The Interest of the State in Supplying Children with Condoms in Schools

1. Joan Biskupic, Court Spurns Challenges to Condom Policy; Group had Complained That School Program Violated Parental Rights, Wash. Post, Jan. 9, 1996, at A09; see also infra notes 63-75 and accompanying text (discussing in detail the condom distribution programs in the Falmouth and New York City School Districts).

2. Curtis v. School Comm. of Falmouth, 652 N.E.2d 580, 582-83 (Mass. 1995), cert. denied, 116 S. Ct. 753 (1996).

3. Curtis, 652 N.E.2d at 583.

The [schools'] condom program does not provide for an "opt out" for students' parents whereby the parents have the option of excluding their student child from the availability of condoms. Nor is there a parental notification provision in the . . . program by which parents would be notified of their children's requests for condoms. Id.

4. Brief for Appellants, Curtis v. School Comm. of Falmouth, 652 N.E.2d 580 (Mass. 1995) (No. 94 P 1287).

5. Curtis, 652 N.E.2d 580, 582.

6. 652 N.E.2d 580.

7. Id. at 588-89.

8. Id. at 586.

9. Alfonso v. Fernandez, 606 N.Y.S.2d 259, 267-68 (N.Y. App. Div. 1993). The condom distribution program developed by the New York City Board of Education called for high schools to distribute condoms to students who requested them. Id. at 261. In order for a student to receive condoms he or she must receive "guidance counseling involving the proper use of condoms, and the consequences of their use or misuse." Id.

10. Id. at 259.

11. See Id. at 267-68 (holding that the voluntary distribution program did not implicate free exercise rights because it was not coercive.) While arguably making it more difficult for the family to practice their religion, the court held that because it did not prohibit them from practicing their religion, it did not rise to the level of a free exercise violation. Alfonso, 606 N.Y.S.2d at 267-68. The court explained that "Competition for the child's attention and religious allegiance, standing alone, is no basis for constitutional infirmity." Id.

12. Id. at 265.

13. Id. at 264.

14. Id. at 264-65.

15. See Brief for Appellants, Curtis v. School Comm. of Falmouth at 11, 652 N.E.2d 580 (Mass. 1995) (No. 94 P 1287) ("The [parents] are entitled to injunctive relief against further enforcement against them by the School District's policy of selling and dispensing condoms to their children without any provision for them to opt out of such a program."); Brief for Petitioners-Appellants at 7, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (No. 8785/91) ("[Parents] bring this appeal on the grounds that . . . the [condom distribution program] violates constitutionally protected rights of parents to direct the upbringing of their children in accord with their own reasonable values and religious beliefs.").

16. See infra notes 26-62 and accompanying text.

17. 262 U.S. 390 (1923).

18. See infra notes 63-75 and accompanying text

19. See infra notes 76-91 and accompanying text.

20. See infra notes 92-128 and accompanying text.

21. See infra notes 129-38 and accompanying text.

22. See infra notes 139-47 and accompanying text.

23. See infra notes 148-52 and accompanying text.

24. See infra notes 153-78 and accompanying text.

25. See infra notes 179-90 and accompanying text.

26. Stuart J. Baskin, State Intrusion into Family Affairs: Justification and Limitations, 26 Stan. L. Rev. 1383, 1384 (1974). Until the early twentieth century, courts relied upon a common law presumption that "the natural love and affection of parents for their children, would "impel them" to effectively exercise their responsibility to ensure that their children were adequately prepared for "the discharge of their duties in after life." Id.; see, e.g., Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ("Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life . . . .") (emphasis added); In re Hudson, 126 P.2d 765, 777 (Wash. 1942) ("As long as parents properly exercise their duty, under their natural rights, to rear, educate and control their children their right to do so may not be interfered with solely because some other person or some other institution might be better deemed for the purpose.") (emphasis added); Wilson v. Mitchel, 111 P. 21, 25-26 (Col. 1910) ("[T]he experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that [children's] welfare and interests are best sub served under such control."); Russner v. McMillan, 79 P. 988, 989 (Wash. 1905) ("The natural rights of the father to the care, control, and custody of his minor children ought not to be denied or disturbed in the absence of good and substantial reasons . . . .") (emphasis added); O'Connel v. Turner, 55 Ill. 280, 284-85 (1870)

(The parent has the right to the care, custody and assistance of his child. The duty to maintain and protect it, is a principle of natural law. . . . Thus the law recognizes the power of parental affection . . . Another branch of parental duty, strongly inculcated by writers on natural law, is the education of children. The municipal law should not disturb this relation, except for the strongest reasons. . . . . ).

27. See Karl J. Sanders, Kids and Condoms: Constitutional Challenges to the Distribution of Condoms in Public Schools, 61 U. Cin. L. Rev. 1479, 1493-94 (1993) ("While the Constitution does not explicitly designate parental authority as a fundamental right, this principle has been deduced over time from the Ninth and Fourteenth Amendments.").

28. "Substantive Due Process" refers to the notion that "the 'Bill of Rights presumes the existence of a substantial body of rights not specifically enumerated but easily perceived in the broad concept of liberty and so numerous and so obvious as to preclude listing them." Laurence H. Tribe, American Constitutional Law § 15-3 (2d ed. 1988).

29. U.S. Const. amend. XIV § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; . . . .").

30. See infra notes 38-56 and accompanying text (discussing judicial recognition of the right for parents to direct the upbringing of their children).

31. See infra notes 156-65 and accompanying text (discussing the privacy right of families to be free from unwarranted government intrusion).

32. Natural rights are defined as:

Those [rights] which grow out of nature of man and depend upon his personality and are distinguished from those which are created by positive laws enacted by a duly constituted government to create an orderly civilized society.

Black's Law Dictionary at 1027 (6th ed. 1990).

33. See Ralph D. Mawdsley & Daniel Drake, Involving Parents in the Public Schools: Legal and Policy Issues, 76 WELR 299, (1992) (discussing the common law recognition of parents' natural right and duty to "prepare children entrusted to their care and nurture, for the discharge of their duties in after life.").

34. John H. Garvey, Child Parent, State and the Due Process Clause: An Essay on the Supreme Court's Recent Work, 51 S. Cal. L. Rev. 769, 805 (1978).

