Congressional Record, Volume 151 Issue 152 (Wednesday, November 16, 2005)

[Congressional Record Volume 151, Number 152 (Wednesday, November 16, 2005)]
[House]
[Pages H10312-H10317]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXPRESSING SENSE OF HOUSE THAT NINTH CIRCUIT COURT OF APPEALS INFRINGED
ON PARENTAL RIGHTS

Mr. SENSENBRENNER. Madam Speaker, I move to suspend the rules and
agree to the resolution (H. Res. 547) expressing the sense of the House
of Representatives that the United States Court of Appeals for the
Ninth Circuit deplorably infringed on parental rights in Fields v.
Palmdale School District.
The Clerk read as follows:

H. Res. 547

Whereas the Palmdale School District sent parents of
elementary school students at Mesquite Elementary School in
Palmdale, California a letter requesting consent to give a
psychological assessment questionnaire to their first, third,
and fifth grade students;
Whereas without the informed consent of their parents, the
young students were instead administered a questionnaire that
contained sexually explicit and developmentally inappropriate
questions;
Whereas seven parents subsequently filed a complaint
against the Palmdale School District in a Federal district
court;
Whereas on November 2, 2005, a 3-judge panel of the Ninth
Circuit Court of Appeals affirmed the decision of the United
States District Court for the Central District of California
in the case (Fields v. Palmdale School District) and held
that parents ``have no constitutional right . . . to prevent
a public school from providing its students with whatever
information it wishes to provide, sexual or otherwise, when
and as the school determines that it is appropriate to do
so'';
Whereas the Ninth Circuit stated, ``once parents make the
choice as to which school their children will attend, their
fundamental right to control the education of their children
is, at the least, substantially diminished'';
Whereas in Meyer v. Nebraska, 262 U.S. 390, 401 (1923), the
Supreme Court recognized that the liberty guaranteed by the
14th amendment to the Constitution encompasses ``the power of
parents to control the education of their [children]'';
Whereas the Supreme Court in Pierce v. Society of Sisters,
268 U.S. 510, 534-35 (1925), highlighted the Meyer doctrine
that parents and guardians have the liberty ``to direct the
upbringing and education of children under control'' and
emphasized that ``[t]he child is not the mere creature of the
state; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare
him for additional obligations'';
Whereas in Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972),
the Supreme Court acknowledged that ``[t]he history and
culture of Western civilization reflect a strong tradition of
parental concern for the nurture and upbringing of their
children. This primary role of the parents in the upbringing
of their children is now established beyond debate as an
enduring American tradition. . . . The duty to prepare the
child for `additional obligations', referred to by the Court
[in Pierce] must be read to include the inculcation of moral
standards, religious beliefs, and elements of good
citizenship'';
Whereas a plurality of the Supreme Court has stated, ``it
cannot now be doubted that the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and
control of their children'' (Troxel v. Granville, 530 U.S.
57, 66 (2000) (plurality opinion));
Whereas the Ninth Circuit's decision in Fields v. Palmdale
School District presupposes that ``parents make the choice as
to which school their children will attend'' when, in fact,
many parents do not have such a choice;
Whereas the decision in Fields establishes a dangerous
precedent for limiting parental involvement in the public
education of their children; and
Whereas the rights of parents ought to be strengthened
whenever possible as they are the cornerstone of American
society: Now, therefore, be it
Resolved, That it is the sense of the House of
Representatives that--
(1) the fundamental right of parents to direct the
education of their children is firmly grounded in the
Nation's Constitution and traditions;
(2) the Ninth Circuit's ruling in Fields v. Palmdale School
District undermines the fundamental right of parents to
direct the upbringing of their children; and
(3) the United States Court of Appeals for the Ninth
Circuit should agree to rehear the case en banc in order to
reverse this constitutionally infirm ruling.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from California (Mr.
Berman) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, I rise in strong support of House Resolution 547,
expressing the sense of the House of Representatives that the United
States Court of Appeals for the Ninth Circuit grossly infringed on
established parental rights in Fields v. Palmdale School District.
In a decision that startled even veteran observers of the Ninth
Circuit, a three-judge Ninth Circuit panel held in Fields v. Palmdale
School District that parents ``have no constitutional right to prevent
a public school from providing its students with whatever information
it wishes to provide, sexual or otherwise, when and as the school
determines that it is appropriate to do so.''
This case involved a survey given to 7- to 10-year-old children that
contains, among others, 10 specific questions about sex. The Palmdale
School District sent parents of first, third and fifth grade students
at the Mesquite Elementary School in Palmdale, California, a letter
requesting consent to administer a psychological assessment
questionnaire to their children. The letter failed to inform the
parents that some of the questions expressly involved sexual topics.
Seven parents, including one set of parents that did not return the
consent form for their child, were still given the questionnaire, filed
suit in Federal court against the school district upon learning from
their children of the sexual nature of some of the questions.
A three-judge panel of the Ninth Circuit ruled against the parents
concluding that ``once parents make the choice as to which school their
children will attend, their fundamental right to control the education
of their children is, at the least, substantially diminished.''
This decision presupposes that the school attended by the children is
always a matter of parental choice. As we all know, many parents do not
have such a choice, and they should not be forced to forfeit their
parental rights when their children enter the schoolhouse gate.
Moreover, the flawed logic of this decision has a disproportionate
impact on parents who, for financial and other reasons, cannot send
their children to schools more responsive to parental rights. Parents
should not be required to involuntarily relinquish their right to
direct the upbringing and control of their children.
The Ninth Circuit decision compels this outcome by divesting parents
of their right to object to their children being exposed to sexual or
other information in a school setting. This holding is inconsistent
with constitutional precedent and established parental rights.
The Supreme Court recognized in Meyer v. Nebraska that the liberty
guaranteed by the 14th amendment encompasses ``the power of parents to

