Recognizing the Sexual Rights of Minors in the -Only Debate by Hazel Glenn Beh* programs that promote the federal message of abstinence.7 I. Introduction As Professor Ravitch has noted, the Estab- lishment Clause may be implicated when In this paper, I briefly describe sexual develop- abstinence-only programs are overtly religious.8 ment milestones of adolescents and their sexual Likewise, as Professor DeGroff has observed, health risks. Acknowledging the fact that ado- lescents are sexual human beings and have all sexuality education may implicate parental rights to raise their children without state attendant health risks and needs compels the involvement. 9 This paper instead considers question: what responsibilities should adult society shoulder to prepare adolescents for what the rights of the adolescent are to sexuality education. The difficulty in fashion- sexual maturity? More specifically, does the ing an argument for sexuality education based current federal policy of funding abstinence- directly upon the needs of minors only-until- sexuality education help or reveals just hinder adult society in meeting its responsi- how impoverished our law is when it comes to children's rights. As Barbara Bennett bilities to our youth? If, as the public health Wood- house has urged, we should be "paying literature is suggesting, abstinence-only educa- atten- tion to children's lives and to what they tion leaves minors unprepared to manage their say and do" rather than "merely listening to what sexuality, does federal support of abstinence- others say about children" if we truly desire only education constitute a constitutional harm that our policies are "conducive to children's against minors? 0 Schools are playing an increasingly impor- growth toward autonomy.' When it comes to tant role in educating and preparing adoles- sexuality, this paper argues that we should be "paying attention to children's lives and to cents for the responsibilities of sexual matura- what they say and do" in order to develop tion,' whereas instruction about human sound sexuality education sexuality and inculcation of sexual values was policies. While there are many competing formerly delegated principally to family and religious, political, and educational views on the topic of church.2 Unlike many school curricular deci- sions, parents, educators, and students are not sex education, this paper attempts to refocus the curricular choices schools the only stakeholders when it comes to devel- make and the oping sexuality education curricula. As with policies they implement on student needs. most socially significant curricular choices that Laws concerning have granted teens at least some autonomy and schools must make,3 deciding precisely what privacy rights, perhaps because society recog- should be taught in sex education courses has nizes a certain futility in attempting to sup- long been a difficult and contentious debate. press teenage sexual desire and activity." This Control of the content of sex education is paper argues that a logical regarded as a political battle over who defines extension of the procreative rights America's larger social values. adolescents possess is recog- nition of a corresponding right Currently, federal resources for sexuality to accurate and comprehensive sexuality education. The recog- education are directed exclusively toward a nition of adolescent form of sexuality education called "abstinence- sexual development, understanding of adolescent needs, and respect only-until-marriage." ' The federal government for the rights they already initially provided grants to the states to design enjoy should inform programs to promote abstinence.6 Recently, the school curricular decisions when it comes to federal government has developed funding sexuality education. Part II of opportunities that bypass states and allow this paper describes the sexual maturation of adolescents, including sexual community and faith-based groups to develop minorities, as well as the attending health

Vol. 26 * No. 2 * Summer 2006 Hazel Glenn Beh

burdens and risks adolescents may encounter. of twelve; 3 boys begin puberty at around Part III describes various approaches to sexual- eleven and a half years of age. 14 Less is known 5 ity education and highlights recent criticisms of historically about the age of puberty in males, the federal government's exclusive focus on but for girls, the modern trend in industrialized abstinence-only-until-marriage education. This nations has been that girls enter puberty at an part discusses recent medical literature that earlier age than in earlier years. In the last indicates that abstinence-only sexuality educa- hundred years, the average age of menarche in tion may actually be placing minors at greater girls in the decreased from health risks because of the errors and mis- seventeen to less than fourteen years.' 6 In leading information commonly offered in these males, spermarche, the onset of reproductive courses. Part IV challenges the constitution- capacity, occurs in mid-puberty, at about the ality of abstinence-only education, arguing that thirteen to fourteen years." these courses impair the minor's ability to The "social invention" of as its make sound procreative and reproductive own developmental stage of life is a recent choices. Concededly, the federal government phenomenon of industrialized societies, includ- need not fund any sexuality education and if it ing the United States. Recognition of adoles- does, it can choose what messages it wants to cence as a unique stage of life "rested on three support. However, this paper argues that the important material changes in the nineteenth government crosses the line when it funds century," according to historian Jeffrey programs that affirmatively mislead minors and Moran." First, the American educational risks harm to their sexual health. system "increasingly segregated and sorted" youth "by age" giving them their own group II. Teens and Sex identity.' 9 Second, on average, American youth There can be no denying the child's biological reached sexual maturity at an increasingly 20 march to adulthood. Sexual maturation awak- younger age. Third, American youth began to ens sexual desires and interests in young delay marriage as "the period of training and people. After the biological process of puberty, education for young men, especially, grew 2 teens have sexual capability. However, indus- longer." 1 Unlike youth of a hundred years ago, trialized societies have recognized a develop- modern youth experience a period of time mental stage of life known as adolescence in where they are sexually mature or maturing, which teens are expected not to engage in but are not yet recognized as adult members of sexual activity, although they have sexual society with full sexual rights. A substantial capacity. Despite social expectations within portion of these years is spent in school, adult society that teens should exercise sexual making teenage sexuality an issue that American schools cannot ignore. restraint, sexually capable teens frequently 23 orientation 22 and gender identity engage in a variety of sexual activities. Sexual Sexual activity exposes teens to preventable health are also commonly developing or solidifying 2 4 risks and burdens that can have grave, lifelong during adolescence. Sexual minorities repre- consequences. sent a significant population within the adolescent community, although there is 1. Adolescent Sexual Development considerable uncertainty as to the precise prevalence of homosexuality 25 and trans- It is useful to recognize that adolescence and genderism 26 in adolescence. Part of the puberty are conceptually different; adolescence is difficulty in estimating prevalence is defini- a developmental stage of life while puberty is tional because as researchers are increasingly the biological process of sexual maturation. recognizing, is less categorical Puberty lasts approximately four and a half and more multidimensional and complex than years. 12 Girls in the United States enter once perceived: "[t]he relative heterosexual or puberty at approximately nine to ten years of homosexual direction of each dimension may age and typically begin menstruation at the age be inconsistent with others, defying dichoto-

Children's Legal Rights Journal Recognizing the Sexual Rights of Minors mous classification of individuals. 27 Estimating acquiring STDs for a combination of 37 prevalence is also difficult because sexual behavioral, biological, and cultural reasons., identity development during childhood and While adolescents and young adults account adolescence has a relative fluidity.28 Moreover, for twenty-five percent of sexually active even via anonymous surveys, researchers individuals in the United States, they represent "nearly '3 theorize that an adolescent's possible internal one half of all new STDs. 1 In 2003, defensiveness and reluctance toward self- young people between age thirteen and twenty- disclosure may undermine the reliability of four represented twelve percent of those newly data.29 diagnosed with HIV/AIDS. 39 Notably, infection Although sexual activity during the teen rates among teens in the United States are years may not be regarded by adults as socially higher than STD rates in other developed desirable, it is inescapable that teenagers cer- countries. 40 Although teens may perceive non- tainly have sexual and reproductive capacity coital sexual activities, such as oral and anal and often do engage in sexual activity. sex, as more socially acceptable and less risky According to the Centers for Disease Control's than vaginal intercourse, in fact, these (CDC) most recently released data, about behaviors carry health risks.41 sixty-four percent of males and females In addition to the risk of STDs, unintended between fifteen and nineteen have engaged in also pose significant health and sexual contact, including vaginal intercourse, socioeconomic risks to sexually active teenage oral, or .3° Over the latter half of the females. While the rate of teen in twentieth century, sexual behavior and the United States has declined recently, with a attitudes of youth became more permissive; the birth rate of forty-nine per 1000 adolescent age of first intercourse decreased from nineteen women, the U.S. rate remains substantially to fifteen years among women and from higher than that in other developed countries.42 eighteen to fifteen years among males.31 The According to the American Academy of age of first among teens has Pediatrics Committee on Adolescence, "[m]ore recently shown some upward trend.32 Today, than [four] in [ten] adolescent girls have been about half of seventeen year olds have had pregnant at least once before [twenty] years of sexual intercourse.33 The average age of age. '43 Pregnancy is a likely consequence of marriage has also increased over the last vaginal intercourse without contraception, a century;34 today, females are generally sexually single random act of unprotected sex carries an active for eight, and males for ten years before approximately three percent probability of marriage.35 Sexual activity must be more pregnancy. 44 While contraception use is broadly defined than just vaginal intercourse; increasing among adolescents, "[fifty percent]of increasingly, minors are also engaging in non- adolescent pregnancies occur within the first 6 coital sexual behavior such as in lieu of months of initial sexual intercourse" and only vaginal intercourse, perhaps as a strategy to sixty-three percent of sexually active high 3 6 delay sexual intercourse. school students "reported having used4 a condom the last time they had intercourse." 1 2. Unique Sexual Health Risks of Compared to males, adolescent females Adolescents bear heightened health and socioeconomic bur- Improvident sexual activity during the teen dens when it comes to the consequences of years carries attendant health risks including sexual activity. Because of anatomical differ- sexually transmitted diseases (STDs), HIV/ ences between males and females, females are AIDS, and unintended pregnancy. The Center more susceptible to acquiring STDs, detection for Disease Control ("CDC") has observed that is more difficult because they are frequently teens are at peculiar asymptomatic during the early course of the risk for STDs, warning 46 that "sexually active adolescents (ten- to disease, and they are more vulnerable to long 47 nineteen-year-olds) and young adults (twenty- term health consequences . Even among to twenty-four-year-olds) are at higher risk for women, the developing cervical anatomy of

