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When I first met her it's a 98 Smith The Rookie. The shot of Mr. Chief Justice and justices of the New Jersey Supreme Court. I'm Joseph Shanahan representing the appellant's in this matter. And I'd like to summarize briefly some of the major points at issue. I know the record of the case is copious. It consisted of a four hearings and 19 80 and a total of 100 and 60 some odd witnesses appointed. The contention of the appellant's that all of these hearings were a sham for the simple reason that in the conduct of the
hearings and rereading of the transcript it's obvious that the people who appeared on both sides and they were about half and half thought that they were addressing themselves to the question of whether there was to be sex education in the schools or not. And that was far from the truth. Even at that time my first knowledge of it was that the Board of Education had a policy on sex education that went back to 1967 and that the hearings involved the reporting of a committee that the commissioner of the state board president had assigned only to improve on that particular policy. It was not to see whether we were going to have a policy or not. Now since the first brief it was disclosed in the statement of the respondents that in actual fact in August of
nineteen seventy nine at the official meeting of the state board that the report was submitted to the full board with the recommendation among others that the sex education program be put into effect and the board voted unanimously to accept such a report. Now do you notice this is three months at least four months before the first hearings so that we have a sort of star chamber operation in which the result is come to before any witnesses are actually heard. So that there is no question that in the minds of the appellant's that this was a sham set of hearings. Now if I might move on.
One of the other major The question of the First Amendment situation the program and its effect on the establishment of religion and the free exercise thereof. The program calls for number one. Teaching students more than a technical knowledge of their bodies and reproductive systems and to discussion of whether sex sexual activities at an early age the advantages and disadvantages of such discussions. And then how to study to come to morrow and social values. Now these are incorporated in a health educational
program supposedly which from all understanding of it would have to do with the physical body so that the appellant's claim that here is this state has left the educational field and is now indoctrinating or giving their viewpoints on things that the opponents feel is soley a matter for home religious training. Particularly in relation to this discussion of the advantages and disadvantages of early sex activity. This is contrary to the beliefs on sanctity of marriage and prohibitions against sexual activity before coming into that state so that we have here a real threat too. And if we
can judge by the amount of people who appeared at the hearing that 50 percent approximately 50 percent of people interested in this are in the opposition. Your position is that there are those whose religion is opposed to this kind of teaching even though the law allows any parent to indicate that opposition by some piece of paper filed with the local board and thereby obtain the exemption of the student the child from the teaching even so it violates the freedom to exercise religion guaranteed by the Constitution. Right. Yes. Now if that's correct I take it that that would mean that you cannot have family life education course of this kind in the state of New Jersey.
I would say that that would be the basic objective. But it's not really that simple. Would that be the consequence of the rules of allowing your argument. Well our own well I. I see no objection to that. I see no objection on the excusable period to my argument but I do see that there is a possibility that you could have this sex education in the schools on the basis that it be an elective. That is where it was not mandated so that those who desired to have it could easily send their kids to school and has their children so enrolled. I think that's a mediation compromise let's say so that free exercise would be threatened would be violated by a course that's expressed in terms of a
mandate where you can be exempted but would not be violated by a course that's an elective. Well this point Your Honor was taken up in the Abington case which is the celebrated Madalyn Murray case where where the idea was Bible and prayer Bible reading and prayer in the schools where in that very point was taken out that the period relieved. The threat to the rights of certain individuals who objected to it but the Supreme Court and I case I believe in the papers I cited some of the things that they said to show you were actually arguing are you not that children will be exposed and perhaps exposed to and perhaps swayed by ideas and values that are contrary to those held by their respective parents. That is your position yes. No. Doesn't the free
exercise clause in your opinion. Or rather does the Free Exercise Clause allow you to shield your children from any ideas or information that's contrary to your religious beliefs. Well I don't understand what you mean and shielding naturally your children are going to be exposed to all kinds of ideas and you'll have no control over but you are human. If you would like to shield in the school you know you think contrary to what you believe in right where I meant where I am mandated to send my school to my child to school yes. Well according to what religion is it immoral to even listen to ideas which are contrary to the tenets of the religion ball. Well I would say that is a mild thing that I couldn't say that that I know of any religion which would be of that effect that it is that they would object to discussing anything.