[[Page H10313]]

control the education of their children.'' The court reaffirmed this
fundamental right in Pierce v. Society of Sisters and emphasized that
``the child is not the mere creature of the State; those who nurture
him and direct his destiny have the right, coupled with the high duty,
to recognize and prepare him for additional obligations.''
According to the court in Wisconsin v. Yoder, this duty ``must be
read to include the inculcation of moral standards, religious beliefs
and elements of good citizenship.''
Despite the fact that the due process clause of the 14th amendment
protects the fundamental right of parents to make decisions concerning
the care, custody and control of their children, the Ninth Circuit
concluded ``that parents are possessed of no constitutional right to
prevent the public schools from providing information on sex to their
students in any forum or manner they select.''
This decision sets a dangerous precedent, threatening the parental
rights that are firmly grounded in our Nation's Constitution and
traditions. I urge my colleagues to affirm their support for parental
rights by supporting passage of this resolution.
Madam Speaker, I reserve the balance of my time.
Mr. BERMAN. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I am strongly opposed to H. Res. 547. I consider it
simply a politically inspired continuation of court-bashing featuring a
hypocritical change in thinking that all of a sudden wants to read into
the Constitution rights that no court and no student of the
Constitution has ever before found.
But I also believe that the conduct that was the subject of this case
was offensive, foolish, inappropriate and perhaps even injurious and
harmful to the students.