Vol. 26 + No.2 * Summer 2006 Hazel Glenn Beh adolescent females make them peculiarly more However, less than [five percent of] sexually vulnerable to STDs.48 Social and cultural active adolescents would stop having sex as a factors make women vulnerable as well, consequence of parental notification. 7 "Condom use has to be negotiated and, ultimately, is the decision of the male to use C. Special Risks of Sexual Minority unless the woman has the strength to insist Youth 49 that no condom equals no sex.", As a result, Sexual minority youth are a particularly vulner- STDs expose women to chronic health able and underserved population and so their consequences, including pelvic inflammatory unique health risks deserve special considera- disease, cervical cancer, infertility, and a higher sexual minority youth ° tion. Unfortunately, risk of ectopic pregnancy. often lack supportive family and social Teen pregnancy also carries additional resources to help them navigate through ado- health and socioeconomic burdens that fall lescence as a sexual minority. While schools principally on females. Among other health could fill the void for this population, schools burdens, "[p]regnant adolescents younger than are often inhospitable to the needs of their eighteen have a higher risk of medical sexual minority student body. complications involving mother and child than Increasingly, lesbian and gay youth are do adult women," including, among others, coming out during adolescence, often while maternal and neonatal death and low infant they are still living at home and attending 5 birth weight. The socioeconomic burdens of school.58 For sexual minorities, coming out is a pregnancy, childbearing, and early marriage "key developmental milestone"5 9 that may that fall on women can be lifelong; "[t]he sometimes "percolate for years or decades. ' 6° psychosocial problems of adolescent pregnancy Minors often struggle with both self-disclosure include school interruption, persistent poverty, and coming out in isolation, without confiding limited vocational opportunities, separation in parents or other adults. Typically, sexual from the child's father, divorce, and repeat minority youth first confide in a friend, pregnancy. ,52 "[r]arely told first are parents, extended family are an underserved medical 6 Adolescents members, or pediatricians. ' ' Fear of telling population and this exacerbates their already parents is well founded for some sexual heightened sexual health risks. "Early, middle, minority youth; some encounter ambivalent or physician 62 and late adolescents all underutilize negative family reactions to their sexuality. offices relative to their population proportion;" Generally, sexual minorities have greater in fact, "[e]arly adolescents have the lowest sexual health risks than other youth for a rate of [physician] office visits than any age 53 variety of reasons; for example, homosexual group across the lifespan." Sadly, increased male youth "report earlier sexual debuts, higher office visits in young adulthood may actually rates of , more high-risk behaviors, reflect "the adverse health sequalae of early more lifetime sexual partners, less consistent adolescent risk behaviors" rather than use of contraceptives, and a greater number of improved utilization of health services during episodes of running away from home than their 4 adulthood more generally. heterosexual peers."63 In fact, negative social Notably, when it comes to sexual health in and family reactions lead to adolescent sexual confidentiality and particular, concerns about minorities being overrepresented in homeless the fear of parental notification also keep and runaway youth populations, and this adds adolescents away from appropriate health 64 5 to their health risks. Homosexual adolescent care. A recent survey of 1526 minor adoles- males more frequently engage in cent females at seventy-nine family planning than other youth populations.65 Unfortunately, clinics found that if the law mandated parental even though their health risks are high, social of surveyed notification, "[eighteen percent stigma associated with their teens] would engage in risky sexual behavior, "make it difficult for them to engage in health and [five percent] would forgo STD services."56

Children's Legal Rights Journal Recognizing the Sexual Rights of Minors

protective behaviors such as consistent condom name-calling, teasing, 66 taunting, and assault, use and immunizations for hepatitis B." decided under Title IX, to get a gripping Sexual minority youth are also unlikely to account of what some sexual minority youth receive adequate health care and sex informa- endure in the schools.79 tion within the traditional health care setting. Some health care professionals may have overt III. Sex Education Policy in the homophobic attitudes that impair their rela- United States tionship with their patient.67 Although the American Academy of Pediatrics' official view The schooling of American youth happens to is that the treatment of gay and lesbian youth coincide with this period of life marked by and their families is important,68 pediatricians important milestones in sexual maturation and typically are not well trained about the medical sexual behavior. It is difficult for schools to needs of sexual minority youth.6 9 Studies show ignore the sexual nature of adolescents given that pediatricians often hold misconceptions the momentous physical and behavioral about the unique health needs and risks of changes they are experiencing. The timing of sexual minority youth.7° Pediatricians report sexual development during a child's educa- that "discussion of sexual orientation with tional years poses unique and thorny adolescents is difficult" and that they are not challenges for schools that might otherwise sure how to discuss the matter with their prefer to ignore the contentious topic of sex patients. 71 "Consequently, the vast majority of altogether. However, the timing of sexual pediatricians ([sixty-eight percent]) do not maturation in the school years also presents an collect information about sexual orientation in opportunity for schools to assume an their sexual histories. 72 important and positive influence in molding Although schools could be an ameliorating sexually responsible individuals. A variety of influence, often schools are inhospitable to curricula approaches have been tried to prepare sexual minority youth. Sexual minority youth teens for sexual adulthood, encourage sexual are frequently victims of harassment and dis- restraint, and to instill values that comport crimination at school. 73 GLSEN, the Gay with social expectations. Lesbian Straight Education Network, reported in its most recent biannual survey of school 1. Curricular Approaches climate "that more than [four out of five] Because sexual maturation no longer coincides LGBT students reported being verbally with passage to adulthood, modern schools harassed at school because of their sexual have felt increasing pressure to cope with orientation, and more than [nine out of ten] educating and socializing a sexually capable reported hearing homophobic remarls such as student population.80 While prior to the "faggot," "dyke" or "that's so gay" frequently twentieth century, family and church were the or often. 74 Worse, adult bystanders who over- primary institutions expected to define the heard such remarks "seldom intervene to halt expectations and inculcate the values children 7 this blatant prejudice. 1 School performance needed to transition to a responsible sexual and educational aspirations are demonstrably adult,8 schools began to play an increasingly adversely affected in a hostile educational important role, in part because teens spend environment.76 Harassment also causes sexual such a large part of their life in age-segregated minorities youth to suffer corresponding physi- schools.82 cal and mental health burden.77 Therefore, and Although mundane matters of curricular not surprisingly, "considerable research shows choices hardly draw attention to those outside that "compared with heterosexuals, gay youth the school, the "message" that schools impart report greater depression, anxiety, substance on topics such as sexuality becomes part of abuse, school-related problems, delinquency, wider public discourse because instruction on and suicidality. '' 78 One need only read a few these issues are believed to influence national recently reported cases chronicling persistent social values.8" Thus, schools are often mired in

