The Theory of Incoherent-Nonintervention

Regarding Sex Education Discourse

Jessica Montgomery Polny

LW 7488 Gender, Sexuality, and the Law

Professor Libby Adler

13 August 2020
 Incoherent-Nonintervention & Sex Education J.M. Polny 2

Sex has been deemed a private matter in legal precedence, from contraceptives in

Griswold v. Connecticut (​ 1965)1 to homosexual conduct in ​Lawrence v. Texas (​ 2003)2. The

family unit has been endowed, in legal discourse, with rights to privacy regarding the upbringing

of children, within their religious or moral principles about sex and relationships. However,

privacy rights are not entirely separate from the rulings of legal discourse or political attitudes.

Incoherent-nonintervention is a theory that outlines how sectors of life considered ‘private’ and

apart from the state, are actually not at all exempted from regulation, intervention, and discursive

decision-making of legislation and institutional policies. This theory of

incoherent-nonintervention applies to sex education, where the topic of sex is regarded as a

‘private’ family matter. The persistence of state and educational policy determining the scope of

parental rights over education intervenes with educational content and the upbringing of children

in the state-regulated public school system. State regulations place constraints that limit the

autonomy parents have within their privacy rights, as choices regarding sex education are

restricted by the state-regulated curriculum and exemption policies.

The history of incoherent-nonintervention between the private family and state-regulated

education can be illustrated with social theorist Michel Foucault’s discursive model. Social

attitudes and moral standards of society are regulated by discourse among families, institutions,

and the government over political and social matters. ‘Privacy’ as a right did not begin with any

1
​Griswold v​. ​Connecticut​, 381 U.S. 479 (1965), Opinon of the Court, 482, “The association of people is not
mentioned in the constitution nor in the Bill of Rights. The right to educate a child in a school of the parents'
choice-whether public or private or parochial-is also not mentioned. Nor is the right to study any particular subject
or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
2
Lawrence​ et al. ​v​. ​Texas​, 539 U.S. 558 (2003), 5, “In all events we think that our laws and traditions in the past
half century are of most relevance here. These references show an emerging awareness that liberty gives substantial
protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
 Incoherent-Nonintervention & Sex Education J.M. Polny 3

direct declaration in the Constitution, and so parental privacy was established over discourse

regarding the legal responsibilities and social obligations of the family. As stated by Foucault,

sexuality became a domain of “the legitimate and procreative couple,” whose parental authority

would “enforced the norm, safeguarded the truth, and reserved the right to speak, while retaining

the principle of secrecy.”3 The principle of “secrecy” that Foucault refers to is the principle of

privacy encompassed by the normative family. The discursive analysis directly applies to sex

education as it is incoherent with family privacy, establishing in its discourse the scope of both

parental authority over matters of sexuality, and state intervention in defining the “legitimate”

domains of family rights. Privacy is not only a legal term over scope, but also an assertion of

family principles that are considered normative and moral. Foucoult illustrates that historical

discourse upholds the idea that “children had no sex,” and to preserve the private notion of

sexuality “ a general and studied silence was imposed,”4 which contributes to the current

discourse over sex education in which parents assert their authority within privacy rights.

It is not only the relationship between state and parenthood that exemplifies

incoherent-nonintervention, but also institutions of education that are imposing restrictions

which establish choices and boundaries regarding sexuality. In Foucault’s original example, the

internal determination of architecture and gendered utilities in dormitories shows how much

sexuality is considered in education. Educational institutions impose opinions and restriction on

sexuality without direct policy statements, in which “architectural layout, the rules of discipline,

and their whole internal organization: the question of sex was a constant preocupation.”5. More

contemporarily related to sex education are choices provided to families for notification and

3
Foucault, Michel. 1976. ​The History of Sexuality: We “Other Victorians​.” France: ​Éditions Gallimard​, p3.
4
Foucault. ​The History of Sexuality​, p4.
5
Foucault. ​The History of Sexuality​, p27.
 Incoherent-Nonintervention & Sex Education J.M. Polny 4

exlusion from sex education programs. To the extent that schools have to consider the ‘private’

family matters concerning sex and religion, the question of ‘private’ parental concerns is present

in all policy decision-making by the state. The sense of family privacy between religious matters

and state legislation is incoherent.

