitution gives parents a right to veto the questions that a school district will ask their children. It's not in the text — parental rights are nowhere mentioned in the Constitution. It's not in the precedents; the cases that the House resolution mentions, and all the other parental rights cases that the Court has decided, have involved the parents' rights to send their children to private school (or perhaps not to send them to school at all), not their rights to dictate to government officials what they may or may not ask.

What's more, the boundaries of the rule would be very hard to define (they certainly aren't defined in the Constitutional text or structure), or to limit to questions about sex. The House resolution certainly makes no effort to define them; nothing in it explains why schools can ask children questions about math, science, or ethics and not about sex. This is the quintessential example of the kind of matter that calls for legislative or executive action, setting forth specific rules (perhaps including arbitrary lines of the sort that courts are rightly reluctant to draw) that are based on what the voters and their relected representatives want — not for action by elected courts who'll be telling school boards what to do or not do.

I realize that many people are angry about courts telling school boards what to do with regard to religious symbolism — but at least there we see a constitutional provision (the Establishment Clause) that at least mentions religion, and that might possibly be read as covering religious speech by the government (especially coupled with the Fourteenth Amendment, which makes most of the Bill of Rights applicable to the states). There we have over 50 years of Supreme Court precedent that support this position. And there at least we have a textual limitation that would keep this position, whether right or wrong, limited to a small part of the curriculum. Not so as to a general right of parents to control what schools say to or ask of their children, which is either conceptually unlimited, or, if it is limited only to sexual matters, has no textual anchor for such a limitation.

I also realize that many people are particularly peeved because the panel decision was written by the liberal Judge Reinhardt, who they suspect would be happy to make up other more liberal-seeming constitutional rights that he liked better than this sort of broad parental right to control what the school says to your children. I'm always troubled by these sorts of hypothetical-based charges of inconsistency — that Judge Reinhardt is willing to recognize some ambitious constitutional claims doesn't obligate him to recognize all ambitious constitutional claims; he might well have a perfectly good explanation for why this claimed right is different from other claimed rights. But in any event, even a stopped clock (if that's your view of Judge Reinhardt) is right twice a day. Judge Reinhardt got it right here, and we shouldn't fault this right result because we think Judge Reinhardt would get other things wrong in other cases.

Either the House of Representatives is asking the Ninth Circuit to reject a strict constructionist, deferential decision and instead adopt an activist position — or, if that's not so, it's only not so because the word activist has come to mean nothing except "a result I dislike."

	[Eugene Volokh, November 16, 2005 at 7:08pm] Trackbacks House of Representatives Urges Ninth Circuit To Be More Activist, By a 320-91 Vote: Two weeks ago, a Ninth Circuit panel rejected a parent's claim that a school district's allowing children to be surveyed about sex violated the parent's constitutional rights. Today, the House passed a resolution asking the Ninth Circuit to rehear this decision en banc, "in order to reverse." (Thanks to How Appealing for the pointer to the House vote.) It seems to me that the Ninth Circuit's decision was quite right. 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. Nothing in the U.S. Constitution gives parents a right to veto the questions that a school district will ask their children. It's not in the text — parental rights are nowhere mentioned in the Constitution. It's not in the precedents; the cases that the House resolution mentions, and all the other parental rights cases that the Court has decided, have involved the parents' rights to send their children to private school (or perhaps not to send them to school at all), not their rights to dictate to government officials what they may or may not ask. What's more, the boundaries of the rule would be very hard to define (they certainly aren't defined in the Constitutional text or structure), or to limit to questions about sex. The House resolution certainly makes no effort to define them; nothing in it explains why schools can ask children questions about math, science, or ethics and not about sex. This is the quintessential example of the kind of matter that calls for legislative or executive action, setting forth specific rules (perhaps including arbitrary lines of the sort that courts are rightly reluctant to draw) that are based on what the voters and their relected representatives want — not for action by elected courts who'll be telling school boards what to do or not do. I realize that many people are angry about courts telling school boards what to do with regard to religious symbolism — but at least there we see a constitutional provision (the Establishment Clause) that at least mentions religion, and that might possibly be read as covering religious speech by the government (especially coupled with the Fourteenth Amendment, which makes most of the Bill of Rights applicable to the states). There we have over 50 years of Supreme Court precedent that support this position. And there at least we have a textual limitation that would keep this position, whether right or wrong, limited to a small part of the curriculum. Not so as to a general right of parents to control what schools say to or ask of their children, which is either conceptually unlimited, or, if it is limited only to sexual matters, has no textual anchor for such a limitation. I also realize that many people are particularly peeved because the panel decision was written by the liberal Judge Reinhardt, who they suspect would be happy to make up other more liberal-seeming constitutional rights that he liked better than this sort of broad parental right to control what the school says to your children. I'm always troubled by these sorts of hypothetical-based charges of inconsistency — that Judge Reinhardt is willing to recognize some ambitious constitutional claims doesn't obligate him to recognize all ambitious constitutional claims; he might well have a perfectly good explanation for why this claimed right is different from other claimed rights. But in any event, even a stopped clock (if that's your view of Judge Reinhardt) is right twice a day. Judge Reinhardt got it right here, and we shouldn't fault this right result because we think Judge Reinhardt would get other things wrong in other cases. Either the House of Representatives is asking the Ninth Circuit to reject a strict constructionist, deferential decision and instead adopt an activist position — or, if that's not so, it's only not so because the word activist has come to mean nothing except "a result I dislike."