But here you have a situation where you are discussing the question of. As I said before on premarital sex without any morality being interposed into it without any discussion on the matter. But you believe the moral teachings must be interrelated with the teachings on sex education implicitly. Well I would say that that should be expressed as some kind of a contra to what. And that was never expressed because it's a health program that has to do only with the health of the students so well designed or stood your argument when you started you stated as one of your objections that the regulation which I didn't find and it requires the student be taught how to make moral value judgments. I'm trying to understand is it. Do you object to that or do you simply find that
implicit in the concept of sex education. Well I object to that as being. An area of education that the commissioner and the state borders are a gating to themselves to discuss. So your point is that and how does that have to do with morality. Sort of what we would call a bland like G.I. type approach. Are you saying that that would be less objectionable. Well I I would not say that because when you're talking about you you're talking about men and we're talking about impressionable children who come to think I think we support has to recognize that children do think we all were once and we all think. And I thought that my teachers know more than my parents at certain times and your heart is not into play so that you're actually having the children moved into an area where they feel that this this must be
the way it is or there's some confusion in their minds that it's being discussed so openly and casually. Why should I suffer from the same misapprehension of your argument that I perceive that justice so heard may be troubled by. I understood and you correct me if I'm wrong because if that kind is a springboard the argument I understood from your opening remarks. That what the appellant's object to is not so much a course of instruction on for lack of a better expression the technicalities of sex so much as the intertwining into that discussion of certain moral values. Put differently I understood from what you said in the beginning that if there were removed from the course any discussion of the moral values
and implications and instruction were once again more in line with a with a with a study of of health limited to the to the technicalities of sex and reproduction the threat to the First Amendment values that you see would be removed now. Am I correct in my understanding or no. Well if by that you mean the hygiene programs that I understand are still in the school I have say this you know your actions far as I understand never was any objection to the hygiene program and the hygiene program that included some rather explicit technical discussion of sex and reproduction without however suggesting or implying or asking the students to make any judgement on the moral values that some would say I think I might think there's a lot to it are necessarily implied in that discussion.
Well I would say that that would be pretty much like discussing it in a vacuum. As I said before I feel so too Russian of all I think so too now is that your position is a position of the appellant's that would remove the threat to the First Amendment interests. No I would say that the opponents to feel that the program as it has outlined is repugnant to them. Religious point of my understand is as outlined what I'm asking is where the removed from the program as outlined in the discussion of the moral values may be implicit in this discussion that we're limited simply to what you choose to call the health or hygiene I choose to call somewhat more directly the technicalities of Section sex and reproduction. With that in the appellate if you remove the threat to First Amendment interests you are adding something to the hygiene program I think that is expressed in discussion of sex which I think would be objectionable. Why why would the opponents find it objectionable if there what is the appellant's position.
With respect to the objective nature of that kind of discussion in as much as we understand it from that discussion as we move all mention all. Discussion or implication of any moral values. Not sure how you do it but let's you and I assume that it can be done. Well I'll let you tell us what ground the opponents have to object to that. A privacy for one. For instance young girls it would depend on the class and the situation for instance young girls at an early age being in a co-educational class discussing explicit sex would I find it would conflict with their innate modesty with all I think that might be all kinds of policy arguments against it but is it is it your position that that would implicate a different constitutional interest namely the right of privacy. No no I don't but if not I would then. Then aside from whatever policy interests might be implicated what would be the objection was a legal ground of the objection in that circumstance. What's the religious basis for the objection in that circumstance that in the
course of this discussion this free discussion on moral values. And as I outlined before the discussion there that it would inhibit the religious values of the people who are listening if you're not accepting my hypothesis and that is that discussion of the religious or moral values as we move now is good. We've simply got a technical course. Not the wanted not the one at hand here I'm asking you to put that aside for a moment so that I can discover how deeply and in what direction the objections of the opponents go. We've removed now all implication of discussion of moral values will be legitimized all we're teaching is a technical subject on sex. Well stand your position to be that. Well now this this is offensive as a matter of policy because young people particularly perhaps girls at an impressionable age should not be subjected to that kind of discussion in the public schools. It's unbecoming. That may well be. I want to know what the legal basis of the objection would be in that in that instance. Well I'm afraid that you presented me with a hypothetical question and I'm not
