Question & Answer Guide On

California’s Parental Opt-Out Statutes:

Parents’ and Schools’ Legal Rights And

Responsibilities Regarding Public School Curricula

A publication of the California Safe Schools Coalition

160 14

Street • San Francisco CA 94103 • (415) 626-1680 • www.casafeschools.org

Any part of this publication may be reproduced with appropriate attribution and without prior written consent.

No part of this publication should be taken as legal advice.

Question & Answer Guide On California’s Parental Opt-Out Statutes:

Parents’ and Schools’ Legal Rights And Responsibilities Regarding Public School Curricula.

Why was this question and answer guide developed?

Public school administrators, board members, and teachers in California may face the difficult

task of balancing their responsibilities to make decisions about the content of curricular and

other school activities, against parents’ desire to control the content of their children’s

instruction, and/or “opt out” of controversial aspects of the curriculum.

California’s education laws are complex, and both parents and school administrators are

sometimes misled by false claims about “parental rights.” Specifically, some advocacy groups

have inaccurately claimed that California public schools may not implement diversity or

tolerance curricula without parental permission.

This question and answer guide was developed by the California Safe Schools Coalition to

provide accurate, reliable information on the rights, duties, and options of public schools,

teachers, parents and students under California law.

Who determines the curriculum in public schools, under

California law?

The California Constitution guarantees each student the right to a free public education. The

state sets a basic outline for public school education through the Education Code and through

administrative frameworks issued by the state Board of Education on various curricular areas

such as health and science. However, schools are governed primarily at the local school

district level. Parents have a constitutional right to choose a private education for their

children. If they elect to send their children to public schools, parents have very limited rights

to prevent their children from receiving the entire range of instruction available in public

schools.

Under California law, what rights do parents have regarding

public school curricula?

Under California Education Code § 51101, parents and guardians have the right to:

• Examine the curriculum materials of the class.

• Work with the schools to adopt policies that outline how parents, staff and students may

share in the responsibility for development and well-being of the students.

• Observe classrooms and meet with teachers.

• Have a school environment for their child that is safe and supportive of learning.

• Be informed about the above rights to participate in the education of their children.

Question & Answer Guide On California’s Parental Opt-Out Statutes:

Parents’ and Schools’ Legal Rights And Responsibilities Regarding Public School Curricula.

Are there any curriculum topics that public school parents

have the right to receive prior notice about and/or opt their

children out of?

There are some topics that parents have a right to notice about and the right to opt their

children out of. Outside of these specific topics, however, parents do not have any general

right to notice about or to veto or exempt their children from topics included in public school

curricula.

Parents must receive written notice about and may opt their children out of the following

topics of instruction in public schools:

• Comprehensive sexual health education. This includes instruction regarding human

development and sexuality, including education on pregnancy, family planning, and

sexually transmitted diseases. California Education Code §§ 51931(b), 51933. If a school

chooses to provide such education, parents have the right to notice at the beginning of the

school year, an opportunity to review the instructional materials, and an opportunity to

request in writing that their children be exempted from such education. California

Education Code §§ 51937, 51938.

• HIV/AIDS prevention education. This includes instruction on the nature of HIV/AIDS,

methods of transmission, strategies to reduce the risk of HIV infection, and social and

public health issues related to HIV/AIDS. California Education Code §§ 51931(d), 51934.

Schools must provide such education at least twice during grades 7-12, and may provide it

in other grades. Parents have the right to notice at the beginning of the school year about

such education, an opportunity to review the instructional materials, and an opportunity to

request in writing that their children be exempted from such education. California

Education Code §§ 51937, 51938.

• Surveys, tests, research, and evaluation. Parents must opt in by giving written permission

for students to participate in any survey or test containing questions about students’ or

their families’ beliefs or practices concerning sex, family life, morality, or religion.

California Education Code § 51513. However, only notice and the opportunity to opt out

is required for voluntary, anonymous, and confidential surveys concerning students’

health behaviors and risks, including attitudes or practices relating to sex. California

Education Code § 51938(b).

Other than the specific topics and areas of instruction listed above, parents do not have a right

to prior written notice and opportunity to opt out of any part of public school curricula under

California law.

This right to notice and opt-out does not apply to descriptions and illustrations of human

reproductive organs that may appear in a textbook on physiology, biology, zoology, general science,

personal hygiene or health. California Education Code § 51932(a). The right to notice and opt-out also

does not apply to discussions of gender, sexual orientation, and family life outside the context of sex

education. See Question 7, below.

