Protecting Teen Health: Comprehensive Sexuality Education and Condom Availability Programs in the Public Schools

Although American teenagers are far more likely than their peers in other industrialized countries to become pregnant or contract a sexually transmitted disease (STD), the press has recently been full of encouraging news. According to the Centers for Disease Control and Prevention (CDC), the 1990s have brought a nationwide decline in teenage pregnancy rates and an increase in condom use by sexually active teenagers. In fact, the latest studies reveal that even teenage sexual activity has declined for the first time since the 1980s.1

While a variety of factors are no doubt responsible for these welcome trends, many public health experts have put comprehensive sexuality education and HIV/AIDS education high on their lists of probable causes. The CDC reports that the changes in teenage sexual behavior correspond to a simultaneous increase in the percentage of students who have received HIV/AIDS education in their high schools. Moreover, recent studies show that comprehensive sexuality education programs are more effective than “abstinence-only” programs at reducing risk-taking behavior by teens.2

It is ironic, therefore, that the federal government has pledged $250 million over five years to promote abstinence-only education. The government’s new funding stream threatens the comprehensive sexuality education and HIV/AIDS prevention programs that have demonstrable benefits for teens. Just when these programs are showing positive results, they are in danger of being eliminated, displaced, or watered down.

1. The Rise of Sexuality Education and HIV/AIDS Education in the Public Schools

Although sexuality education has been a target of conservative groups since at least the 1960s, it did not become widespread in public schools until the mid-1980s when Americans grew concerned about the spread of AIDS. In 1986, then-Surgeon General C. Everett Koop offered his endorsement: “There is now no doubt that we need sex education in schools . . . . The lives of our young people depend on our fulfilling our responsibility.”3

By the late 1980s, many states had issued mandates requiring schools to provide instruction about AIDS and other sexually transmitted diseases or sexuality education generally. In 1988, the CDC contributed $20 million towards funding AIDS education in schools throughout the country.

Today, instruction about sexuality and STDs, including AIDS, is widespread. Nineteen states (AL, AR, DE, GA, HI, IA, IL, KS, MD, MN, NC, NJ, NV, RI, SC, TN, UT, VT, WV) and the District of Columbia mandate by law or policy that schools provide sexuality education. Thirty-four states (AL, AR, CA, CT, DE, FL, GA, HI, IA, IL, IN, KS, MD, MI, MN, MO, NC, NH, NJ, NM, NV, NY, OH, OK, OR, PA, RI, SC, TN, UT, VT, WA, WI, WV) and the District mandate instruction about HIV/AIDS and other STDs.4 In addition, local school districts may also mandate instruction in these areas. Public support for sexuality education and HIV/AIDS education in the schools is high. National and state polls have consistently found 80-90 percent of adults supporting sexuality education, including instruction about contraception and methods of disease prevention.5

But the timing of sexuality education programs varies considerably. While almost all students receive some sexuality education in high school, many do not receive any before tenth grade, at which time two in ten girls and three in ten boys are already sexually active.6

The content of sexuality education is also variable. Although comprehensive sexuality education emphasizes that abstinence is the only completely certain way to avoid unwanted pregnancy and STDs, conservative organizations and legislators have pushed hard in the last decade to make abstinence the exclusive focus of sexuality education in the schools. They have succeeded in bringing abstinence-only curricula to thousands of school districts and in enacting laws that further abstinence-only education. In the first half of 1998 alone, Colorado, Illinois, Iowa, Minnesota, Mississippi, Virginia, and West Virginia enacted laws promoting or funding abstinence-only education.