sure that I can answer without knowing exactly how it would be implemented. Actually even while we're talking here we don't know exactly what the commission has in mind if we were to prohibit her children then based upon what you have said if we want to prohibit all children from taking this course which is what you are arguing because it violates your religion or your religious beliefs. Let's say that not in itself be the stablished of your religion. No I wouldn't say that Your Honor because we I mentioned before that there was a compromise possibility and having it as an elective and then we would leave. We have no like I'm going to send you can walk out. You can be excused. It's elective in that sense. I suppose it's too important to have it as an elective. They think it has to be mandatory. And that is a matter of policy. They would prefer the
exemption route rather than the elective route. Well that's that's where we come to the issue. But but that is what they've done. Is it your answer to Justice Pashman that you're not forcing your religious views on the school board because they have the option of making you know an elective. Well more than that we're a we're a pliable group we're not affirmatively saying anything. We're just saying that the way the that the commissioner and the state board has outlined this thing. We're just asserting my rights that it is unconstitutional Rick and you're you may be pliable but you certainly are asserting something you're serving the state of New Jersey which let us assume for the moment that the actions of the state board and Commissioner were otherwise valid. The state of New Jersey no matter how much it may believe whether correctly or incorrectly that mandatory sex education is advisable. And RA isn't needed
for some very pressing social problems simply cannot do it on a mandatory basis even though people are exempted. You're asserting something pretty important. Well I'm not listening yours I'm not asserting anything having to do with anyone else's interest in this or preventing or tailoring course you prove anything like you have bent them from having this mandatory course from which your client's children may be excused and I'm not saying that the excess being exempt doesn't carry some some problems with it. You are very much imposing your views since they will not be able to have the courts if you're right. Not the way they want to have. Well we are kicking around I would say that on the compromise they could still have it as an elective and it wouldn't raise this particular fuss just as Pashman asked you before what religion very specifically and what religious belief is violated by the courts. Can you identify it specifically other than by
indicating that moral views are obviously part of numerous religions and that those moral views may be impinged down in the discussions. Can you give us some sense I think just as passionate asked whether the question was If list what religion would be offended by listening to discussions of. Just discussions other counter to their own religion I suppose. I put the question this way Mr John what do you think the word religion means in the Constitution. What is religion. Is it simply Are you saying does it simply a sense of moral values is religion what is religion. Well I think it is a why it has a wide definition I don't think it's just organized religion. I think it's a sense of moral values that one considers as a religion judicially do you know of any cases then minus that which is a way of life. By it I mean I'm trying. Well a way of life. But is that is that enough.
In other words there's no question here about the right to disseminate your ideas or anything of that sort that's involved that's not true that's true. So where where where do we have any any of this religion clause come into play at all. Well in the in the inhibiting factor I believe that was listed in one of the Supreme Court says Court cases that. Well I think the date is not a language we have to first. Let's stay with free exercise for a moment. How does how does how do you Jian with the whole concept of the free exercise of religion. That's why I went back and asked you first what is meant by religion. Well you haven't in that case you have an interference and inhibiting in the free exercise by the action of I was there of the state. How is there any inhibition. Well respect to the free exercise of your thinking of
anyone's thinking. Well because you merely talk about moral values when you have a group of students who are in this situation of discussing and teaching and learning about morals values that are in conflict with that really thinking if you start instructing pupils with respect to what is honesty. Do you think that that is wrong and that violates the free exercise of free will Hunter I think that's that's to be and Cardo that's a moral code. I don't know if you have some religion like you have. I recall an old professor saying something about honesty. He said if honesty is a policy it's not honesty. Do you or do you actually then that non religion which is claimed in this case in describing secular humanism that non religion is a religion. Is that your position in a sense yes I think one of the cases said that
it was in the one of the worst cases in the secular humanism. If that is the religion what do you want to stand that religion is. Well it's some kind of lifestyle that's that in which the idea of man is supreme that's not unfair. That is that we are born we evolve. There is no God and that everything that you do has is relative. But you agree that is a religion not what you subscribe to but there actually is a religion. Yes it's a way of life. Yes and it has a set of values and listed they I think they have a listing then I take it constitutionally it should be respected to the same extent as is your religion or mine or anyone else's religion exactly. And I don't know if you can see that these courses then constitute the teaching of secular humanism.