35. U.S. Const. amend. XIV § 1.

36. Garvey, supra note 34, at 805; see also George Dent, The Parental Rights and Responsibilities Act of 1995: A Brief Legal Analysis, Submitted to the Subcommittee on the Constitution, Committee on the Judiciary, United States House of Representatives, Oct. 24, 1995, (Fed. Doc. Clearing House, Inc.), available in LEXIS, News Library, Curnws File (explaining that the Supreme Court and constitutional scholars have long recognized that within the idea of ordered liberty protected by the Fourteenth Amendment, is the right of parents to "raise their children without excessive intrusion from the state").

37. Daniel J. Rose, Note, Compulsory Education and Parent Rights: A Judicial Framework of Analysis, 30 B.C. L. Rev. 861, 876 (1989).

38. 262 U.S. 390 (1923).

39. Id. at 399 (emphasis added).

40. Id. at 399-400. Although the issue before the Court was whether the statute that prohibited teaching foreign languages infringed on the teacher's Fourteenth Amendment liberty interests, "the conclusion that it did was heavily influence by the rights of the parents themselves." Garvey, supra note 34, at 805.

41. 268 U.S. 510 (1925).

42. Id. at 534

43. Id.

44. Id. at 535.

45. Sanders, supra note 27, at 1493.

46. 321 U.S. 158 (1944) (holding that a state may prohibit a child from selling magazines even if to do so conflicts with a guardian's choice of how to direct the upbringing of the child).

47. Id. at 166. ("It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.").

48. Id.

49. Sanders, supra note 27, at 1493.

50. See, e.g., Ginsberg v. New York, 390 U.S. 629, 639 (1968) ("[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society."); Griswold v. Connecticut, 381 U.S. 479, 483 (1965) ("And so we reaffirm the principle of the Pierce and Meyer cases . . . ."); Farrington v. Tokushige, 273 U.S. 284, 298 (1927) ("The general doctrine touching rights guaranteed by the Fourteenth Amendment to owners, parents and children in respect of attendance upon schools has been announced in [Meyer and Pierce]."); see also Parham v. J.R., 442 U.S. 584, 602-03 (1979) ("Our jurisprudence has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children . . . [and] our cases have consistently followed that course . . . ."); Roe v. Wade, 410 U.S. 113, 152 (1972) (citing Pierce as protecting "child rearing and education" even though the court did not rely on that case for basis of decision). Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("This primary role of parents in the upbringing of their children is not established beyond debate as an enduring American tradition.").

51. See Alma C. Henderson, The Home Schooling Movement: Parents Take Control of Educating Their Children, 1991 Ann. Surv. Am. L. 985, 992 (1993) ("Viewed broadly, Meyer, Pierce and other substantive due process cases create a private realm of decisions-making into which states cannot easily intrude. A parent's right to shape his child's education falls within that realm."); see also Curtis, 652 N.E.2d at 585-85 (relying on Meyer, Pierce, Prince, and other Supreme Court precedents, the court acknowledged that "parents possess a fundamental liberty interest, protected by the Fourteenth Amendment, to be free from unnecessary governmental intrusion in the rearing of their children . . . [which include] the inculcation of moral standards"); Runyon v. McCrary, 427 U.S. 160, 179, n.15 (1976) ("The Meyer-Pierce-Yoder "parental" right and the privacy right . . . may be no more than variations of a single constitutional right."); see also Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984) (acknowledging in dictum a right to "the raising and education of children").

52. See Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U. L. Rev. 765, 772 (1973)

([T]aken together [Meyer, Pierce, and Prince] clearly delineate a sphere of interests--which the Court now groups and denominates 'privacy'--implicit in the 'liberty' protected by the fourteenth amendment. At the core of this sphere is the right of the individual to make for himself--except where a very good reason exists for placing the decision in society's hands--the fundamental decisions that shape family life: whom to marry; whether and when to have children; and with what values to rear those children.).

53. Mary-Michelle Upson Hirschoff, Parents and the Public School Curriculum: Is There a Right to Have One's Child Excused From Objectionable Instruction?, 50 S. Cal. L. Rev. 871, 898 (1977).

54. In his testimony submitted to the House of Representatives concerning the legal status of parents' rights against government interference with the care of their children, Law Professor George Dent explained that "[d]espite [the Supreme Court decisions], the scope of parental rights under the Constitution is highly uncertain because the cases are so few." George Dent, The Parental Rights and Responsibilities Act of 1995: A Brief Legal Analysis, Submitted to the Subcommittee on the Constitution, Committee on the Judiciary, United States House of Representatives, Oct. 24, 1995, (Fed. Doc. Clearing House, Inc.), available in LEXIS, News Library, Curnws File. The relatively few parental rights cases, however, is by no means indicative of the insignificance of parental rights," but instead merely of the ability of the Court to hear only a few such cases each year. Id. Moreover, because most cases about parental rights are highly fact-specific, courts can not easily synthesize the few cases the Court does decide into general rules of law. Id.

55. Id. Compare Curtis, 652 N.E.2d at 585-86 (holding that in order for a state action to be found in violation of parental liberty interests and subject to any judicial scrutiny, it must cause a "coercive or compulsory effect" on the parents' rights), with Alfonso, 606 N.Y.S.2d at 265-66 (not stating that there must be coercion for there to be an intrusion into parental rights to warrant judicial scrutiny, but finding coercion to present in the condom distribution program nonetheless).

56. Id.

57. See Planned Parenthood v. Casey, 505 U.S. 833, 873-74 (1992) ("As our jurisprudence relating to all liberties . . . has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right."). The Casey Court explained that a law that serves a valid purpose--whose goal is not to infringe a right--is not invalid merely because it has the "incidental effect" of making it more difficult for a person to exercise that right. Id; see also Pierce, 268 U.S. 510 at 534 (stating that the Court is not questioning the states' ability to "reasonably . . . regulate all schools" so long as there is not "unreasonable interference" with parental liberty interests) (emphasis added).

58. See Curtis, 652 N.E.2d at 583 (affirming the judgment of the lower court that the plaintiff's must meet s "threshold requirement" of demonstrating a "coercive burden" on parental rights before they state a claim upon which relief may be granted).

59. See Pierce 268 U.S. at 534 (holding that the law at issue is unconstitutional because it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing of their children").

