CITIZENS FOR PARENTAL RIGHTS et al., Plaintiffs and Appellants, v. SAN MATEO COUNTY BOARD OF EDUCATION et al., Defendants and Respondents.
Civ. No. 33547
First Dist., Div. Two
Aug. 28, 1975.
Zang, Friedman & Damir and Robert M. Damir for Plaintiffs and Appellants.
Charles E. Rice as Amicus Curiae on behalf of Plaintiffs and Appellants.
Keith C. Sorenson, District Attorney, Jerome F. Coleman and George F. Camerlengo, Deputy District Attorneys, for Defendants and Respondents.
OPINION
TAYLOR, P. J.—This is an appeal by Citizens for Parental Rights, et al. (an unincorporated association of parents and as individual parents, hereafter parents), from a judgment of dismissal entered to their seventh amended class action complaint for declaratory and injunctive relief.
The basic substantive question is whether the implementation of family life and sex education programs by the five respondent school districts in the jurisdiction of respondent, San Mateo County1 violates the constitutional rights of the individual parents and their children under the First, Ninth, Tenth and Fourteenth Amendments of the United States Constitution, and the parallel provisions of the California Constitution.2 The case also presents a question of first impression as to the constitutionality of Education Code sections 8506 and 8701.3 We have concluded that the family life and sex education programs, adoption of the resource guides, and the statutes are constitutional for the reasons set forth below, and that therefore the judgment of dismissal based on the
The record indicates that in the San Bruno Park School District, one of the four phases of the program has to do with biological aspects of family living, as outlined in the Teachers’ Resources Guide. Family life education is taught in various schools and in various grades but the program varies in each grade and school. Family life education at the time here pertinent was being taught to classes containing 3,106 students; 128 of these asked to be excluded.
The Millbrae School District had a sex education program for grades 5, 6, 7 and 8 during the 1970-1971 school year. Of the 1,550 students enrolled, 158 asked to be excluded.
The Hillsborough City School District taught family life education in grades 6, 7 and 8. Of the 181 6th grade students enrolled in the program in 1969-1970, 20 asked for a course on conservation as an alternative to the unit on human reproduction.
The San Carlos School District has a biological unit taught as a supplement to the health and science course of study in grades 3 through 8. Of the 2,179 students enrolled in the district in grades 3 through 8 at the time here pertinent, 2,015 were in the program; 104 asked to be excluded.
In the South San Francisco Unified School District, family life education is taught from kindergarten through grade 12 with certain phases emphasized in certain grades. Of the 13,000 students taking the course in 1970-1971, 15 asked to be excluded.
In each district, the respective programs were taught by specially selected teachers who had received special training.
The exhibits filed by each of the districts consist of the Teachers’ Program Guides. The guides are substantially similar in content but the level of the program, discussion tapes and reading materials increase in
Under the concept of training and guidance of children, the program also suggests for discussion a debate on “Spare the Rod and Spoil the Child” and “Children Should be Seen and not Heard.” Also included are topics such as citizenship, fiancial responsibility, and the roles and responsibilities of children in the family. Among the suggested learning experiences and examples of content under financial responsibilities are a list of items to be included in a family budget and the role-playing of a situation in which the parents have to weigh alternatives in making the family income stretch to meet the needs of various family members. As to roles and responsibilities, it is suggested that students write a story: “My parents expect too much of me” or “My parents don‘t expect enough of me.” Among the concepts and understandings included is that most teenagers have problems with parents and most parents have problems with teenagers. The guide suggests that the absence of problems indicate that no growth is occurring past preadolescence.
On the unit relating to normal sexual development from infancy to adulthood, the guide indicates that the teachers should not indicate that certain kinds of a behavior are good or bad, right or wrong, but indicates simply various kinds of normal behavior patterns. As to an area entitled “Unusual Behavior” which includes such topics as child molestation, exhibitionism, homosexuality and prostitution, the guide indicates that this unit is to be withheld until the background material written by the consultants is prepared. Under the concept of the family and home as the basic unit in American life, suggested for brainstorming, are topics such as what changes are taking place in family units, and include such readings as the History of the American Family by Kenney.
In the version used at all of the grade levels, the program clearly indicates that there are many kinds of families and that family
In the unit under economic factors, it is suggested that the students write a story describing how the work of the parents affects the family‘s ways of living and how the family decides how to share and expend its resources.