{time} 1130

What is going on in the Palmdale Unified School District? What allows
a group of educators to allow a survey that asks questions like this to
people as young as in the first grade? But none of that speaks to the
merits of this particular resolution. It was introduced only last week.
The case only came down 2 weeks ago or so. Its merits have never been
considered in the committee process. This resolution simply serves as
an attack on ``the nature of the Ninth Circuit.'' It is consistent with
the agenda of the majority. I am surprised they did not put the
resolution into the reconciliation bill. It should not be supported by
this House.
The resolution expresses the sense of the House that parents have a
fundamental right to direct their children's education. No argument
there. And the Ninth Circuit decision has done precisely that. The
Ninth Circuit decision cites the Supreme Court decisions that the
gentleman, the chairman of the committee, cited that have held it is a
fundamental right protected by the due process clause that parents have
the right to make decisions concerning the care, custody and control of
their children. The Ninth Circuit decision refers to the limitations
placed on that right imposed by the First and Sixth Circuits, the
circuits which first posed the supposed threat to parental control.
It was, after all, the First Circuit that held that ``this freedom,''
that is the right, the freedom to control decisions concerning the
care, custody and control of their children, ``this freedom does not
encompass,'' does not encompass, the First Circuit, not Ninth Circuit,
``a fundamental right to dictate the curriculum at the public schools
to which they have chosen to send their children.'' Furthermore, the
First Circuit says, ``we cannot see that the Constitution imposes such
a burden on State educational systems and, accordingly, find that
rights of parents do not encompass a broadbased right to restrict the
flow of information in the public schools.
And it was the Sixth Circuit's opinion that the Ninth Circuit adopted
here which stated, ``while parents may have a fundamental right to
decide whether they send their child to public school, they do not have
the fundamental right generally to direct how a public school teaches
their child.''
But there is no resolution criticizing the First and Sixth Circuit
Court decisions which the author of the resolution should be directing
his disapproval towards. The resolution instructs the Court to rehear
this case en banc and reverse its decision. This skirts the already
available processes for addressing a questionable decision, an en banc
petition or an appeal to the Supreme Court. If those in this body want
to ensure a broad right for parent-influenced education, opportunities
exist for them to legislate this right.
The difference between a foolish, unwise and perhaps harmful decision
by a local school district and arguing that that creates and violates
some fundamental constitutional right is an incredible leap of faith.
This is a school district in California. Why are the parents not at the
School Board asking the principal of the school that allowed this
graduate student to conduct this survey to be fired? Why are the
parents not urging that, if the superintendent does not do that, the
School Board fire the superintendent? Why are the parents not
organizing the recall of the school board members if the school board
members are allowing this kind of a thing to go on? Why are the parents
not going to Sacramento and asking the State legislature to prohibit
these kinds of surveys of first, third and fifth grade students which
get into personal questions that are not appropriately asked in that
point of view?
There are so many appropriate avenues open for parents to redress the
damage here. And that is all this is. It is a court case after the fact
seeking to create, out of whole cloth, a refinement of a constitutional
right that no court has ever applied.
It is a small irony that the proponents of this resolution are
requesting that the courts engage in a level of judicial activism in
order to support their political views. The law should be ideologically
neutral, and therefore, the sponsor should be pleased that the Court
specifically refused to express a view on the wisdom of posing some of
these questions asked or of condoning an inquiry into some of the
particular areas surveyed by the school district. The Court did not
affirm. It specifically refused to affirm the wisdom and judgment of
the people who distributed and prepared and implemented this particular
survey.
The ultimate paradox for the cosponsors, though, is the lack of
consistency in bringing this resolution forward. When requesting that
the right of privacy protects parents' decision making, they must rely
on the same decisions which they abhor and claim to be the result of
judicial activism, rights that are inferred in decisions such as Roe v.
Wade and Lawrence v. Texas, the penumbra, the unstated, unenumerated
rights in the Constitution that some courts have found. Any strict
analysis of the text of the Constitution cannot lead you to the
conclusion that a fundamental constitutional right was violated here
for which these parents are entitled to constitutional redress.
Could the proponents of this resolution actually be requesting that
the Court read into the Constitution a right not explicitly enumerated
in it? Do the sponsors want the Ninth Circuit to legislate from the
bench? That does not sound like strict constructionism to me. So I
think the issue is a serious one. The Constitution is not the place to
go for recourse to rectifying the decisions that were made. There are
many, many other alternatives, even tort actions dealing with the harm
that was caused to the students who were subject to the survey; but not
creating a new refinement of the constitutional right that two circuit
courts have already said does not exist and, instead, as part of the
agenda for bashing the Ninth Circuit and seeking to use the
reconciliation bill to split the Ninth Circuit, provide us with one
more chance to engage in that kind of game playing.
Madam Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Madam Speaker, I yield 5 minutes to the principal
author of the resolution, the gentleman from Pennsylvania (Mr. Murphy).
Mr. MURPHY. Madam Speaker, let me start off by saying that as a
psychologist who primarily specializes in issues dealing with children
and families, when I heard the conclusions on this case, what leapt out
at me was how this decision by the Ninth Circuit

[[Page H10314]]

