Alfonso v. Fernandez , 606 N.Y.S.2d 259 ( 1993 )

OPINION OF THE COURT

PlZZUTO, J.

Today, we hold that the respondents are prohibited from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision. Condom distribution in the public schools is a health service rather than health education and thus, in the absence of a provision requiring the prior consent of unemancipated minor students’ parents or guardians, or in the absence of an opt-out provision, lacks common-law or statutory authority. In addition, the respondents’ plan to dispense condoms to unemancipated minor children without the consent of their parents or guardians, or an opt-out provision, violates the civil rights of the parent petitioners and similarly situated parents or guardians under the substantive Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6.

THE FACTS

In September 1987 the New York State Commissioner of Education directed all elementary and secondary schools to include, as part of health education programs, instruction concerning the Human Immunodeficiency Virus (HIV) which causes Acquired Immune Deficiency Syndrome (AIDS) (see, 8 NYCRR 135.3 [b] [2]; [c] [2]). In late 1990, Joseph Fernandez, then Chancellor of the New York City Board of Education, suggested enlarging the existing HIV/AIDS curriculum to impart additional education about the transmission and prevention of HIV/AIDS. The former Chancellor also suggested that condoms be made available to high school students upon request. On February 27, 1991, the New York City Board of Education voted to establish an expanded HIV/AIDS education program in New York City’s public high schools, consisting of two components.

The first component calls for classroom instructions on various aspects of HIV/AIDS. Each public high school is required to adopt a curriculum which incorporates lessons on the various means by which one could be infected with HIV, and the methods of prevention. Abstinence from sexual activity is to be stressed. This component of the program is mandatory, but includes a parental opt-out provision whereby a parent may opt his or her minor unemancipated child out of the classroom instruction upon the assurance that the child will receive such instruction at home.

The second component of the program calls for the high schools to make condoms available to students who request them. Public high schools are to establish health resource rooms where trained professionals are to dispense condoms to students who request them. A student to whom condoms are dispensed must be given personal health guidance counselling involving the proper use of condoms, and the consequences of their use or misuse. Students are not required to participate in this component of the program and no sanction is imposed on a student who does not do so. Most importantly, this component of the respondents’ program does not include a provision for parental consent or opt out.

The petitioners, who are parents of New York City public school students, then commenced this hybrid proceeding and action, inter alia, to prohibit the implementation of the condom availability component of the expanded HIV/AIDS education program in New York City’s public high schools.

The petitioners contend that implementation of the condom availability component of the program: (a) violates Public Health Law § 2504, because it constitutes "health services” to unemancipated minor children without the consent of their parents or guardians, and therefore is not authorized by law, (b) violates their due process rights to direct the upbringing of their children, and (c) violates their rights to the free exercise of their religion as guaranteed by the First Amendment of the United States Constitution and New York Constitution, article I, §3.

Intense controversy has surrounded the expanded HIV/ AIDS education program. The impetus for the program is a deadly public health threat of epidemic proportions. New York City teenagers allegedly account for 20% of the reported cases of adolescent AIDS in the United States, although they make up only 3% of the nation’s teenagers. The supporters of the condom availability component of the plan view it as a legitimate and necessary part of public school health education directed at control of a public health crisis. On the other hand, many persons are concerned that the condom availability component of the plan is tantamount to condoning promiscuity and sexual permissiveness, and that the exposure to condoms and their ready availability may encourage sexual relations among adolescents at an earlier age and/or with more frequency, thereby weakening their moral and religious values. They doubt the wisdom or the desirability of a public school system engaging in what they view as a controversial social program peripheral to the immediate task of educating children.

In this controversy, the Court’s role is a limited one. Its function is to determine whether or not the condom availability component of the program impermissibly trespasses on any of the petitioners’ constitutional, common-law, or statutory rights. That role begins with its review of the record and ends with its determination of the legal issues. It is without power to legislate.

