Although it has been three years since the beginning of the COVID-19 pandemic, schools continue to face fraught conversations with the public, leaving many schools unsure how to proceed in this “post-pandemic” education period. Long term COVID, it seems, is not just a medical condition.
In the wake of the COVID epidemic, parents motivated by opposition to masking have been newly empowered to raise objection to public school requirements and programming with which they disagree.
Opposition to everything from vaccinations to standards-based testing and library books is being reasserted with new vigor. Distribution of pre-printed forms, with exhaustive lists of potential opportunities for “opting out” are being widely distributed by advocates of parental empowerment. But what does the law say about exceptions?
Common law and U.S. case law have long supported the notion that education should prepare young people to think independently, even against their parent’s wishes. In other words, schools may require students to learn controversial subjects. Generally, students must comply with those requirements unless there is a clear overriding interest exempting them from being taught those topics, such as a health concern, disability, or violation of a family’s religious tenets.
Some school districts have chosen to include a policy allowing parents or guardians to remove their children from certain activities or education topics to minimize objections.
If schools have such a policy, they should publicly announce whether or not they have particular controversial subjects in their curriculum. Regardless, parents and students must comply with reasonable curricula standards set by the school.
Unless schools have a policy allowing parents to exempt their children from such instruction, parents do not have the authority to opt their child out of diversity and tolerance programs.
The United States Supreme Court upheld this notion in Parker v. Hurley, which rejected a parental claim that they should have had the opportunity to opt out their child from reading a book about diverse families.
Schools, not teachers, have the authority to determine the curriculum. Teachers must contractually carry out that curriculum and abide by school restrictions. Thus, they do not have a right to use teaching materials and methodologies contrary to their school’s policy.
Narrow exceptions exist where students can be exempt from specific topics and activities.
• HIV/AIDS Information: Some parents do not want schools to teach sex information to their children. According Pennsylvania’s School Code, a school district must publicize detailed curriculum outlines and materials used in HIV/AIDS instruction as available to parents. To be exempt from this curriculum, a student must have a religious reason for opting out and make an excusal request in writing to the school.
• Dating Violence: State statute allows parents to request schools to examine their dating violence education program instructional materials. The principal must notify all parents or guardians of their option to withdraw their children from instruction in all or parts of the dating violence education program by returning a signed opt-out form.
• Projects Involving Harmful Use of Animals: Schools must notify students and their parents of their option to not participate in education projects involving harmful or destructive animal use. Parents or guardians can exempt their children from participating in these activities by giving the school notice at least three weeks before the scheduled education project. If a student is exempt, the school must offer an alternative project that provides the student with factual knowledge, information, or experience as required by the course. Exemption from participating in such projects cannot be subject to discrimination. If a student wishes to not participate in the dissection of an animal, they must provide the school notice at least three weeks before.
• Medical Examinations: Students can be exempt from medical examinations by schools if their parent provides written evidence to the school administrator that the examination is contrary to the religious beliefs of the parent. If the Department of Health determines that the exemption presents a substantial risk to the health of others exposed to that student, however, it may not be granted. Students are exempt from scoliosis screening if they are under observation or case for scoliosis by a physician or if their parent objects to the screening in writing.
• Masking: Masks are not currently required by state or federal law, but some schools may require masking, depending on the risk of COVID-19 spread at a given time. Schools must support anyone who chooses to wear a mask and may need to require masking in particular settings to protect students with immunocompromising conditions. Students with a medical or a religious reason may be exempt from a masking requirement imposed by a school.
• Immunization: Students can be exempt from immunization through a medical or a religious exemption. Students have a medical exemption from immunization if a physician provides a written statement explaining that the immunization may harm the student’s health. However, once the physician determines that the immunization is no longer a danger to the student’s health, that student must be immunized. Students have a religious exemption from immunization if a parent or guardian objects in writing to the immunization on religious grounds or based on a firm moral or ethical conviction that is similar to a religious belief.
• Submitting Certain Information: Unless a parent gives prior consent, students are not required to submit information about political beliefs; mental or psychological problems; sex behavior or attitudes; illegal, anti-social, self-incriminating, or demeaning behavior; judgments of others with whom they have close family relationships with; legally recognized privileged or analogous relationships; religious beliefs; or income. It is important to note that this section protects students from revealing the information, it does not prohibit public schools from including that content in their curriculum.
Bottom Line for Schools
To address this resurgence of parental activism, school administrators must not only be aware of when exemptions are permitted, but whether or not they are permitted to test the veracity fo exemption request and, if so, what criteria apply.
Many states have introduced bills to restrict teachers’ discussion of controversial topics, including Pennsylvania. The Empowering Families in Education Act (SB 1278) would give parents the right to determine how their children will learn about gender identity and prohibit lessons about gender identity and sexual orientation for students in fifth grade or below. It passed the Senate on June 29, 2022, and is awaiting the House’s consideration. Moreover, House Bill 1532 would ban school districts from teaching certain concepts or risk losing state funding. Although there has been no action on the Bill, the concern over education topics is apparent.
While many states are considering bills limiting teaching on “divisive subjects,” schools need to adjust to “post-pandemic” education life and anticipate the issues that will likely arise during this period.
Schools with questions should contact their legal counsel or an education attorney at KingSpry.