Restrictive laws or simply the fear of stirring controversy prevent sexuality education teachers in some places from discussing such topics as contraception, abortion, masturbation, or homosexuality. Only eleven states (CA, DE, GA, HI, NJ, OR, RI, SC, TN, VT, WV) require schools to include contraception as part of their sexuality education curricula.7 The Sexuality Information and Education Council of the United States (SIECUS) estimates that only five percent of American students receive truly comprehensive sexuality education throughout their school years.8

2. Condom Availability Programs in the Public Schools

Since the late 1980s, some schools have made condoms available to students as part of their multipronged efforts to reduce the risk of unintended pregnancy and STDs including AIDS.9 The American College of Obstetricians and Gynecologists, the American School Health Association, and the National Medical Association have recommended that schools make condoms available to adolescents within the context of comprehensive school health programs. By 1995, condom availability programs were operating in at least 431 public schools, generally in conjunction with comprehensive sexuality education.10 The programs have varied formats. Students in some schools may obtain condoms from a health counselor or from a basket; students in other schools may buy condoms from vending machines. Some schools impose no barriers to students’ access to condoms; others limit access by requiring parental consent or by offering an “opt-out” that allows parents to veto their children’s participation.

Since the condom availability programs first began to operate, researchers have been assessing their impact. The results demonstrate the importance of these programs for teenagers’ health. Several studies have now shown that the programs increase the rate of condom use during intercourse — and the likelihood that teens will be protected from infection and pregnancy — without increasing rates of sexual activity. For example, a study that compared New York City students who had access to condoms in their schools with Chicago students who did not revealed that 60.8 percent of the New York students used a condom at last intercourse, while 55.5 percent of the Chicago students did so. The same proportion of sampled students were sexually active (about 60 percent) in both the schools with the programs and those without them. This study also found that 69 percent of parents, 76 percent of teachers, and 89 percent of students supported condom programs in the New York City schools. 11

Despite the favorable research results and strong public support for condom availability programs in the schools, some conservative parents and organizations have challenged these programs in court. The ACLU has helped to defend the programs in all three of the reported cases to date. Two courts, the Supreme Judicial Court of Massachusetts and the United States Court of Appeals for the Third Circuit, have rejected the challenges and affirmed the legality of the condom availability programs.

The first victory came in 1995 when Massachusetts’ highest court issued its decision in Curtis v. School Committee of Falmouth.12 In 1991, alarmed that Massachusetts ranked ninth among the states in its number of AIDS cases, the state Board of Education had recommended that every school district “in consultation with superintendents, administrators, faculty, parents and students consider making condoms available in their secondary schools.”13 That same year, after numerous public meetings, the Falmouth School Committee instituted a condom availability program for grades 7 through 12.

The Falmouth condom program operated as part of a broader sexuality education curriculum that stressed abstinence as the only certain way of avoiding STDs and pregnancy. Under the provisions of the program, junior high students who requested free condoms from the school nurse would receive counseling and informational materials about STDs along with the condoms. High school students could get condoms by the same method or purchase them for 75 cents from restroom vending machines. The schools did not require parental consent or provide another mechanism through which parents could bar their children’s access to condoms. 14

Four months after the program began, a group of parents challenged it. On appeal to the Supreme Judicial Court, after their loss in a lower court, the parents argued that the program violated their federal constitutional rights. They claimed that the program interfered with their free exercise of religion and their liberty as parents to control the education and upbringing of their children. They asked the court to stop the school district from making condoms available unless it would permit parents to opt their children out of the program and notify parents when their child requested a condom.15

The state high court rejected the parents’ claims. It concluded that the program “is in all respects voluntary and in no way intrudes into the realm of constitutionally protected rights.”16 The court found no element of governmental coercion present to support the parents’ claims:

Although exposure to condom vending machines and to the program itself may offend the moral and religious sensibilities of the plaintiffs, mere exposure to programs offered at school does not amount to unconstitutional interference with parental liberties without the existence of some compulsory aspect to the program. 17

The court’s opinion went on to explain that this mere exposure did not violate the parents’ right to free exercise of their religious beliefs either. It concluded: “Parents have no right to tailor public school programs to meet their individual religious or moral preferences.” 18 Although the plaintiffs tried to take their case to the United States Supreme Court, it declined to review the Massachusetts court’s decision.