Throughout this analysis of incoherent-nonintervention regarding sex education, the

discoursive nature of sex education and private parental authority is evident. The history of sex

education in the United States is presented in full scope within Tiffany Kocsis’ dissertation, with

a doctorate in education from Loyola Marymount University. The cases presented in this paper

to illustrate the discourse of incoherent-nonintervention reside on Kocsis’ analysis that parents

more often “file suit against curricula that is comprehensive in nature, as they are challenging

what is in the program rather than what is not.”6 The discourse of sex education standards and

curricula effects the ruling of legal cases regarding sex education and parental privacy, and so the

discourse allows the intervention of the state in definining the limitations of parental privacy

rights over sex education.

Frances Olsen is a legal professor, and one of her prevailing legal theories is

incoherent-nonintervention as it pertains to family privacy. Essentially, the function of the state

is constantly intervening, and will both reinforce parents’ authority and restrict the scope of their

private rights. The state will inevitably intervene with sex education content and implementation,

as policies define both the scope of parent’s rights and the appropriateness of educational

content. The idea of a private family, completely separate from state intervention, is not possible

as the family exists within the confines of the state. Olsen’s primary argument is that

6
Kocsis, Tiffani. 2017. "A Critical Analysis of Sexuality Education in the United States: Toward an Inclusive
Curriculum for Social Justice" ​LMU/LLS Theses and Dissertations,​ 470; p 105.
 Incoherent-Nonintervention & Sex Education J.M. Polny 5

nonintervention is an incoherent, false ideal, “because the state constantly defines and redefines

the family and adjusts and readjusts family roles.”7 The incoherence of nonintervention applies

to sex education, in which private family rights and doctrines cannot avoid intervention by state

and educational policies.

The intervention of the state over the “private” concerns regarding sex education has

been discoursively persistant in legal precedent. The legal scope of parent’s rights in the

upbringing and education of their children was primarily determined by ​Pierce v. Society of

Sisters​ in 1925. The Oregon Compulsory Education Act, by enforcing public education and

making private or alternative education unavailable, is an “unreasonable interference with the

liberty of the parents and guardians to direct the upbringing of the children, and in that respect

violates the Fourteenth Amendment.”8 Therein, the court defines the scope of state intervention

over private family matters. While school is compulsory, the extent of restrictions over choice

for public or private education is maintained by private parental rights. The court conceded in

Peirce​ to favor the rights of the family, but that does not imply that parents maintain an absolute

right to control their childrens’ education without state restriction. ​Pierce​ presents the scope of

the rights of the family and the educational institutions as “the right of parents to choose schools

where their children will receive appropriate mental and religious training, the right of the child

to influence the parents' choice of a school, [and] the right of schools and teachers therein to

engage in a useful business or profession.”9 The court must maintain balance between the

interests of the parents, of the state’s interest in education, and the best interests for the child, but

intervention between these parties cannot be altogether removed or maintain total power.

7
Olsen, Francis E. 1985. “The Myth of State Intervention in the Family.” ​Journal of Law Reform​. Vol. 184, p482.
8
​Pierce v. Society of Sisters 2​ 68 U.S. 510 (1925), p2.
9
​Pierce ​(1925), p4.
 Incoherent-Nonintervention & Sex Education J.M. Polny 6

The court narrows the state’s scope to impose education restrictions and assert parental

authority, as empowered by discursive history, insofar as the“child is not the mere creature of the

State; those who nurture him and direct his destiny have the right, coupled with the high duty, to

recognize and prepare him for additional obligations.”10 In this regard, private parental authority

over their children’s upbringing is deemed a fundamental right, and that the education of the

child is just as much a responsibility of the parent as it is the state’s. Though the parental

authority is categorically distinct from state policy, it is state discourse and policy that defines

the scope of parental responsibility and rights to be protected and enforced. Therefore,

nonintervention on the grounds of establishing parental rights is an incoherent assertion. Medical

and educational discourse continued to determine the appropriateness of content and distribution

for sex education. Discourse in the 1960s further opened discussion on sexuality, which allowed

conversations on sex education to proceed while adjusting to “renewed mainstreem Christian

thinking,”11 which then shifted again in the 1970’s as “Local battles built upon sex education

unsettled the previously liberal-dominated political environment and propelled a convergence of

oppositional movements… appealing to conservatives who felt challenged or threatened by the

increasingly sexualized culture and viewed it as a sign of a cultural decline of values.”12

It was in this era of conservative-liberal contention that ​Wisconsin v Yoder ​(1972) granted

Amish families the option to opt-out their children from compulsory education, before the

state-mandated age of 16.13 The court established that any such private accommodation would be

necessarily deemed as not detrimental to “the physical or mental health of the child, or result in

10
Pierce ​(1925), p6.
11
​Pierce ​(1925), p6.
12
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p84.
13
Wisconsin v. Yoder 4​ 06 U.S. 205 (1972)
 Incoherent-Nonintervention & Sex Education J.M. Polny 7

an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or

in any other way materially detract from the welfare of society.”14 The ruling in ​Yoder,​ as in

Pierce ​maintains decisions in the upbringing of children protected under private parental rights,

“so long as they, in the words of ​Pierce​, ‘prepare [them] for additional obligation.”15 Though the

state grants authority to religious upbringing, it also intervenes on private matters over education

by regulating the scope of obligations for parents.