I believe that that's the basis of what in a subtle way. I don't well explain the subtlety to make requests that are human I take it would mean that that if violate the Establishment Clause of the First Amendment and that the public schools are now engaged in the actual establishment of a religion which you call secular humanism well this point was brought out and in the hearings by many people I know it was disregarded in the idea and I'm not going to use that as to answer this particular thing but. The subtlety of the US of the secular humanism part is that you are discussing in these matters I will have you do you discuss sex as the advantages and disadvantages with just the idea that man is. The only thing in the world and there is no moral
code that has anything to do with the divine. What manatee. What makes you say that the presentation of these Corsairs necessarily involves teaching children that moral precepts have nothing to do with their decisions as to how to behave as youngsters and how to behave as adults. Well it seems to involve what I would generally refer to was scandal. I think in portraying this as just an act an animal act that is to be discussed in order to avoid teenage pregnancies and venereal disease you probably saw that teacher conducting the coursework inside were going to teach you certain facts about human reproduction and we're going to leave to your church and to your family in the instruction of the moral values with respect
to these acts. Well that you're saying that to me I think I would say that sounds a legal possibilities as well as all the other quite a few children who don't have any church or family that's providing them with any guidance and that one of the reasons the school system has become involved is a perception on the part of society that apparently because of the lack of such guidance teenage pregnancies are absolutely zooming. People are dropping out of schools and it's a perceived very very serious problem that church and family are apparently unable to cope with. Well that comes within the purview of some of the facts and isn't actually in further discussion on the State Board of Education admits that there's no linkage between no statistical proof is what you mean. They have no statistical
proof right. The notion that these courses will simply be some kind of description of advantages and disadvantages apart from any morality or social responsibility isn't necessarily so it all isn't one of the implications of both the regulation in the discussions that what is attempted would be attempted would be to try to teach people their responsibility as participants in society to teach them that sex is not a thing apart and alone that it's a part of their development and that they have responsibilities to society. Perhaps things that they're otherwise not learned. I think that we're all in agreement on that I think that the Course is in some kind of order. Don't you think one of the problems of this whole thing is that where you have this mandated You see the whole idea of the family life education program permeates the curriculum so that it's discussed in other classes it's
discussed in other. Respect so that there's no way that you really can say unless it's unless it meets all the tests that I think of I think that it should be eliminated. Mr. Shannon if someone claimed that the teaching of arithmetic violated his religion you would would would. With arithmetic it would then become unconstitutional Of course it would not know and what I learned about a biology course I would come I didn't include it just just follow me what about a biology course that includes evolution. In your opinion does the teaching of evolution violate the First Amendment. If you teach it as a fact I would say you believe that would be a violation of the First Amendment is that your position I would join your ask me personally I would say as a lawyer as a loon. As of the answer I would say as a lawyer I don't read each NG as a theory that's different. But if you're teaching it as a fact I would say that. Does have.
Well suppose you're teaching it the way it's usually taught in biology courses as something that men by the name of Darwin studied for many years and developed a theory and the theory has been confirmed in the minds of some people and there are doubts about it in the minds of others. And supposing someone says that I don't want my child exposed to that on a religious basis. We've been through this in this country how we can teach that here. Oh of course I think you were talking we're talking about we're teaching evolution in a biology course in college or a Senior High School where the students understand they're at that point where they understand and then we come into the subtlety of teaching becomes it becomes satisfactory to you because that person is a little bit older is that what I'm saying when you said that the teaching of evolution as a fact actually more or less evolution as it is taught in biology is something that's been going on for a good many years.