Three years later, in Parents United for Better Schools, Inc. v. School District of Philadelphia Board of Education (hereafter PUBS), the United States Court of Appeals for the Third Circuit also rejected a challenge to a condom availability program operating in nine public high schools. 19 Just as in Falmouth, the Philadelphia condom program was initiated only after multiple public hearings. The Board of Education then adopted Policy 123 on “Adolescent Sexuality.” In addition to authorizing the condom program, Policy 123 required the accompanying health curricula to “‘convey the message that abstinence is the most effective way of preventing pregnancy, sexually transmitted diseases and HIV infection.'” 20

Upon a student’s entry into any of the schools with a condom program, the school sends a letter to the parents or guardians instructing them to return an opt-out form if they do not want their child to have access to condoms. At each participating school, condoms are available in a health resource center staffed by a counselor or social worker. When a student visits a health resource center, the counselor checks to see if an opt-out form is on file. If no form is on file, the counselor discusses the benefits of abstinence with the student, and only after doing so, gives the student a condom and advice on how to use it, if the student still wants one.21 During the 1995-96 school year, 5,400 students visited the health resource centers. The benefits to their health went beyond their receipt of condoms: counselors made 686 referrals to health care providers for the testing or treatment of STDs and HIV infection, and 984 referrals for pregnancy or birth control needs.22

As in Curtis, the PUBS court held that the condom program did not infringe on parental rights under the federal Constitution:

We recognize the strong parental interest in deciding what is proper for the preservation of their children’s health. But we do not believe the Board’s policy intrudes on this right. Participation in the program is voluntary. The program specifically reserves to parents the option of refusing their child’s participation. . . . We find the policy coerces neither parents nor students. 23

The court also rejected the only other issue presented on appeal, the claim that the school district lacked the legal authority to implement the condom availability program. The plaintiffs did not try to pursue their challenge in the United States Supreme Court.

The favorable decision on appeal in PUBS tells only half the story, however. When the case was in the trial court, the plaintiffs made additional claims that they later abandoned on appeal. Among other things, the plaintiffs argued that Pennsylvania case law and statutes required parental consent before minors could receive medical or health services, including contraceptives such as condoms. The trial court rejected this claim. If such a requirement existed in Pennsylvania law, it reasoned, the requirement would apply in doctors’ offices, clinics, pharmacies, and all settings, not just in schools. But such a statewide requirement would conflict with both the federal Constitution and federal statutes, which override state law.

A long line of federal cases supports minors’ constitutional right to privacy in obtaining contraceptives. In a 1977 decision in Carey v. Population Services International, for example, the United States Supreme Court relied on minors’ privacy rights to invalidate a New York law that prohibited the sale of condoms to minors under 16.24 The court reasoned that the state has even less interest in regulating teens’ access to contraception than in regulating their access to abortion:

Since the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is . . . foreclosed.25

Following Carey, other federal courts have struck laws requiring parental consent or notification as a condition to teens’ access to contraception.26 Relying on these legal precedents, the trial court in PUBS concluded that “the Constitution forecloses an interpretation of Pennsylvania law that would compel parental consent whenever a minor seeks contraceptives. . . . Such a rule would heavily burden minors’ privacy rights by severely limiting their access to condoms.”27

In addition, as the trial court in PUBS recognized, the Philadelphia condom availability program received federal family planning dollars under Title X of the Public Health Service Act, which mandates confidentiality for all recipients of contraceptives, including minors. These centers would have violated federal law if they had required parental consent before dispensing condoms.28

The one other reported case, Alfonso v. Fernandez, is out of sync with the other two decisions.29 An intermediate state court in New York voted 3-2 that New York City’s condom availability program was unconstitutional because it lacked a parental opt-out or consent provision. But the majority opinion is irrational. Its holding that the program was coercive and therefore an infringement on parents’ constitutional right to control the upbringing of their children30 contradicted its holding that the program was not coercive and thus did not violate the parents’ right to the free exercise of their religion.31 The finding that the program was not coercive should have disposed of both claims because parental rights are afforded no greater protection than free exercise rights under the Constitution.32

In deciding Curtis and PUBS, the Supreme Judicial Court of Massachusetts and the Third Circuit either rejected or distinguished the Alfonso court’s flawed reasoning. In the long run, the Alfonso decision is likely to be viewed as an aberration in the case law about such programs. The Curtis and PUBS decisions, in contrast, have made clear that school districts need not subordinate students’ health and privacy to a minority of critics of condom availability programs. Instead, they may continue to promote the best interests of teenagers by offering them access to the means to protect themselves from pregnancy, HIV, and other STDs.