THE RIGHT OF PARENTS TO CONSENT OR WITHHOLD CONSENT TO THE RENDITION OF HEALTH SERVICES TO THEIR CHILDREN

At common law it was for parents to consent or withhold their consent to the rendition of health services to their children. The general incapacity of minors to consent to health services derives from this common-law rule that treated a minor’s "normal condition [as] that of incompetency” (66 NY Jur 2d, Infants And Other Persons Under Legal Disability, § 3; see also, Bonner v Moran, 126 F2d 121 [applying common-law rule requiring consent of parent to surgery performed on minor and reviewing relevant State cases]). As legal incompetents, minors could no more consent to medical treatment than they could enter into binding contracts and they continued to be incompetent in many circumstances to give effective consent to health care. The courts identified exceptions to the common-law rule regarding the incapacity of minors. For example, children were regarded as emancipated and competent to consent when they were married (see, Cochran v Cochran, 196 NY 86); or supported themselves (see, Cohen v Delaware, Lackawanna & W. R. R. Co., 150 Misc 450); or were inducted into military service (see, Matter of Fauser v Fauser, 50 Misc 2d 601); or when their parents abandoned them or failed to support them (see, Murphy v Murphy, 206 Misc 228). In addition, a physician could render health services to a minor in an emergency without first consulting his or her parents.

Public Health Law § 2504, which was enacted in 1972, codified some but not all of the common-law exceptions to the general incapacity of minors. That section dispenses with a parental consent requirement for "medical, dental, health and hospital services” (emphasis supplied) in five enumerated instances, none of which are applicable here. It reads as follows:

"1. Any person who is eighteen years of age or older, or is the parent of a child or has married, may give effective consent for medical, dental, health and hospital services for himself or herself, and the consent of no other person shall be necessary.

"2. Any person who has been married or who has borne a child may give effective consent for medical, dental, health and hospital services for his or her child.

"3. Any person who is pregnant may give effective consent for medical, dental, health and hospital services relating to prenatal care.

"4. Medical, dental, health and hospital services may be rendered to persons of any age without the consent of a parent or legal guardian when, in the physician’s judgment an emergency exists and the person is in immediate need of medical attention and an attempt to secure consent would result in delay of treatment which would increase the risk to the person’s life or health.

"5. Anyone who acts in good faith based on the representation by a person that he is eligible to consent pursuant to the terms of this section shall be deemed to have received effective consent” (emphasis supplied).

The petitioners argue that the distribution of condoms to high school students is a health service, that such distribution does not fall within any of the exemptions set forth in Public Health Law § 2504 to the common-law requirement of parental consent, and therefore, that parental consent is required. The respondents argue that the distribution program is not a "health service” but merely an "adjunct to an education program” or an "aspect of instruction in disease prevention”. Thus, the first issue which we must decide is whether or not the condom availability component of the respondents’ plan is a health service. We conclude that it is.

The condom availability component of the respondents’ program is not merely education, but is a health service to prevent disease by protecting against HIV infection. In the words of Dr. Robert A. Meyers, a former president of New York State Medical Society: "The purpose of [condom distribution] could only be prophylaxis, and there is no way that it could be considered a form of education”.

Education relating to the use of a condom encompasses instruction concerning the benefits and risks of condom use and the proper method of condom application. The distribution of condoms is not, as contended by the respondents, an aspect of education in disease prevention, but rather is a means of disease prevention. Supplying condoms to students upon request has absolutely nothing to do with education, but rather is a health service occurring after the educational phase has ceased. Although the program is not intended to promote promiscuity, it is intended to encourage and enable students to use condoms if and when they engage in sexual activity. This is clearly a health service for the prevention of disease which requires parental consent.