The state, according to Olsen, in its policy choices defines family responsibilities and

regulations, “such as what human grouping constitutes a family and what happens if parents

disagree. These choices are bound to affect the decisions people make about forming families,

the distribution of power within the family, and the assignment of tasks and roles among family

members.”16 The tasks and roles are outlined in legal disputes over sex education within the

capability of the parents to provide effective education, as well as to provide an upbringing that

abides to “additional obligations,” such as citizenship and democracy. The

incoherent-nonintervention of state policy over private parental rights is recognized by the

court’s opinion in ​Yoder,​ which directly outlines the intervention of the state regarding

educational requirements over religious exemptions. The court finds themselves “performing the

sensitive and delicate task of weighing a State's legitimate social concern when faced with

religious claims for exemption from generally applicable educational requirements.”17 That

“task” is precisely the state intervening on the scope of educational requirements, and the degree

to which religious alternatives should be accommodated. The threshold of the Amish way of life

14
​Yoder ​(1972), p3.
15
​Yoder ​(1972), p3.
16
Olsen, Francis E. “The Myth of State Intervention in the Family,” p837.
17
​Yoder ​(1972), p20.
 Incoherent-Nonintervention & Sex Education J.M. Polny 8

- being a particularly secluded religious “way of life” and providing a sufficient educational

environment - was granted permission to be exempted from state-enacted compulsory education.

However, while Pierce and Yoder established the permissions of parental privacy rights

over the upbringing of children, matters of sex education particularly would also be maintained

under these rulings. Going into the 1980s, and continuing into the 1990’s, the increasing

influence of conservative politics directly affected sex education,18 following the legal discourse

which seemingly established more power to parental privacy rights and protection of religious

family interests. Secular sex education material by local and national religious groups strategised

their “secular” material to promote religious moral values, in which “conversations about topics

such as masturbation, homosexuality, birth control, and abortion were left out of the classrooms,

and heteronormative gender roles were further enforced by the patriarchal values of Western

religion.”19 Empowered by the pro-religious ruling of ​Yoder,​ more cases against sex education

curricula were presented under moral precedent. In response to the religious fervor within

parental privacy rights over education, the state had to impose greater intervention, as

exemplified by ​Smith v. Ricci​ (1982).

The policy enacted by New Jersey’s State Board of Education provided standards for

implementing sex education, which was "recommended-but-not-required" for districts, under

which about 40% of the state’s public school students were receiving sex education.20 The state

provides some choice in the matter, by which parents could voice their opinions and concerns to

school districts as to whether sex education would be implemented or not, but fundamentally the

choice resided with the educational institutions as the state intervened with standards and

18
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p85.
19
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p90.
20
​Smith v. Ricci,​ 89 N.J. 514 (1982) 446 A.2d 501, p2.
 Incoherent-Nonintervention & Sex Education J.M. Polny 9

recommendations. Common objections to New Jersey’s “family life education” program, which

included sexual health and relationships, were that “it would destroy the prerogative of parents to

educate their children on matters involving sexual morality, and would inculcate in pupils

concepts and attitudes, especially as related to sexuality, that conflict with their parents' views.”21

This is the parent’s claim to private matters of the family in the upbringing of their children, yet

incoherently separating the interests of the state from their own moral interests in demanding

state action to enact broader exemption policies. On the other hand, supporters of the program

argued that information on family life and sexuality would be supplemental, “rather than

replacing parental and religious efforts in this area.”22 However, this is also

incoherent-intervenience, by which the state would be asserting a priority of general sex

education topics over the private religious interests of the family. In either regard - whether the

sex education material should be considered as imposing doctrine or supplemental - the state’s

regulations would impact the authority of religious interests within the private family.

