By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

Despite the surge of COVID cases throughout the state, we are doing well in my school, so well in fact that some parents are up to their usual tricks. Yesterday, I met with a parent who was very concerned about the health curriculum at the middle school. He explained that he and his second wife are raising their son in a godly way, and he expressed grave concern that some of the elements of the curriculum (which he obtained through an FOIA request) are inconsistent with the values they are seeking to inculcate in their son.

At the end of the meeting, the parent presented what he described as his “simple” request. He had printed up and gone through the health curriculum carefully, marking in red pen the activities from which his son should be excused. “Don’t worry,” he told me, “there will be no need for alternative assignments. My son is self-motivated and he will be fine.” But the parent then went on and on about how he, as the parent, has the right to demand that his son not be exposed to information he deems harmful.

Do we really have to excuse him from the portions of the health curriculum he finds objectionable?

Signed,
Curriculum Conundrum
 

Dear Curriculum:

Legal Mailbag must give you the all-purpose legal answer – it depends. The parent is largely wrong. Public school authorities have the right to establish the curriculum, and parents have a decision to make. If parents object to the public school curriculum, they may send their children to private school or even home-school their children. But within the public school curriculum, parents can require excusal in limited circumstances.

Legal Mailbag notes that by statutory provisions parents may unilaterally require excusal from the following areas of the curriculum simply by making a written request:

• Family life education (sex education)
• HIV instruction
• Gun safety
• Dissection
• Sexual assault and abuse awareness and prevention

Other than these specific topics, however, parents do not have the right to demand that their children be excused from areas of the curriculum.

One of the leading cases on this subject arose right here in Connecticut. In Leebaert v. Harrington, 332 F. 3d 134 (2d Cir. 2003) a parent in Fairfield, Connecticut, demanded that the Fairfield Public Schools excuse his son from certain parts of the health curriculum. The parent asserted that he had a fundamental right to direct the upbringing of his son, and he claimed that the identified areas of the health curriculum interfered with that right.

In reviewing the parent’s claim, the court had to decide what standard to apply to the school district’s actions. If the parent was indeed asserting a fundamental right, the school district would have to show that maintaining its curriculum without excusal is a compelling state interest and that its actions affected the parent’s rights only as required by that compelling interest. However, the court rejected the parent’s claim. Parents do have a fundamental right to raise their children, but they also have options other than the public schools. Parents are not required to surrender this fundamental right to educate their children in the public schools, because they have the right to decide whether to enroll their children in the public schools, a private school, or even provide home schooling. Accordingly, school districts need only show that the curriculum that they provide to students is rationally related to a legitimate governmental interest.

In sum, you do not have to accede to this parent’s request except as it relates to topics on which excusal is mandated. Otherwise, the student must participate in your district’s adopted curriculum if he wants to attend your school.