In the unit on human reproduction, the concepts and understandings to be reviewed are the male and female reproductive systems. As to sexual intercourse, there is a special note to the teachers indicating that it should be explained as a natural sequence of studying the reproductive process, and that the physiological facts should be dealt with within the framework of human love of husband and wife and the means of producing new life.5 As to sexual behavior, the concepts and understandings cover a broad range of behavior and emphasize that curiosity and interest about one‘s own body are normal and acceptable, including infantile masturbation. The teacher is told to answer questions honestly and sincerely and not to interpret the material and when covering topics, such as masturbation, contraception, abortion and divorce, to indicate that there are many different points of view concerning them, that it is important that each person live within the framework of his religion or moral code of behavior. The section on learning experiences, expressly states: “Masturbation: Excessive or prolonged masturbation is thought by psychologists to be a symptom of other emotional problems. Some religions regard masturbation (when it is consciously performed as a substitute for sexual intercourse) as an immoral act to be discouraged.
“The teacher should not say that it is ‘bad’ or ‘good’ or ‘right’ or ‘wrong’ but should give the above as facts.”
Under the concept heading of value of sex within the marriage are covered the legal consequences of sexual intercourse outside of marriage. The learning experience section suggests a discussion of the legal, emotional, social and spiritual consequences of sexual intercourse
“Teacher background information related to contraceptives is being prepared by the sub-committee from the Medical Society and the sub-committee on Moral & Ethical Values and will be distributed as soon as completed and approved by the Family Life Education Committee.”
In a unit entitled “Self-Understanding—Emotional Development,” the learning goals are: to contribute to a student‘s developing concept of himself as a person; to stimulate growth and self-understanding and personal responsibilities; to increase competence in developing and maintaining mutually satisfactory interpersonal relationships; and to suggest methods of seeking solutions to personal and family problems through increased insight into the needs and behavior of individuals.
Under emotional maturity, some of the suggested learning experiences and examples of content are “How do you act when you are angry?” “Does everyone feel angry at times?” and “What are some good ways to handle this feeling?”
The allegations of the many pleadings comprising the amended complaint and the attached exhibits (a class action on behalf of all similarly situated parents, as well as on behalf of their children who are students in the public schools of the county) may be summarized as follows: 1) the county‘s Family Life Education Program (hereafter
As indicated above, the instant complaint sought declaratory relief as to the unconstitutionality of the program and Education Code section 8506, as well as injunctive relief prohibiting the continuation of the program. The major thrust of each of the parents’ contentions on appeal is that they have alleged sufficient facts or raised factual questions as to the constitutional issues raised, so that they were at least entitled to a trial on the merits and entitled to prove the allegedly disputed questions of fact raised by their lengthy amended complaint. Contrary to the parents’ repeated assertions, the mere pleading of the unconstitutionality of the program and statutes in issue is not sufficient to overcome the dismissal of their complaint based on its failure to raise any substantial constitutional questions as a matter of law.
I—Contentions Relating to Freedom of Religion
The parents and amicus curiae first assert that since they have alleged violations of the free exercise and establishment of religion clauses,
A—The Free Exercise Clause
The Supreme Court of Hawaii in Medeiros v. Kiyosaki (1970) 52 Hawaii 436 [478 P.2d 314], faced an identical question with an excusal system substantially like that provided by Education Code sections 8506 and 8701.10 The court said at page 317: “It has been argued that requiring attendance at sex education courses would burden the free exercise of religion of those who honestly believe that exposure to certain subjects covered within those courses is sinful or that sex education must
The Medeiros court then continued at pages 318-319: “Equally pertinent to our discussion is the Supreme Court‘s holding in Epperson v. Arkansas (393 U.S. 97, ...) in which an Arkansas statute prohibiting the teaching of the Darwinian theory of evolution because such theory was contrary to the religious views of some of its citizens was held unconstitutional. At page 104 ... the Court stated: ‘Our courts, however, have not failed to apply the First Amendment‘s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief.’ And at 106 ...: ‘There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.’