As we continue into the more contemporary discourse of sex education particularly, state

intervention will also define the scope of educational interests and appropriateness of sex

education topics, which can be in conflict with private values. The curriculum framework of the

“family life education program” was defined by the New Jersey State Education Board as

instructing students to develop an understanding of interpersonal relationships, human

development and reproduction, human sexuality, as well as other aspects of family planning and

personal development.23 School districts would then further adjust the topics appropriate for

school implementation, but were required to “provide a program that satisfies the definition of

21
​Smith​ (1982), p3.
22
​Smith​ (1982), p3.
23
​Smith (​ 1982), p4.
 Incoherent-Nonintervention & Sex Education J.M. Polny 10

family life education as given in the regulation.”24 Not only is the intervention of the state

directly apparent regarding parental authority, but also the imposition of information and

definitions of appropriate curriculum as regulated by the state. The court opinion in​ Smith​ claims

that there is not indication the sex education program “favors a "secular" view of its subject

matter over a "religious" one, as the program is “neither antagonistic toward religion nor

supportive of non-religion. The mention of religion in the classroom is not forbidden.”25But this

is not true, as the notion of non-intervention by private preferences and values upon legislative

and educational decisions is incoherent. Even though “religion” may not be indoctrinated into

sex education curriculum directly, conservative and religious values will continue to be

pervasive in topics on sexuality. For example, abstinence is to chastity as anti-abortion is to the

sanctity of the soul. Complete neutrality from religious interests would necessitate the complete

removal of state authority over private family concerns, such as providing exemptions or

curriculum notices.

Though ​Smith​ ruled in favor of the general interests of public education, the religious

morals and private parental rights are aknowledged by providing the “opt-out” option from sex

education. The requirements for the family life education program were that “Each year the

district must give parents an outline of the curriculum and a list of instructional material, and

must permit parents to review all the materials prior to their use in the classroom. The regulation

also listed the teaching staff members authorized to teach in the program and provided for

in-service preparation for those teachers.”26 It is the district’s responsibility to provide notice, but

24
​Smith (​ 1982), p4.
25
​Smith​ (1982), p7.
26
​Smith (​ 1982), p4.
 Incoherent-Nonintervention & Sex Education J.M. Polny 11

also to review and provide the exemption when demanded. Parental authority may be granted an

option to “opt-out,” but that exemption is also restricted by state interests for education. The

opt-out option enables private parental rights, insofar as “Where there is no compulsion to

participate in this program, there can be no infringement upon appellants' rights freely to exercise

their religion,”27 Essentially, if parents have the option to have a choice in their children’s

education with the “opt-out” provision, then there is no grounds to assert their parental authority

over the substance of educational standards and curriculum. The ​Georgetown Journal​ published

an article written by a collaboration of lawyers, “Sex Education in Schools,” which provided a

comprehensive legal history in contemporary cases. The article provides further insight on how

the court ruling in ​Smith​ shifted to serve the state interest of education distribution. In recent

legal history, “Courts have consistently held that school systems have the right and responsibility

to determine curricula. Parental control is generally outweighed by the state’s interest in

providing effective education or protecting the public health of children. As such, courts have

given strong deference to the state in forming their education policy, including sex education

programs.”28 However, the state continues to constrict the scope of privacy rights for parents in

determining sex edication materials and exemption policies, while parents maintain their private

interest in religious and moral upbringing. This is demonstrated in the case of ​Smith,​ where,

although there is a policy granted authority to parents, the limitations of that authority are

established by the state.

As the court opinions of ​Pierce​, ​Yoder,​ and ​Smith a​ re applied to sex education, it is clear

that the state in fact constantly intervenes on both matters of educational requirements and sexual

​Smith (​ 1982), p5.

27
28
​Alemansour, Melody, et al. 2019.“Sex Education in Schools.” ​The Georgetown Journal of Gender and Law​. Vol
XX., p484.
 Incoherent-Nonintervention & Sex Education J.M. Polny 12

health regarding a child. ​Pierce​ is fundamental in establishing parental responsibilities while

determining the restrictions of the state regarding education, as reinforced by ​Yoder e​ stablishing

authority for religious upbringing, while ​Smith​ is a reactionary case determining the limitations

of parental rights and the scope of state interest regarding sex education. The discourse between

these cases in the shifting paradigm between state interest and family privacy will continue to

present the incoherent-nonintervention status of sex education.