Court really went far beyond the actual issues in this case, and I had
great concerns. Let me walk us through a couple of points here.
In 2002, when the first claim was filed in Fields v. Palmdale School
District, it came from a parental consent letter that was sent to
parents from the Palmdale School District asking parents to sign this
informed consent letter. The informed consent letter did talk about
there would be three, 20-minute self-report measures given to the
children one day. They said it was confidential and did say that the
questions may make my child feel uncomfortable, and if this occurs, the
researcher in this case would help the parents locate a therapist for
some psychological help if necessary.
What the parents were not told was that it would contain several
questions having to do with sexuality, which were given to first, third
and fifth graders. Questions such as touching my private parts too
much, thinking about having sex, thinking about touching other people's
private parts, thinking about sex when I do not want to, washing myself
because I feel dirty inside, and the list goes on.
The School District subsequently has claimed that they did not know
those questions were going to be given to the children. In fact, they
state that they saw a different questionnaire and something was swapped
on them.
Here is what comes out of this case; that indeed, what may have
occurred is this was not an informed consent letter given to parents,
and even for parents who did not sign, for whatever reason, this lack
of informed consent letter, their children were still administered this
questionnaire.
This is not how psychological research is to be conducted, Madam
Speaker. The standard of ethics for psychologists and for research is a
letter of informed consent given to parents must clearly inform parents
what is happening. The School District involved should have been
clearly told what was happening in this case, too. And then what
occurred here is neither.
But what is amazing here where this case in the courts could have
reaffirmed parents' rights to informed consent before their children
were used in psychological research; instead, the Ninth Circuit Court
pulled out an overreaching conclusion out of the stratosphere that
declared parenting is unconstitutional. They declared parents have no
right to protect their children's privacy when they said, ``we hold
that there is no freestanding fundamental right of parents to control
the upbringing of their children by introducing them to matters of and
relating to sex in accordance with their personal and religious values
and beliefs.'' They go on to say that we do not quarrel with parents'
rights to inform and advise their children about the subject of sex as
they see fit.
But that is not what this case was about. It was a lack of informed
consent. And parents were protesting this. And from the standpoint of
psychologists, the question is whether or not issues like that were
really appropriate to give to first, third and fifth graders.
Certainly, when I have done psychological evaluations for children that
we have concerns that they have been sexually abused, the psychologist
involved is very careful; the law enforcement people are very careful
what questions they ask the child because they are concerned whether
the questions themselves cause problems for the children. And when that
happens, one has to back off and not ask those questions anymore.
In a case like this, first, third and fifth graders overall were
asked those questions when there was not even suspicion of some
problems. But when the Court continues to say there is no fundamental
right of parents to be the exclusive provider of information regarding
sexual matters for their children, either independent of their right to
direct the upbringing and education of the children who are encompassed
by it, I wonder where these conclusions come from. And I believe it is
fully within the jurisdiction of Congress to raise questions and follow
the procedures and ask the courts to review this again.
Certainly, as the distinguished gentleman from California was saying,
I do not know why or if the parents asked for firing of the
superintendent. I do not know what complaints they may have lodged with
Sacramento or with school boards in these cases, and I cannot speak to
those issues. What we are speaking to here is a case in which a court,
I believe, far overreached the issues involved with the case and
declared parenting unconstitutional.
I believe, and I hope Members will support this bill, because we are
saying parents indeed do have a right to fully disclose informed
consent when their children are asked to do anything. Certainly,
parents may not be involved with every step of everything that is said
at every level on every day on every moment of every part of a
curriculum in school, and I do not think that is what the parents are
asking in this case. But they are saying, when a psychological survey
or questionnaire is administered to their children, they darn well
ought to have the right to know what is in there, especially when the
survey itself says it may cause trauma to children.
So I am asking my colleagues to support this resolution and ask the
Ninth Circuit Court to review this case again.
Mr. BERMAN. Madam Speaker, I yield such time as he may consume to the
gentleman from Massachusetts (Mr. Frank).
Mr. FRANK of Massachusetts. Madam Speaker, here they go again. Once
again, the Republican Party is demanding of the courts that they be
more activist. Earlier this year, we passed a resolution denouncing the
Supreme Court in the case of eminent domain for not overturning
decisions of local and State elected officials in Connecticut. Today,
we are asked to denounce the Ninth Circuit Court for not overturning
the actions of a local School Board. And here is the nub of the Court's
holding, quote, ``although we reached our conclusions with little
difficulty and firmly endorse the school districts' authority to
conduct a survey for the purposes involved here, we reiterate that we
express no view on the wisdom of posing some of the particular
questions asked or of conducting an inquiry into the particular areas
surveyed by the school district.'' And here is what the majority is
apparently upset about. That determination is properly left to the
school authorities.
In other words, where is activism when you need it, Madam Speaker?
Why do we not have a Supreme Court tell the people in Connecticut,
elected officials, you may not do this economic development the way you
want? We, the unelected Supreme Court, will overturn you. Here, without
a specific textual phrase in the Constitution, even like taking of
property, we say to the Ninth Circuit, how dare you say this is up to
the school board?
The gentleman from Pennsylvania made some arguments that were very
plausible to me about the lack of sense for some of these questions. He
was critical. He said, you should not ask these of first, third and
fifth graders. But it is not up to the courts to decide what is good or
bad psychology. That is up to the school district.
And again, let us be very clear. This is the second time in a couple
of months the majority has complained that the courts, the Federal
courts, have not cancelled out the actions of local elected officials
and State elected officials. Now, that is only a problem for this
point.