“If we were to hold that the ‘family life and sex education’ program adopted by the State is contrary to certain religious beliefs of some of our citizens and therefore unconstitutional on the grounds that it prevents the free exercise of their religion, we would come dangerously close to approving that which is prohibited by Epperson. We must be equally protective of the freedoms of speech, inquiry and belief as we are of the freedom of religion.” The Hawaiian court then concluded that there was no violation of the free exercise clause. An identical conclusion on the
The parents and amicus curiae both rely on Wisconsin v. Yoder, 406 U.S. 205 [32 L.Ed.2d 15, 92 S.Ct. 1526], for their free exercise contentions. In Yoder, the U.S. Supreme Court sustained the rights of Amish parents to keep their children out of the last two years of compulsory education required by state law, on the ground that their children would be placed in “an environment hostile to Amish beliefs.”13 Contrary to the contentions of the parents and amicus curiae
Assuming, for the sake of argument therefore, that the above items constitute an infringement, we note that the free exercise clause has often been invoked by religious groups to gain exemption from laws of general applicability.14 In Sherbert v. Verner, 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790], a Seventh Day Adventist refused, on religious grounds, to accept available employment; the South Carolina unemployment compensation statute provided that benefits could be withheld from any applicant who refused to accept available employment. In holding that the free exercise clause required the state to carve out an exemption for the petitioner, the Supreme Court reiterated the distinction between freedom to believe and freedom to act, first enunciated in Cantwell v. Connecticut, 310 U.S. 296 [84 L.Ed. 1213, 60 S.Ct. 900, 128 A.L.R. 1352]. The court in Sherbert established (at pp. 403-406 [10 L.Ed.2d at pp. 969-972]) a three-pronged analysis for determining when a restriction or regulation of conduct, based on religious belief, will be upheld without further inquiry: 1) where there is a substantial and direct threat to the public safety, peace or order (cf. Chaplinsky v. New Hampshire, 315 U.S. 568 [86 L.Ed. 1031, 62 S.Ct. 766]); 2) in the absence of such threat, if disqualification from receipt of benefits did not impose any burden on the free exercise of the petitioner‘s religion; or 3) if any incidental burden on that free exercise was justified by a compelling state interest in the regulation of a subject within the state‘s constitutional
Therefore, without conceding an infringement here, we proceed to apply the three-step analysis of Sherbert v. Verner, to the instant program. It is readily apparent that the parents’ refusal to send their children to the program does not directly threaten the public safety, peace or order. We turn next to the contention that the program and the excusal system burden the free exercise of the parents’ and the students’ religion.
The parents and amicus curiae also urge that since Education Code sections 8506 and 8701 (set forth in full below)15 require the affirmative
While we recognize that the United States Supreme Court has held in cases arising under the establishment clause that informal social pressures can constitute compulsion (Abington School Dist. v. Schempp, 374 U.S. 203 [10 L.Ed.2d 844, 83 S.Ct. 1560]; Engel v. Vitale, 370 U.S. 421 [8 L.Ed.2d 601, 82 S.Ct. 1261, 86 A.L.R.2d 1285]), the court has never applied that reasoning to the free exercise clause: for example, an express dictum in Abington School Dist. (at p. 233 [10 L.Ed.2d at pp. 864-865]) indicating that indirect social pressures are not sufficient to cause a violation of the free exercise clause. Further, in Board of Education v. Barnette, 319 U.S. 624 [87 L.Ed. 1628, 63 S.Ct. 1178, 147 A.L.R. 674], the court did not require the exclusion from the classroom of the students who objected on religious grounds to the flag salute and were excused from it. Nor did the court require that the flag salute ceremony be abolished simply because it interfered with the religious beliefs of some students.
Neither Engel nor Abington School Dist., supra, support the parents’ contention that the instant excusal statutes subject the students to sufficient pressure to amount to compulsion. In both Engel and Abington
As so well stated by the court below in its excellent and well reasoned memorandum opinion: “Absent some serious contention of harm to the mental or physical health of the children of this state or to the public safety, peace, order or welfare, a mere personal difference of opinion as to the curriculum which is taught in our public school system does not give rise to a constitutional right in the private citizen to control exposure to knowledge.”18
Spence v. Bailey (6th Cir. 1972) 465 F.2d 797, cited at oral argument, is distinguishable. In Spence, the court held that a compulsory high school ROTC course required of male students for graduation transgressed on the student‘s free exercise of his religious beliefs as a conscientious objector since there was no compelling state interest in the military training course. In sum then, the direct answer to the parents’ contentions concerning free exercise is that the program against which the parents seek a permanent injunction is not compulsory19 as Education Code sections 8506 and 8701 provide that the student may be excused from any part that conflicts with the parents’ religious beliefs or that uses materials to which the parents object. However, even assuming an infringement for the sake of argument, the incidental burden is justified by the compelling state interest in education.20 (Medeiros v. Kiyosaki,
B—The Establishment of Religion Clause.
In Everson v. Board of Education, 330 U.S. 1, at page 15 [91 L.Ed. 711, 723, 67 S.Ct. 504, 168 A.L.R. 1392], the U.S. Supreme Court said that the establishment clause meant that: “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” Further, it is also clear from the cases that the First Amendment does not mean that in every and all respects there shall be a “wall” and complete separation of church and state (Zorach v. Clauson, 343 U.S. 306, 312 [96 L.Ed. 954, 961, 72 S.Ct. 679]).21
As stated in Epperson v. Arkansas, 393 U.S. 97, 104 [21 L.Ed.2d 228, 234, 89 S.Ct. 266]: “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. ... By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” The court in the Epperson case pointed out that the state may neither prefer any religion nor prohibit any theory just because it be deemed antagonistic to the principles or prohibitions of any religious sect or dogma.