Vol. 26 * No.2 * Summer 2006 Hazel Glenn Beh controversy whenever they implement policies contraception would "contradict or undermine" or curricula regarding the sexuality of their the abstinence message. 92 However, a compre- students.84 hensive review of multiple research studies Sex education curriculum generally falls examining sex education outcomes concluded into three categories, although there is con- that "[I]n sum, these data strongly indicate siderable variability in content: abstinence-only that sex and HIV education programs do not sex education, comprehensive sex education, significantly increase any measure of sexual and abstinence-plus sex education. In general, activity, as some people have feared, and that content in abstinence-only curriculum is to the contrary, may delay or reduce sexual designed to promote abstinence from sexual intercourse among teens." 93 Indeed, the activity as the only acceptable option for American Academy of Pediatrics Committee on adolescents and if condoms or contraception Adolescence recently concluded that "[c]urrent are discussed at all, the instruction merely research indicates that encouraging abstinence emphasizes failure rates and does not provide and urging better use of contraception are information on their use.85 Typically, these compatible goals" and that discussing "contra- programs attempt to instill fear about the ception does not increase sexual activity."94 consequences of sex. They do not acknowledge Nationally, about two-thirds of school the health needs of the sexually active teen, districts have a policy to teach sex education, exaggerate physical or psychological harm from while the remaining third leave the decision to if abortion is discussed at all, and individual schools or teachers. 95 Within public discuss HIV/AIDS and STDs only in 8the6 school districts it is estimated that "more than context of "reasons to avoid sexual activity. one-third of districts with a policy to teach On the other hand, a comprehensive cur- sexuality education require that abstinence be riculum promotes a positive view of human taught as the only option outside of marriage" sexuality and "addresses abstinence as one and either focus exclusively on failure rates of option for adolescents to avoid pregnancy and contraceptives and condoms or forbid instruc- STDs in a broader sexuality education program tion on contraception at all. 96 Although school that includes discussion of contraception to curricular choice is typically a local matter, prepare [adolescents] to become sexually federal funding has increasingly allowed the healthy adults."8" An abstinence-plus curricu- federal government to wield a strong influence lum, falls somewhere in the middle, it "allows over what teens learn about sex in formal contraception to be discussed as effective in instruction both in school and in community protecting against unintended pregnancy and based programs. 97 STDs or HIV" but "promote[s] abstinence as Three federal programs fund sex education the preferred option for adolescents." 8 in schools and communities; under each, Although the debate over what approach to programs must deliver the singular message take is usually cast as a debate over the social that abstinence before marriage is the "first and value of abstinence and as opposed to best" choice for American teens.98 From 2001 permissiveness and promiscuity, the contro- to 2005, the federal government doubled its versy is not actually about what values to spending on abstinence only programs, much promote.8 9 Sexuality education classes nearly of those resources now bypassing states in favor uniformly stress and encourage abstinence as of community based groups. 99 Up until 2000, the "best option for teenagers."" On closer the federal government provided grants to the examination, "the controversy between absti- states to provide abstinence-only education; nence education and more comprehensive however, the Special Projects of Regional and approaches centers ... on what information National Significance-Community Based should be presented to students about how Abstinence Education ("CBAE") created sexually active people can prevent unwanted federal grant opportunities directly for com- pregnancy and STDs."9' Abstinence-only pro- munity organizations as well as states.'0° CBAE ponents argue that a fuller discussion of grant recipients may not provide other sex

Children's Legal Rights Journal Recognizing the Sexual Rights of Minors

education content, even with nonfederal American Public Health Association,'" ° the funds.'0 ' As part of President Bush's faith- American College of Obstetricians and Gyne- based initiatives, many recipients of CBAE cologists,"' the American Psychological Asso- 2 grants are religious organizations. 102 CBAE is ciation," the Society for Adolescent now the largest source of federal sex education Medicine," 3 the National Education Associa- money; through it, the federal government can tion,'14 the American School Health Associa- now more directly influence how the tion,15 and the American Association of abstinence message is delivered.'13 University Women," 6 officially support Federal law defines abstinence-only comprehensive sexuality education and oppose education by eight specific criteria.' °4 Impli- abstinence-only sexuality education. citly, the required exclusive focus on abstinence At best, abstinence-only education consti- precludes a more comprehensive curriculum. tutes a waste of federal resources on an Unlike Adolescent Family Life Act and Section unproven sex education approach while for- 510 of the Personal Responsibility and Work saking effective programs. Despite generous Opportunity Reconciliation Act state programs, federal funding, there is little evidence that CBAE grantees may not neglect any of the abstinence-only education is effective at eight definitional provisions and must teach all reducing teen sexual activity, minimizing eight points.'0 5 attendant health risks, or preventing preg- nancy' 1 7 whereas at least some more compre- 2. The Failure of Abstinence-Only hensive programs have shown effectiveness."' Education Notably, curricula need not abandon a com- Abstinence-only education has received sub- prehensive approach in order to embrace the stantial and widespread criticism from many position that abstinence remains the best choice for teens. These messages are not circles. Notably, in 2004, the United States 9 House of Representatives Committee on mutually exclusive as opponents suggest." Research indicates that providing more Government Reform Minority Staff prepared information to teens does not confuse them or an evaluation of the content of the thirteen 120 most popular of the federally funded programs increase sexual activity. Thus, the concern on behalf of Representative Henry Waxman that teaching comprehensive sex information (Waxman Report). The report concluded: will undermine a message that abstinence is the best choice for teens is based on a faulty l2 [t]his report finds that over two-thirds premise that one negates the other.' of abstinence-only education programs More problematic are increasing indica- funded by the largest federal abstinence tions that the programs are not merely initiative are using curricula with mul- ineffective. Research now suggests that curricu- tiple scientific and medical inaccuracies. lar flaws in abstinence-only programs may These curricula contain misinformation about condoms, abortion, and basic actually expose youths to increased health risk. scientific facts. They also blur religion One problem concerns the definitional ambi- 22 and science and present gender stereo- guity of the term abstinence and the lack of a types as fact.""I°6 By endorsing sex only clear message these programs impart about within a heterosexual marriage, absti- precisely what behaviors pose risks. Thus, these nence-only education implicitly rejects programs jeopardize minors who fail to the potential of positive sexual experi- appreciate risks associated with non-coital ences for sexual minorities and ignores behaviors such as intimate mutual masturba- 7 their health needs altogether." tion, oral or anal sex. 123 In light of the fact that Many influential professional organizations students often engage in oral sex rather than have also criticized the nation's increasing vaginal intercourse, perhaps as a way to delay emphasis on abstinence-only education. Among intercourse, risks and preventive practices 0 8 associated with such non-coital behaviors need others, the American Medical Association,' 24 the American Academy of Pediatrics,' 09 the to be understood.1

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A significant problem associated with absti- ing the well established discrepancy nence-only programs is that they do not between "typical use" and "perfect use" account for their own failure rate as part of of these tools. There is unquestionably a their curricular design. Although some difference between use in all contra- abstinence-only programs have reported ceptive users, and the use in "perfect" modest success in delaying intercourse among users. Ironically, in emphasizing only some specific teen populations, as a rule these the failure rate and not how to improve programs have a substantial failure rate-i.e., the successful use of contraceptives, programs may contribute to this divide. eventually many of their participants will This strategy is especially troubling if engage in sexual activity. 2 Thus, a fatal the programs do not also acknowledge deficiency of these programs is the absolute the discrepancy between typical and and unequivocal failure to meet the needs of perfect use of the abstinence pledge. teens who do or will eventually engage in While conclusive research is not a- 26 sexual activity. Minors who participate in vailable, since [eighty-eight percent] of abstinence-only programs who do not remain pledgers relate having sex abstinent (i.e., their user failures) are not before marriage, it is likely that virginity prepared to prevent health risks associated pledges slip or 33are broken more often with their sexual activity because they have not than condoms. 1 been taught how to minimize risks and have The risks associated with not giving teens how to negotiate not rehearsed or practiced accurate information and giving them erro- 127 preventive practices with a partner. On the neous information are not merely theoretical. other hand, a comprehensive approach serves Peter Bearman and Hanna Briickner observed both abstinent and sexually active teens. that teens taking public virginity pledges, To make matters worse, abstinence pro- vowing to abstain from sex until marriage, were grams typically do not provide accurate infor- "less likely to be prepared for an experience mation about the effectiveness and failure rates they have promised to forgo"' 34 and were one- 128 of contraception and condoms. They often third less likely to use contraceptives at inter- fail to distinguish accurately between user course.'35 In a recent study garnering substan- 29 failure and method failure. Method failure tial media attention, Bruckner and Bearman occurs when the product fails, while user failure also observed that although pledgers did delay occurs when the user uses the product sex, their STD rate was consistent with other inconsistently or improperly. 30 Education and adolescents, they were more likely not to use practice can minimize user failure, the most condoms at sexual debut, or to be tested and 136 common form of failure. Therefore, abstinence- aware of their STD status. only reinforces risky behavior by undermining Some of the programs also employ and confidence in condom and contraceptive use perpetuate negative gender stereotypes that can among sexually active youth, instead of trying 3 be harmful and demeaning to both males and to overcome condom user failure problems. ' females. The Waxman Report complained that Recently, the State of Ohio, a state that some of the programs "describe girls as helpless receives more than eight million dollars from or dependent on men" and state that men "are 31 7 the federal government for abstinence-only sexually aggressive and lack deep emotions.' education, commissioned an evaluation of 3 2 The Ohio study, for example, found absti- programs. The highly critical Ohio study nence-only programs promoted the idea that observed that the focus on failure rates of boys were "without capacity to control sexual contraceptives and the manipulation of the thoughts and urges" and that girls were at fault data undermines desirable health practices for arousing boys through their conduct and among sexually active teens: 3 dress. 3 The Ohio study concluded that "[t]his In emphasizing the failure rate of policy of holding females responsible for their contraceptives, abstinence-only-until- own sexual activity; the sexual desires of males; marriage curricula programs are exploit- male sexual activity; and male self-esteem