{time} 1145

What we ought to have is honesty in attacking the judiciary. Truth in
demagoguery.
The point is that when you say you are opposed to the courts because
they are activists and because lifetime-appointed judges are
overturning elected officials, that ought to be what you mean. If you
mean you do not like the particular outcome, say so. It is perfectly
legitimate to be result-oriented, and lots of us are.
The problem here is the lack of intellectual honesty. Clearly, people
are not opposed to judicial activism. In the case of eminent domain, in
the case of this situation here, they are opposed to the lack of
judicial activism.
Now, I also wonder how far that extends, because on Monday, the
Supreme Court decided a far more important case, I believe, to the
parents involved regarding their rights vis-a-vis their children. By a
6-2 vote, the Supreme Court said that the burden of proof is on the
parents of a child with a disability. If the parents disagree

[[Page H10315]]

with what the school has proposed to educate a child with a disability,
they, the individual parent, has the burden of proof in court in
overturning what the school board has decided.
Now, I have to tell my colleagues this: I think if you are the parent
of a disabled child, getting that child the proper educational
structure is more important than whether or not she has to do a sex
survey. You might dislike the sex survey, but I would think to most
parents, getting the right education for your child is more important.
But the Supreme Court said, no, the burden of proof is on you, the
parent. You, the parent, have the burden of proof with regard to your
child's education.
Where are the assertions of the absolute right of the parents? Why do
the parents not have the kind of rights you are claiming? Was that
making parenting unconstitutional? Did Justice Scalia and Justice
Thomas who are in the majority make parenting unconstitutional when
they said you, the parent, have the burden of proof if you want to
improve the educational structure of your children?
In other words, what the majority says is when we do not like a
decision, we will criticize the court. That is fine, that is free
speech, as long as you do not get into PATRIOT Act situations. But why
disguise what you are saying? If you really do not like the result, say
you do not like the result. Why all these complaints about activism
when what we have here is again a complaint about the absence of
activism?
So I hope going forward, we will have honest debates about what the
courts do and do not do, and we will stop pretending that we are upset
about activism when what you are really upset about is judicial
pacifism. You want the Ninth Circuit to overturn the Palmdale School
Board. Well, why does a Member of Congress not do something about that
with the school board of Palmdale? You are upset because the Supreme
Court did not overturn the elected officials in Connecticut. Let us
have some honesty in this regard.
Mr. BERMAN. Madam Speaker, if the gentleman will yield, the other
irony is, here we bash the court for not creating a new constitutional
right, never before proclaimed in the context of this resolution, in
order to overturn a local school decision and, at the same time, we
whip bills through here left and right stripping the courts of
jurisdiction to decide the cases.
Mr. FRANK of Massachusetts. Madam Speaker, let me ask the gentleman,
because I know he has studied this well. I have read the opinion. I
have not read the pleading. I do not know what specific phrase in the
Constitution they pointed to, but I wonder from an originalist
standpoint, did John Adams and James Madison want the Supreme Court to
have the right, did they say that there was this absolute parental
right? I would ask the gentleman, is this one of those nasty things we
find lurking in that penumbra, which is such an unpleasant word?
Mr. BERMAN. Madam Speaker, I say, where is the Federalist Society
when we need them? All of a sudden, everything flips around.
Mr. FRANK of Massachusetts. Well, I cannot answer as to where the
whole Federalist Society is, but I can tell the gentleman where at
least one of the leaders of the Federalist Society who introduced my
Governor the other day, I know where he was. He was busy making jokes
about two Senators in the Ku Klux Klan, which he seemed to think, as
did others, was riotously funny.
Mr. BERMAN. Madam Speaker, if the gentleman will yield, that right is
very specifically protected in the Constitution.
Mr. FRANK of Massachusetts. Absolutely. Let us just be very clear. I,