Our conclusion that condom distribution is a health service is supported by a regulation of the Commissioner of the New York State Department of Education which defines the term health service to include "the several procedures * * * designed to * * * guide parents, children and teachers in procedures for preventing and correcting defects and diseases” (8 NYCRR 136.1 [d]). Similarly, the Acting Commissioner of the New York City Department of Health has said that the condom availability component of the respondents’ plan "is a strong and medically sound program that is responsive to critical health needs” (emphasis supplied), and the resolution presented by the Chancellor of the New York City public schools with respect to the program includes the following clause: "condoms have been cited by the former Surgeon General of the United States to be the best protection against the sexual transmission of the HIV virus” (emphasis supplied).

The next question is whether other regulations of the Commissioner of the New York State Department of Education, which authorize school boards to distribute condoms in the public schools as part of an "AIDS instruction program” (8 NYCRR 136.3 [c]), or as part of a "program of school health service” (8 NYCRR 135.3 [c]), are determinative of the issue of whether such distribution constitutes a health service. We conclude that whether the condoms are distributed as an adjunct of a plan of instruction on HIV/AIDS or through school health offices is of no import. The supplying of condoms is conduct which constitutes a service separate and apart from education. The Legislature has not acted to authorize the provision of such a service without parental consent. Thus, the cited regulations which authorize condom distribution without prior parental consent or opt out are contrary to the common law and of no effect.

It cannot be disputed that "the State has a compelling interest in controlling AIDS, which presents a public health concern of the highest order. Nor can there be any doubt as to the blanket proposition that the State has a compelling interest in educating its youth about AIDS. Education regarding the means by which AIDS is communicated is a powerful weapon against the spread of the disease and clearly an essential component of our nationwide struggle to combat it” (Ware v Valley Stream High School Dist., 75 NY2d 114, 128). However, while the purpose of the condom availability component of the program may be commendable, the Legislature has not acted to abrogate the common-law rule and to authorize the New York State Commissioner of Education or the respondents to direct or permit the delivery of such a health service to minor, unemancipated high school students in public school buildings without some parental role through opt out or consent.

Requiring parental consent or opt out for the condom availability component of the respondents’ program would not violate State and Federal statutory and constitutional law as urged by the amici, nor would it stymie every health care provider, compelling parental consent whenever an unemancipated minor seeks contraceptive services.

Under the sections of the Social Security Act governing Aid to Families With Dependent Children and Medicaid, family planning services and supplies must be provided to all eligible recipients, including sexually active minors (see, 42 USC § 602 [a] [15]; § 1396d [a] [4] [C]). The State laws governing these programs also require that contraception be made available to "eligible persons of childbearing age, including children who can be considered sexually active” (Social Services Law § 350 [1] [e]; see, Social Services Law § 365-a [3] [c]; see also, 18 NYCRR 431.7, 463.2 [b] [1], [2]; 463.6 [requiring provision of family planning services to minors eligible for public assistance, Medicaid, or supplemental security income, and to foster children]). These laws entitle eligible minors to confidential services from any provider who treats them under the auspices of one of the public assistance programs previously mentioned.

In addition, title X of the Public Health Service Act, the largest source of Federal funding for family planning programs throughout the nation, mandates that minors receive confidential services (see, 42 USC § 300 [a]; 42 CFR 59.5 [a] [4]; 59.15). Interpreting these statutes as requiring that adolescents be treated confidentially, on the basis of their own consent, the Federal courts have invalidated both State laws and Federal and State regulations that imposed parental consent or notification requirements on teenagers entitled to family planning services under these programs (see, Jones v T. H., 425 US 986 [invalidating State regulations that mandated parental consent for family planning services to otherwise eligible minors]; see also, Planned Parenthood Assn. v Dandoy, 810 F2d 984; Jane Does 1 through 4 v State of Utah Dept. of Health, 776 F2d 253; State of New York v Heckler, 719 F2d 1191).