60. In Casey, Supreme Court characterized both parental rights to raise their children, and a women's right to control "her destiny and her body as within the "realm of personal liberty which the government may not enter . . . . [because] the Constitution places limits on a State's right to interfere with a person's most basic decisions about family." Casey, 505 U.S. at 847-49. The Court then applied an "undue burden" test to determine if a state action impermissibly interfered with a woman's right to get an abortion. See Id. at 873-74 (concluding that because the right to procure a pre-viability abortion is similar to other liberties, the state may not impose an "undue burden" on the right). The Court also applied an undue burden analysis to determine if a parental notification statute infringed on the ability of minors to exercise their right to seek an abortion. Bellotti v. Baird, 443 U.S. 622, 639-45, 651 (1979). If the Court applied an undue burden to test to determine if a state action infringes on a woman's right to receive an abortion, and the Court had likened abortion to other liberty interests including parental rights, then it stands to reason that the undue burden may be the appropriate standard to determine if a state action infringes upon parental rights. Id.

61. See Curtis 652 N.E.2d 580, 583 (explaining that unless the claimants demonstrate how the program interferes with their interests "to an extent which would constitute an unconstitutional interference by the State" the claimants would not meet the threshold requirement and the state would not need to come forward and demonstrate an interest that warranted the interference); see also Doe v. Irwin, 615 F.2d 1162, 1168 (6th Cir. 1980) (explaining that because a birth control clinic's distribution of condoms to minors did not unconstitutionally interfere with the claimant's rights as parents, there was "no need to consider whether a 'compelling' state interest was involved [or] whether parental rights 'outweigh' those of their minor children").

62. See Board of Educ. Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866 (1982) (explaining that "courts should not intervene in the resolution of conflicts which arise in the daily operations of school systems unless basic constitutional values are directly and sharply implicated in those conflicts"); Right to Read Defense Comm. v. School Comm. of Chelsea, 454 F. Supp. 703, 710-15 (D. Mass 1978) (reversing school board's decision to remove a vulgar book from the library, the court held that, although, the local school officials are "the principal policy makers in the public schools," when an action by that committee implicates constitutional values, the aggrieved parties "are entitled to seek court intervention); see also Epperson v. Arkansas, 393 U.S. 98, 104 (1968) ("Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to control of state and local authorities."); Ware v. Valley Stream High Sch. Dist., 550 N.E.2d 420, 425 (N.Y. 1989) ("[L]ocal school officials are vested with wide discretion in management of school affairs, and judiciary should not lightly intrude in resolution of school conflicts.").

63. As of 1993, 36 school districts, concentrated mostly in the Northeast and West Coast, had condom distribution programs--affecting about 8% of the total high school and middle school student population. Eugene C. Bjorklun, Condom Distribution in Public Schools: Is Parental Consent Required?, 91 WELR 11, 13 (1994). Of the programs then implemented, 21% required parental consent before a child could receive condoms; 41% did not require parental consent to distribute condoms to the students, but allowed parents to opt their children out of the program; and 39% neither required parental consent for distribution nor gave parents the option of having their child excluded from the program. Id. Because this Note deals only with those programs that do not provide parents option of having their child excluded from the program, this Note limits its analysis of the condom distribution programs to those that fit that description. Specifically, this Note analyzes the substantially similar programs adopted by the school districts of Falmouth, Massachusetts, and New York City--the two programs that do not allow parents the option of having their child excluded from the distribution and whose constitutionality has been ruled on by each of the states' supreme courts.

64. Curtis v. School Comm. of Falmouth, 652 N.E.2d 580, 582 (Mass. 1995), cert. denied, 116 S. Ct. 753 (1996).

65. Id.

66. Id. The program's "Counseling Protocol . . . mandates that school officials who give condoms to children at the school tell them that:

a) Condoms are 90%+ effective if used correctly every time.

b) Only latex condoms will prevent HIV.

Brief of Appellants at 7, Curtis v. School Comm. of Falmouth, 652 N.E.2d 580 (Mass. 1995) (No. 94P.1287).

67. Curtis 652 N.E.2d at 583.

68. Id.

69. Id.

70. In Curtis, the Massachusetts Supreme Court observed that the program struck down in the Alfonso case was similar to one instituted in Falmouth. Curtis 652 N.E.2d at 583.

71. Alfonso v. Fernandez, 606 N.Y.S.2d 259, 261 (N.Y. App. Div. 1993).

72. The parents were given to choice to "opt his or her minor, unemancipated child out of the classroom instruction" portion of the AIDS education program. Id.

73. Id.

74. When students received the condoms from the nurse, they also received an information card containing the following information:

RISKS AND BENEFITS OF THE USE AND MISUSE OF CONDOMS

The only 100 percent effective way to prevent the sexual spread of HIV and other sexually transmitted diseases is not to have sexual intercourse (abstinence). If you do have sexual intercourse of any kind, the only way to help protect yourself is to use a condom.

The main reason a condom may not provide protection is because it is not used correctly. if you use condoms, you can help protect yourself by reading and learning how to use them properly. The person making condoms available in your school can answer questions or can refer you to other people who can give you additional information on condom usage.

There are two reasons a condom may not protect you.

1. It may break

2. It may slip and leak

Knowing how to use a condom properly can reduce these risks. If you have additional questions, you can ask the person who is making condoms available in your school.

Nick Chiles, Lines Form For School Condoms; Students back the program, Newsday, Nov. 27, 1991, at 5.

75. Id.

76. See Alfonso, 606 N.Y.S.2d at 263 ("Supplying condoms to students upon request has absolutely nothing to do with education, but rather is a health service occurring after the educational phase has ceased.").

77. See Brown v. Hot, Sexy and Safer Prod., Inc., 68 F.3d 525, 533 (1st Cir. 1995) (holding that a parent's freedom to raise their children does not encompass a power to dictate what information a school may and may not teach their child).

78. See Id. at 533 (in holding that a school's mandatory, sexually explicit AIDS awareness assembly did not violate privacy or due process rights, the First Circuit explained that right of parents established in Meyer and Pierce does not "encompass a broad-based right to restrict the flow of information in the public schools"). The court noted, however, that this decision was not intended to "foreclose[] the possibility that words . . . may constitute 'conscious shocking' behavior in violation of substantive due process rights . . .[but that the] case law indicates that the threshold for alleging such claims is high and that the facts alleged here do not rise to that level." Id. at 532.