from what I have read, would not have voted to issue that survey. I
think it was a mistake. But I hope the majority is not telling us that
it is the role of the circuit courts of appeals to second-guess the
psychological judgments of the school boards.
Again, you may disagree even with what the court said in terms of the
final decision, but let us be intellectually honest. It is a lack of
activism. In the eminent domain case here, it is a lack of activism. It
is a complaint by the majority that the courts have upheld decisions by
local officials that the majority does not like. They have a right to
that view; they just do not have a right to disguise it.
I thank the gentleman for yielding.
Mr. BERMAN. Madam Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Madam Speaker, I yield myself 30 seconds.
Madam Speaker, my two friends on the other side of the aisle are
obfuscating the real issue that is involved. I do not think John Adams
and James Madison ever thought of first, third, and fifth graders being
asked the questions that were recited by the gentleman from
Pennsylvania (Mr. Murphy), the author of the resolution. The question
here is whether this decision is right or wrong. It is wrong, and that
is why the resolution ought to be passed.
Madam Speaker, I yield 1 minute to the gentleman from Pennsylvania
(Mr. Pitts).
Mr. PITTS. Madam Speaker, I thank the gentleman from Pennsylvania
(Mr. Murphy) for introducing this important legislation.
In its decision, the Ninth Circuit said: ``We hold that parents have
no due process or privacy right to override the determinations of
public schools as to the information to which their children will be
exposed while enrolled as students.''
Parents, not schools, certainly not the courts, hold the primary
responsibility for educating their children, especially when it comes
to more sensitive subject matters like sexual, moral, and religious
instruction. But the Ninth Circuit, the same court that ruled the
phrase ``under God'' in the Pledge is unconstitutional, would strip
parents of this fundamental role in their children's lives.
Make no mistake: if this ruling stands, not only will parents lose
the right to choose what lessons their children will learn; it will not
be long before they will not even be allowed to know what is being
taught in the classroom.
I rise in strong support of this resolution and urge its adoption.
Mr. SENSENBRENNER. Madam Speaker, I yield 2 minutes to the gentleman
from Texas (Mr. Gohmert).
Mr. GOHMERT. Madam Speaker, I have great respect for my friend across
the aisle, the gentleman from California (Mr. Berman), as we have
served on Judiciary together. But when the question was asked or put to
us in terms of us wanting the courts to create a new right for parents,
I would submit to my colleagues, never before was it necessary, because
nobody had the audacity to try to say that parents would not have a
right to a say in how their children were governed.
I was in an exchange program in the Soviet Union back in 1973 and
visited a day care center, and I was appalled that the parents were not
allowed any say whatsoever in how the children were raised, what they
were taught. That was exclusively the right of the State. I thanked God
that day that that was not the way it was in the United States.
Now, 32 years later, we find ourselves at a point that some think it
is evolving for the State to take away the parents' right to have a say
in how their children are taught and what they are taught and what goes
on in the school. It is not a time that I can thank God that we evolved
to this point.
I support the resolution. I think it is a great resolution; and
coming from the gentleman that is proposing it, it is even more
important and appropriate. I support the resolution.
Mr. BERMAN. Madam Speaker, I yield myself the remaining time.
Madam Speaker, a few points. I think the gentleman from Pennsylvania
made compelling points about the stupidity and the danger of this kind
of a survey. I have no argument whatsoever about the right of parents
to have an important say in the education of their children.
The most fascinating thing about this argument is my friend from
Texas (Mr. Gohmert) and the chairman of the committee are making a
wonderful case for why you need to evolve notions of constitutional
protections rather than be stuck with what the Framers were thinking at
that time, because this was not happening at that time and the Framers
were not thinking of it at the time.
What I am challenging is this notion that the answer to this
particular outrage is a constitutional case in the