The three main evils, against which the establishment clause was intended to afford protection, are sponsorship, financial support and active involvement of the sovereign in religious liberty (Walz v. Tax Commission, 397 U.S. 664, 668 [25 L.Ed.2d 697, 90 S.Ct. 1409]). The applicable tests developed with respect to the establishment clause, as summarized by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105], are: “Every analysis in this area must begin with consideration of the cumulative.
In the instant case, the primary focus is on the second test as the parents alleged that the program “establishes new or different religious and spiritual practices and beliefs,” as the program treats matters of morality, family life and reproduction in a manner that is hostile to their theistic religion.22 Although the pleadings are lacking in specificity, we glean from the exhibits and the briefs that the parents’ complaint refers to the fact that, among others, the program deals with subjects such as abortion, birth control, divorce and masturbation. Our examination of these documents indicates that most of these sensitive areas are carefully delineated with cautionary instructions to the teachers to indicate that a variety of beliefs and practices exist. The teachers are also instructed to refer their students to their parents and religious counselors for guidance and information as to specifics. For example, under the subject of birth control, all present day methods are listed. Thus, there is evidence of neutrality in the religious sphere and ample support as a matter of law for the trial court‘s finding that the subjects are not covered from a religious point of view, but simply as public health matters.
A similar conclusion was reached with respect to a mandatory health education course in Hopkins v. Hamden Board of Education, 29 Conn.Supp. 39723 [289 A.2d 914], where the court denied a temporary injunction and upheld a compulsory health and physical education course that included family life and sex education.
“. . . Judicial concern that the legitimate secular objectives of the state education laws might possibly be violated by conscious design of one or more school teachers or school administrators does not warrant striking down the constitutional legislative authority of the course as unconstitutional. There is no evidence of any such affirmative acts.24 There is evidence of neutrality in the religious sphere and only a fear that instruction in the health curriculum could possibly conflict with individual beliefs. The court cannot assume that any religious activities seep into or permeate the secular purposes of the curriculum. Since the plaintiffs are unable satisfactorily to identify any coercion directed at the practice or exercise of religious beliefs, there can be no violation of the free exercise clause of the first amendment. There is evidence only that secular teaching might conflict with individual religious beliefs. See Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060.
“The governmental and public interests of the state in its educational system are of a kind and weight sufficient to relieve it from claims of violations of the first amendment solely on the ground that its wholly secular purposes could possibly clash with a religious belief of the plaintiffs in one or more areas of the curriculum. Unfair or unreasonable burdens do not appear which would or could violate the plaintiffs’ religious guarantees.”
“This case primarily questions the right of the parents to regulate the education of their children in public schools as the parents’ religious beliefs dictate, as against the justification of the state for regulating public education in a manner which might in some respects conflict with those beliefs. To permit such interference in the public school system by parents under the circumstances of this case could, unjustifiably, only tend to render a well-regulated public school system vulnerable to fragmentation whenever sincere, conscientious religious conflict is claimed. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213, indicates quite clearly that this was not the intent of the guarantees under the first amendment, and that the state‘s interests must also be weighed and the public protected.
“The courts have repeatedly held that unconstitutionality based on alleged violations of the religious clauses of the first amendment must be decided on the facts as they appear in each particular case. A study of the cases offers no clear and specific guidelines or rules of law for assistance to the court. In the present case, the curriculum offered is primarily one of a public health nature. It has not been established that serious constitutional questions are involved, even though the parents claim that their rights of control of the child in religious scruples indicate to the contrary. Claims and questions similar to those raised in this count have been held by the federal courts to be inadequate to raise constitutional questions based on the first amendment. See Murdock v. Pennsylvania, 319 U.S. 105, 109, 63 S.Ct. 870, 87 L.Ed. 1292; Cornwell v. State Board of Education, D.C., 314 F.Supp. 340, 342, aff‘d, 4 Cir., 428 F.2d 471, 25 [cert. den. 400 U.S. 942 (27 L.Ed.2d 246, 91 S.Ct. 240)]. The Murdock case concerned the balancing of the interests of the individual against the interests of the state. See Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645.”