79. See Alfonso, 606 N.Y.S.2d at 266 (distinguishing a condom distribution program from exposing students to information concerning "the subject of sexual behavior," the court found that a constitutional claim against the latter would "falter in the face of the public school's role in preparing students for participation in a world replete with complex controversial issues"). Most of the cases dealing with parental objections school curriculum concern claims that the objectionable information provided to students infringed on the right to free exercise of religion, not Fourteenth Amendment parental liberty interests. Dent supra note 54. Without evidence of coercion, parents typically have been unsuccessful in their these Free Exercise claims. See, e.g., Mozert v. Hawkings County Bd. of Educ., 827 F.2d 1058, 1063-64(1987) (holding that mere "exposure to objectionable ideas" did not interfere parents right to direct the religious upbringing of their children as guaranteed by the First and Fourteenth Amendment"); Cornwell v. State Bd. of Educ., 314 F.Supp. 340, 344 (D. Md. 1969) (finding a free exercise claim to be without merit where the only alleged infringement is a distaste of the state's message), aff'd, 428 F.2d 471 (4th Cir.), cert. denied, 400 U.S. 942 (1970); Ware, 75 N.Y.2d at 130-31 (N.Y. 1989) (hearing a claim that a school AIDS awareness class violated parents' and students religious freedom, the court ruled that "parents have no constitutional right to tailor public school programs to individual preferences"); Hopkins v. Hamden Bd. of Educ., 289 A.2d 914, 923 (Conn. C.P. 1971) (finding that parents' religious guarantees were not infringed when a school's mandatory health class conflicted with religious beliefs, because it did not force students to engage in religiously offensive practices). The Hopkins Court explicitly declared that the parents would more easily have been able to prove that the state invaded their rights had they merely sought an exemption from the class. Id. at 932.

80. See Parham v. J.R., 442 U.S. 584, 604 (1977) ("Most children, even in adolescence, simply are not able to make sound judgment concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.").

81. Alfonso, 606 N.Y.S.2d at 261.

82. Curtis, 652 N.E.2d at 582.

83. Id.; Alfonso, 606 N.Y.S.2d at 261.

84. Alfonso, 606 N.Y.S.2d at 261.("[T]he distribution of condoms is not an aspect of education about disease prevention . . . . [but] rather a means of disease prevention and thus a health service occurring after the educational phase has ended.").

85. See Id. at 263 (quoting Dr. Robert A. Meyers, a former president of New York State Medical Society: "The purpose of [condom distribution] could only be prophylaxis, and there is no way that it could be considered a form of education."). The court concluded that "[the condom distribution program] is clearly a health service for the prevention of disease." Id.

86. It should be noted that the Alfonso case dealt with a statutory issue with which this Note does not analyze. The Alfonso court ruled that the condom distribution program at issue, in addition to violating parents' constitutional rights, also violated New York law. Id. at 262. New York's Public Health Law § 2504 implicitly mandates that parents give consent before an unemancipated minor receives health services by providing exceptions to the general common-law incapacity of minors. Id. The law provides:

Any person who is eighteen years of age or older or is the parent of a child or has married, may give effective consent for medical, dental, health and hospital services for himself or herself and the consent of no other person shall be necessary.

N.Y. Pub. Health Law § 2504(1) (McKinney 1985). The Alfonso court relied on this provision to hold that since condom distribution constituted a health service, schools must obtain parental consent before distributing condoms to the students. Alfonso, 606 N.Y.S.2d at 262-63. The law only affected the judicial treatment of the condom distribution after the court deemed the program a health service. See generally Id. at 263 (characterizing the condom distribution program as a health service, without reference to the state law). Indeed, § 2504 would not even be applicable to the condom distribution program unless it was determined first to be a "medical . . . [or] health . . . service." Id. The law's existence, therefore, should not render the Alfonso court's characterization of the distribution program as a health service inapplicable to other states in which this issue arises. Contra Curtis v. School Comm. of Falmouth, 652 N.E.2d 580, 586 (1995) (distinguishing the Alfonso ruling because the decision was based more directly on a State law which required parental consent for medical treatment"), cert. denied, 116 S. Ct. 753 (1996).

87. See Hofbauer v. Hofbauer, 47 N.E.2d 1009, 1013-14 (N.Y. 1979) (holding that parents of a child suffering from Hodgkin's disease could not be forced to choose the treatment deemed most efficacious by the state, so long as a reasonable course of treatment had been chosen by the parents). The court explained that while "the State as Parens patrio, may intervene to ensure that a child's health or welfare is not being seriously jeopardized by a parent's fault or omission . . . great deference must be accorded to a parent's choice as to the mode of medical treatment." Id.

88. See Brief for Respondent at 47, Alfonso v. Fernandez, 60 N.Y.S.2d 259 (N.Y. App. Div. 1993) (8785/91) (arguing in support of the program that the Board of Education declared that "[a]mong all the institutions of society, only [the New York School system has] direct daily access to more than 200,000 [children] Arguably, the [schools] have the best chance of any group to make a real difference.").

89. See infra notes 129-38 and accompanying text (describing the coercive effects the condom distribution programs may have on parents).

90. See infra notes 92-128 and accompanying text (describing the coercive effects the condom distribution programs may have on students).

91. Sandra B. Martinez, whose daughter was given birth control pills without Ms. Martinez's knowledge, conveys the outrage and violation parents may feel when school officials intrude upon their authority to guide their children's developing sense of sexuality and moral values:

The rationale presented to me when I confronted this women, who was usurping my parental rights, was that she had observed by daughter's behavior, and she felt my child would be needing pills to protect herself from pregnancy. I agreed that I did not want to see my child pregnant, but explained that I believed if my child chose to engage in behavior that could lead to that condition, that she needed to be willing to bear the consequences. [In addition to several harms that accompany taking birth control pills, it] would not protect her heart or teach her responsibility.

Sandra B. Martinez, Prepared Statement Before the House and Investigations Subcommittee, Dec. 6, 1995 (Fed. Info. Sys. Corp.), available in LEXIS, News Library, Curnws File.