[[Page H10316]]

Federal courts. I repeat again: Where was the principal? Where was the
superintendent? Where was the school board?
There are all kinds of ways in which a citizenry can take those
issues into their hands. They could pass a State law prohibiting these
kinds of surveys getting into these kinds of questions from being asked
of first, third, and fifth graders. In fact, given this Congress's
proclivities, we could just preempt local education and, at a Federal
level, prohibit any local school district from doing this. This would
not be so inconsistent with what we are doing in a number of other
areas.
There are many courses here. The only issue is here is a Ninth
Circuit that carefully follows, affirms the fundamental right of
parents, acknowledges the limitations on that right imposed by the
First and Sixth Circuits, specifically refuses to affirm the wisdom of
a conduct of the survey that is the subject of a litigation, and then
says we cannot find that we can essentially articulate a constitutional
right here that gives people that kind of constitutional relief. Pursue
all your other avenues for this ridiculous conduct. Make the people
accountable. But it does not have to come from the Bill of Rights and
the 14th amendment to the Constitution.
We cannot solve all of society's problems and all of government's
overstepping and improper conduct by virtue of constitutional law. I
think the conservative position on this issue should be to oppose this
kind of a resolution and oppose the logic that goes into thinking like
this and tell people that there are many problems that have to be
solved in ways other than simply trying to establish you had a
constitutional right to be protected from this kind of wrong activity.
Madam Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Madam Speaker, I yield the balance of the time to
the author, the gentleman from Pennsylvania (Mr. Murphy).
Mr. MURPHY. Madam Speaker, the gentleman from California made a good
point, that there are some dangers involved here. He said that they
could have passed a State law in California. Indeed, they could have
and should have. The school board could have also acted upon this, as I
assume they may well have done so. And, indeed, much of this we would
like to uphold is up to the States to take care of matters of
education. I agree with him on those points.
Unfortunately, the Ninth Circuit Court did not agree. The Ninth
Circuit Court instead decided to overstep, I believe, what are the
boundaries of what a Federal court should be doing, and step in.
I believe it is incongruous that government enforces children's
attendance in public school, but then the Federal courts say that
parents have no right to complain about what children are exposed to
while there.
Let me refer back to the conclusion made by the judge in this case.
He said, ``We hold that parents have no due process or privacy right to
override the determination of the public schools as to the information
to which their children will be exposed while enrolled as students.''
Where did that come from? We are talking about children being asked
questions of a sexual nature that, as a superintendent of the school
has said, the school was not shown this questionnaire, it was not
disclosed to the parents. Indeed, if the judge of the Ninth Circuit
Court did what the gentleman from California said he ought to do, to
simply say, this is not a Federal matter, this should go back to the
States, they should deal with this in Sacramento, in the Palmdale
School District, and they should make sure that they reaffirm the
rights of parents to fully disclose information when they are signing
consent forms.
This resolution also is not meant to be critical of legitimate
psychological pursuits and research. Psychologists have a code of
ethics they are to adhere to when they are undergoing research. Indeed,
everyone in the mental health and medical fields have to have their
research go in front of a human subjects committee to have their
concept letters approved. This is not an attempt to bash the mental
health community. In fact, what I am trying to do is uphold the
standards of the mental health community, which I believe have been
usurped in this case.