Children's Legal Rights Journal Recognizing the Sexual Rights of Minors places an unfair burden on females and an The difficulty of making such an argument unfair judgment on males."139 The Ohio study begins with certain concessions to existing law. warned that "this perpetuation of inaccurate Easily, the federal government has no obliga- male and female stereotypes is destructive to tion to provide sex education and could have both genders, and in the worst case may simply stayed out of the sex education business contributed to sexual violence, and unfulfilling without impairing a minor's procreative rights. sexual relationships. These attitudes should not Although education is an important govern- to or reinforced in teens, and are not mental function, 147 the right to an education, be taught 140 scientifically or legally sound."' let alone one of a particular quality is not regarded as a fundamental right. 48 Further- IV.Abstinence-Only Education more, while one has to wonder what interest the state might have in funding educational Impairs a Mature Minor's programs that impart false and inaccurate Procreative Rights information, it is difficult to construct an Legal commentators have questioned the con- argument that, as a general rule, the federal stitutionality of abstinence programs on a government must be truthful and must fund variety of grounds, but rarely are those argu- only truthful messages. 49 Moreover, the federal ments centered on the needs of youth. Instead, government certainly has a well-established some have argued that the excessive religiosity prerogative to spend federal money to promote of these programs violates the Establishment messages that it endorses over other mes- 50 Clause. 141 Other have argued that the restric- sages. Even when fundamental rights of tions placed on grant recipients impose an individuals are implicated, merely refusing to unconstitutional condition on speech.142 Para- fund or facilitate protected activities does not 5 doxically, the most compelling logical argument constitute an impairment of that right. ' In against abstinence-only education, namely, that order to influence public policy, America's youth are entitled to accurate and [t]he Government can, without vio- truthful sex education, is the most difficult to lating the Constitution, selectively fund fashion into a legal argument to oppose a program to encourage certain activities abstinence-only education. 143 it believes to be in the public interest, The problem of framing a child-centered without at the same time funding an legal argument is likely rooted in our impov- alternative program which seeks to deal erished and ill-defined concept of children's with the problem in another way. In so rights in education cases. As Barbara Bennett doing, the Government has not Woodhouse has observed, educational conflicts discriminated on the basis of viewpoint; it has merely chosen to fund one that focus on parental rights versus state rights 52 of the other. overshadow what ought to be a child centered activity to the exclusion approach.' 44 "[W]e are so accustomed to the Since the federal government need not notion that parents have 'rights' while children fund any sex education, and if it does, it can have mere 'interests' that we hardly notice the choose what message it endorses, how then 145 yawning hole in our jurisprudence of rights.' might abstinence only education cross the She laments that educational disputes usually constitutional line? Nearly thirty years ago, in weigh parental private property rights in the Carey v. Population Services, International, the child against the state's interest in the child as United States Supreme Court held that minors a "public resource.' 46 Nevertheless, this sec- do enjoy the constitutional right to make tion argues that federal funding for abstinence- procreative choices.'" In Carey, New York only-until-marriage curricula does indeed enacted a law preventing any distribution of impair recognized constitutional rights that contraceptives to minors under the age of minors enjoy related to procreative and sexual sixteen and limited the distribution of contra- health. ceptives to licensed pharmacists for persons over age sixteen. 5 4 The statute contained an

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exception for physicians dispensing drugs.'55 In abstinent behaviors. They do not know that considering the statutory provision prohibiting condoms are effective to prevent pregnancy the sale of contraceptives to minors under and STDs when used properly. They do not sixteen, the Court first noted that "the right to know how to negotiate condom use with their privacy in connection with decisions affecting partner. They are not prepared to use a procreation extends to minors as well as to condom when desire overcomes their pledge or adults,' ' 56 and laws that impair their privacy promise to remain abstinent. They do not rights are "valid only if they serve 'any recognize the signs and symptoms of STDs. significant state interest ... that is not present They do not appreciate what sexual behaviors in the case of an adult."' 17 The Court con- have put them at risk if they have engaged in cluded that the law did constitute a significant sexual activity. If they are a sexual minority, burden on a minor's access to nonprescription they have not been informed about their health contraceptives, even though it allowed minors risks or rehearsed behaviors to reduce those to obtain contraceptives through a physician.15 risks. They are not informed that preventive It explained, even "less than total restrictions measures can minimize their sexual risks. They on access to contraceptives that significantly do not know that health care professionals do burden the right to decide whether to bear have advice available on practices that can children must also pass constitutional scru- reduce their heightened health risks. The tiny." 5 9 New York argued that the law served silence of abstinence-only education about the State's interest in "discouraging early sexual minority health means that these youth, sexual behavior" and in "emphasi[zing] the and their peers, do not know that human seriousness with which the State views the sexuality encompasses a universe of human decisions to engage in sexual intercourse at an relationships that can include them. early stage. ' ' 6 However, the Court observed Thus, the right of sexually active youth to that sexual activity among teens was high "with make procreative and sexual health choices is or without contraceptives," that such a law had impaired by state action, more so than if the no known deterrent effect; and that there was government simply had not funded any sex no evidence that "teenage extramarital sexual education at all. With the imprimatur of activity increases in proportion to the federal support, these programs affirmatively availability of contraceptives.161 mislead sexually active teens and thereby Under Carey, and drawing upon the impli- impair their ability to make informed decisions cations in recent public health publications and expose them to unnecessary health risks. evaluating abstinence-only education, a case Ignorant students might choose to educate against abstinence only programs can be made themselves. Deceived students have no such that is based on the rights of the minor. First, choice because they do not know they are public health literature is increasingly demon- ignorant. strating that abstinence only programs impair a Moreover, under Carey, if these programs minor's ability to make the procreative choices impair procreation, then the state must show he or she is entitled to make because the the programs advance a significant state curricula affirmatively mislead and deceive interest. It is hard to even conceive of a sexually active teens. Students who take significant state interest in promoting an abstinence only courses and then engage in education program that is not truthful, sexual activity are placed at a greater health accurate, or comprehensive. While proponents risk than other teens because they are of abstinence only education worry that misinformed about the effectiveness of comprehensive information may dilute their methods other than abstinence to prevent programs, this premise has not been supported pregnancy and STDs. They do not know the by evidence. As the American College of risks associated with oral and anal sex or how Obstetricians and Gynecologists has observed to avoid such risks, even though they may be that "[c]areful and objective scholarly research under the impression that these activities are during the last two decades has shown that sex