These statutes are merely legislatively enacted exceptions to requirements of parental consent (see also, Public Health Law § 2781 [1] [providing that HIV-related tests may be administered upon the written, informed consent of anyone, including a minor if the person has an ability to understand and the capacity to consent]; § 2305 [2] [which dispenses with consent or knowledge of a parent in the diagnosis or treatment of a sexually transmissible disease]). It is for the Congress or the Legislature, not the courts—and certainly not the State Commissioner of Education or a board of education—to provide the exceptions to parental consent requirements. Neither Congress nor the New York State Legislature has enacted an exception for the health service at issue here. The distribution of condoms in our public high schools, where attendance is compulsory, even though condoms are nonmedicinal and require no prescription, is quite different from making them available at clinics, where attendance is wholly voluntary, or as part of public assistance programs. There is no specific authority for the condom availability component of the respondents’ program, no matter how commendable its purpose may be.

Nor does Carey v Population Servs. Intl. (431 US 678) require a different determination. In that case, the United States Supreme Court struck down New York Education Law § 6811 (8) which made it a crime to sell or distribute any contraceptive to a minor under the age of 16 years or for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 years of age or over. The Court held that the constitutional right of privacy in connection with decisions affecting procreation extends to minors as well as to adults. In declaring the statute unconstitutional, the Court reasoned that a prohibition against all sales would have a devastating effect upon the freedom to choose contraception and that limiting distribution to licensed pharmacists imposed a significant impermissible burden upon such freedom.

Holding that the condom availability component of the program is unauthorized in no way affects or restricts the access to condoms which existed prior to the adoption of the plan. In an advisory opinion to the respondents, New York City Corporation Counsel conceded after reviewing Carey and related cases: "[S]ince the Board has no obligation to make condoms available and minors still have the opportunity to obtain condoms (freely or at minimal cost) from other sources without parental consent, it would be permissible for the Board to make parental consent a prerequisite to condom availability or to give the parents the opportunity to exclude their children from the program”.^*

The amici argue that "the [condom availability component of the] Program is * * * consistent with the practice of health providers in this state, who routinely prescribe and distribute contraceptives and offer other HIV/AIDS and reproductive health services to minors on the basis of their own consent”. The amici miss the point. The primary purpose of the Board of Education is not to serve as a health provider. Its reason for being is education. No judicial or legislative authority directs or permits teachers and other public school educators to dispense condoms to minor, unemancipated students without the knowledge or consent of their parents. Nor do we believe that they have any inherent authority to do so.

PARENTAL RIGHTS TO REAR THEIR CHILDREN AS THEY SEE FIT

The petitioner parents are being compelled by State authority to send their children into an environment where they will be permitted, even encouraged, to obtain a contraceptive device, which the parents disfavor as a matter of private belief. Because the Constitution gives parents the right to regulate their children’s sexual behavior as best they can, not only must a compelling State interest be found supporting the need for the policy at issue, but that policy must be essential to serving that interest as well. We do not find that the policy is essential. No matter how laudable its purpose, by excluding parental involvement, the condom availability component of the program impermissibly trespasses on the petitioners’ parental rights by substituting the respondents in loco parentis, without a compelling necessity therefor.

The petitioners enjoy a well-recognized liberty interest in rearing and educating their children in accord with their own views (US Const 14th Amend; NY Const, art I, § 6; see also, Roe v Wade, 410 US 113, 153; Pierce v Society of Sisters, 268 US 510, 535; Meyer v Nebraska, 262 US 390, 399). Intrusion into the relationship between parent and child requires a showing of an overriding necessity (see, Wisconsin v Yoder, 406 US 205, 214; Matter of Marie B., 62 NY2d 352, 358). The minority points to the fact that student participation in the condom availability component of the expanded HIV/AIDS program is wholly voluntary, devoid of any penalty for non-participation, and that parents are still free to provide guidance on this and related (or unrelated) issues. However, these factors do not constitute proof that the petitioners are not being forced to surrender a parenting right—specifically, to influence and guide the sexual activity of their children without State interference.