That in itself as far as you are concerned you believe that that is unconstitutional undertaking under the situation that I think of it in the lower grades but I think it violates the First Amendment is that your position. Well it's teaching it's at right state would be teaching a religion or. Well I have to research that a little more. They would certainly be inhibiting religion. I'm not saying they would be teaching. I just tried to indicate to us the specific religions and the specific doctrines that are violated or impinged upon by what you think may go on in these courses I read in the record. There are apparently some religions that believe as a religious matter that no one but the father of the family should discuss or teach children about sex. Is that a religious part of some particular religion that's
known to me. Right well can you. I mean the claim here is very specific. Under the First Amendment that there is something that's going to go on in these classes not simply that offends morality but that offends someone's religion. And I would like to know specifically if you can tell us what religion and what it is that's offended because obviously your clients feel very strongly about it and from not only immoral but a religious point of view. Well I would say from my personal knowledge of the Catholic religion it's forbidden to have sex prior to send to have sex prior to marriage. And the discussions I've had into Theall with the sacrament the idea of the sacking of me do you think the Protestants and Jews have similar viewpoint but is it deemed to be against their religion to listen to discussions of issues of this kind. Well I would say it in that particular case I would say no because the
discussions are run by a teacher who when you talk discussions you have a free interchange of ideas that's one thing but when you have a discussion group where you have a teacher and that's one of the things I was trying to bring out before if you're actually talking about a teacher one teacher will teach the same course and teach evolution as a theory for instance. And one as a fact. And at that level the students have to be mature enough to distinguish between them. I take it then it's the tendency of these courses to cause a violation of the religion on the part of these students that is the concern. Well in the exact wording I would say it inhibits it I mean a child is exposed to this freedom in that the class would go home and say Well I I don't think we have to worry about the issue or the teacher says that to someone so I know I can't really speculate and I know when I see the underlying objection is that feeling that strongly about it where the only option given is
this special note and the exemption that there is tremendous peer pressure on the student and almost punishment on the part of the fellow students for those who do not go to the class don't participate in the normal things are somewhat subjective stigmatized. You claim privacy right not to have your children taught about family matters that this would be an invasion of the right of privacy. And as one of your position I believe that was what is the precedence of that right. What case or what what what whether Florida or anywhere else in this opposition. The case of Roe against Wade was based on a privacy right of the woman to have the right of privacy over whether to decide to abort. When you're naming then you're comparing that to the right to listen to this presentation concerning sex education. Well in the light of the things that was said in the case they listed the
various rights and one of them had to do with with the education of children and some other matters that I thought were pertinent is going to be further questions was China just finally Mr. Chen a few moments ago I asked you whether or not he programmed What in your perception be satisfactory if the teacher were to provide certain data to the students and then say we're going to leave the moral training to your church and your family you indicated that might be OK. If you perceive a difference between a teacher affirmatively making that statement and saying nothing and in fact leaving the teaching of these values to places outside the classroom I do see a difference yes. Because in the case where the teacher is saying there at least he's sort of issuing a warning that there may be some moral restrictions in this
you'd have to decide for yourself in the other sense you might be letting it sort of an imprimatur of it because he says oh it's all right if you believe that your religion is a religion which is your position based upon your previous answer is that right Mr.. I believe I said that your secular humanism overwrites religion and that if that is so then would you agree that it must pass the three part test of lemon Kurtzman. Yes and in fact which part does it not pass. Well she would have need to have just left from the right place at a run that it must have a secular purpose to that its primary effect must not advance religion and three not create excessive governmental entanglement. Those years were like that were discussed in the in the papers and I believe that we're talking about now not the we're talking about the way in which the
state program is tied up that's the test of whether the. And that is my point that it has to be the secular the secular objective that it has that is the so called health and hygiene program as a pretext to teaching something that really has. Goes deeper than just the physical hygiene and that the purpose. I think the what was the next and the next criteria other than excessive government is the woman. Well that's the final one yes the end of course I believe it calls for a very purpose not to advance Aurore never exactly and that's the part that I mind in this discussion that it does the quest does inhibit the practice of religion and for endorsements. Thank you any for the point you care to make with China. Well Rushton them.
Thank you for and thank you very much Mr. Burgess. It please the court I'm appearing on behalf of the state board and commissioner of education. The issue before the court is the facial validity of the regulations governing programmes of family life education I think would be helpful just to reflect for a moment at precisely what these programs are these regulations entailed. Although they require each local Board of Education to include among their curricular offerings a programme of family life education. The regulations placed the responsibility for developing the curriculum of their programme on the local Board of Education. It does require the local board to enter into a dialogue with parents teachers in the community at large in developing that curriculum. It also requires that parents once the curriculum is developed would be provided outlines of the curriculum and be made aware of the instructional materials
that would be utilised so that they would have the ability to review and reflect upon those those materials. The regulations also indicate the certifications of teachers who may teach in the program and indicate that it should be part of the elementary and secondary curriculum. However it is left to the local district to determine at what point in the curriculum it will be implemented. At what point it will be commenced and the method in which it will be integrated with other aspects of the curriculum. So although there was a state mandate for family life education it is a mandate which recognizes local involvement and particularly the involvement of parents and the community at large in the developing of the curriculum. As I indicated at the beginning this is a facial challenge. A curriculum has not yet been developed to my knowledge based upon these particular regulations. The regulations are in process of implementation. The initial stage of implementation was the