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education does not increase rates of sexual acknowledge or give dignity to the full spec- activity among teenagers.... ,162 Even if includ- trum of human sexual expression. As Mark ing comprehensive information about sex did Yudof has observed that "[o]ur social ideal is a encourage sexual activity, there still could be democratic education, one that both prepares no justification to affirmatively misleading our young people to choose for themselves and students, as many of these programs do. As teaches them that their freedom to do so both the Waxman Report and the Ohio State hinges on their respect and tolerance of the evaluation found, these programs suffer from freedom of others to choose differently."' 65 pervasive inaccuracies and provide false and Abstinence-only sexuality education un- misleading information to students. 63 Just as necessarily harms students who become New York's argument that availability of sexually active, as most will do before marriage. condoms might encourage sexual activity failed Since the best that can be said for abstinence- in Carey, so too would any justification only programs is that some of these curricula advanced without proof that providing may help some limited populations of students adolescents with truthful information about to delay sexual intercourse debut, the curricula their own sexual health and ways to prevent necessarily fail all sexually active teens. By disease and pregnancy would encourage a- undermining confidence in reliable risk reduc- dolescent sexual behavior. tion strategies, evidence is mounting that these programs affirmatively place American teens at V. Conclusion a greater risk than if they had not taken the The sexuality of adolescents is a reality that course at all. Inflicting such harm must surely offend the constitutional rights of minors. schools cannot ignore. In fact, we should regard the timing of puberty within the school years as fortuitous; it presents schools with an Endnotes important opportunity to prepare America's youth to make sexually responsible decisions. * Professor, Wm. S. Richardson School of Law, Studies indicate that schools can both teach University of Hawaii. This paper was prepared for the value of sexual restraint and still provide a panel at the American Association of Law the information minors need to make sound Schools Education Law Section Meeting, January sexual decisions without compromising the 5, 2006, Washington DC. Portions of this paper former message. rely upon and are drawn from an earlier work, The federal decision to fund only absti- Hazel Glenn Beh & Milton Diamond, The Failure nence-only education squanders the policy- of Abstinence-Only Education: Minors Have a Right to makers' opportunity to help schools meet the Honest Talk About Sex, 15 COLUM. J. GENDER & L. sexual educational needs of students. These 12 (2006). See JEFFREY P. MORAN, TEACHING SEX THE curricula employ a methodology of distortion SHAPING OF ADOLESCENCE IN THE 20TH and deception that is antithetical to any CENTURY, 98-117 (2000). legitimate state interest in education. "A 2 Id. at 64. democratic society rests, for its continuance, ' Professor Ienneth Karst observes: upon the healthy, well-rounded growth of The young people into full maturity as citizens, "common school," as the American public school was called, has been with all that implies."' 64 Sexuality programs expected from the beginning to incul- that deny youth the accurate, truthful and cate common values. For one social complete information necessary to make sound group after another, that expectation procreative choices necessarily cannot be has translated into a desire, and often a preparing young people to grow into fully legislative program, to make the public sexually responsible citizens. schools express the group's moral values In addition, the singular focus on hetero- as the true national values. When our sexual marriage within these programs fails to group wins a battle in the schools, we

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see ourselves as capturing part of a huge Precocity: Variations Around the World, Secular expressive apparatus that we can point Trends, and Changes After Migration, 24 ENDO- toward a dual purpose. First, we expect CRINE REVIEW 668, 668 (2002). 3 the schools to acculturate children to 1 Id.at 670. Our authoritative meanings. 14 Id.at 669. 5 Second, we hope to capture the schools 1 Id. in order to reassure ourselves of Our 16 Id.at 673. group's status dominance as the true 17 C.T. Nielsen, et al., Onset of the Release of Americans. Spermatozoa (Spermarche) in Boys in Relation to Age, Kenneth L. Karst, Law, Cultural Conflict, and the Testicular Growth, Pubic Hair, and Height, 62 J. Socialization of Children, 91 CAL. L. REv. 967, CLINICAL ENDOCRINOLOGY &. METABOLISM 532 992-93 (2003). (1986); H.E. IKulin, et al., The Onset of Sperm ' Moran, supra note 1, at 216 ("like the social Production in Pubertal Boys, 143 AM. J. DISEASES hygienists at the dawn of the twentieth century, OF CHILDHOOD 190 (1989). contemporary Americans have wielded the " Moran, supra note 1, at 15. 19 Id. educational system as an instrument for sexual 20 Id. and social reform"). 21 Id. ' See infra notes 98-103 and accompanying text. 22 See Ritch C. Savin-Williams & Kenneth M. 6 See infra notes 98-99 and accompanying text. 7 See infra notes 99-103 and accompanying text. Cohen, Homoerotic Development During Childhood 8 See Frank S. Ravitch, Some Thoughts on Religion, and Adolescence, 13 CHILD AND ADOLESCENT Abstinence-Only, and Sex Education in the Public PSYCHIATRIC CLINICS 529, 530 (2004) Schools, CHILD LEGAL RTS. J., Summer 2006, at [hereinafter Homoerotic Development]. 23 Kenneth J. Zucker, Gender Identitp 48 (contained in this issue). Develop- 9See Eric A. DeGroff, Sex Education in the Public ment and Issues, 13 CHILD AND ADOLESCENT Schools and Accommodation of FamilialRights, CHILD PSYCHIATRIC CLINICS 551, 557 (2004) LEGAL RTS. J., Summer 2006, at 21 (contained in [hereinafter Gender Development]. 24 In one study of junior and this issue). senior high school students, researchers 10 Barbara Bennett Woodhouse, Out of noted that [ten point seven Children'sNeeds, Children's Rights: The Child's Voice percent] of students were "unsure" of their sexual in Defining the Family, 8 BYU J. PUB. L. 321, 323 orientation, and "uncertainty about sexual (1994). orientation diminished in successively older age " While state laws vary, teens are typically able groups." The authors commented that their to obtain STD testing and treatment, prenatal "findings suggest an unfolding of sexual identity care, and make adoption decisions without during adolescence." Gary Remafedi, et al., Demo- parental authority. The Alan Guttmacher graphy of Sexual Orientation, 89 PEDIATRICS 714, Institute tracks reproductive laws by state. See 716 (1992). Zucker, studying adolescent and Alan Guttmacher Institute, State Policies in Brief. childhood gender identity disorder, observes Minors' Access to STD Services (2005); Alan increasing persistence in gender identity from Guttmacher Institute, State Policies in Brief, childhood through adolescence, "Like other Minors' Access to Prenatal Care (2005); Alan aspects of the self, ... gender identity seems to Guttmacher Institute, State Policies in Brief. become more fixed with development; this Minors' Rights as Parents (2005). Abortion and consolidation likely contributes to the reason why contraceptive services raise more debate, and laws there is a high rate of persistence among vary more widely here. See Alan Guttmacher adolescents." Gender Development, supra note 23, Institute, State Policies in Brief, Minors' Access to at 558. Contraceptive Services (2005) and Alan Guttmacher 2 See William D. Mosher, et al., & Centers for Institute, State Policies in Brief, ParentalInvolvement Disease Control, Sexual Behavior and Selected in Minors' Abortion (2005). Health Measures: Men and Women 15-44 Years of 12 Anne-Simone Parent, et al., The Timing of Age, United States, 2002, at 13 (Sept. 15, 2005) Normal Puberty and the Age Limits of Sexual (noting of five common methodologies to