We agree with the trial court‘s conclusion of law that the portions of the program challenged simply do not relate to, or seek to establish any religious concept, dogma, idea and precept; nor does the program involve the county school system directly, indirectly or substantially in any way in the establishment of a “religion,” or the exercise thereof, or in favoring one religion over another, or for that matter, any particular religion. The program areas that the parents challenge are simply not religious in nature but primarily involve education and public health. The fact that the parents possess certain ideas or views concerning family life relationships and sex which are based on moral standards that are the outgrowth of their religious principles does not make the teaching of sex education and family life religious in nature, nor does it constitute the establishment of a religion in the public schools. Thus, the trial court properly concluded that the complaint alleged no triable factual issues as to these matters.
The parents’ contention here overlooks the fact that while in Abington School Dist. v. Schempp, supra, page 231 [10 L.Ed.2d at p. 863], the court held that the reading of the Bible and prayer at the beginning of each school day without comment violated the establishment clause because of the independent religious significance of the reading (at p. 223 [10
“Although direct instruction in religious principles may not be given in the public schools, it does not follow that every reference to anything religious is prohibited. A course in the history of California which did not describe the early Catholic missions is unthinkable; Father Junipero Serra is justly regarded as one of the great figures in our history and in fact his statute is one of two representing California in the Hall of Fame at the nation‘s capitol. A high school course in European history could not properly omit reference to the great religious controversies of the middle ages, such as the struggle over lay investiture; and such a course would also devote substantial time to a study of the Protestant Reformation. Instruction concerning the Constitution would similarly involve study of the history of the struggle for religious freedom in colonial times. Religious subjects have many times been used in art and music: Da Vinci‘s ‘Last Supper,’ Michelangelo‘s ‘Moses,’ the ‘Winged Victory’ of Samothrace, an Indian totem pole - all have religious significance, and yet all are appropriate for study in a public school class on art. The playing of passages from Beethoven‘s ‘Missa Solemnis’ in a music class would not violate constitutional restrictions any more than the playing of Wagner‘s ‘The Valkyrie‘.
“Even the Bible itself need not be excluded. It has exerted, and still exerts, a great influence upon English and American literature. Not only may it be discussed in a general way in an appropriate literature class but specific passages, because of their eloquence or poetic beauty, may be used for special study, such as the Song of Ruth or Paul‘s great tribute to Charity.
“No doubt the indirect use of religious subjects in classes in art, music, literature, and history could be carried to extremes which would offend constitutional guarantees. Properly presented, however, such materials need not involve the promotion of religion. Use of the Bible in the public schools may be proper even though public school use of the Bible for religious purposes is prohibited by our constitutions.” (Supra, at p. 325.)
As stated in Prince v. Massachusetts, 321 U.S. 158 [88 L.Ed. 645, 64 S.Ct. 438], the state‘s interest in the health of its children outweighs claims based upon religious freedom and the right of parental control. The court stated “A democratic society rests upon the healthy, well-rounded growth of young people into full maturity as citizens.... It is too late now to doubt that legislation appropriately designed to reach such evils is within the state‘s police power, whether against the parent‘s claim to control of the child or one that religious scruples dictate contrary action.” (Pp. 168-169 [88 L.Ed. at pp. 653-654].)
In sum, the program does not violate the free establishment clause.27
II - Equal Protection and Substantive Due Process
We turn next to the contention that the program deprives them of equal protection and due process under the
We turn briefly to the contention that the parents are denied equal protection of the law because a burden is placed upon them to make a choice pursuant to
As to substantive due process, we find persuasive the following from Cornwell v. State Board of Education, supra, p. 342: “There is first no denial of substantive due process to the plaintiffs. Under Section 6 of Article 77 of the Maryland Code (as amended and re-codified by Chapter 405 of the Acts of 1969), the State Board is directed to determine the educational policies of the state and to enact bylaws for the administration of the public school system, which when enacted and published shall have the force of law. Assuredly it cannot be said that the bylaw here is an arbitrary or unreasonable exercise of the authority vested
We conclude, therefore, that the trial court properly concluded that no cause of action was stated under the
III - Privacy, “Parental Authority” and the Asserted Exclusive Constitutional Right to Teach Family Life and Sex Education Only at Home.
As to privacy, identical contentions were considered by the court in Medeiros v. Kiyosaki, supra, at page 316, with respect to an excusal system substantially similar to that of
“.... As stated by Justice Douglas in delivering the opinion of the Court at pages 485-486, 85 S.Ct. at page 1682:
” ‘The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325. Would we allow the police to search the sacred precincts of marital bedrooms for tell-tale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.’
The question we now face is this: Can the county through its proper agencies adopt and initiate a curriculum of family life and sex education for use in its districts without invading its citizens’ constitutional right to privacy? We must not look to see if there has been a possible or technical invasion of privacy but instead whether the government has by “unnecessarily broad means” contravened the parents’ right of privacy.