{time} 1200

These were not children referred for legitimate psychological testing
because there was suspicion of behavioral problems. These were everyday
kids given a questionnaire, and everyday parents who were not told what
was in that questionnaire. Indeed, what I say, as this resolution
passed by the House declares, the fundamental right of parents to
direct the education of their children is firmly grounded in the
Nation's Constitution and traditions.
The Ninth Circuit Court undermines such a right, and the court should
rehear the case and reverse the decision. I believe the Court's
decision overreached the issues in the case; they overreached their
conclusions, and it needs to be overturned.
When it comes to what schools are asking very young children about
sex or about any matters of privacy, protecting the 14th amendment, the
Ninth Circuit Court decided not only do parents not have the right to
say no, they do not even have a right to know what is being asked.
On behalf of every parent in America, Congress calls upon the courts
to correct this deplorable injustice. That is why, in this resolution,
we are asking the courts to uphold the rights of parents, to uphold the
rights of privacy, what the parents have about their children and
certainly to overturn the decision that says parenting is
unconstitutional.
I ask my colleagues to support this resolution, and I ask parents to
also consider the conclusion that, if it stands, what impact this Ninth
Circuit Court decision could have with regard to parents' rights to
ever speak up again and challenge anything else within the school
district.
Mr. LEVIN. Mr. Speaker, I will vote against House Resolution 547
today, but I want to clearly state my reasons for doing so. In
particular, I want the record to show that I strongly disagree with the
highly misguided decision of the Palmdale School District in California
to administer a questionnaire to young children that included totally
inappropriate questions concerning sex. If there was a law that blocked
elected school boards from making boneheaded decisions, the action of
the Palmdale School District would fall squarely within its purview.
But that is not what the Chairman of the Judiciary Committee has
brought before us today. Instead, the resolution condemns the 9th
Circuit Court of Appeals for not finding a law or constitutional
principle to override the decisions of democratically-elected school
board members. My friends on the other side of the aisle often rail
against ``activist judges'' and complain when, in their opinion, judges
make law from the bench. As has been noted by others, it appears that
in this case the Majority objects to the fact that the 9th Circuit
judges were not activist enough.
There are many avenues for parents who disagree with any decision
made by their local school board. In this particular case, the public
outcry against the Palmdale School District questionnaire resulted in
the survey being promptly discontinued. If parents wish further
redress, they may also vote the school board out of office.
For these reasons, I will vote against this resolution today.
Ms. DeGETTE. Mr. Speaker, I rise in opposition to H. Res. 547.
Let me be very clear. In no way do I endorse the actions of the
Palmdale School District at issue in Fields v. Palmdale School
District.
The problem is that H. Res. 547 goes beyond passing judgment on the
actions of the School District and directs the United States Court of
Appeals for the Ninth Circuit how to do its job. Under the
Constitution, I do not feel it is appropriate for Congress to infringe
on the rights and duties of the federal judiciary, a fellow independent
and co-equal branch of government.
Additionally, I am confident our courts are fully capable of
adjudicating matters without congressional input. Simply because I may
disagree with a particular ruling does not change my otherwise strong
faith in the men and women serving on our nation's federal and state
courts.
Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I couldn't agree
more with my colleagues and the parents whose children were subject to
a flawed, distasteful survey in Palmdale, California. The survey was
clearly improper. However, I disagree that we should condemn the
decision of the 9th Circuit Court. We should hold the Palmdale school
district responsible for the content and the manner in which the survey
was conducted.

[[Page H10317]]

School districts should and must ensure that parents are fully
informed about all survey topics. In addition, school districts must
guarantee that parents consent to their children's participation in a
survey.
I will be voting no on H. Res. 547 because I believe it misses the
mark--the Palmdale school district should be condemned for conducting
the survey as opposed to condemning the 9th Circuit for their
interpretation of the Constitution.
Mr. HOLT. Mr. Speaker, while I agree with the position in this
resolution that parents do have responsibility for their children's
upbringing and a school district cannot supplant those rights, I must
oppose this resolution.
I oppose this resolution because it declares that the court should
rehear the case in order to reverse its decision. It should not be the
role of the legislative branch to dictate to the court system how it
should rule. The founding fathers created three coequal branches of
government for good reason. It is for this constitutional principle
that I must oppose H. Res. 547.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Gutknecht). The question is on the
motion offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that
the House suspend the rules and agree to the resolution, H. Res. 547.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.

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