development of a policy on family life education. We have recently done an informal survey of all the districts and of the five hundred ninety three operating districts in the state close to 500 20 have already developed those statements. There may be more. It may have been the reporting that was remiss in getting the information to us. In addition at the time the regulations were initially adopted they were in place in New Jersey approximately 200 and I think 33 programs of sex education since the regulations have been in place. Approximately one hundred seventy eight school districts are in the course of or in the process of developing programs to be implemented by 1970. Nineteen eighty three. In addition the department has provided curriculum guidelines to local district to assist in the development of their own programs. Most
important in the think of this court has already recognized to the discussion to the challenge is the provision in the regulations which permit the excuse of students who for moral religious objections of conscience. Conflicts with conscience may be released from those aspects of the family life education course which presents such a conflict. I believe that this particular provision which reflects the law in this state not only part of the regulatory scheme but it it follows the language of the parent's right to Conscience Act 1979 mates the First Amendment challenge raised by the appellants in this particular case. Isn't it a rather heavy burden to put on a family that sincerely believes that these courts and let's assume their belief is correct just for the sake of discussion sincerely believes that there is a risk that these courses
will make it more likely that the child will consider premarital sex they believe premarital sex is contrary to they know it is contrary to their religion. Let's assume they also believe as a religious matter that only parents should teach these matters. Also just as a matter of religious belief. There is a right for their child to be exempted. They have to pay a pretty heavy price don't they. They have to pay some price with regard to social pressure. I believe that is that the right. That's nice. Is that price irrelevant to our consideration. In other words is the Free Exercise of Religion always satisfied no matter what the pressure on the student or whoever it is who claims free exercise. If as a matter of fact if the person has the strength and the will and the courage he or she can avoid that which offends religion
just as I have found the case which said that the excuse would not satisfy this type of free exercise claim. I think in Wisconsin we had excused several years of education because of parental beliefs now those children and the Amish. That's the Amish. We have the flag salute case where children whose beliefs are on counter to the type of pledge of allegiance or clerics that attire you can rack case doesn't have anything like the pressure of this case does it they are in their own society their own culture where they're happy. Here the children are in a culture where they have to mix regularly and where presumably they could be the object of much. Well I would say that the Barnett case the Plex nuclear case is probably closer to the situation because there a student could either sit down or not participate in the the actual flag salute and the court did not.
Exclude the flag salute. Well that ceremony from the school day. You don't think they really recognize the right of the individual student to not participate in that kind of peer pressure is a little bit different. When the adolescent refuses to go into the sex ed classes I assume some of them call it. It may well be your honor. Yes Burgess would you. Is this program and your opinion constitutional if there were no excuse supervision. I would submit that I think I think it it would be constitutional. That would be it would be even without the excuse of we didn't have the option and in developing the program because our legislature had already a legislature I'd already spoken on that and required excused. Well I think it's a matter of accommodating religion. It's permissive accommodation is may not be mandatory How do you explain Abington where the court there's a Supreme Court held that excuse a provision of course did not save school prayer from the establishment clearly Abbington why don't we just absolute clueless please we
did have the we had the peer pressure involved there and the justices made a point to talk about it and that the those involved would feel like outcasts if they did not participate. That doesn't excuse a provision here have the same problems as we're confronted in that case. You're either in Abington we were dealing with an establishment coolest case where what was very clearly at issue was a religious exercise which was being which was instituted within the public school system and the court held that excused from that did not meet the violation of the Establishment Clause. I know what the hell that happened we haven't had the reverse situation where excuse all from in the free exercise type situation where one is arguing that it's a burden on one's free exercise the burden is a limited is eliminated by the excuse. What is the purpose of including the local clergy in the development
and implementation of this program. I would assume it would be to provide support a range of input on the development of a curriculum and a possible say I'm sorry as broad a range of input on the development of particular risk. That area of involvement does not risk excessive entanglement with religion by creating a danger of a local conflict over the role of the clergy. We're going to get by with mild almost more problematic if there was a specific exclusion saying you are sorry I don't hear you and I would find it more problematic if there was a specific exclusion indicating that clergy could not participate or make known their views or exercise just Amendment right. Don't don't don't individualize it at all. But but there you have you've said that the that the clergy develop and implement this. That's part of the program. No no your honor it's to the local district shall have shall consult with. And these individuals shall
participate in the development but it is always the objective and the responsibility of the board to develop. Ultimately the curriculum they may they may solicit input from Farias forms and these are the forms that they may they may include mystically but it is ultimately their obligation to just implement a security zone a place a problem really what constitutes religion. Another words a code of ethics for example is that religion. I would think not. It certainly is an element of most religious systems but by itself that in and of itself would not constitute a religion per se. Is that how you would distinguish this Abington case. As I gathered in your answer the justice Passman you stated that that involved I believe it was the bible reading case and I guess a sort of prayer in
schools. That's right. Whereas this simply involves a question of most morality and social values. I think ultimately it would probably involve that we don't know what would what it will involve until we have a curriculum that is in place and has been implemented. Well do you know I think that the definition of family life education certainly the objective of family life education from that definition is to prepare an individual to function in society to understand family life the responsibilities the family life and I think that's as close as it comes to be to inculcate in a moral code. We're talking about responsibilities of an individuals part of the family and part of society. So in that sense perhaps we are in inculcating some moral or ethical codes but that's part of it. The objectives of the public school education act is to prepare an individual to function successfully in society and to be a contributing member of society.