Question & Answer Guide On California’s Parental Opt-Out Statutes:

Parents’ and Schools’ Legal Rights And Responsibilities Regarding Public School Curricula.

Do parents have a constitutional right to prevent their

children from receiving education in public schools on

subjects they disapprove?

Almost never. Parents have filed a number of court cases seeking to prevent public schools

from teaching their children controversial literature or subjects such as evolution, tolerance, or

human sexuality, and have lost virtually every case. Courts have held that so long as the public

school curricula are secular and reasonably related to educational goals, parents do not have

veto power over the content of public school instruction. Parents do have a general right to

control their children’s upbringing, but if parents choose to place their children in public

schools, parental rights are generally outweighed by the state’s interests in educating students

and avoiding disruption in the school curriculum.

When parents raise a specific objection to a part of the curriculum as violating their freedom

of religion, the school should evaluate the nature of the claimed burden on religion to see

whether an accommodation is feasible. Schools may wish to excuse students from non-

essential activities (such excusing a Jehovah’s Witness student from a Valentine’s Day party)

but are not legally required to excuse students from curricular activities such as science or

diversity education. The interests of the school and student in education outweigh parents’

interests in preventing their children from being exposed to ideas that conflict with religious

traditions.

May schools avoid controversy by deciding not to provide

any instruction on human sexuality?

No. California law requires that public schools provide instruction on HIV/AIDS prevention at

least once in junior high or middle school and once in high school. This instruction must

emphasize that sexual abstinence, monogamy, avoidance of multiple sexual partners, and

abstinence from intravenous drug use are the most effective means for AIDS prevention, but

also must teach students other means of reducing the risk of transmission, including medically

accurate information about condoms and other contraceptives. California Education Code §

51934.

Apart from this required HIV/AIDS prevention education, public schools are not required to

offer comprehensive sexual health education. If schools choose to have sex education classes,

they must satisfy criteria set out in California law, including a requirement that, no later than

grade seven, students learn accurate information on the safety and effectiveness of all methods

of contraception, and methods of reducing the risk of and treating sexually transmitted

infections. California Education Code Section 51933.

Question & Answer Guide On California’s Parental Opt-Out Statutes:

Parents’ and Schools’ Legal Rights And Responsibilities Regarding Public School Curricula.

Do parents have the right to notice about and to opt their

children out of diversity education programs that include

discussions of sexual orientation or other controversial

topics?

No. State law explicitly provides that “instruction or materials that discuss gender, sexual

orientation, or family life and do not discuss human reproductive organs and their functions” is

not subject to the parental notice and opt-out laws. California Education Code § 51932(b). Where

issues of sexual orientation or gender identity are raised in school programs other than HIV/AIDS

prevention or sexual health education, such as programs designed to encourage respect and

tolerance for diversity, parents are not entitled to have notice of or the opportunity to opt their

children out of such programs. However, schools may choose to give parents information in

advance to explain the purpose and content of these programs and enlist parental support and

participation.

Diversity and tolerance education programs can help schools fulfill their obligation under

California law to provide safe and supportive learning environments for all students, and to

prohibit discrimination and harassment on the basis of sex, sexual orientation, gender, ethnic

group identification, race, ancestry, national origin, religion, color, or mental or physical

disability. California Constitution Art. 1, § 28(c); California Education Code § 51101; California

Education Code § 200-220; Title 5, California Code of Regulations, § 4900(a). (Schools can seek

assistance from the State Board of Education in developing these programs, because it is

responsible for developing policies, curriculum guidelines, teacher and administrator training

programs, grants, etc., to promote appreciation of diversity, discourage discriminatory attitudes,

and prevent and respond to acts of hate violence in schools. California Education Code §§ 201(f),

233 & 233.8.)

Including discussions about how it is wrong to harass, threaten, or harm another person because

of his or her sexual orientation or gender identity in diversity education programs is not only

permissible, but important in ensuring schools’ compliance with anti-discrimination laws. So

long as these programs do not include sexually explicit content (i.e. discuss the human

reproductive organs and their functions), parents are not entitled to prior notice and the

opportunity to opt their children out. Also, these programs must not include content that reflects

adversely on any person’s religious beliefs, under California Education Code § 51500 and §

51501, so they should avoid instructing students that any specific religious view concerning

homosexuality or gender is correct or incorrect.

Thus, by carefully articulating the purpose and content of diversity education programs, schools

can both fulfill their legal duty to ensure a safe and nondiscriminatory school environment for all

students, and also avoid violating parents’ notice and opt-out rights.