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estimate sexual orientation, "researchers have 2002 (December 2004) (reporting data form the suggested that it is difficult to classify the U.S. National Survey of Family Growth). population into two separate and distinct groups " See Mosher & CDC, supra note 25, at Tables (heterosexual and homosexual), because each 5-6. measure gives a somewhat different estimate") " See U.S. Census, Indicators of Marriage and [hereinafter Mosher &_CDC]. Fertility in the United States from the American 26 PEGGY T. COHEN-KETTENIS & FRIEDEMANN Community Survey: 2000-2003 (reporting the PFAFFLIN, TRANSGENDERISM AND INTER- average age of marriage of women as twenty-five SEXUALITY IN CHILDHOOD AND ADOLESCENCE, and men as twenty-seven). 64-66, 83 (Sage Publications 2003) (noting 35 . difficulty in ascertaining prevalence); Kenneth J. 36 Mosher & CDC, supra note 25 at 5; Bonnie Zucker, Gender Identity Disorder, in Child and L. Halpem-Felsher, et al., Oral Versus Vaginal Sex Adolescent Psychiatry, 737, 738-39. Among Adolescents: Perceptions, Attitudes, and 27 See Remafedi, supra note 24, at 714, 720-21 Behavior, 115 PEDIATRICS 845, 849 (2005) (noting incongruities between "attractions, (finding that "more adolescents have had and fantasies, behaviors, and perceived identities" intend to have oral sex than vaginal sex"). among adolescents and cautioning that "[c]lassi- 37 . As fication of youths' sexual orientation by sexual to heightened biological risks for STDs, the CDC behavior, or any other single aspect of sexuality, notes, for example, that the structure of an may be unreliable"). adolescent female's cervix gives them an increased 28 See Remafedi, supra note 24, at 720 susceptibility to chlamydia. The CDC also reports (observing that the percentage of students "who barriers to STD prevention during adolescence, were unsure about their sexual orientation "including lack of insurance or ability to pay, lack steadily declined with age from [twenty-five point of transportation, discomfort with facilities and nine percent] in [twelve] year old persons to [five services designed for adults, and concerns about percent] in [eighteen] year old students."). confidentiality." Id. 3 Zucker reports that Gender Identity Disorder in 8 Id. most children desists and that "homosexuality 39 < http:www.cdc.gov/hiv/pub/facts/youth.pdf>. without co-occurring gender-dysphoria is 40 Jacqueline E. Darroch, Differences in Teenage probably the most common outcome." Zucker, Pregnancy Rates Among Five Developed Countries: The Gender Development, supra note 23, at 557. Roles of Sexual Activity and Contraceptive Use, 33 29 See Remafedi, supra note 24, at 720. FAMILY PLANNING PERSPECTIVES 244, 244 30 Mosher & CDC, supra note 25, at Table 7. (2001). The age of first intercourse has shifted over time. 4 See Bonnie L. Halpern-Felsher, supra note 36, Before 1970, the average age for females was at 849 (finding that "more adolescents have had nineteen and males was eighteen. "By the late and intend to have oral sex than vaginal sex" and 1990s, average age at first intercourse had observing that adolescents perceive that oral sex dropped to 15 years for both genders." Brooke E. carries fewer social, emotional, and health risks). Wells & Jean M. Twenge, Changes in Young See also Child Trends Data Bank, Oral Sex, Sept. People's Sexual Behavior and Attitudes, 1943-1999: 15, 2005, available at . PSYCH. 249, 254 (2005). Latest CDC data for 42 Darroch, supra note 40. 2002, reveals the age of first intercourse is "3 Jonathan D. IMJein & American Academy of increasing, but other sexual activity may be Pediatrics Committee of Adolescence, Adolescent substituted, including oral and anal sex. Mosher Pregnancy: Current Trends and Issues, 116 & CDC, supra note 25, at 5. PEDIATRICS 281, 282 (2005). s"Wells & Twenge, supra note 30, at 254. " Allen J. Wilcox, Likelihood of Conception with a 32 See Joyce C. Abma, et al., & Centers for Single Act of Intercourse: Providing Benchmark Rates Disease Control, Teenagers in the United States: for Assessment of Post-Coital Contraceptives, 63 Sexual Activity, Contraceptive Use, and Childbearing, CONTRACEPTION 211, 212 (2001).

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"5 Klein & American Academy of Pediatrics, 60 Id. at 361, 364. supra note 43, at 281-82. 61 Id. 46 Helen Varney Burst, Sexually Transmitted 62 One study described the range of parental Diseases and Reproductive Health in Women, 43 J. of reactions: "[M]any parents reacted to learning Nurse-Midwifey 431, 431 (1998). For example, about their child's lesbian or gay identity with a "Thirty to eighty percent of women with great deal of ambivalence. Few were initially gonorrhea are asymptomatic, compared to less accepting and some were openly rejected and than five percent of infected men; eighty-five even reacted with violence and hostility. Some percent of women with a chlamydia infection youth were ejected from their homes after their may be asymptomatic compared with forty-five parents learned about their sexual orientation." percent of infected men." Id. Ryan, supra note 58, at 370. 47 /d. at 431. 63 Lynn Rew, et al., Sexual Health Risks and " Id. at 436-37 (describing the increased Protective Resources in Gay, Lesbian, Bisexual, and susceptibility of adolescent females). Heterosexual Homeless Youth, 10 J. SPECIALISTS 49 Id. at 434. PEDIATRIC NURSING 11, 12 (2005). See also Les 50 STDs are more easy to acquire in females B. Whitbeck, et al., Mental Disorder, Subsistence because their reproductive organs are internal and Strategies, and Victimization Among Gay, Lesbian, provide a conducive environment for growth of and Bisexual Homeless and Runaway Adolescents, 41 infection. In addition, "microscopic tears in the J. SEX RESEARCH 329, 330 (2004). vagina mucosa that occur during intercourse 64 Whitbeck, supra note 63, at 330. (observing provide portals of entry." Id. at 433. that "about [twenty percent] of homeless and " I(lein & American Academy of Pediatrics, runaway adolescents are gay, lesbian, or bisexual supra note 43, at 283. in larger magnet cities (e.g., Los Angeles, San 52 Id. Francisco, Seattle) with perhaps a slightly lower " Amitai Ziv, et al., Utilization of Physician proportion in smaller, nonmagnet cities"); Rew, Offices by Adolescents in the United States, 104 supra note 63, at 11 (discussing previous study Pediatrics 35, 40 (1999). finding 40% of gay and bisexual adolescents have 54 Id. at 40. had episodes of running away from home). " See, e.g., Linda Hock-Long, et al., Access to 65 Whitbeck, supra note 63, at 330. Adolescent Reproductive Health Services: Financialand 66 Rew, supra note 63, at 12. Structural Barriers to Care, 35 PERSPECTIVES ON 67 Ryan, supra note 58, at 367. SEXUAL AND REPRODUCTIVE HEALTH 144, 144 61 Id. at 384 (citing B.L. Frankowsky, Sexual (2003); Diane M. Reddy, Effect of Mandatoy Orientation and Adolescents, 113 PEDIATRICS 1827, Parental Notification on Adolescent Girls' Use of 1827 (2004)). Sexual Health Care Services, 288 JAMA 710, 712 69 Jeffrey A. East & Fadya El Rayess, Pedia- (2002); Rachel K. Jones, et al., Adolescents' Report tricians'Approach to the Health Care of Lesbian, Gay, of Parental Knowledge of Adolescents' Use of Sexual and Bisexual Youth, 23 J. ADOLESCENT HEALTH Health Services and their Reactions to Mandated 191, 192 (1998) (reporting that in their survey Parental Notification for Prescription Contraception, "only half of respondents reported having any 293 JAMA 340, 340 (2005). formal training with regards to lesbian, gay, and 56 Jones, supra note 55, at 347. bisexual health"). 57 Reddy, supra note 55, at 713. 70 East & El Rayess, supra note 69, at 192 " Catlin Ryan, Families of Lesbian, Gay, and (finding for example that surveyed physicians Bisexual Adolescents, in Gay and Lesbian Issues in held mistaken beliefs about HIV rates, the age of Pediatric Health Care, 34 CURRENT PROBLEMS coming out, suicidality). PEDIATRIC ADOLESCENT HEALTH CARE, 355, 369 7" Id. See also Paul A.S. Benson & Albert C. (2004) (teens today may be aware of same-sex Hergenroder, Bacterial Sexually Transmitted Infec- attractions around ages nine or ten, and often tions in Gay, Lesbian, and Bisexual Adolescents: identify as lesbian or gay in high school-on Medical and Public Health Perspectives, 16 SEMI- average, between ages fourteen and sixteen). NARS IN PEDIATRIC INFECTIONS DISEASES 181, " Ryan, supra note 58, at 374. 188 (2005) (reporting studies finding that ninety