3. The New Federal Abstinence-Only Funding

Notwithstanding the benefits of comprehensive sexuality education, especially when coup-led with condom availability programs in the schools, the proponents of abstinence-only education got a big boost in 1996 with the passage of the new welfare law, the Personal Responsibility and Work Opportunity Reconciliation Act. This federal law includes a $50 million-per-year, five-year-long appropriation to fund abstinence-only programs in the states. Eight guidelines govern the disbursement of these funds. Programs seeking grants must have as their “exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity.”33 Among other conditions, they must also convey that “a mutually faithful monogamous relationship in [the] context of marriage is the expected standard of human sexual activity” and that “sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects.”34 Programs that emphasize abstinence but also teach about contraception and condom use are not eligible for the funding.

This funding is administered by the Maternal and Child Health Bureau and its state analogues. States have to contribute three “matching” dollars for every four federal dollars they receive. The combined federal and state funding can be used for various purposes such as media campaigns, programs in public schools, or programs outside of public schools.

While the discussion of abstinence is an important component of any sexuality education program, the ACLU opposes programs that focus exclusively on abstinence. Such programs inhibit free expression by censoring essential information about human sexuality and reproduction. In programs receiving the new federal abstinence-only funding, for example, it is unclear how and whether a teacher can respond to questions from students that touch on “forbidden” topics such as safer sex practices or contraception.

The abstinence-only curricula that have been in use for more than a decade have provided ample evidence of the flaws of this approach. If they mention contraceptive and condom use at all, it is usually in terms of grossly exaggerated failure rates. On the subject of abortion, they are particularly extravagant in their claims. Although abortion is in fact ten times safer than carrying a pregnancy to term, Sex Respect, one of the most widely used abstinence-only curricula, sounds these alarms:

If she is a young teen, pregnant for the first time, there’s a chance the abortion will cause heavy damage to her reproductive organs. Heavy loss of blood, infection, and puncturing of the uterus may all lead to future pregnancy problems such as premature birth or misplaced pregnancy (in which the baby begins to develop in a fallopian tube or in the cervix, not in the uterus).

There may also be an increased [risk] of miscarriage or birth complications with future pregnancies. Finally, the woman may suffer infertility and be unable to become pregnant later, even when she is married, ready and eager for parenthood. 35

Many of these curricula are medically inaccurate in other ways as well.

In addition, abstinence-only curricula frequently reflect bias on the basis of gender, sexual orientation, religion, marital status, race, and class. Sex Respect, for example, offers this pseudo-scientific account of alleged differences in boys’ and girls’ levels of sexual arousal: “A young man’s natural desire for sex is already strong due to testosterone, the powerful male growth hormone.” Whereas, “[f]emales, partly because of the way our hormones work in a monthly cycle, are generally less impulsive, more level-headed about sex.” From this little foray into endocrinology, the curriculum draws the conclusion that girls — thanks to their impassivity — have greater responsibility than boys — who are naturally wild — for “keeping physical intimacy from moving forward too quickly.”36 Another curriculum, Families, Decision-Making and Human Development, states: “. . . the male and female sexual organs are obviously designed to accept each other. Thus, heterosexual relationships are normal and homosexual ones are not.” 37

Because of their omissions, inaccuracies, and biases, abstinence-only programs do not serve the best interests of teenagers. Sound public health policy argues against their use. Moreover, they may conflict with the laws or regulations of states that mandate comprehensive sexuality education and/or AIDS education. At their extremes, the problems typical of abstinence-only programs may even infringe on constitutional rights.

