Sunday, February 6, 2011
Abstinence sexual education is again being debated.
Bristol Palin's planned appearance at the University of Washington in St. Louis on February 7 "to speak on abstinence as part of Washington University’s student Sexual Responsibility Week" has been canceled because "of the growing controversy among undergraduates over the decision to pay for her talk with student-generated funds." Moreover, Senator Orrin Hatch (R-UT) successfully added an amendment to the Patient Protection and Affordable Care Act (eventually signed into law by the president) that restored a $50 million annual federal outlay to states (through 2014) for abstinence sex education. The provisions appear at sections 2953 et seq., entitled "Personal responsibility education."
John E. Taylor's lively and readable work, Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education, 18 Wm. & Mary Bill Rts. J. 1053 (2010), seeks to chart a middle course between what he terms the "sexual right" and the "sexual left." Taylor situates his analysis in the Establishment Clause, even as he rejects the formulation that the sex education debate is a clash between science and (religious) values. His intriguing thought experiment involves dental education and requires readers to examine our own flossing habits!
In the article, Taylor, Associate Dean for Academic Affairs and Professor of Law at the West Virginia University College of Law, then turns to three further claims, noting that “the value-laden character of sex education generates interesting conclusions about the proper roles of the federal government, the courts, and the public schools in sex education policy.” Id. at 1095. First, Taylor claims that the federal government “should not attempt to dictate how state and local governments approach sex education.” Id. at 1056. Second, Taylor argues that “courts should be reluctant to use the Establishment Clause to settle sex education controversies." Id. Finally, Taylor draws a broader conclusion that “we should recognize some limits on the degree to which the public schools can be enlisted as soldiers in the culture wars.” Id.
In the end, Taylor
cast[s] doubt on whether the federal government or the courts have useful roles to play in resolving cultural struggles about sex education. . . . These government institutions should allow space for the value conflicts at stake in sex education to work themselves out in a decentralized fashion. The core of truth in constitutional critiques of abstinence only-until-marriage sex education is the recognition that it involves the use of the public schools to promote a highly contested set of cultural norms. Legislators and school officials have duties to refrain from using the public schools as tools in the cultural struggle between red and blue family values. In practical terms, they should seek to forge policies that appeal to the “sexual middle” by stressing abstinence for school-age children while also providing basic information about contraception. These obligations have roots in constitutional values, but do not give rise to judicially enforceable constitutional rights.
Id. at 1095.
Despite Taylor's plea for the "sexual middle" to prevail, it seems likely that the value conflicts will continue and litigation will have a constitutional cast.
with J. Zak Ritchie