Children's Legal Rights Journal Recognizing the Sexual Rights of Minors

percent of pediatricians "had significant 2004), available at . when taking a sexual history" and that three 88 Landry, Abstinence Promotion, supra note 87, at quarters of GLB did not discuss their sexual 283. orientation with health care providers when they 89 There is a wide chasm between proponents of were between fourteen to eighteen years of age). each approach. The Heritage Foundation, a 72 Ryan, supra note 58, at 367. conservative organization that supports 7 Whitbeck, supra note 63, at 330. abstinence-only education, has characterized 71 Joseph Irosciw, The 2003 National School abstinence plus and comprehensive sex education Climate Survey: The school related experiences of our as promoting promiscuity: nation's lesbian, gay, bisexual and transgenderyouth [M]ost "abstinence plus" curricula con- (GLSEN 2004), at vii. tain little or no abstinence content. " Ryan, supra note 58, at 369. Typically, comprehensive sex-ed curri- 76 Id. See also I(osciw, supra note 74, at xi. cula contain only a few token sentences 7 Ryan, supra note 58, at 365. 7 on abstinence in a text devoted almost Id. at 366. exclusively to promoting condom use. 71 See Theno v. Tonganoxie Unified Sch. Dist., In reality, most of these curricula con- 394F. Supp.2d 1299, 1299 (D. Kan. 2005), vey the message that society expects and denying JNOV following a jury verdict in favor of condones widespread teen sexual Dylan Theno, the court described the failure of activity; none conveys the message that school officials to curb incidents of peer on peer society expects young people to avoid harassment against Dylan Theno that occurred sexual activity throughout their teen from junior high school until he dropped out of years. school in the eleventh grade. See also Perry v. Doe, 316 F. Supp.2d 809, 814 (S.D. Iowa 2004) Melissa Pardue, Robert E. Rector & Shannan (describing three years of harassment until Martin, Government Spends $12 on Safe Sex and student opted to be home schooled in his senior Contraceptives for Every $1 Spent on Abstinence, year); Ray v. Antioch Unified Sch. Dist., 107 F. BACKGROUNDER No. 1718, 1 (Jan. 14, 2004), Supp.2d 1165, 1166-67 (N.D. Cal. 2000) available at . and describing alleged harassment in middle On the other hand, the Sexuality Information school that escalated to assault and battery). and Education Council at the United States '0 Seegenera4 Moran, supra note 1,at 22, 34-40. ("SEICUS"), a proponent of comprehensive sex 8' Moran, supra note 1, at 32. education, complains that "abstinence-only-until- 82 See generally Moran, supra note 1, at 37. marriage curricula and materials [are] designed to 3 1Id. at 217. control young people's sexual behavior by s4 Id. at 215-16. instilling fear, shame, and guilt." SIECUS " David C. Wiley, The Ethics of Abstinence-Only Reviews Fear-Based, Abstinence-Only-Until- and Abstinence-Plus Sexuality Education, 72 J. SCH. Marriage Curricula, (last visited Mar. 17, 2006) 86 See Scott H. Frank, 6 (2005) . the Content of Sex Education in U.S. Public Secondary 87 David J. Landry, Lisa Iaesener & Cory L. Schools, 35 PERSP. ON SEXUAL & REPROD. HEALTH Richards, Abstinence Promotion and the Provision of 261, 267 (2003) [hereinafter Landry, Factors]. Information about Contraception in Public School 91 Id. District Sexuality Education Policies, 31 FAM. PLAN. 92 See Shannan Martin, Robert Rector & PERSP. 280, 283 (1999) [hereinafter Landry, Melissa Pardue, Comprehensive Sex Education versus Abstinence Promotion]. For a fuller description of Authentic Abstinence: A Study of Competing comprehensive sex education, see, Guidelines for CurriculumXII (2004), available at

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D = 6 7 5 3 9>. The authors are researchers at the can decide where to direct the federal money. conservative research and education organization, SEICUS tracks federal and state expenditures on the Heritage Foundation. Id. sexuality education. See SEICUS, State Profiles 13 Douglas Kirby, Effective Approaches to Reducing (2004): A Portrait of Sexuality Education and Adolescent Unprotected Sex, Pregnancy, and Abstinence-Only-Until-Marriage Programs in the Childbearing,39 J. SEX RES. 51,52 (2002). States, , (last visited Mar. 17,2006). supra note 43, at 284. 99 Waxman Report, supra note 97, at 1. " Landry, Abstinence Promotion, supra note 87, at 100 Earlier references refer to the program as 282. Special Programs of Regional and National 96 Id. Landry speculates that this estimate is Significance Community-Based Abstinence likely low now, because it was measured in 1998, Education (SPRANS). See, e.g., id. However, in "well before states began implementing any 2005, the administration of the program was abstinence-only promotion efforts of their own transferred to the Administration for Children following enactment of the federal welfare reform and Families, Family and Youth Services Bureau legislation that guaranteed federal funds for and is now referred to as Community-Based school- and community-based programs over a Abstinence Education (CBAE). U.S. Dep't of five-year period." Id. Health and Human Services, Maternal and Child 17 A recent congressional report prepared for Health Bureau: Abstinence Education, Representative Henry Waxman observed: (last visited Mar. millions of children and adolescents in 17, 2006). the United States each year. In fact, 101 Department of Health and Human Services given the scarcity of comprehensive sex Appropriations Act, Pub. L. No. 108-199, 118 education courses in the schools across Stat. 3 (2004) ("Provided further, that grants much of the United States, abstinence- under the immediately preceding proviso shall be only education programs may be the made only to public and private entities which only formal reproductive health agree that, with respect to an adolescent to whom education that many children and the entities provide abstinence education under adolescents receive. such grant, the entities will not provide to that adolescent any other education regarding sexual MINORITY STAFF OF H.R. COMM. ON GOVERN- conduct, except that, in the case of an entity MENT REFORM 108TH CONG., THE CONTENT OF expressly required by law to provide health FEDERALLY FUNDED ABSTINENCE-ONLY EDUCA- information or services the adolescent shall not TION PROGRAMS 3 (Dec. 2004), available at be precluded from seeking health information or [here- the setting in which the abstinence education was inafter Waxman Report]. provided"). 98 Three federal programs provide a funding 102 White House Office of Faith-Based and stream for abstinence-only-until-marriage sex Community Initiatives, Abstinence, . Personal Responsibility and Work Opportunity 103 Waxman Report, supra note 97, at 3. Reconciliation Act of 1996, 42 U.S.C. Abstinence only money received by the states § 710(b)(2)(A) (2005) (Section 510); and the could be targeted to certain school age Special Projects of Regional and National populations or media programs, but abstinence- Significance-Community Based Abstinence only might not have to be a state's singular Education, authorized under section 501 (a) (2) of message. See Helen M. Alvar6, Saying "Yes" Before the Social Security Act (CBAE). Saying "I Do": and Cohabitation as a AFLA and Section 510 provide money to the Piece of the Divorce Puzzle, 19 NOTRE DAME J.L. States and contain particular matching require- ETHICS & PUB. POL'Y 7, 50 (2004) (observing ments. The States direct the expenditures and

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that SPRANS-CBAE allows the federal Community-Based Abstinence Education Grants government to "[s]idestep[] some states' less- Program must address all eight elements of the than-enthusiastic use of PRWORA abstinence Section 510 abstinence education definition and money"). may not be inconsistent with any aspect of that 104 The definition of abstinence education definition"). 106 Waxman in 42 U.S.C. § 710 applies to all federal Report, supra note 97, at 22. programs. The statute provides: (extensive evaluation of six programs concluded that "although they vary, these curricula share a (2) For purposes of this section, the number of common characteristics: they are term "abstinence education" means an based on religious beliefs, rely on fear and shame, educational or motivational program omit important information, include inaccurate which- information, and present stereotypes and biases (A) has as its exclusive purpose, as fact") SIECUS Reviews, supra note 89. teaching the social, psychological, 107 See James McGrath, Abstinence-Ony and health gains to be realized by Adolescent Education: Ineffective, Unpopular, and abstaining from sexual activity; Unconstitutional, 38 U.S.F. L. REV. 665, 684 (B) teaches abstinence from sexual (2004) (arguing that as to sexual minorities, activity outside marriage as the abstinence only programs are discriminatory and expected standard for all school age violate equal protection). children; 10' American Medical Association, H-170.968 Sexuality Education, Abstinence, and (C) teaches that abstinence from Distribution of Condoms in Schools, (last sexually transmitted diseases, and visited Mar. 20, 2006). other associated health problems; 109 Committee on Psychosocial Aspects of Child (D) teaches that a mutually faithful and Family Health and Committee on monogamous relationship in context Adolescence, Sexuality Education for Children and of marriage is the expected standard Adolescents, 108 PEDIATRICS 498, 499 (2001). of human sexual activity; 110 American Public Health Association, Policy (E) teaches that sexual activity Statement, 9309: Sexuality Education 84 AM. J. outside of the context of marriage is PUB. HEALTH 518, 519 (1994). likely to have harmful psychological ...AMERICAN COLLEGE OF OBSTETRICIANS AND and physical effects; GYNECOLOGISTS, ADOLESCENT SEXUALITY AND HEALTH EDUCATION (2006), [hereinafter consequences for the child, the ACOG]. child's parents, and society; 112 AMERICAN PSYCHOLOGICAL ASSOCIATION, (G) teaches young people how to RESOLUTION IN FAVOR OF EMPIRICALLY reject sexual advances and how SUPPORTED SEX EDUCATION AND HIV PRE- alcohol and drug use increases VENTION PROGRAMS FOR ADOLESCENTS (2005), vulnerability to sexual advances; and available at . attaining self-sufficiency before 113 Society for Adolescent Medicine, Position engaging in sexual activity. Paperon Reproductive Health Carefor Adolescents, 12 J. ADOLESCENT HEALTH 649, 655 (1991). 42 U.S.C. § 710(b)(2) (2003). 114 Press Release, National Education 105 Community-Based Abstinence Education Project Grants (CBAE), 68 Fed. Reg. 68,632, Association, NEA urges accurate health educa- tion: Censorship in abstinence-only programs is 68,634 (Dec. 9, 2003) ("Curriculum developed or placing youth at risk (Oct. 8, 2003), selected for implementation in the SPRANS

