The condom controversy in the public schools: respecting a minor's right of privacy.

• Author: Ramos, Pilar S.

Introduction

On November 26, 1991, the New York City School District became the largest in the United States to make condoms available in its public schools.(2) Ultimately, 260,000 students in 120 high schools would be able to receive condoms on request without their parents' permission.(3) The New York City Board of Education, which adopted the plan in February of 1991 after months of hearings on the issue,(4) considered and specifically rejected a resolution that would have given parents the right to exclude their children from the condom availability program.(5) Since then, several other cities and counties have implemented condom availability programs,(6) not only for pregnancy prevention, but also as a means of inhibiting the rise of Acquired Immunodeficiency Syndrome ("AIDS") cases among today's adolescents. At some schools, teenagers must have permission from their parents before they can obtain condoms, while at other schools teenagers are free to receive condoms without the mandatory involvement of their parents.

The "condom controversy" is not really a debate over the idea of making condoms available in public schools.(7) The real debate in the condom controversy revolves around whether a school board should or may require some form of parental involvement in the student's decision to obtain condoms at school -- either by parental consent "opt-in," by parental veto "opt-out," or by parental notification.(8) A minority of parents have furiously protested the idea of schools making condoms available to their children without mandatory parental consent.

Much of the attention that this debate has received has focused on these parental objections and the rhetoric of parental rights. The condom controversy, therefore, has joined the wider debate over the idea of constitutionalized "parental rights."(9) Although litigation, or threatened litigation, over condom availability programs in the schools may seem widespread, there are to date only three reported cases on the issue.(10) In all three cases, suit was filed by parents challenging the logistics of the program, namely, the parental involvement provision or the lack thereof. The parents argued that programs that do not mandatorily involve parents in the student's decision violate constitutionally protected parental rights.(11) A decision on the merits in one of these cases is still pending,(12) and in one of the two cases in which the substantive issues were decided, the Supreme Court recently denied certiorari.(13) The holdings of the two decided cases conflict, and condom availability in public schools remains a contested issue.

Remarkably, none of these cases seriously address the issue of whether blanket parental consent "opt-in," "opt-out," or notification requirements in condom availability programs would instead infringe upon the minors' rights. Yet, the United States Supreme Court has held that minors have a constitutionally protected right of privacy, including the right to obtain contraception.(14) Although this right is not unlimited, the lack of attention the three cases have given to minors' rights seems misguided in light of the fact that teens who seek contraception before engaging in sexual intercourse demonstrate a level of maturity and responsibility that should be recognized.(15)

This Comment seriously questions the constitutional propriety of parental consent-type requirements in the school condom availability program context by analyzing the rights of minors subjected to these types of requirements. It contemplates that minors have a right to be free of, or to have an alternative to, the very parental consent requirements that parents argue are necessary in school condom availability programs. Part I of this Comment will explain how the condom controversy developed. It discusses the realities of teen sexual activity -- exposing the immense public health problem and the unique threat of AIDS -- and how those realities served as catalysts for the controversial condom availability programs. Part I then reviews the reported cases concerning condom availability programs and argues that, because these cases adopted a myopic view of the family and the parent-child relationship, they failed to address an equally important interest at stake: the minors' rights.

Part II of this Comment argues that minors' rights play an important role in the condom controversy. The first section explores the strides that have been made in the context of minors' rights and traces the right of privacy as it has been applied to minors in the contraception context and the abortion context. Drawing on the recent countertrend to parental rights rhetoric, the second section of Part II argues that a true concern for minors' interests dictates a reconceptualization of the family and the parent-child relationship so that children's needs and experiences are meaningfully considered. Part III then analogizes the arguments for respecting a minor's right of privacy in the abortion context and the nonschool contraception context to the school condom program context. This Part argues that minors' needs and experiences blur the distinction between the availability of condoms in the school setting and their availability elsewhere. Ultimately, legislatures, school boards and courts must consider minors' interests from the real perspective of minors in evaluating whether parental consent requirements are appropriate for condom availability programs' The combination of the rights that minors have already been accorded with a child-centered perspective proves that the answer is simply no.

1. Evolution of the Condom Controversy

   1. The Public Health Problem

      Human beings have a natural drive for sex -- it is a fact of life.(16) Adolescents(17) are no exception. Rather, adolescence is the period during which an individual begins to explore and experiment with her sexuality. Beginning in the 1950s, the proportion of sexually active teenagers increased steadily.(18) Although the number of teens having sex has leveled off in the 1990s,(19) there is still cause for concern.(20) More than half of all high school students report engaging in sexual intercourse,(21) and a significantly greater percentage report being sexually active.(22) By age nineteen, 75% of girls and 86% of boys have experienced sexual intercourse.(23) Despite the prevalence of sexual activity, "the vast majority of sexually active teens do not use condoms [regularly]."(24) Moreover, "[o]ne-quarter to one-third of sexually active adolescents never use any form of contraceptive."(25)

      High-risk sexual behavior among teenagers has caused great public concern. For the past two decades, the primary focus has been on the alarming rate of adolescent pregnancy.(26) The United States has the highest rate of teen pregnancy in the industrialized world.(27) Some efforts have been made to remedy that problem.(28) Since the late 1980s, however, it has undoubtedly been the AIDS epidemic(29) that has led to an emphasis on the importance of safe sex.(30)

      Significantly, "[t]eenagers appear to be one of the fastest growing age groups in contracting AIDS."(31) So striking is the infection rate that between January and September of 1993, a period of only nine months, 980 male adolescents and 435 female adolescents were afflicted with AIDS(32) -- more infections than the combined number of cases reported over a fifty-four-month period from 1987 to 1991.(33) AIDS has now become the sixth leading cause of death among 13- to 24-year-olds.(34) predictions are that AIDS will continue to menace seriously the adolescent population(35) and that the incidence of HIV infection among adolescents "will rise dramatically."(36) Although notorious for believing they are invincible,(37) at least some teenagers are becoming frightened by the possibility of contracting AIDS.(38)

   2. Educational Efforts to Ameliorate the Public Health Problem

1. Sex Education in the Schools

   Sex and health education curricula in public schools date back to the early 1920s.(39) These programs, generally designed to combat the social problem of teen pregnancy, have withstood public opposition(40) and legal challenges.(41) Today, sex education is common in public schools.(42) Moreover, since the advent of AIDS, 83% of public school districts have implemented specific AIDS/HIV educational efforts.(43) Despite these educational efforts and the availability, although somewhat limited, of federally funded family planning clinics that provide indigent minors with contraceptives,(44) the problems associated with risky teenage sexual activity have not been significantly reduced.(45) The issue, thus, is not so mach one of mere knowledge, but one of practice.(46)

2. Condoms in the Schools

   Efforts to stem the tide of teen pregnancy and the spread of sexually transmitted diseases, including AIDS, focus on condoms as the most effective preventative devices.(47) Scores of school districts throughout the country have considered making condoms available in public schools and many have already implemented condom availability programs.(48) The Massachusetts State Board of Education, realizing the gravity of the public health problem among adolescents, has affirmatively recommended that every school committee in the state consider condom availability programs as a supplement to the general HIV/AIDS prevention education program.(49) Although the idea of providing minors access to condoms in school has drawn heated debate,(50) surveys indicate that a significant majority of American adults, in addition to minors, favor the "distribution" of condoms in public schools.(51) Irrespective of moral, religious or cultural values, it appears that a majority of Americans recognize the deadliness of the AIDS virus, along with the seriousness of the teen pregnancy problem, and accept the need for an equally serious educational defense mechanism.(52)

   3. Three Legal Challenges: A Focus on Parental Rights

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