92. See Curtis v. School Comm. of Falmouth, 642 N.E.2d at 586, 589 (Mass. 1995) (ruling that because no "penalty or disciplinary action ensues if a student does not participate in the program" parents of the students have no right to opt out of the program of be notified of their child's participation in the program), cert. denied, 116 S. Ct. 753 (1996).

93. See Alfonso v. Fernandez, 606 N.Y.S.2d 259, 262 (N.Y. App. Div. 1993) (discussing the common-law presumption of a "minor's normal condition [being] that of incompetency").

94. See Nomi Maya Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of Liberal Education, 106 Harv. L. Rev. 581, 613 (1993) (explaining that the freedom of speech affords no protection for a teacher's manipulation or coercion of his or her students). "Conventional First Amendment jurisprudence assumes a dichotomy between coercion and freewill." Id.

95 See Hirschoff, supra note 53, at 903-04 ("[Children] are likely to be far more susceptible to indoctrination than adults, since most adults have formed attitudes and views of their own which give them a better basis upon which to resist indoctrination.").

96. Id.

97. See Brief of Amicus Curiae at 26-27, Curtis v. School Comm. of Falmouth, 652 N.E.2d 580 (Mass. 1995) (No. SJC-06684) ("[T]he policy is completely voluntary. Students are not required to participate in the program, and receive a condom only if they request one. [Because parents] remain free to instruct their children not to participate in the program [there is no infringement with parents' liberty interests.]").

98. See Laurence H. Tribe, American Constitutional Law, § 15-6 (2d ed. 1988)

The Supreme Court has recognized the tendency and capacity of educational institutions to coerce uniformity by controlling a child's input of knowledge, and has imposed upon the governing entities a duty not to preempt choices better left within the less centralized decision-making processes of children, their families, and occasionally their teachers.

99. The Falmouth condom distribution program distributed condoms to all students from junior high school through high school. Curtis, 652 N.E. at 750. The New York program, on the other hand, made condoms available only to students of high school age. Alfonso, 606 N.Y.S.2d 259, 261.

100. See Ginsberg v. New York, 390 U.S. 629, 649-50 (1968) (Stewart, J., concurring) ("I think a State may permissibly determine that, at least in some precisely delineated areas, a child--like someone in a captive audience--is not possessed of that full capacity for individual choice . . . .").

101. Loco parentis refers to the position of the school being charged, de facto, with "parental rights, duties, and responsibility" with regard to the minor students that attend the school. See Black's Law Dictionary 542 (6th ed. 1991):

"Loco Parentis" exists when person [sic] undertakes care and control of another in absence of such supervision by latter's natural parents and . . . is temporary in character and is not to be likened to an adoption which is permanent.

102. See Alfonso 606 N.Y.S.2d at 266 (ruling that by implementing the condom distribution program, the state has decided, regardless of the parents' beliefs, "minors should have unrestricted access to contraceptives, a decision which is clearly within the purview of the [parents'] constitutionally protected right to rear their children").

103. Stephen R. Goldstein & E. Gordon Gee, Law and Public Education: Cases and Materials 11 (2d ed. 1980) (explaining that as of 1977, all states have compulsory education laws); Brian A. Freeman, The Supreme Court and First Amendment Rights of Students in the Public Classroom: A Proposed Model of Analysis, 12 Hastings Const. L.Q. 1, at 21 n.33 ("In most states . . . children must attend school from 7 to sixteen.").

104. See Hirschoff, supra note 53, at 906 n.117 (citations omitted) ("Attendance at school is generally required in most states for about 180 days a year from ages 7 to 16.").

105. The common law doctrine of parens patrio gives the state legal authority to require school attendance from its minor citizens. Kern Alexander & M. David Alexander, American Public School Law 216 (2d ed. 1985).

Parens patrio is defined as

[T]he principle that the state must care for those who cannot take care of themselves, such as minors who lack proper care and custody from their parents. It is a concept of standing utilized to protect those quasi-sovereign interests such as health, comfort and welfare of the people . . . .

Black's Law Dictionary 1114 (6th ed. 1991). The parens patrio power gives the state "limited paternalistic power to protect or promote the welfare of certain individuals, like young children and mental incompetents, who lack the capacity to act in their own best interests. Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev 156, 1199 [hereinafter Developments] (1980).

106. Freeman, supra note 104, at 20-21.

107. Hirschoff, supra note 53, at 20.

108. See Nick Chiles, Lines Form For School Condoms; Students back the program, Newsday, Nov. 27, 1991, at 5 (observing that the school had been "abuzz" for days getting ready for the distribution and when the program finally kicked off, "[b]rightly colored fliers announced 'CONDOMS ARE AVAILABLE' were distributed").

109. See Id. at 17 (explaining that school posted highly visible signs, distributed fliers and made public announcements reminding students that condoms are available just for the asking in the health resource center).

110. Brief for Petitioner-Appellants at 19-20, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (No. 8785/91).

111. Brief of the Defendants-Appellees at 10, Curtis v. School Comm. of Falmouth, 652 N.E.2d 580 (Mass. 1995) (No. SJC-06684); Brief for Respondent at 30, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (No. 8785/91).

112. See Hirschoff, supra note 53, at 905 ("A teacher cannot effectively control his students or keep their attention unless they have respect for him.").

113. See Curtis, 652 N.E.2d at 582 (stating that the "Superintendent's presentation of the condom availability to the student body would stress abstinence as the only certain method for avoiding sexually transmitted diseases."); see also Alfonso v. Fernandez, 606 N.Y.S.2d 259, 261 (N.Y. App. Div. 1993) (discussing the mandate of the New York School Board that schools stress abstinence in their AIDS prevention classes).

114. See Stephen R. Goldstein, The Asserted Constitutional Right of Public School Teachers to Determine What They Teach, 124 U. Pa. L. Rev., 1293, 1345 (explaining that the position of authority of school officials is relevant and may counter the argument that there exists no coercion when the official is merely "exposing" a student to ideas.)

115. Ann Scheidler, Condoms in the Public Schools; We Send Wrong Message by Allowing Distribution, Chi. Sun Times, Aug. 20, 1994, at The Forum. The perception by students is that schools always act with the students' best interest in mind. Id. It should stand to reason, then, that because a school would not distribute anything dangerous to its students, the school's distribution of condoms is a means to engage in risk free sexual intercourse. Id.