Parents must send their children to school (see, Education Law §§3205, 3212, 3233), and unless they pay for private education (something the petitioners assert they are financially unable to do) that school must be one controlled by the respondents. This is the key distinction between the situation these petitioners face and that faced by the parents who sued in Doe v Irwin (615 F2d 1162). In Doe the plaintiffs were attempting to enjoin the distribution of contraceptive devices to their children at a public clinic. The clinic, however, was not inside a school or other building where the parents were obliged by law to send their children. Consequently, in Doe there was no State compulsion on parents to send their children into an environment where they had unrestricted access to free contraceptives, which is precisely what the petitioners in the instant matter must do.

This is not a case in which parents are complaining solely about having their children exposed to ideas or a point of view with which they disagree or find offensive. We would agree that, standing alone, such opposition would falter in the face of the public school’s role in preparing students for participation in a world replete with complex and controversial issues (see, Mozert v Hawkins County Bd. of Educ., 827 F2d 1058, cert denied sub nom. Mozert v Hawkins County Pub. Schools, 484 US 1066). However, the condom availability component of the respondents’ distribution program creates an entirely different situation. Students are not just exposed to talk or literature on the subject of sexual behavior; the school offers the means for students to engage in sexual activity at a lower risk of pregnancy and contracting sexually transmitted diseases. The extent to which individual minors would be affected by the availability of contraceptives in the public school system if the distribution of condoms on the scale envisioned by the respondents were to become commonplace cannot presently be ascertained.

Undoubtedly, the respondents, too, do not wish to encourage sexual activity among minors but only to slow the spread of AIDS. Nevertheless, in determining whether this program intrudes on parental rights in the first instance the issue is not one of purpose but one of effect. We must take great care not to be blinded by the concept that the end justifies the means. In accord with the foregoing, we conclude that the policy intrudes on the petitioners’ rights by interfering with parental decisionmaking in a particularly sensitive area. Through its public schools the City of New York has made a judgment that minors should have unrestricted access to contraceptives, a decision which is clearly within the purview of the petitioners’ constitutionally protected right to rear their children, and then has forced that judgment on them.

Because we believe that the petitioner parents have demonstrated an intrusion on their constitutionally protected right to rear their children as they see fit, we turn next to the issue: whether a compelling State interest is involved and whether this program is necessary to meet it. There is no question, as the Court of Appeals has stated, that "the State has a compelling interest in controlling AIDS, which presents a public health concern of the highest order” (Ware v Valley Stream High School Dist., 75 NY2d 114, 128, supra). However, the Court also noted that "[a]s with other grave risks we have faced during the past two centuries, the threat of AIDS cannot summarily obliterate this Nation’s fundamental values” (Ware v Valley Stream High School Dist., supra, at 129). Accordingly, we must ask whether an interference in the petitioners’ rights is necessary to meet this public health threat. Specifically, can it be said that absent the program challenged by the petitioners, sexually active students, educated by the schools to the danger of sexually transmitted diseases, will be unable to acquire condoms without difficulty? The answer must clearly be no. We no longer live in an age where minors find it difficult or socially unacceptable to obtain contraceptives at a local drug or convenience store. It is hardly a secret that condoms are now displayed next to vitamins and cold remedies. Moreover, minors may purchase condoms legally (see, Carey v Population Servs. Intl., 431 US 678, supra), and the cost is hardly exorbitant (as the petitioners note, a condom may be purchased for about the same price as a slice of pizza). Further, in their brief in support of the respondents, the amici point out that there are publicly funded nonschool programs where condoms are available to minors as part of confidential family planning, as provided under the Social Security Act and Public Health Service Act.

Finally, the distribution can go forward without interfering with the petitioners’ rights simply by allowing parents who are interested in providing appropriate guidance and discipline to their children to "opt out” by instructing the school not to distribute to their children without their consent. We are not blind to the possibility that children of parents who elect to "opt out” will become or remain sexually active, but in view of the access to condoms discussed previously this possibility cannot serve as a reason to interfere with the parents’ right to discourage that behavior.