The new federal funding creates a serious threat that abstinence-only programs will displace comprehensive sexuality education and HIV/AIDS prevention programs in the public schools. Almost every state is disbursing funds to grantees this year, and we are hearing distressing news from some places. South Carolina’s governor, for example, gave the state’s entire allocation of funds, $1.3 million, to a “crisis pregnancy center,” an anti-choice organization that is promoting an abstinence-only program for use in the schools. In Texas, backers of the abstinence-only curriculum Teen Aid formed the McClennan County Coalition for Abstinence Programs specifically to solicit federal funds to bring the curriculum to the area’s 17 independent school districts and succeeded in getting 16 districts to accept the funding and adopt Teen Aid. 38

4. Deflecting the Harms of the Abstinence-Only Funding

Not every state jumped on the abstinence bandwagon. Officials in New Hampshire and California declined to take the funding this year. In many states, groups supporting comprehensive sexuality and HIV/AIDS education pressed state officials not to apply for the funds or, if they did seek the funds, to keep abstinence-only programs out of the public schools. The governors of Maine and New Jersey agreed that abstinence-only programs should not be in the public schools, and they channeled the federal funding to media campaigns instead. Governor Christine Todd Whitman of New Jersey acknowledged: “We can’t just teach abstinence. We’re talking about teenagers who are going to be sexually active and we’ve got to let them know all the choices.”39 In New Jersey, abstinence-only programs in the public schools would conflict with core curriculum standards, which mandate the teaching of comprehensive family life education, including instruction about contraception.

In Maine, the need to keep abstinence-only programs out of the schools brought together supporters of comprehensive sexuality education in a newly formed coalition, Plain Truth for Maine Youth. It is composed of more than 35 statewide and community-based organizations, including the Family Planning Association of Maine, the Maine Civil Liberties Union, Planned Parenthood of Northern New England, the Maine AIDS Alliance, the Maine Coalition Against Sexual Assault, the League of Women Voters of Maine, the Maine School Counselor Association, the Diversity Leadership Institute, the Maine Psychological Association, the YWCA of Portland, and the Women’s Law Section of the Maine State Bar Association. This coalition wrote to the governor, met with newspaper editorial boards, and brought 100 young people and community leaders to the State House where they conducted a day-long multimedia event to educate legislators about the value of comprehensive sexuality education. The coalition countered pressure from conservative organizations to use the abstinence-only funding in classrooms. “We turned a threat into an opportunity by declaring our support for comprehensive sexuality education, and newspapers and citizens across the state quickly echoed our position,” recalls Sally Sutton, executive director of the Maine Civil Liberties Union.

Here’s what you can do to support comprehensive sexuality and HIV/AIDS education:

Organize Community Support. Join or form statewide or local coalitions to support comprehensive sexuality education. Parents, students, school staff, school board members, health professionals, clergy, and other members of the community should make the argument that comprehensive sexuality education can be a major influence in persuading teenagers to postpone sexual activity and to protect themselves from disease and premature pregnancy. Parents or other knowledge-able individuals should be assigned to monitor each school district.

Keep Abstinence-Only Programs out of Public Schools. Contact your state’s Maternal and Child Health Bureau and find out who is administering and awarding the federal abstinence-only funding. Write to these officials or committee members and explain why you do not want to see abstinence-only programs in the public schools. Urge them to channel the funding to programs and media campaigns outside the schools. Because the federal funding is available through 2002, ongoing grassroots activity is needed to persuade your state officials not to apply for the funding in future years or, at the very least, not to use it in the schools.

Assess Curricular Materials. It is crucial to know which curricula are compre-hensive and accurate, and which ones are based on distortion and the inculcation of fear. In contrast to abstinence-only curricula, there are some “abstinence-based” curricula that emphasize abstinence but also provide comprehensive information about contraception and other methods of protection and, in addition, offer the instruction in communication, negotiation, and refusal skills that experts deem essential to effective programs.40 Although schools cannot use the new federal abstinence-only money to fund any curriculum that covers contraception, some schools already have these curricula in place. Where these curricula are presently in use, you should ensure their continuation, and you should encourage other schools to adopt them with non-federal funds.