Nonintervention is an incoherent concept also by the way of individual choice being

limited by the state, as it defines what is considered private. Ralph Richard Banks is a legal

scholar who specializes in racial inequality, and illustrates this incoherent sense of private

autonomy with the example of racial preference in adoptions. But his model also applies to how

the choices parents make in regards to their childrens’ sex education are constrained by policy

and legislature. Even attitudes that parents assert regarding their privacy rights and religious

upbringing are constrained. Personal attitudes are thought of as “expressions of the autonomous

and self-deliberating individual, unmoored from social, historical, and symbolic processes,”

while “public” attitudes are considered externally generated by legal rules and social practices,

according to Banks.29 Attitudes on sexuality are considered private and intimate within the

family, defined by upbringing and religious morals. However, public contentions against

educational policies and legislation are considered political matters. But neither one exists

outside state intervention, as ‘private’ attitudes about sexuality are encumbered by policies and

institutional practices around sex education and sexual health. As with regulation of sex

education with restricted or permissable materials, “rules of prohibition are understood as

29
Banks, Richard R. 1998. “The Color of Desire: Fulfilling Adoptive Parents’ Racial Preferences Through
Discriminatory State Action.” ​Yale Journal.​ P1.
 Incoherent-Nonintervention & Sex Education J.M. Polny 13

involving the state, but rules of permission are not,” such as permitting opt-out provisions and

protecting private upbringing, and are assumed to exist without state regulation.30

Following ​Smith,​ most courts will rule in favor of the state’s interest in education for

schools to determine curriculum, including sex education. Parental rights in legal discourse are

more narrow than the state’s interest in education, wherein “the main course of action for parents

who find the topics of sexuality education in violation of their religious or moral standing is to

remove their child from the public school and enroll in a private institution that aligns more with

their personal belief system [citation omitted].”31 Educational political discourse into the 1990’s

favored abstinence-only curriculum and were generally anti-sex and anti-abortion32, since

educational policies were determined by a ruling conservative attitude. Organizations against

comprehensive sex education were enabled to strategize under these political conditions “to

discredit sex educators, the curricula, and the effects of the program.”33 The politicization of

‘private’ attitudes regarding sex and sexuality excessively intervened with the distribution and

content of sex education programs, as the contentions between parents’ privacy rights and the

state’s interests in education prevailed.

The opt-out provision intended to protect family privacy was often challenged, as the

discourse over this policy revealed the limitations of parental authority under the state’s

intervention. The case ​Leebaert v. Harrington​ (2002) involved the concern of opting out from

“Health and Family Life,” which included sex education topics, when it is integrated with other

course curricula.34 In this case, sex education topics are integrated with a required health course

30
Banks “The Color of Desire,” p2.
31
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p108.
32
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p90.
33
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p88.
34
Leebaert v. Harrington,​ 193 F. Supp. 2d 491 (D. Conn. 2002)
 Incoherent-Nonintervention & Sex Education J.M. Polny 14

in a public school. Since health courses are considered a “basic academic subject,” opt-out from

such academic subjects is not permitted, “not just in deference to the state's interest in preparing

children to lead responsible, healthy lives, but also because of the considerable discretion

entrusted to educators to control what occurs within schools, particularly with regard to the

academic function.”35 Sex education is regarded as a special topic, rather than a basic or

fundamental subject, which reinforces the idea that sex education is situated within the realm of

privacy rights of parents; but rather, it remains in the domain of state state interest, as the

discernment is established by policy and regulation.

The regulations of opt-out provisions pertaining to only certain curriculum - sex

education - is a limitation enacted by the stater over parent’s authority to dictate their children’s

education. The court in ​Leebaert​ expresses concern over the possibility of parents being able to

opt-out from a basic subject, or alter the contents of the health course. For then, “any parent

would be able to exercise a right to have his or her child excluded from the mandatory parts of

the health course or another required course to which the parent objected,” and that such a

decision would require the state “to accommodate parents objecting to other curriculum

requirements.”36 This maintains the state’s ability to restrict content that they consider falls under

sex education, and furthermore the extent to which curriculum is regulated by the state. Parental

privacy rights only pertain to education regarding sex and sexual health, and those subjects

reside in a narrow context.

Banks, though, is more so especially concerned with the incoherent-nonintervention of

personal autonomy within the state. Though our individual and private choices influence our

35
​Leebaert (​ 2002), p7.
36
Leebaert (​ 2002), p14.
 Incoherent-Nonintervention & Sex Education J.M. Polny 15

perception and course of state action, “the most intimate of individual choices are not understood

as a product of state policy at all. Instead, they are assumed to be chosen personally and to be a

reflection of subjective values and goals that express each individual's unique personality.”37

Opt-out provisions from sex education on the basis of religion and family upbringing are

regarded as personal and private choices. But, those choices are incoherently private, since the

state facilitates the available options and restrictions over educational exemptions. “Facilitative

accommodation,” illustrated by Banks as when adoption agencies provide options for racial

preference, is “the state's assent to private choices about family formation, whatever the basis of

these choices, blinds us to its active entanglement with racial preferences.”38 In regards to sex

education, opt-out options for parents trying to preserve private family autonomy, is a

“facilitative accommodation” - a choice - that is restricted and regulated by state and educational

policy.

