The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Religion and the Law

Schools Have No Constitutional Obligation to Try to Keep Students from Having Sex in the Parking Lot

"[T]he Does cannot wield the constitutional right to parent as a sword to require the district to adopt policies that help them to direct and control their son's choices," and likewise as to the right to free exercise of religion.


From Judge Jill Parish's opinion Wednesday in Doe v. Alpine School Dist.(D. Utah), which strikes me as quite correct:

John and Jane Doe are the parents of JD, a minor student who attended Skyridge High School. [I couldn't find his age or grade in the record. -EV] On May 25, 2022, Mrs. Doe arrived at the school and attempted to check JD out of school; however, the Skyridge office staff informed her that the students were not in their classrooms because it was the last week of school…. [Mrs. Doe] located her son in the school parking lot after contacting his girlfriend….

Skyridge's Resource Officer, Mr. Sweeten, told [the Does] that although the district calendar indicated that the last week of school would follow a normal schedule, Skyridge had an informal custom of releasing students after only two hours of class time and of not enforcing attendance during that week. Administrators stated that this unofficial policy was followed so that students could check in with teachers about their grades….

The Does are members of the Church of Jesus Christ of Latter-day Saints and have raised their son under its doctrines and to follow its practices, one of which prohibits premarital sex. The Does had previously discovered that JD had begun having sex with his girlfriend and had placed restrictions on JD's activity to prevent him from having premarital sex thereafter, such as requiring him to be accompanied by other persons when he was with his girlfriend and requiring that JD travel to and from school with his older sibling. The Does learned that JD had had sex with his girlfriend in the parking lot next to the school during school hours three times during the final week of school.

The Does sued the school district and several administrators, alleging that their constitutional rights to parent their child and to free exercise of religion had been violated.

No, said the court:

The Does' parental rights claim fails because the defendants have not burdened their right to make decisions concerning the care or control of their son. The fundamental right to parent, for example, prevents a state from requiring parents to send their children to public school rather than a private religious school because such a law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." A law requiring parents to send their children to school past the eighth grade also violates a parent's constitutional rights. Moreover, a state law affording visitation rights to grandparents "infringes on that fundamental parental right."

In this case, however, the Alpine School District has done nothing to limit the Does' choices regarding how to parent JD. The district did not prevent the Does from forbidding JD from engaging in premarital sex. Nor do they complain that the district required JD to attend a sex education class that undermined values that they sought to instill in their son.

Instead, the core of their complaint is that by affording students ample free time during the last week of classes, the Alpine School District did not do enough to aid their efforts as parents to prevent JD from having sex. But the Does cannot wield the constitutional right to parent as a sword to require the district to adopt policies that help them to direct and control their son's choices. The Does have not provided any authority supporting the proposition that the government has a constitutional duty to help them parent JD. Because the Alpine School District did not prevent the Does from making decisions regarding the upbringing of their son, it did not infringe their parental rights under the Fourteenth Amendment.

Even if the Does could articulate some burden on their right to parent, such a burden would not be sufficient to countermand the Alpine School District's authority to create general policies for the students in its care. As discussed above, the constitutional right to parent exists only "up to a point" and does not always permit parents to control their child's public education.

By attempting to force the school district to adopt policies affecting the entire student body in order to help them achieve their parenting objectives, the Does seek to impermissibly "oust" the district's authority. Even if the Does altered their demanded relief to impact only their child, a request to excuse JD from the schedule of the last week of school would amount to an exemption from the school program allowing students time to discuss grades with their teachers. As stated above, it is well established that parents do not have a constitutional right to control or exempt their children from specific school programs.

Finally, the Does argue that their parental rights were violated because the Alpine School District did not tell them about the attendance policy during the last week of school, depriving them of the opportunity to make decisions about how to parent JD in light of that information. In essence, the Does assert that the Fourteenth Amendment right to parent includes a right to receive notice of attendance policies. The Does, however, provided no caselaw to support their right-to-notice theory….

Likewise as to the Free Exercise Clause:

The Free Exercise Clause of the First Amendment "prevent[s] the government from impermissibly burdening an individual's free exercise of religion." A plaintiff's free exercise of religion is burdened if "the challenged action is coercive or compulsory in nature." …

First, the school district did not coerce JD into acting against his religious beliefs. He freely chose to have premarital sex with his girlfriend, even though this was against the teachings of his religion.

Second, the Alpine School District did not coerce the Does to act contrary to their religious principles. The Does allege that they have a religious duty to encourage JD to abstain from premarital sex. The district did nothing to pressure or force the Does to refrain from passing on those teachings to her son.

The Does instead argue that the district's policies allowed JD a window of opportunity to have sex, thwarting their attempts to prevent him from doing so. In essence, the Does assert that the Alpine School District did not do enough to help them perform their religious obligations. But the Free Exercise Clause does not impose such a duty on government entities. "The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." … [T]he district has no constitutional duty to modify its internal procedures to further the Does' religious goals. Because the Does have not alleged that the district coerced them to abandon a tenant of their religion, their Free Exercise Clause claim fails as a matter of law.

Even if the school's practice did burden the Does' religious practice, "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." … The school custom of giving students unsupervised time after being released early from class during the last week of school applies equally to all students regardless of religion, and it was not created with the motivation of infringing on religious practices. Therefore, it is neutral and generally applicable, and the rational basis test applies. The custom is rationally related to a legitimate end: giving students time to work with teachers to help their grades. Therefore, the Does' free exercise argument would fail even if their exercise of religion were incidentally burdened….

The court expressed no opinion on the Does' state-law claims, which it sent back for state courts to consider.

I don't think it matters for purposes of these constitutional claims, but note that it would be hard to argue that the school's policy of giving high school students extra free time inadvertently fostered sexual abuse: Under Utah law it's apparently generally not a crime for high-school-age minors (to oversimplify slightly) to have sex with each other. (It may well be some sort of public indecency for anyone to have sex in a school parking lot, where people can see, but failure to prevent that wouldn't be a violation of the rights of the parents of the minors who were having sex.)

Bradley Blackham and Darin Goff of the Utah AG's office represent defendants.