Report Abstinence-Only Programs That May Violate the Law. Tell your state ACLU affiliate about abstinence-only programs in public institutions that you think may conflict with your state’s mandate for comprehensive sexuality or HIV/AIDS education, or with constitutional rights.

Influence Public Opinion. Supporters of comprehensive sexuality education have the vital task of supplying the public with correct information about the content and goals of sexuality education programs and countering opponents’ charges or disinformation. Letters to the editor, presentations to editorial boards, appearances on radio and cable TV, public forums, open houses, and voter guides are among the most effective means of cultivating public support for comprehensive sexuality education.

Get Involved in School Board Elections. Although the ACLU is non-partisan and never opposes or supports candidates for electoral office, school board elections are occasions for public discussion and education on civil liberties issues. School board members often make the ultimate decisions about curricula, and some candidates run stealth campaigns in which their positions do not surface. Do not let this happen in your community. Take steps to ensure full public disclosure and debate by all candidates of their positions on sexuality education.

ENDNOTES:

40 Although schools cannot use the new federal abstinence-only money to fund any curriculum that covers contraception, some schools already have these curricula in place. Where these curricula are presently in use, you should ensure their continuation, and you should encourage other schools to adopt them with non-federal funds.

Report Abstinence-Only Programs That May Violate the Law. Tell your state ACLU affiliate about abstinence-only programs in public institutions that you think may conflict with your state’s mandate for comprehensive sexuality or HIV/AIDS education, or with constitutional rights.

Influence Public Opinion. Supporters of comprehensive sexuality education have the vital task of supplying the public with correct information about the content and goals of sexuality education programs and countering opponents’ charges or disinformation. Letters to the editor, presentations to editorial boards, appearances on radio and cable TV, public forums, open houses, and voter guides are among the most effective means of cultivating public support for comprehensive sexuality education.

Get Involved in School Board Elections. Although the ACLU is non-partisan and never opposes or supports candidates for electoral office, school board elections are occasions for public discussion and education on civil liberties issues. School board members often make the ultimate decisions about curricula, and some candidates run stealth campaigns in which their positions do not surface. Do not let this happen in your community. Take steps to ensure full public disclosure and debate by all candidates of their positions on sexuality education.

ENDNOTES:

1 Centers for Disease Control and Prevention, “Trends in Sexual Risk Behaviors Among High School Students — United States, 1991-1997,” Morbidity and Mortality Weekly Report, 47:36 (1998): 749-51.

2 The National Campaign to Prevent Teen Pregnancy, D. Kirby, No Easy Answers: Research Findings on Programs to Reduce Teen Pregnancy, 1997, pp. 43-44; National Academy Press, Institute of Medicine, The Best Intentions: Unintended Pregnancy and the Well-Being of Children and Families, 1995, pp. 232-34; World Health Organization, A. Grunseit and S. Kippax, Effects of Sex Education on Young People’s Sexual Behaviour, 1993, pp. 9-11.

3 Quoted in P. Donovan, “School-Based Sexuality Education: The Issues and Challenges,” Family Planning Perspectives, 30:4 (1998): 189.

4 Ibid.

5 Ibid., p. 188.

6 Ibid., p. 189; The Alan Guttmacher Institute, the Henry J. Kaiser Family Foundation, and the National Press Foundation, Teen Sex, Contraception and Pregnancy: Fact Sheet, 1998.

7 National Abortion and Reproductive Rights Action League Foundation, A State-by-State Review of Abortion and Reproductive Rights, January 1998, p. xiii. We have updated this information by removing two states that should not be listed.

8 SIECUS, “Responding to Arguments Against Comprehensive Sexuality Education,” Community Action Kit, 1997.

9 We are