ARTICLES

This Policy Is Illegal

The Fight for Parental Rights in Public Schools

BY MARIA KENNEDY

On January 21, the Roseville Joint Unified High School district's board of trustees voted to continue its policy of not allowing minor students from leaving campus in order to secure medical services. Karen England of Capitol Resource Institute, a Sacramento-based family-advocacy group, said that this was the third time that the issue had been brought up before the board. England charges that board of trustee member Jim Joiner has been a major proponent of changing the school district's policy that does not allow students to go off campus without their parents' knowledge or consent.

England noted that each time the board has voted to retain the policy, it is brought up in a subsequent school board session. "What we are teaching our kids is to throw a fit when they don't get their way," she said in a February 3 interview with this reporter. When asked if Joiner was the only one who thought the policy needed to be changed, England replied, "I don't know who is the one that is so intent on keeping parents in the dark." England said that the push for the policy change would affect the local high school, but not the middle school. "The same district [Roseville Joint Unified] has a family-friendly policy at the middle school, which is not being challenged." England charged that Placer County's superintendent of education Bud Noblie is also pushing to allow high school students to leave campus without their parents' permission. "He is helping to undermine the majority of the Roseville Board of Trustees," said England.

But Noblie, in a February 5 interview, told this reporter that England's allegations regarding him were untrue. "There is no truth to it," said Noblie. "All I've done is provide the board with my recommendation. It's my position that there is such a controversy over this that it's best to hold off on this policy until we have some clarification. The three board members are refusing to do this. On the other side, there are lots of people saying this policy is illegal. What I want to do is what is reasonable and prudent rather than subject our employees, teachers, and students to possible litigation. We should get some clarification either from the courts or, as El Dorado [school district] is doing, from the attorney general's office."

Could Roseville's policy be successfully challenged in court as a violation of a student's civil rights? Dean Forman, president of the Roseville Joint Union High School District, said that the district's policy is a sound one. When asked if the policy could be construed as undermining a student's civil right to confidential medical services such as abortion, Forman replied, "it depends whether you call inconvenience denial." Forman characterized the district's policy as an attendance issue. "When parents send their kids to school, they don't leave their rights at the door." Forman said that schools are given broad authority on attendance issues and the school district has decided it's best for the students to stay in school. "The students are not being denied an abortion. Inconvenience is not denial. We are charged with educating students, and if they aren't in school, we can't do our job." Forman added that the district has wide community support. "We know what our community needs and wants. Our district is very conservative."

Fellow board of trustees member Jim Joiner disagrees that the district's policy is a sound one. Joiner said that his concern with the district's policy is that it will inevitably lead to a lawsuit. "The policy was changed last August," said Joiner. "After the policy was changed, we went to a couple of educational law firms, who said that the new policy is illegal." When asked who would be affected besides the students, Joiner said that the school nurses were concerned about the change in policy. "The nurses and principals are now between enforcing the district's policy, which is illegal, and allowing the students off campus without their parents' consent." Joiner said that he has offered other options to explore a policy that would not be considered illegal, but has been voted down by the board majority.

The majority of public school districts across California allow minors to leave campus without their parents' knowledge or consent for medical procedures such as abortions, and contraceptive and suicide counseling. A small percentage of school districts do not allow students off campus for such procedures unless their parents have given their consent. Often such a policy is in place because of litigation or threatened litigation against the school district by parents whose children have been harmed when taken to clinics by school personnel.

Theresa Stanley is on the Folsom Cordova Unified School District board. A lawyer by training, she is familiar with the legal issues surrounding the issue of schools allowing students to leave campus for confidential medical services. Stanley wants the Folsom Cordova Unified School District to rescind its policy of allowing students to leave school for medical services without parental knowledge or consent. "It's a matter of balancing the rights of the students with those of the parents," she said in an interview when asked why it was important to rescind the district's policy. "We're not infringing on the kid's rights, we're saying what you can't do during school hours." Stanley noted that she was not aware of any lawsuits against school districts that do not allow students to leave campus without parental consent for medical services. "The liability is greater for the school districts that do allow students off campus without their parents' consent," she said.

On Thursday, February 5, the Folsom Cordova school district voted to continue allowing students to leave campus during school hours for medical treatment. In a three to two vote, the board sided with Planned Parenthood, the teachers' union, and the school nurses, according to a press release by Capitol Resournce Institute. The swing vote came from board president Roger Benton. Before the vote, Stanley noted that she thought she had sufficient votes to rescind the policy; but, after an opinion by the Sacramento law firm of Pinnell and Kingsley was secured by the board, she thought she might not have the votes. The opinion stated that minors have a right to leave campus to seek medical attention during school hours. This right, according to the opinion, stems from a minor's constitutional right to privacy, as noted in a 1997 California supreme court case, The American Academy of Pediatrics v. Lungren, which addressed whether or not a state parental consent law was constitutional. Initially the California supreme court agreed that a parental consent law (for a minor to undergo an abortion) was constitutional. Later the court reversed itself and said that minors have a constitutional right to privacy.

In the case of the Roseville school district, the opposite opinion was given to the board. In November 2003, the Sacramento law firm of Sweeney and Grant told the board that it was within its legal bounds not to allow minors to leave campus for medical appointments. The opinion cites a United States Supreme Court decision, Pierce v. the Society of Sisters of the Holy Names of Jesus and Mary, that parents have a constitutional right to direct the upbringing of their children.

Brad Dacus of the Pacific Justice Institute said that the Folsom Cordova Unified School district's reliance on the Lungren decision was flawed and that the Pierce decision held more legal weight. "Lungren did not give minors an absolute right to an abortion," he told this reporter. "The minor's right to privacy is not absolute." Dacus pointed out that the Lungren decision put the school administrators in place of the parents and is in inherent conflict with the United States Supreme Court ruling that parents have a fundamental right to the upbringing of their children. Dacus also pointed out that school districts which allow students to leave campus for medical treatment during school hours can be held liable if there is an injury to the child during the medical procedure.

According to the Capitol Resource Institute, over twenty school districts across the state require parental consent in order for minors to leave school for medical services. Not all of these districts are committed to retain "parent friendly" policies. For example, the El Dorado County office of education also has a policy that requires students to have their parents' permission before they obtain medical services during school hours. Yet in an interview with this reporter, Superintendent Vicki Barber said that the El Dorado County office of education has sought the California attorney general's opinion on the matter. "We were told by our attorneys that our policy is not legal, so we are seeking the attorney general's opinion. We were told by our lawyers that this is a civil right for the child. We just want to follow the law." When asked, if the attorney general decided that the students have a right to seek medical treatment during school hours, would the district still be seen as "parent friendly"? Barber replied, "following the law is being parent friendly." Barber added that several other school districts have asked the attorney general's office for a legal opinion on the issue.

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