Why Don’t More Public Schools Teach Sex Education? A Constitutional Explanation and Critique


This Article questions why so many public schools do not teach any form of sex education. The answer proposed in this Article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.

To illustrate how these two premises might weigh in a school district’s decision not to teach sex education, this Article is framed as an analysis of a hypothetical question to a school district attorney as to how the district should respond to threatened constitutional litigation regarding sex education. After Part I poses the hypothetical, Part II analyzes the problem and concludes with the two premises upon which my thesis is based. Based on Part II’s analysis, Part III offers a solution—not to teach sex education. After noting that this is not a solution to the problems resulting from uninformed or misinformed teen sex, Part III parts from Part II’s descriptive format and offers solutions as to how, within the applicable constitutional constraints, public schools can educate children about sex, and briefly explores, as a normative matter, whether we should break these constraints. The Article concludes with consideration as to how the preceding discussion contributes to our understanding of the Constitution and those charged with interpreting it.


Constitutional Law

Date of this Version

August 2006