Parker v. Hurley ​(2008)39 is a case which illustrates the incoherence of facilitative

accommodation regarding parents’ privacy rights over sex education. Massachusetts is one of the

states whose legislature requires notice, and opportunity, for exemption from sex education or

human sexuality. But the plaintiff parents in ​Parker​ were not notified of books being sent home

that included same-sex couples, “on the basis that the materials do not primarily involve human

sexual education or human sexuality issues.”40 Even in this case where notice and opt-out

provisions were available, the discretion of the school district to not consider these materials

37
Banks “The Color of Desire,” p2.
38
Banks “The Color of Desire,” p2.
39
​Parker v. Hurley,​ 514 F. 3d 87 (1st Cir. 2008)
40
Parker​ (2008), p2.
 Incoherent-Nonintervention & Sex Education J.M. Polny 16

under the scope of sex education reinforces the state’s intervention on what is considered

‘sexual,’ as opposed to the discretion of the parents and their private discretion.

Parker​ also reveals the discursive nature of sex education, in which the applicable

content is defined by policy enactment. The imposition of the opt-out provision included a public

statement from the Superintendent “explaining the school district's position that it would not

provide parental notification for ‘discussions, activities, or materials that simply reference

same-gender parents or that otherwise recognize the existence of differences in sexual

orientation.”41 The discourse of topics under sex education and sexuality by the Superintendent

and the school district board discerns what subjects are to be maintained by the authority of the

state, and the choices that parents have regarding their children’s education.

The limited choice given to parents, under their privacy rights to direct the upbringing of

their children, is that they can “choose between public and private schools” - but they cannot

direct public school curriculum and educational requirements.42 Parents often demand exemption

from, or removal of, sex education curriculum and family life material because it contains

‘contraversial’ topics such as abotion and same-sex marriage. It would be incoherent to claim

that these topics are private matters, as LGBTQ representation and pro-sex contraceptive

resources are included in curriculum and therefore subject to state regulation. Opt-out provisions

are a limited and state-regulated choice, and “Courts will have to grapple with whether this new

content, if provided in programs with “opt out” provisions, is afforded the same level of

discretion courts have typically given to states administering sex education programs.”43 Even

without opt-out provisions, parental claims to Constitutional violations have been dismissed,

41
​Parker ​(2008), p4
42
​Parker​ (2008), p10.
43
Alemansour, Melody, et al. “Sex Education in Schools,” p488.
 Incoherent-Nonintervention & Sex Education J.M. Polny 17

insofar as “The rights of religious free exercise and privacy have not been found to shield

individuals from learning about beliefs or opinions that may run contrary to their own,

particularly when a public school determines something will further its interest in the health and

education of children.”44

Legal discourse over sex education has affected other realms of parents’ rights over their

children’s upbringing and welfare, furthering the incoherent-nonintervention of the state over

‘private’ family matters. The matter of medical care, intertwined with sexual orientation, was

brought to attention in ​Pickup v. Brown​ (2013), where a parent claimed their constitutional rights

had been violated, since they were prohibited from enrolling their child in a program for ‘sexual

orientation change efforts.’45 However, the court maintained precedent that “substantive due

process rights do not extend to the choice of type of treatment or of a particular health care

provider,” and that“there is no fundamental right to choose a mental health professional with

specific training.”46 Declining particular treatment is more restrictive than sex education opt-out

provisions, but this case intervenes with both domains, as state interest is protected over private

parental rights. Health care is not protected within private parental rights to be responsible for the

welfare of their children, as the state will continue to intervene on available options. Removing

access to sexual orientation change efforts is as discursive and intervening as determining

limitations for opt-out provisions for sex education.

The court in ​Pickup​ directly presents the factual incoherence of the claim to a private

right for their child’s medical treatment, as “...it would be odd if parents had a substantive due

44
Alemansour, Melody, et al. “Sex Education in Schools,” p486.
45
​ avid H. Pickup, et. al. vs. Edmund G. Brown, Jr., Governor of California,​ case no. No.
D
2:12-cv-02497-KJM-EFB (E.D. Cal. 2015)
46
​Pickup​ (2013), p.35
 Incoherent-Nonintervention & Sex Education J.M. Polny 18

process right to choose specific treatments for their children—treatment that reasonably have

been deemed harmful by the state—but not for themselves.”47 The incoherence in this case

resides within the narrow scope of parental authority, in which the state can intervene on

medical professionals being unauthorized to enact a procedure or not being able to decline

treatment to their patients due to health risks. The interest in childrens’ well-being does reside

under private parental rights, but only insofar as the state determines which responsibilities are

mandatory, appropriate, and legal under the parental authority.