You think that if the court the court if the course were to advocate in any way that this is a perfectly proper thing to do that then it would be overstepping its bias. Do I understand that other words if it is there for them itself in the face in the program itself. But children were given the thought that this is a perfectly proper thing to do a perfectly normal thing to do that is have sexual relations I am married etc. then is it your opinion then that the courts would be overstepping the bounds with respect to religion. I dont think thats the purpose of the program. And if it's properly implemented it shouldn't have that result. QUESTION Was that in the course of this teaching. It's indicated that there is nothing Him are all about. I think that with the marital sex would that be offensive to the Constitution in the constitutional terms about religion. I believe that the excuse of provision would still meet that that problem
doesn't answer the question. We get the excuse really. Well you didn't happen supposing it was mandated. You're on I my understanding of the program is that we are we have certain objectives. The curriculum is being developed. If in a particular school the parents after reviewing the curriculum reviewing instructional materials a check to a certain way. A subject is presented let's say. In their view it would lead to sexual promiscuity of some type. I think they can raise an objection as applaud as the program is implemented in that district and that would be I think it would be a challenge that would be heard by the commissioner. Are these regulations this this would be a controversy under the education of the state. Are these regulations properly implemented. I think that would be the way to avoid that scenario.
Do you buy that. I don't see how it does this I don't see that to make it a sure that's a violation of the religious clause in the Constitution. Supposing the program's mandate you don't have the select letter like the situation right. Supposing number two that in the course of the program. There's an air of approval given to extramarital sex here by these teenagers with that situation violates the Establishment Clause or the free exercise clause of your honor. I still believe that that would be an as applied situation it could not be a factual facial challenge to the regulations and as applied I think you would have to demonstrate the religious precept that is being violated through this. The advancement would have to be a precept of some
justice will utilize the term some non-religious. I don't know if premarital sex is the precept of a non religion though some obviously oppose this as a matter of their tenets of a particular religion isn't the more there are many aspects and school situation that may be offensive to one's religious beliefs even in a home economics course the preparation of certain foods would be offensive to people of certain religious persuasions. They do not. That in and of itself does not represent a constitutional infirmity in that program I know you think it would not stand the program provided. The exact opposite supposin the course and the teaching of the course. After consultation with members of the clergy as the regulation mandates that the course require teachers to instruct that premarital sex was a sin. Would that violate
the constitutional clause. The actual curriculum would set forth that yes in terms of sin I think it probably would overstep the area of what would be permissible. The part that troubles me airforce is the what would be the purpose of consulting with members of the clergy as the regulation provides. If it were not to contain in the ultimate program as flawed certain religious precepts. It's my understanding. Just as Paul that certain religious schools have already developed very advanced and very progressive. We have developed very successful programs of sex education that are implemented in private schools and it is to call on that kind of experience perhaps that will be helpful in the public school setting. Many private religious schools have have implemented sex education programs. The presence of the clergy would be to help give the silicate an exchange of information as to about what their
family what grades you know what what what what instructional materials utilized was Burgess. Mr Shanahan claims that the program establishes the religion of secular humanism. That's his position. Do you dispute that secularism is a religion as such within the meaning of the First Amendment. Your honor I've read the cases and it would appear that secular humanism as referred to in the Supreme Court cases I think it was cast so that it was really limited to a very narrow reading it wasn't secular humanism and extended its general belief. It was actually an organized non-theist religion that was seeking at that that point in time and accept an exemption from a taxing statute. Just what Mr. Shanahan basically refers to is non-religion some sort of you know I don't I don't think secular humanism as used in the cases is