116. 615 F.2d 1162, 1167 (6th Cir. 1980).

117. See, e.g., Brief of the Defendants-Appellees at 13, Curtis v. School Comm. of Falmouth, 652 N.E.2d 580 (Mass. 1995) (No. SJC-06684) (relying on Irwin to argue that without explicit coercion, a school "making condoms available to minors on a voluntary basis has no potential for interfering with family privacy"); Brief of Amicus Curiae for the American Civil Liberties Union et al. at 27, Curtis v. School Comm. of Falmouth, 652 N.E.2d 580 (Mass. 1995) (No. 06684) (contending that the condom distribution programs sponsored by schools are "indistinguishable from the program reviewed and upheld in Doe v. Irwin"); Brief for Respondent at 31, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (No. 8785/91) (relying on Irwin to contend that a school, like "a publicly operated family planning clinic" does not violate a parent's interest by distributing condoms to children without first notifying the parents).

118. See Irwin, 615 F.2d 1162 at 1168 (holding that a public clinic is not obligated to notify parents when it distributes contraceptive devices to their unemancipated minor children).

119. The Irwin court explained:

There is no requirement that the children of the plaintiffs avail themselves of the services offered by the [clinic] and no prohibition against the [parents] participating in decisions of their minor children on issues of sexual activity and birth control. The [parents] remain free to exercise their traditional care, custody, and control over their unemancipated minor.

Id.

120. See Eugene C. Bjorklun, Condom Distribution in the Public Schools: Is Parental Consent Required?, 91 Ed. Law Rep. 11, 13 (1994) (explaining the that "the distribution of condoms in public high schools where attendance is compulsory is much different than other places where condoms might be acquired because attendance at those places is wholly voluntary").

121. See Scheidler, supra note 115 ("Distributing Condoms in our public schools . . . sends the message to our young people that sexual activity is perfectly acceptable outside the commitment of marriage.").

122. Hirschoff, supra 53, at 905-06.

123. Id. at 906-07.

124. See Arnold v. Board of Educ. of Escambia, 880 F.2d 305, 312 (11th Cir. 1989) (recognizing "the particular vulnerability of a school child to influence from one in an authoritative position"). Arnold holds that a claim by a minor that she was coerced into having an abortion does infringe on that child's constitutional rights. Id. at 310-11.

125. See Id. at 312 (holding that "a parent's constitutional right to direct the upbringing of a minor is violated when the minor is coerced to refrain from discussing with the parent an intimate decision . . . which touches fundamental values and religious beliefs parents wish to instill in their children"); see also Runyon v. McCrary, 427 U.S. 160, 177 (1976) (explaining in dicta that the principle set for by Meyer "entitle [parents to be] free to inculcate whatever values and standards they deem desirable"); see also Joan Biskupic, Court Spurns Challenge to Condom Policy; Group had Complained that School Violated Parental Rights, Wash. Post, Jan. 9, 1996 at A09 (quoting American Center for Law and Justice lawyer Jay Alan Sekulow: "Obviously children will disobey at times, perhaps innumerable times. That is Human nature. But when the government knowingly helps children defy their parents, that government burdens parental rights.").

126. See School Dist. of Abington v. Schempp, 374 U.S. 203, 287-93 (1963) (Brennan J., concurring) (explaining that children, out of fear of nonconformity will feel pressure to participate in "voluntary" religious exercises). Justice Brennan explains that according to experts, children are not likely on their own to seek exemption or to "flout 'peer group norms.'" Id. at 290-91.

127. Id.

128. In testifying before the New Jersey Supreme Court concerning a Bible distribution program, Professor Isidore Chein, Supervisor of Psychology and the Director of Research for Mental Health at New York University explained that making Bibles available "under the authority of the school" to children but not officially mandating that they take them

would create a subtle pressure on the child which would leave him with a sense that he is not quite as free [as the voluntary nature of the program implies]; in other words that he would be something of an outcast and a pariah if he does not go along with this procedure.

* * * I think they that they would be in a situation where they have to play along with this or else feel themselves to be putting themselves in a public position where they are different, where they are not the same as the other people, and the whole pressure would exist on them to conform.

Tudor v. Board of Educ. of Ruthford, 100 A.2d 857, 867 (N.J. 1953). The New Jersey Supreme Court concluded that although the distribution program was voluntary in name, the social pressure of school authorities distributing bibles and fellow classmates accepting them, indicated the program was not voluntary at all. Id. at 867-68. Although the Bible distribution program facing the court Tudor directly implicated the establishment clause, the general discussion of pressure felt by students to participate in school programs is very relevant to the condom distribution programs. See Id. (explaining that children feel pressure from their peers to participate in school programming (religious or secular) or else risk being seen as an "outcast"); see also Abington, 374 U.S. at 290-91 (Brennan J., concurring) (explaining that students are unlikely to "step out of line" with peer group norms, whether religious or secular).

129. See Goldstein & Gee, supra note 103, at 11 (discussing mandatory school attendance law in place in every state).

130. Unless parents are financially able to send their children to private schools (which relatively few parents are able to afford), they must send their children to public schools. Alfonso, 606 N.Y.S.2d at 266.

131See Arval A. Morris, The Constitution and American Education 70 (2d ed. 1980) ("If parents should fail to meet their obligation by refusing to send a child to school, they can be subjected to civil or criminal penalties.").

132. See Alfonso 606 N.Y.S.2d at 266 (explaining that when public schools sponsor a condom distribution program, there is "state compulsion on parents to send their children into an environment where they [have] unrestricted access to free contraceptives").

133. 615 F.2d 1162, 1168 (6th Cir. 1980).

134. Irwin, 615 F.2d at 1169 (holding that public health center does not infringe "a constitutional right of the [parents] by its practice of distributing contraceptive devices and medication to unemancipated minors without notice to their parents").

135. Alfonso, 606 N.Y.S.2d at 266 (explaining that in Doe v. Irwin, "there was no State compulsion on parents to send their children into an environment where they had unrestricted access to free contraceptives").

136. See Irwin, 615 F.2d at 1168 ("The State . . . has imposed no compulsory requirements or prohibition which affects the rights of [parents]. It has merely established a voluntary birth control clinic.").