We conclude that the condom availability component of the respondents’ program violates the petitioners’ constitutional due process rights to direct the upbringing of their children.

FREE EXERCISE OF RELIGION

The condom availability program does not violate the petitioning parents’ rights to the free exercise of their religion.

As stated in Mozert v Hawkins County Bd. of Educ. (827 F2d 1058, 1063, supra), the "question to be decided is whether a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious grounds constitutes a burden on the free exercise of that person’s religion as forbidden by the First Amendment” of the United States Constitution or New York Constitution, article I, § 3. The answer is that it does not.

The gist of the petitioners’ claim is that they find the condom availability component of the program to be objectionable on religious grounds because it may tempt their children to stray from their religious beliefs. Such a contention does not state a viable claim based on the Free Exercise Clause. "The central question in identifying an unconstitutional burden is whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices” (Rector of St. Bartholomew’s Church v City of New York, 914 F2d 348, 355). At bar, any student who fails or refuses to participate is not visited with a sanction. Nor is this a case in which anyone who refuses to participate is held criminally liable (see, Wisconsin v Yoder, 406 US 205, supra) or denied a benefit (see, Thomas v Review Bd. of Ind. Empl. Sec. Div., 450 US 707; Sherbert v Verner, 374 US 398).

The petitioners’ contentions that the students are "bombarded” with information respecting the program, and that they may be tempted to succumb to peer pressure, do not rise to the level of a constitutional violation. " 'It is true that * * * indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment * * *. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional test is "prohibit” ’ ” (Rector of St. Bartholomew’s Church v City of New York, supra, at 355, quoting Lyng v Northwest Indian Cemetery Protective Assn., 485 US 439, 450-451).

The condom availability component of the respondents’ program does not prohibit the petitioning parents and/or their children from practicing their religion. Nor does it directly or indirectly coerce them to engage in conduct or practices which are contrary to their religious beliefs. "Moreover, parents have no constitutional right to tailor public school programs to individual preferences, including religious preferences” (Ware v Valley Stream High School Dist., 75 NY2d 114, 125, supra; see, Epperson v Arkansas, 393 US 97, 106). Merely because the petitioners find the program objectionable does not render it violative of their right to the free exercise of their religion (see, Mozert v Hawkins County Bd. of Educ., 827 F2d 1058, supra; Smith v Board of Educ., 844 F2d 90).

CONCLUSION

In light of our determination that the condom availability component lacks common-law or statutory authority, and violates the petitioners’ civil rights to rear their children as they see fit, the order and judgment must be reversed insofar as appealed from. Accordingly, the respondents are prohibited from dispensing condoms to unemancipated, minor students without the prior consent of their parents or guardians, or without an opt-out provision, and the petition is granted to the extent that (1) it is declared that the condom availability component of the respondents’ plan constitutes a health service rather than health education and thus, in the absence of a provision requiring the prior consent of unemancipated, minor students’ parents or guardians, or in the absence of an opt-out provision, lacks common-law or statutory authority, and (2) it is declared that the respondents’ plan to dispense condoms to unemancipated, minor children without the consent of their parents or guardians, or an opt-out provision, violates the civil rights of the parent petitioners and similarly situated parents or guardians under the substantive Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6. In all other respects, the petition is denied.

* Parents United for Better Schools v School Dist. of Philadelphia Bd. of Educ. (25 Phila 27) is the only reported case in the United States (that we have found) which deals with the availability of condoms in public high schools. In that case, the Philadelphia School Board authorized "teachers and the like” to give condoms to public high school students on a request and pilot basis, but provided for a parental opt out. The court held that because of the opt-out provision, the plaintiffs did not have standing under Pennsylvania law to bring the proceeding and therefore dismissed the complaint.