coterminous with the non religions a capital S Capital Group a small sect who had some idea that maybe they'd be able to call themselves in and get out of attack. Obviously they were meeting on a weekly basis discussing whatever they would strike the goals to be accomplished by this program. Just in capsule form when you say the goals of all the educational objectives as I see them are really twofold one emanate from the public school education act. I think the intent of the program is to develop an understanding of family life so that individual child when reaching adulthood can fully contribute can understand the implications and responsibilities. Family all agreed that knowledge concerning venereal disease is in that all second and the second objective I think I see in your house anyway is search because your adversary there's an implication through the briefs and whatnot that this is. To be condemned at least that is sort of being done to him directly
but there's nothing indirect about that. No it was not true. You know you're on to the second objective is really to fill the requirements of the mandatory health education statute to provide instruction that will help our children achieve a healthy state to avoid the problems that are inherent in a lack of knowledge about your body and sexual activity next and the explicit understanding as to pregnancy. That's right as I say to not want to go along with any one of those expelling. Yes it is. I think one of the most telling comments that were made during the hearings concerned mental retardation. You know the lack of sufficient information where we will see the results in our children our children's children is to avoid the ignorance or misinformation that can lead to that sorry condition that I think is one of the most. What objectives to keep cool with this purchase.
I take it in response to some of the earlier questions concerning whether or not this program involves the teaching of a religious doctrine known as secular humanism that it would be the state's position that what is involved is not the teaching of a doctrine of toll or rather the teaching of an of an academic subject. Have you familiarize yourself with the recent decision of Judge Overton in the eastern district for Arkansas and which was recently publicized wherein he held. The teaching of the attempted teaching a through the Arkansas statute of a theory of creation. Itself violated both the
stablish McCloy's and the free exercise clause of the First Amendment. And he there and pointed out that the teaching of evolution itself was not secular humanism on the ground that as long as you were teaching a subject matter in which the students are free and in fact perhaps invited to question and to disagree with that which is being taught that you avoid that particular pitfall is that basically the state's approach and in this case and is this what they expect local school boards to do. I believe that there is a provision of information. And would lead to a helpful discussion but that there is no indoctrination. There is no there is really no presentation of dogma than I do do do you think do you think with respect to the participation of the clergy that ate a purpose. I was that kind of exchange would be to. Perhaps clarify in the
mind of the educators those areas which are more clearly regarded as religion and and the subject matter of religious reaction so that they could be obsoleted in avoidance of these cultures. That could very well be another aspect of the burghers of what legislative authority promulgated family life program. If I'm looking at the Family Life program on the basis of the it's specific rulemaking authority to implement the public school education act and secondly its general rule making authority to implement various aspects of the education laws which would be thirty five dash five would you think that 1887 a 5 listing the components of both are in the fashion education. Do you think that this area that is in come first and in such a program. Yes for one. Even in that yes you know that's that yes even without these regulations.
Darwinian theory of evolution is indeed taught and just about every high school in New Jersey is a nut. I think so Your Honor and also the end and biology classes. As a matter of course such things as a process of procreation through the fertilization of the female egg by a male sperm is taught as a knot. Yes Ron. So this is the purpose of this is to go beyond that in this program and to do just what the purpose of this of this family life education program. I have to present it in a much more cohesive and incremental manner at the same time there may be areas as you indicated in the curriculum which address specific parts of the productive process or the biological evolution of man. But this is much more specific and integrated as far as
the responsibilities of an individual who is a member a fan of a family and a member of society. And the necessary instruction to assure the healthful participation of the student in society to him that the avoidance of the problems of teenage pregnancy venereal disease and so forth and the relationship of sex to the psychological growth that we're personally into relationship because it is not a subtle thing that's fragmented I think that's that the purpose of the person as a matter of fact is in the purpose of this to do quite the contrary of what was suggested namely instead of the view that maybe held by some of sex as an animalistic thing to attempt to relate it to is to place it in its proper perspective as a more human and because that extent you would agree would you not with with the charge by your adversary that implicated in the program or certain moral judgments
Sex Education r1
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Chicago: “Sex Education r1; Public Affairs,” New Jersey Network, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed September 30, 2022,
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