Is abstinence-only sex education unconstitutional? Yes, say a Cornell Law School professor and a Washington, D.C., attorney, because it has the purpose and effect of endorsing a religious agenda.
The question is of great importance to our nation's public schools, the legal experts say. A full 35 percent of all U.S. school districts with a districtwide policy to teach sex education require their schools to offer abstinence-only-until-marriage courses, according to a survey published in 1999. Such courses teach that abstinence until marriage is the only reasonable choice for unmarried teens. They only briefly discuss subjects such as condom use, abortion and homosexuality, and present them in the most negative terms.
Proponents of comprehensive sex education have vigorously lobbied legislatures and school boards to reject the abstinence-only approach. They acknowledge that sex education courses should discuss the benefits of avoiding early sexual activity, but they argue that schools must recognize that some students will choose to do otherwise. In their view, sex education courses need to provide students with detailed information about contraceptives and address seriously the full range of teens' sexual concerns.
In a just-published journal article, Gary Simson, a constitutional law professor and associate dean at Cornell Law School, and Erika Sussman, a Cornell Law School graduate who is now a litigation associate with Swidler Berlin Shereff Friedman, LLP, maintain that the First Amendment provides a persuasive basis for defeating abstinence-only in the courts. They make the original argument that abstinence-only programs violate the First Amendment's prohibition on laws "respecting an establishment of religion."
Focusing on "Sex Respect," the most widely used abstinence-only curriculum in the United States, Simson and Sussman present evidence that abstinence-only programs are rooted in a purpose of endorsing the views on sex urged by, and identified most prominently with, the Christian Coalition and its allies in the "religious right." They then argue that the programs should be found in court to violate the "Establishment Clause," which bans laws that have the purpose or effect of endorsing religion.The authors' constitutional analysis supports an approach to sex education that most U.S. parents favor, according to a recent study. The study, which was discussed in a Nov. 4 New York Times article, showed that the overwhelming majority of parents want schools to provide more, not less, sex education, once children reach their teenage years. The consensus cuts across socioeconomic groups. The parents surveyed in the study wanted discussion of abstinence but also called for instruction about birth-control methods and prevention and detection of AIDS.
In a separate portion of their article, Simson and Sussman take a position on another important issue in today's sex education debate. School districts that require comprehensive sex education courses regularly allow parents to opt out of the courses on their children's behalf. The authors do not question the authority of school districts to provide for such opt-outs. They suggest, however, that school districts would do well to reassess the wisdom of such provisions, and they argue that the First Amendment's other religion clause -- which bans laws "prohibiting the free exercise" of religion -- does not require school districts to allow for opt-outs.
Simson and Sussman's article, "Keeping the Sex in Sex Education: The First Amendment's Religion Clauses and the Sex Education Debate," appears in the latest issue of The Southern California Review of Law and Women's Studies, which is published by the University of Southern California Law School.