JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that despite what some of its proponents are claiming or implying in the run-up to November 4, California Proposition 8 does not involve children or curriculum - it simply involves the fundamental right of lesbians and gay men to marry...
Prop 8 seeks to amend the California constitution by eliminating the right of same-sex couples to marry, but if you didn't know better, you'd think that the ballot measure is about school curriculum. The Yes on Prop 8 campaign's most compelling ads feature children coming home from school with stories of a prince marrying a prince and parents expressing fears that their children will be taught about same-sex marriage in public schools. Proponents of Prop 8 have seized on the political sensitivity surrounding children and parental fears over children's exposure to anything touching on the sexual. But Prop 8 isn't about curriculum it's about the fundamental right of lesbians and gay men to marry in California.
Prop 8 supporters claim that if the initiative fails and same-sex couples continue to marry, California schools will be forced to teach about same-sex marriage. To make this claim, proponents rely on the California Education Code and the First Circuit's decision in Parker v. Hurley, which rejected a parental challenge to gay-inclusive curriculum in Lexington, Massachusetts. Both, however, fail to provide adequate support for the proponents' contention.
First, school curriculum is an intensely local decision. Local school boards, elected by local residents, create, revise, and implement curriculum. While public schools must teach core subjects and ensure that students attain a certain level of competence, they enjoy a tremendous amount of discretion. Nowhere is that discretion more expansive than in the domain of health and sex education. In fact, schools in California may decide to provide no such instruction whatsoever. If schools do offer sex education, the California Education Code requires that schools teach "respect for marriage and committed relationships." But even this statutory provision is silent as to what that instruction should (let alone must) include. Instead, local school districts may include what they like, based on parental feedback, teacher input, and the decisions of politically accountable local officials. Some school districts have for years included material on lesbians and gay men, while many others have omitted such material. That variation will not change (and has not changed) in light of the ability of same-sex couples to marry in California. Schools will continue to exercise their broad discretion and will not operate under any new mandates. Furthermore, parents in California enjoy the right to exempt their children from sex education. This right to opt out will continue to exist, meaning that children won't receive sex education (gay-inclusive or not) to which their parents object.
Next, Prop 8 proponents' reliance on Parker is also misplaced. The First Circuit would have ruled in exactly the same way if Massachusetts did not allow same-sex couples to marry. The challenge to the gay-inclusive curriculum failed because parents do not have a constitutional right to control a school's curriculum. Instead, parents, as the court explained, must change the curriculum through political channels. If parents disagree with local curricular decisions, they should voice complaints to school officials or work to elect a new school board.
Lexington was not required to teach about the families that lesbians and gay men form. Indeed, Lexington was one of very few school districts in Massachusetts that included such instruction, even though same-sex couples have enjoyed the right to marry since 2003. Rather, the Lexington school district had discretion to build its own curriculum. No statutory provision and nothing about the court's decision requires Lexington or any other school district to teach students about same-sex couples. The same is true in California. Schools will continue to enjoy broad discretion to fashion a curriculum that reflects their community's values, and parents will continue to influence their schools' decisions. Moreover, the texts at issue in Lexington constituted part of the district's diversity curriculum, rather than sex education curriculum. Schools in California are under no obligation to provide such curriculum and absolutely no obligation to include issues of marriage or depictions of same-sex couples if they do.
Based both on California law and relevant decisions from other states, it is clear that the right of lesbians and gay men to marry will not affect public schools' discretion to craft their own curriculum. We shouldn't be distracted from the issue at hand: Prop 8 does not involve children or curriculum; it involves the fundamental right of lesbians and gay men to marry.
Douglas NeJaime is the Sears Law Teaching Fellow at the Williams Institute at UCLA School of Law