137. See Goldstein & Gee, supra note 103, at 11 (explaining that since 1977 all states have compulsory education laws).

138. See supra notes 92-128 and accompanying text (discussing the indoctrination effects "voluntary" programs can have on minor children.

139. See infra notes 139-47 and accompanying text.

140. See infra notes 153-78 and accompanying text.

141. See infra notes 148-52 and accompanying text.

142. See John H. Garvey, Child, Parent, State, and the Due Process Clause: An Essay on the Supreme Court's Recent Work, 51 S.Cal L. Rev. 769, 815 (1978) (explaining that "if the parental interest is merely one in living vicariously through the child, or in perpetuating for the parents' own sake ideals and customs they find important" the protection afforded parental interests would be subordinate to state intervention whenever the state might reasonably believe necessary to "rescu[e] the child from parental self-aggrandizement").

143. See Robert B. Keiter, Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court's Approach, 66 Minn. L. Rev. 459, 507 (1982) ("Sharing and participating in a child's growth and development can generate a deep sense of satisfaction and a feeling of importance in the parent. . . . [I]t is reasonable to conclude that considerable personal and psychological satisfactions, many intangible, accrue to individuals who assume the parental role.").

144. See Id. ("In fulfilling [the parental] role, parents usually derive satisfaction from sharing their beliefs and values with the child and in observing the child's absorption of them into his or her own set of values.").

145. Id.

146. See Curtis v. School Comm. of Falmouth, 652 N.E.2d 580, 583) (Mass. 1995) (explaining the condom distribution program in question "does not provide for an 'opt out' for student' parents whereby the parents have the option of excluding their student child from the availability of condoms. Nor is there a parental notification provision in the [] program by which parents would be notified of their children's requests for condoms"), cert. denied, 116 S. Ct. 753 (1996); Alfonso v. Fernandez, 606 N.Y.S.2d 259, 261 (N.Y. App. Div. 1993) (same).

147. Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.").

148. See Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U. L. Rev., 765, 772 (explaining that the family unit is an essential and integral part of the theory of democracy as a whole and America's constitutional system in particular). In order to promote change, and not a stagnant status quo, there must be a source of fresh moral perspective. Id. Therefore, it is crucial in a democracy that the task of imparting values unto children be left with the family , not the government, because it is these fundamental values that people draw on to determine group decisions. Id.

149. See Developments, supra note 105, at 1215 (explaining that a democratic society presupposes a social system in which "the family serves as the primary institution in which children are prepared to become self-reliant participants in the political community"). "Family autonomy . . . serves our democratic society's collective interest in fostering social pluralism." Id.

150. Id.

151. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (striking down a compulsory education law that would prevent Amish parents from raising their children within the dictates of their religion); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (striking down a law that mandated children be sent to public schools, explaining that the state may not "standardize its children by forcing them to accept instruction from public teachers only); Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (striking down a law the forbidding the teaching of foreign languages to students and explaining that the state may not "foster a homogeneous people with American ideals").

152. Id. at 1215-16.

153. See Nick Chiles, New York to Schools: "Use Condoms," The Wash. Post, Nov. 3, 1991, at R16 ("Taking a hard look at the [New York's] statistics on AIDS, the chancellor and his supporters concluded that making condoms available to the 250,000 high school students in the nation's largest school system was an affirmative step toward slowing the spread of aids."). The sponsors of the plan feel that including a parental notification or opt-out provision will undermine the effectiveness of the plan because it would preclude anonymity, thereby deterring many students from requesting condoms, even where their parents would not object. Nick Chiles, Condom Issue Will Only Grow Hotter, Newsday, Sept. 22, 1991, at 5; Respondents' Brief at 10-11, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (Index No. 8785/91).

154. Brief for Petitioners-Appellants at 20, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (No. 8785/91).

155. Id.

156. See Moore v. East Cleveland, 431 U.S. 494, 1938-39 (1977) (holding that it is the family that all member in the family have an interest and a right to conduct their affairs without government interference).

157. Id.

158. See supra notes 26-62 and accompanying text (discussing the holdings and impact of Meyer, Pierce and Prince).

159. 431 U.S 816 (1977) (holding that foster children have an a protected right to due process of law before the state may remove them from a foster home).

160. See Garvey, supra note 34, at 814 ("Although prior cases had spoken only of the parental interest in childrearing and 'promoting a way of life,' OFFER clearly attributes an interest to all family members involved.").

161. 431 U.S. 494 (1977) (holding that a city housing ordinance may not interfere with the right of extended families to live together).

162. See Smith v. OFFER, 431 U.S 816, 843-44 (1977) (recognizing a familial right to privacy in determining whether the state afforded children due process of law during proceedings to remove them from their foster home); Moore v. East Cleveland, 431 U.S. 494, 504 (1977) (recognizing a right of the family to live together free from state interference in striking down a zoning ordinance because it interfered with this privacy right).

163. See Alfonso v. Fernandez, 606 N.Y.S.2d 259, 266 (N.Y. App. Div. 1993) (concluding that the condom distribution programs "intrudes on the [parent's] rights by interfering with parental decision making in a particular sensitive area.").

164. Id.

165. See Greg D. Erken, Prepared Statement Before the House, Judiciary Committee, and Constitution Subcommittee, Oct. 26, 1995 (Fed. Info. Sys. Corp.), available in LEXIS, News Library, Curnws File (explaining that a child has a right to an active and nurturing parent, and the government must "respect that parent-child relationship and ensure that parents have the legal standing to carry out their duties").

166. See Garvey, supra note 34, at 816

It is the parents who are most familiar with the effect which a particular decision might have on their child. They are also in the best position to understand the motives behind a child's wishes and, indeed, to know what a child's unexpressed wishes are. A family right to autonomy would maximize the communication between family members.

167. 442 U.S. 584 (1979) (upholding a state health care statute that permits parents to commit their child to a mental hospital, even against that child's wishes, so long as the decision is reasonable, and certain procedural safeguards are followed).

168. Id. at 602-03.

169 See John D. Hartigan, About Condoms; Sex Ed Gets a Failing Grade, Newsday, June 8, 1995, at 38 (arguing that the condom availability programs do not take into account the particular needs or maturity of the individual students, and in some cases, distributing condoms actually raised the instances sexual activity, teenage pregnancies, and venereal disease).

170. Id.; Brief for Petitioners-Appellants at 20, Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993) (No. 8785/91).