The county in formulating policies for the adoption of the program anticipated possible objections by parents and guardians to the program. The Legislature, pursuant to
We view the dual statutory “excusal system” as an effort by the county and state to allow those parents or guardians who might object to the program or any part of it on moral or religious grounds to have their children excused. The program was in no way compulsory, and, therefore, we cannot see how the state by “unnecessarily broad means” contravened the parents’ right of privacy.
In support of their invasion of privacy theory, the parents cite two other cases: Meyer v. Nebraska, 262 U.S. 390 [67 L.Ed. 1042, 43 S.Ct. 625, 29 A.L.R. 1446], which upheld the rights of parents to have their children learn a foreign language, and Pierce v. Society of Sisters, 268 U.S. 510 [69 L.Ed. 1070, 45 S.Ct. 571, 39 A.L.R. 468], which upheld the rights of parents to have their children educated in private elementary schools. Meyer and Pierce are supportive of the explicit freedoms of speech and press rather than the penumbral right of privacy. Citing these two cases, the Supreme Court drew the following conclusion in Griswold v. Connecticut, 381 U.S. 479, at page 482 [14 L.Ed.2d 510, 514, 85 S.Ct. 1678]: “In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” Yet, this is the very thing that the plaintiffs would have this court do. They seek to “contract the spectrum of available knowledge” by enjoining the county from continuing with its family life and sex education program. (Italics supplied.)
The parents and amicus curiae also contend that the program invades the students’ right of privacy by requiring them to reveal their innermost thoughts, conversations and facts relating to the personal and intimate lives of their families29 and invade the privacy of mind of the parents and students. We cannot agree that the subject matter discussed by the program compels the disclosures mentioned by the parents. The same applies to the asserted right of exclusive parental control and authority.
It follows that the trial court properly concluded that
As to “parental control,” we adopt, with minor stylistic changes, the excellent discussion of the court below. The parents further assert that,
We note that as stated in Wisconsin v. Yoder, 406 U.S. 205, at pages 234-235 [32 L.Ed.2d 15, at pages 35-36, 92 S.Ct. 1526]: “Our disposition of this case, however, in no way alters our recognition of the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discreet aspects of a State‘s program of compulsory education. This should suggest that courts must move with great circumspection in performing the sensitive and delicate task of weighing a State‘s legitimate social concern when faced with religious claims for exemption from generally applicable educational requirements.” (Italics added.) We think this is still the applicable principle to be followed by courts. We do not consider pertinent to the instant case some of the recent cases of “interference” cited at oral argument.31
Finally, the parents and amicus curiae contend that they have an exclusive constitutional right to teach their children about family life and sexual matters in their own homes, and that such exclusive right would prohibit the teaching of these matters in the schools. No authority is cited in support of this novel proposition, and this court knows of no such
We conclude, therefore, that the trial court properly concluded that, accepting the various allegations of the complaint to be true, the parents have failed to raise any substantial constitutional issues33 or any factual issues that would entitle them to the declaratory or injunctive relief sought. Accordingly, the county‘s motion to dismiss the entire complaint was properly granted and the judgment appealed from is affirmed.
Rouse, J., concurred.
KANE, J. - I dissent. Notwithstanding the fact that the fundamental question in this appeal is a procedural one, the proper resolution of which renders any discussion of the substantive constitutional issues premature, the majority reaches the latter by a cavalier disposal of the former in a footnote.
In doing so, the majority has reached a conclusion which is contrary to both the spirit and the law of pleading in this state and, in my opinion, has countenanced the unsavory practice of “judge-shopping” which is specifically prohibited by
The results of the court‘s holding are (1) an unnecessary treatise on constitutional principles which are discussed in the abstract for the simple reason that the issues raised by the pleadings have not been filled in with evidentiary support and amplification, and (2) a denial of the right of the plaintiffs to attempt to factually prove their bases for relief.
Having traveled a very tortuous route of demurrers, motions for judgment on the pleadings and summary judgment, followed by a detailed pretrial conference, plaintiffs finally reached the threshold of trial only to be frustrated by a “motion to dismiss” - the legal equivalent of a general demurrer (McKay v. County of Riverside (1959) 175 Cal.App.2d 247 [345 P.2d 949]).
Except for the first demurrer to the original complaint, defendants’ repetitive attack on plaintiffs’ pleadings was the single contention that the complaint failed to state a cause of action. In their first demurrer defendants included a special demurrer that “the Complaint is uncertain and unintelligible for the following reasons:
“A. The content of the course mentioned in paragraph IV of the Complaint is not pleaded in sufficient particularity for the Court to make any ruling relating to it
“B. That the Complaint does not set forth the parts of the proposed course that are alleged to be objectionable and the reasons why said parts are alleged to be objectionable.” (Italics added.)