Parental authority in ​Pickup​ is limited in the same manner that parental authority over

curriculum content is limited by cases ruling over sex education. The court will not provide

parental authority over this matter of private medical treatment, as the exemption “would be to

compel the California legislature, in shaping its regulation of mental health providers, to accept

Plaintiffs’ personal views of what therapy is safe and effective for minors.”48. The argument here

is analogous to ​Leebaert​ and ​Parker​, in which parents cannot have authority to choose health

care provisions regulated by the state, to the same extent that they have no authority over

curriculum decisions for public education.

Federal discourse also sets the landscape for the scope of state intervention.

Contemporary progress in health sciences and social research were highly regarded during

President Obama’s administration. Tolerant and science-based discourse shifted state

interference over sexual education with an“increasing awareness of the benefits of

comprehensive sex education and growing criticism of an abstinence-only-until-marriage

approach,” though this legislation and policy intervention “also invites increased opposition from

47
​Pickup​ (2013), p35.
48
​Pickup​ (2013), p36.
 Incoherent-Nonintervention & Sex Education J.M. Polny 19

advocates of abstinence-only-until-marriage education.”49 Comprehensive sex education, which

considerds multi-cultural and LGBTQ representaion, was implemented into more public school

district standards. To this effect, state intervention increased the scope of appropriate topics for

sex education, and it woud be incoherent to assume that the state had no intereference over

tolerance in education for ‘private’ family topics such as same-sex marriage.

Legislation and policy aren’t the only factors that intervene with sex education and

parental authority. Discourse among the communities that participate in publication direct the

attitudes and limitations considered by public policy, “as each state has control of establishing its

standards for sexuality education curricula and often delegates this responsibility to school

districts, sexuality education programs trend toward meeting the needs of a particular

community.”50 The discourse of the community - whether conservative or liberal, tolerant of

LGBTQ representation or not, homogeneously white or mixed diversity - determines the scope

of intervention by the state, as demands for the community regarding sex education of the

community are voiced. It is important to note that community discourse directly impacts the

degree of legal intervention, since “curricular programming technically only violates the law if

someone brings suit, it is unreasonable to claim that any body of cases analyzed fully represents

the legal landscape of sexuality education as a whole.”51 Insofar as contentions against sex

education only pertain to that which is included, the incoherence of nonintervention also imposes

on the discursive silence of minority racial and religious groups who have no adequate

representation in public school curriculum.

49
Alemansour, Melody, et al. “Sex Education in Schools,” p499.
50
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p106.
51
Kocsis "A Critical Analysis of Sexuality Education in the United States,” p106.
 Incoherent-Nonintervention & Sex Education J.M. Polny 20

State intervention specifically regarding opt-out provisions is the most common legal

discourse to contrmporary cases over sex education and parental privacy rights, and there is

contention within policy discourse on which policies to enact. On the one hand, “opt-out

provisions allow parents to remove their children from the classroom during sex education

instruction for religious, moral, or family reasons. Opt-in provisions, on the other hand, require

affirmative parental consent, such as a permission slip, before children can participate in a sex

education program.”52 But either option would not evade the theory of

incoherent-nonintervention, as the scope of parental authority to either grant exemption or

permission would require state intervention to determine the limitations of privacy rights

regarding how parents choose to upbring their children.

Olsen states that nonintervention over private parental rights is not only incoherent, but

that the “rhetoric of nonintervention is more harmful than helpful.”53 The state attempts to limit

its intervention by providing opt-out provisions, to avoid legal repercussions and maintain the

value of the private family. Both ​Leebaert54 and ​Smith55, in defending education also defend the

state’s interest in public health, in which sex education is a measure against health concerns such

as teen pregnancies and sexually-transmitted diseases. But opting-out of sex education could

potentially harm the welfare of the child subject to unwanted pregnancy, insufficient emotional

development, or abusive behaviors.

52
Alemansour, Melody, et al. “Sex Education in Schools,” p477.
53
Olsen, Francis E. “The Myth of State Intervention in the Family,” p835.
54
​Leebaert (​ 2002), p13.
55
​Smith (​ 1982), p2-3.
 Incoherent-Nonintervention & Sex Education J.M. Polny 21

Also, on the other hand, promoting parental authority is harmful to the family, who

would maintain ignorance regarding the extent the state has in regulating their decisions on

education and upbringing and possibly be less inclined to participate in political discourse.