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. Health Care Professional: The Definition of Abstinence, 115 AMERICAN SCHOOL HEALTH ASSOCIATION, 18 J. PEDIATRIC & ADOLESCENT GYNECOLOGY 5 7, Quality Comprehensive Sexuality Education, 58 (2005) ("Programs that do not define sexual . be inadvertently exposing teens to greater risk of 116 American Association of University Women, infection by promoting ignorance of the risk of Attacks on Reproductive Choice: Abstinence- STD transmission through non-coital sexual Only Funding (2005), . sex in some limited populations. However, he 118 See DOUGLAS I(IRBY, EMERGING ANSWERS: observed that "there do not currently exist any RESEARCH FINDINGS ON PROGRAMS TO REDUCE abstinence-only programs with strong evidence TEEN PREGNANCY (SUMMARY) 8-9, (2001) that they either delay sex or reduce teen [hereinafter KIRBY, EMERGING ANSWERS], pregnancy." KIRBY, ABSTINENCE-ONLY, supra note available at . 126 See Clara S. Haignere, Rachel Gold & 119 The American Academy of Pediatrics Com- Heather J. McDaniel, Adolescent Abstinence and mittee on Adolescence takes the position that Condom Use: Are We Sure We are Really Teaching "encouraging abstinence and urging better use of What is Safel 26 HEALTH EDUC. & BEHAv. 43, contraception are compatible goals." See Klein & 48 (1999); KIRBY, EMERGING ANSWERS, supra American Academy of Pediatrics, supra note 43, note 118, at 8 (observing "very little rigorous at 284-85. evaluation of abstinence only programs" but of 120 KIRBY, EMERGING ANSWERS, supra note 118, three evaluated "none . . . showed an overall at 8. positive effect on sexual behavior"). 121 See Landry, Factors, supra note 90, at 267 127 Haignere, supra note 126, at 43. (noting that almost all sex education programs 128 In a survey of secondary schools, Landry present abstinence as "the best option for found that 23% taught that abstinence was the teenagers"). only way to avoid STDs, twenty-eight percent 122 Patricia Goodson, et al., Defining Abstinence: characterized other methods as ineffective, and Views of Directors, Instructors, and Participants in twelve percent did not teach about other methods Abstinence Only- Until-Marriage Programs in Texas, at all. Landry, Factors, supra note 90, at 267. 73 J. SCH. HEALTH 91, 91 (2003) (finding 129 Haignere, supra note 126, at 46. For "substantial variability" in how abstinence is example, the Waxman Report described finding: defined).

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One curriculum says that "the popular Amendment's Religion Clauses and the Sex Education claim that 'condoms help prevent the Debate, 9 S. CAL. REV. L. & WOMEN'S STUD. spread of STDs,' is not supported by 265, 297 (2000) ("respect for the Establishment the data"; another states that '[i]n Clause principles embodied in the endorsement heterosexual sex, condoms fail to pre- test strongly suggests that the time is ripe for vent HIV approximately [thirty-one challenging abstinence-only programs in courts percent] of the time"; and another on both purpose and effect grounds"); Julie Jones, teaches that pregnancy occurs one out Money, Sex, and the Religious Right: A Constitutional of every seven times that couples use Analysis of Federally Funded Abstinence-Only-Until- condoms. Marriage Sexuality Education, 35 CREIGHTON L. REV. 1075, 1105 (2002). Waxman Report, supra note 97, at i. In fact, 142 McGrath, supra note 107, at 690 (arguing this instruction contradicts the federal Centers "SPRANS-CBAE violates both the Establishment for Disease Control's recommendation to use Clause and also the unconstitutional conditions barrier contraceptives to prevent HIV/AIDs. See doctrine with its impermissible restrictions on Centers for Disease, Guidelinesfor Effective School speech"). Health Education to Prevent the Spread of AIDS, 143 Sexually minority youth may also have an MORBIDITY & MORTALITY WKLY, REP., Jan. 29, equal protection claim because these curricula 1988, available at . 130 Haignere, supra note 126, at 47. supra note 107, at 684 (arguing that even under a 131 The Waxman Report, for example, found rational basis test, "[a]bstinence-only-until- marriage education programs deny the rights of "that over [eighty percent] of the abstinence-only gay and lesbian adolescents to receive equal curricula, used by over two-thirds of SPRANS protection under the law"). grantees in 2003, contain false, misleading, or 144 Barbara Bennett Woodhouse, Speaking Truth distorted information about reproductive health." to Power: Challenging "The Power of Parents to Waxman Report, supra note 97, at i. Control the Education of Their Own", 11 CORNELL 132 Frank, supra note 86. 33 L.J. & PUB. POL'Y 481, 500-01 (2002). 1 Id. 45 at 14. 1 Id. at 485. 134 Peter S. Bearman & Hanna Brilckner, 146 Barbara Bennett Woodhouse, Who Owns the Promising the Future: Virginity Pledges and First Child?: Meyer and Pierce and the Child as Property, Intercourse, 106 AM. J. SOC. 859, 900 (2001). 35 33 WM. & MARY L. REV. 995, 1117 (1991). 1 Id. at 899-900. 147 See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 136 Hannah Bruckner & Peter Bearman, After 213-14 (1972) (public education is both a state the Promise: The STD Consequences of Adolescent "interest" and "high responsibility"); Ambach v. Virginity Pledges, 36 J. ADOLESCENT HEALTH 271, Norwick, 441 U.S. 68, 77 (1979) (characterizing 277 (2005). "[A]lthough pledgers experience public education as an "assimilative force" that sexual debut later than others, most of them will "inculca[tes] fundamental values necessary to the eventually engage in premarital sex. Those who maintenance of a democratic political system"). do report lower frequency of condom use at first 148 See, e.g., San Antonio Indep. Sch. Dist. v. intercourse. Those who do not are more likely to Rodriquez, 411 U.S. 1, 35 (1973) (observing that substitute oral and/or anal sex for vaginal sex." Id. while education is an important government Moreover, condom use at first intercourse is a function, education is not a fundamental right); strong indicator of consistent use, raising the Plyer v. Doe, 457 U.S. 202, 223 (1982) (noting question whether these programs reinforce that education is not a fundamental right). unhealthy practices. Id. at 276. 141 See Nancy Tenney, The Constitutional ...Waxman Report, supra note 97, at 17-18. 13' Frank, supra note 86, at 18. Imperative of Reality in Public School Curricula: 139 Frank, supra note 86, at 19. Untruths About Homosexuality as a Violation of the 140 Id. First Amendment, 60 BROOK. L. REV. 1599, 1631- 141 See, e.g., Gary J. Simson & Erika A. Sussman, 33 (1995) (opining that although "[c]ourts have not addressed directly the theory that inaccurate Keeping the Sex in Sex Education: The First

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or misleading information violates the freedom of speech and the right to receive information," such a right is inherent to the purposes of democratic education and First Amendment principles). 150 Rust v. Sullivan, 500 U.S. 173, 201 (1991) ("[A] Legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right") (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 840, 849 (1983)). ' Rust, 500 U.S. at 173 (quoting Harris v. McRae, 448 U.S. 297,317 (1980)). 152 id. "' Carey v. Population Services, Int'l, 431 U.S. 678, 693 (1977). 154 Id. at 681. 155 Id. at 682. 5 16 Id.at 693. 157 Id. (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 75 (1976)). ' Carey, 431 U.S. at 697. 15 9 Id. 160 Id.at 697-99. 161 Id. at 695-96. 162 ACOG, supra note 111. 163 Waxman Report, supra note 97, at i-ii; Frank, supra note 86, at 3. 164 Prince v. Mass., 321 U.S. 158, 168 (1944). 165 MARl(YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA 55 (1983).

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