It is apparent that plaintiffs conceded the soundness of the special demurrer since the parties stipulated that a first amended complaint be filed which, for the first time included as exhibits excerpts from the teaching material of the Family Life Education course which plaintiffs allege violated various of their constitutional rights.
It is significant to note that once the exhibits were included in the complaint, defendants asserted no further objection as to uncertainty or lack of particularity in the complaint, choosing rather to assert a bare, general demurrer. The demurrer to the first amended complaint was heard by Judge Reisch, who sustained it without leave to amend as to twelve counts contained in two causes of action and overruled it as to eight other counts.
Following that ruling, the defendants answered the first amended complaint. In doing so, no affirmative defenses whatever were set forth.
The motion for summary judgment was denied by Judge Scott. The record does not reveal any action on the motion for judgment on the pleadings.
Next, pursuant to stipulation, plaintiffs filed amendments to their first amended complaint to which defendants both answered and demurred generally. The general demurrer was overruled by Judge Blum.
Next, a second motion for judgment on the pleadings “on the ground that the Complaint . . . fails to state facts sufficient to constitute a cause of action” was filed, heard, and denied by Judge Branson.
Thus, four different superior court judges concluded that plaintiffs’ complaint did indeed state a cause of action on which they were entitled to go to trial.
The cases interpreting this provision have made it clear that evidentiary facts or argumentative facts are improper; that only ultimate facts should be pleaded (Green v. Palmer (1860) 15 Cal. 411, 414; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 268, p. 1939).
While the line between conclusions of law, evidentiary matters and ultimate facts is very elusive and its distinction “is one of degree only” (Witkin, supra, p. 1940), the rule of liberal construction is firmly settled in
“Neither trial nor appellate courts should be distracted from the main issue, or rather, the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action” (Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381 [296 P.2d 838]).
One of the best statements of the policy behind the rule of liberal construction is set forth in Terry Trading Corp. v. Barsky (1930) 210 Cal. 428 [292 P. 474], as follows: “It is sometimes a difficult task for the pleader to state enough facts to establish his cause of action or defense, and also to avoid the inclusion of confusing evidentiary matter. The code has provided adequate means for the correction of an error in either direction; the adverse party may move to strike out the evidentiary matter or demur specially to an inadequate statement of the facts on the ground of uncertainty or ambiguity. But to deny the party his right to a trial, there must be an obvious failure of the pleadings to state a cause of action or defense.” (Italics added.)
In the case at bench, even a cursory reading of plaintiffs’ final complaint, as amended and including the exhibits, demonstrates that a cause of action has been alleged. For example, in paragraph II of count Eleven of the first amended complaint, it is alleged that “Portions of the content and subject matter of the Family Life Education course of study and subject matter interfere with and are contradictory to certain of plaintiffs’ personal religious beliefs, and therefore are an infringement of, in contradiction to, and in violation of Amendment 1 of the Constitution of the United States, in that they are designed to question, affect, prohibit and interfere with the free exercise of existing religious and spiritual practices and beliefs, and to establish new or different religious and spiritual practices and beliefs that are promulgated by the State through its public school system, as illustrated by items contained in Exhibit ‘E‘, which exhibit is attached hereto and is incorporated herein by this reference.”2
The rule of liberal construction of pleadings has also been enhanced by the adoption of the rules for discovery whereby any uncertainty as to the factual basis of plaintiffs’ cause of action can be efficiently discovered. Such was the holding in Dahlquist v. State of California (1966) 243 Cal.App.2d 208 [52 Cal.Rptr. 324].
The body of discovery law has now developed to the point where, for example, it is perfectly proper for a party to submit an interrogatory requiring his adversary to specify, under oath, the facts on which he relies in support of a particular contention or allegation made in a pleading (Singer v. Superior Court (1960) 54 Cal.2d 318, 321 [5 Cal.Rptr. 697, 353 P.2d 305]). Thus, in the case at bench, if defendants were truly in doubt or uncertain as to how or in what manner plaintiffs’ constitutional rights were claimed to be violated by the Family Life Education course, a simple interrogatory would have resolved any such doubt. But the record discloses that defendants engaged in no discovery whatever. It is therefore apparent that after the original demurrer defendants’ one and only objection to plaintiffs’ pleadings was that they failed to state a cause of action, an objection consistently rejected by four different superior court judges.