To this effect, Banks states that those private attitudes maintained by parents are

“considered to be uniquely within the province of individual discretion are insulated from moral

scrutiny and are less likely to be viewed as expressions of bias, prejudice, or stereotyping, all of

which are morally disfavored. Attitudes about public issues, in contrast, attract moral

judgments.”56 Private parental rights over their children’s upbringing to exclude them from sex

education is not percieved as harmful as removing a child from biology class for teaching

evolution. That distinction, where sex edcuation correlates with moral judgements on sex and

sexuality, is upheld by the state. Parental authority over is not a ‘private’ matter, because the

state, as in all the cases presented, asserts the limitations of moral judgements regarding a child’s

educational upbringing.

Parental authority and the doctrine of family privacy is invasive to education, even

without consideration of formal legislature and policy. Focault explains that overt discussion is

not necessary to determine social rules of privacy and sexuality, insofar as “one only has to

glance over the architectural layout, the rules of discipline, and their whole internal organization:

the question of sex was a constant preocupation.”57 Opt-out provisions are a policy decision

regarding parental authority, but sex education within the classroom also intervenes on private

family matters. The instructor is given curriculum standards to distribute topics that are

appropriate, and therefore determine the topics of discourse between students and their parents.

56
Banks “The Color of Desire,” p1..
57
Foucault. ​The History of Sexuality,​ p27.
Incoherent-Nonintervention & Sex Education J.M. Polny 22

Into the more literal architectural matter, schools districts determine policies on gender-neutral

bathrooms and Gay Straight Alliance sanctions, in which the discourse of LGBTQ tolerance is

determined by state intervention.

Justice Douglas’s dissent in ​Yoder​ articulates the harms and pervasiveness of both family

and state that concede to incoherent-nonintervention, wherein the interests of the child are often

left unconsidered when establishing limitations and rights over education. The concern is that

children do in fact have preferences for their educational environment, and aspirations for careers

and relationships. Parents have authority over the opt-out provisions for sex education, but “If a

parent keeps his child out of school beyond the grade school, then the child will be forever

barred from entry into the new and amazing world of diversity that we have today. The child

may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his

parents', that is essential if we are to give full meaning to what we have said about the Bill of

Rights and of the right of students to be masters of their own Destiny.”58

Privacy is an incoherent concept, as it attempts to separate matters of the family away

from state intervention. The incoherent-intervention theory applies to sex education most

directly, where the harms against child autonomy and lack of effective education both fail where

the state and privacy rights try to mediate. The state intervenes, as it regulates curriculum and

opt-out provisions, and the ‘private’ family is subject to restrictive authority and limited options

regarding the upbringing of their child. Both state and parent often fail to provide effective

comprehensive sex education, by which children can learn to become responsible citizens and

autonomously engage in sex and relationships.

58
​Yoder (​ 1972), p33-34.
Incoherent-Nonintervention & Sex Education J.M. Polny 23

Bibliography

Alemansour, Melody, et al. “Sex Education in Schools” (2019). The Georgetown Journal

of Gender and Law. Vol XX., p467-507.

Banks, Richard R. 1998. “The Color of Desire: Fulfilling Adoptive Parents’ Racial

Preferences Through Discriminatory State Action.” ​Yale Journal​.

David H. Pickup, et. al. vs. Edmund G. Brown, Jr., Governor of California,​ case no. No.

2:12-cv-02497-KJM-EFB (E.D. Cal. 2015)

Foucault, Michel. 1976. ​The History of Sexuality: We “Other Victorians.​ ” France:

Éditions Gallimard​.

Kocsis, Tiffani. 2017. "A Critical Analysis of Sexuality Education in the United States:

Toward an Inclusive Curriculum for Social Justice" ​LMU/LLS Theses and Dissertations,​ 470.

https://digitalcommons.lmu.edu/etd/470

Leebaert v. Harrington,​ 193 F. Supp. 2d 491 (D. Conn. 2002)

Olsen, Francis E. 1985. “The Myth of State Intervention in the Family.” ​Journal of Law

Reform.​ Vol. 184, pages 835-837, 842-844, 863.

Parker v. Hurley​, 514 F. 3d 87 (1st Cir. 2008)

Pierce v. Society of Sisters,​ 268 U.S. 510 (1925)

Smith v. Ricci,​ 89 N.J. 514 (1982) 446 A.2d 501

Wisconsin v. Yoder,​ 406 U.S. 205 (1972)