More on the school ruling

I had written an update to yesterday’s entry on the 9th Circuit Court not too long after I originally posted it. Unknown to me until just now, the update never published. Drat.

I’m not going to try to rewrite it entirely, but let me summarize stating that I want to back down a bit from my initially-hostile stance. This post by Eugene Volokh really helped me clarify what I really thought about the scenario, especially this bit:

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.

Volokh is responding specifically to an article entitled “Appeals Court Declares Parenthood Unconstitutional, Group Says”, and I’d like to point out that I never claimed that the ruling “declared parenthood unconstitutional”. But the point is important and is not limited solely to such claims. Public Education has been entrusted with America’s money and America’s children, and they have very great leeway in deciding what they do in the schools that they run. I wrote:

Never mind that, unless specifically spelled out in legislation, government has NO AUTHORITY OF ANY KIND WHATSOEVER OVER ANYONE. As I see it, the burden of proof should be upon the school district to prove that it has the authority to teach whatever it wishes. Unless it can do so, doesn’t the authority rest with the parent?

when, in fact, the authority to do what they wanted to do is probably spelled out very clearly. So that particular rant, in and of itself, is really not grounded on much of anything. I’d like this to serve as a sort of correction, not that my statement was wrong, but as an admission that it really didn’t apply to the matter at hand.

Although I touched on it a bit in the earlier post, what I think the real problem is is the fact that this sort of thing is probably legal, or at least arguably legal. Where this particular case will end up isn’t clear, but it is clear that the public school system as it exists, entrusted with our money and our children, is not trustworthy. And they have the legal backing to be untrustworthy. The courts, even when functioning properly, are charged with ruling on what’s legal, not what’s right. And though enough pressure might make right and legal more closely resemble each other, I’m not holding my breath. As I wrote in a comment on the original post, I think the system is broken and too many people are too willing to fight to keep it that way.

So I stand by my assertion that alternative to public education should be strongly considered. Homeschooling, the route my family has chosen, is not at all perfect and is not a realistic (or even a recommended) choice for everyone. But there are other alternatives out there, too.

In Murdoc’s fantasy world (the one where truth and justice always win in the end) enough people choose alternative forms of education for their children that real pressure can be brought upon the current level of public funding for public education. As the dollars shrink, the public school system reassesses itself and makes significant changes in order to keep students and woo back those that have left the system. In the end, parents and students get what they deserve and America gets better people.

Yes, it’s a wild fantasy. But please note that even I’m not so idealistic that I hope they’d change because it was the right thing to do. Even in my dream scenario they’ll only change for money.

UPDATE: Plus, a reader sends the link to the entire opinion. Thanks!


  1. Your fantasy world is safe. Truth and justice do win out in the end. The sad part is that it may take longer than a lifetime. Russia/Soviet Union is a good recent example.

  2. I really think we need an alternative model to the current public school system, one that gives parents a lot more flexibility in choosing what kind of education their kids receive. The constitutions of many states, including my home state of WA, mandate that the state provide an education to every child. I would argue in favor of the state being responsible for funding that education, but not actually providing the teachers, schools, etc. Basically, what I’m talking about is universal, tax funded vouchers, with all the schools being privatized.