171. Parham, 442 U.S. at 602-03.

172. Id.

173See Parham 442 U.S. 603 (observing that "[m]ost children, even in adolescence simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment").

174. It is the parents and family who have to deal with the distress associated with a school-distributed condom that failed: the struggles of an unwanted pregnancy, a pain and HUMILIATION of a venereal disease, or the trauma and suffering of AIDS. Steve Largent, Prepared Testimony Before the Senate Judiciary Committee, December 5, 1995, available in LEXIS, News Library, Curnws File ("Parents are responsible for their kids every minute and for every action of every day while, by contrast, the government goes home at five o'clock and has holidays off. When government asserts its authority in the business of parenting, children and families will end up wanting.").

175. See generally Sharon Pomeranz, Comment, Condoms Overturned On Appeal: Teens Stripped of Their Rights, 4 Am. U. J. Gender & Law 216 (1995) (criticizing, the Alfonso court for, among other errors, ignoring the privacy right of minors to receive contraception without their parents' permission).

176. Bellotti v. Baird, 443 U.S. 622, 638-39 (1979).

177. See Alfonso 606 N.Y.S.2d at 265

([S]ince the Board has no obligation to make condoms available and minors still have the opportunity to obtain condoms (freely or at minimal cost) from other sources without out parental consent, it would be permissible for the [School] Board to make parental consent a prerequisite to condom availability or to give parents the opportunity to exclude their children from the program.).

The Supreme Court, however, has not recognized a privacy interest of children to be free from parental guidance, or even control, when seeking contraception. See Carey v. Population Servs. Int'l, 431 U.S. 678, 681, 693-94 (1977) (ruling only that the state cannot deny minors access to contraceptives, and not addressing the question of whether parents could assert such authority). The Court has not protected children's privacy right to obtain contraception free from their parent's knowledge; but only from state interference--and even then the interest recognized has been limited. Id.; see also Planned Parenthood v. Casey, 112 S. Ct. 2791, 2832 (1992) (upholding the constitutionality of a parental consent provision with an optional judicial bypass); Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 473 n.8 (1981) (explaining, in dictum, that the court has "assumed . . . that a State may regulate the sexual behavior of minors . . . . [and has] long recognized that a State has even broader authority to protect the physical, mental, and moral well-being of its youth, than that of its adults"); Id. at 497 (Stevens, J., dissenting) ("I would have no doubt about the validity of a state law prohibiting all unmarried teenagers from engaging in sexual intercourse. The societal interests in reducing the incidence of venereal disease and teenage pregnancy are sufficient . . . to justify a prohibition of conduct that increases the risk of those harms."); Bellotti v. Baird, 443 U.S. 622, 634 (1977) (recognizing that because of the "peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing," the constitutional rights of children are not the same as that of adults); G. Diane Dogson, Legal Rights of Adolescence: Restrictions on Liberty, Emancipation, and Status Offenses, Legal Rights of Children § 4.17 (Robert M. Horowittz & Howard A. Davidson eds., 1984) ("While it is clear from Carey that a state may not prohibit the sale of contraceptives to minors, the Supreme Court has not yet ruled specially whether parental consent or notification might be required."). But see Doe v. Irwin, 615 F.2d 1162, 1167 (6th Cir. 1980) (holding that a public clinic is not obligated to notify parents when it distributed to their unemancipated minor children contraceptive devices).

178. See Sanders, supra note 27, at 1493 (explaining that regardless of whether children can receive condoms at school, they still have "'parent-free' access to condoms at federally funded health clinics and private business establishments").

179. Developments, supra note 105, at 1196.

180. See Quillon v. Walcott, 434 U.S. 246, 253-55 (1978) (holding that the application of the "best interest of the child standard" conclusively justified allowing a child to be adopted without the consent of his biological father, despite the infringement on the father's substantive rights).

181. See Developments, supra note 105, at 1201-02 ("Thus, before intervening into the family to promote or protect the child's welfare, the state must show that the child's parents are either unfit, unable, or unwilling to care for the child adequately.").

182. See Smith v. OFFER, 431 U.S. 816, 862-63 (1977) (Harland, J., concurring in judgment) (explaining that state intrusion into the affairs of a natural family over the objections of the parents, "without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest" would constitute an impermissible trespass into the "private realm of family life").

183. See Chiles, supra note 153, at R16 (discussing the goals of the condom distribution programs and the justification for disallowing parents to opt out), Pomeranz, supra note 175, at 238-45 (same) .

184. "You can see why parents shouldn't be involved in family life education" was the reaction by Dr. Robert Spillate, superintendent of Fairfax County Public Schools, to the standing-room only crowd of parents that jammed into a local school board meeting to discuss the board's vote on sex education. Greg D. Erken, Question, Does the U.S. Need a Parental Rights Amendment?; Yes: Halt Social Engineering of the Nation's Families, Wash. Times, May 15, 1995, at 18.

185. See Parham v. J.R., 442 U.S. 584, 604 (holding because parents are presumed to act in the child's best interest, they retain "plenary authority" in addressing their children's health concerns.).

186. See Sanders, supra note 27, at 1508 (arguing that allowing a parent to control his or her child's right to receive condoms in a public school does not put that child's life in danger); Scheidler, supra note 115 (characterizing a parent's desire to have their child excluded from a condom distribution program and enabling the child to resist the school's high pressure marketing of condoms, not irresponsible or neglectful, but concerned for the child's safety by encouraging abstinence).

187. See Jeff Stryker et al., Prevention of HIV Infection: Looking Back, Looking Ahead, JAMA, Apr. 12, 1995 (explaining that AIDS is the leading cause of death among Americans between ages of 25 and 44 years, and because it has an incubation period of up to 10 years, many of those people were infected as adolescents).

188. A parent's choice to have his or her child excluded from a condom distribution program may be the result of knowledge of the horrendous failure rate of condoms sold in the United States. See generally, How Reliable Are Condoms?, Consumer Rep., May, 1995, 320 (testing 37 different brands of condoms and brands of condoms, and finding several flunked the strength tests, including several that claimed to be "extra strong").

189. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ("One's right to life, liberty . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no election.").

190. Ware v. Valley Stream High Sch. Dist., 550 N.E.2d 420, 429 (N.Y. 1989).