This background brings us, then, to the next logical inquiry: How, and by what authority, was a fifth judge empowered to render a decision completely contrary to his predecessors on precisely the same issue? The short answer is that he was not so empowered and that the granting of the motion to dismiss was an abuse of discretion for noncompliance with
The motion to dismiss is, as we have noted, the legal equivalent of a general demurrer (McKay v. County of Riverside, supra). On review of an order and judgment of dismissal pursuant to the granting of a motion to dismiss, the appellate court must consider the matter “in the same light as a judgment upon sustaining of a demurrer without leave to amend” (McKay v. County of Riverside, supra at p. 249).
Consequently, as a matter of true substance the motion to dismiss was a “subsequent application” for the same orders previously made to each of the preceding four judges. In fact the motion expressly recites (as did the prior general demurrers and motions for summary judgment and judgment on the pleadings) that it was being made “on the ground that the complaint herein fails to state a cause of action.” (Italics added.)
The fact that defendants at pretrial received the right to file a motion to dismiss is of no significance whatever. Likewise, the fact that after the filing of the first amended complaint on September 11, 1968 the Legislature enacted
Thus, it is manifestly clear that the motion to dismiss was and is nothing more than another general demurrer presented to a different judge.
The record shows that plaintiffs promptly brought the provisions of
The pleadings filed by the plaintiffs are technically sufficient. The issues between the parties have been framed and the pretrial order provides an excellent framework in which the case can be tried on its merits. Having arduously and successfully taken their case over nearly every procedural obstacle in the civil advocates’ arsenal, plaintiffs should not be denied that right. I would reverse the judgment.
A petition for a rehearing was denied September 26, 1975, and the opinion was modified to read as printed above. Appellants’ petition for a hearing by the Supreme Court was denied October 23, 1975.
Notes
The parents initially contend that by the ruling sustaining the demurrer and the granting of the county‘s motion to dismiss, they were deprived of a fair hearing and therefore deprived of due process. As their contention that all pretrial terminations of actions are unconstitutional is so patently without merit that it does not warrant further discussion, we simply note that the parents did not attempt to file a jurisdictional writ to test their strange theory (1 Witkin, Cal. Procedure (2d ed.) Jurisdiction, § 194). The contention that the motion to dismiss was a speaking motion is equally without merit. A speaking motion to dismiss or strike is one that is supported by facts outside the pleading, set forth by affidavit or declaration (Vesely v. Sager, 5 Cal.3d 153, 167 [95 Cal.Rptr. 623, 486 P.2d 151]). Here, the motion was made for dismissal, immediately before trial and without any submission of new matter and the sole question was whether or not a cause of action had been stated by the amended complaint (cf. McKay v. County of Riverside, 175 Cal.App.2d 247, 248-249 [345 P.2d 949]).
The parents further contend that the instant motion to dismiss must be considered as a renewed motion for summary judgment and, therefore, subject to the sanctions of
“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961). Nor is the impact of the compulsory-attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It
“If classes are offered in public elementary and secondary schools in which human reproductive organs and their functions and processes are described, illustrated or discussed, the parent or guardian of each pupil enrolled in such class shall first be notified in writing of the class. Sending the required notice through the regular United States mail, or any other method which such local school district commonly uses to communicate individually in writing to all parents, meets the notification requirements of this paragraph.
“Opportunity shall be provided to each parent or guardian to request in writing that his child not attend the class. Such requests shall be valid for the school year in which they are submitted but may be withdrawn by the parent or guardian at any time. No child may attend a class if a request that he not attend the class has been received by the school.
“Any written or audiovisual material to be used in a class in which human reproductive organs and their functions and processes are described, illustrated, or discussed shall be available for inspection by the parent or guardian at reasonable times and places prior to the holding of a course which includes such classes. The parent or guardian shall be notified in writing of his opportunity to inspect and review such materials.
“This section shall not apply to description or illustration of human reproductive organs which may appear in a textbook, adopted pursuant to law, on physiology, biology, zoology, general science, personal hygiene, or health.
“Nothing in this section shall be construed as encouraging the description, illustration, or discussion of human reproductive organs and their functions and processes in the public elementary and secondary schools.
“The certification document of any person charged with the responsibility of making any instructional material available for inspection under this section or who is charged with the responsibility of notifying a parent or guardian of any class conducted within the purview of this section, and who knowingly and willfully fails to make such instructional material available for inspection or to notify such parent or guardian, may be revoked or suspended because of such act. The certification document of any person
“As used in this section, ‘religious training and beliefs’ includes personal moral convictions.”
In its prior version (Stats. 1968, ch. 182. § 31), the statute read as follows: “Whenever any part of the instruction in ‘health’ conflicts with the religious beliefs of the parent or guardian of any pupil, the pupil, on written request of the parent or guardian, may be excused from the part of the training which conflicts with such religious beliefs.”