Can International Human Rights Law
Countenance Federal Funding of Abstinence-Only
Education?
LEAH J. TULIN*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1980
I. CURRENT EVENTS: SEX EDUCATION IN THE UNITED STATES . . . . . . .
1984
A.
.
1984
........................................
1988
II. DOMESTIC LEGAL PROTECTION FOR SEX EDUCATION AND THE VALUE
OF CONSULTING INTERNATIONAL HUMAN RIGHTS LAW . . . . . . . . . . .
1990
B.
THE PARAMETERS OF THE CURRENT DEBATE OVER SEX EDUCATION
THE FEDERAL GOVERNMENT’S ROLE IN THE SEX EDUCATION
DEBATE
A.
......
1990
......................
1994
III. INTERNATIONAL HUMAN RIGHTS AND THE PROTECTION OF A MINOR’S
RIGHT TO SEEK COMPREHENSIVE SEX EDUCATION . . . . . . . . . . . . . .
1996
B.
INTERNATIONAL LAW IN THE U.S. CONTEXT: WHY BOTHER?
LIMITATIONS OF DOMESTIC LAW: UNEVEN CONSTITUTIONAL
PROTECTION FOR MINORS’ RIGHTS
A.
THE RIGHT TO HEALTH
..............................
1997
B.
THE RIGHT TO FREEDOM OF INFORMATION
.................
2000
C.
THE RIGHT TO EQUAL TREATMENT
......................
2003
IV. MOVING FORWARD: PROTECTING MINORS’ HUMAN RIGHTS IN THE
UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2006
A.
INCREASED INTERNATIONAL PARTICIPATION THROUGH TREATY
RATIFICATION
B.
....................................
2007
USING INTERNATIONAL NORMS TO EXPAND DOMESTIC LEGAL
PROTECTION FOR MINORS’ RIGHTS
1.
......................
2009
Developing Constitutional Jurisprudence . . . . . . . . . . . .
2009
* Georgetown University Law Center, J.D. 2007; University of Pennsylvania, B.A. 2003. © 2007,
Leah J. Tulin. Many thanks to the editors and staff of Volume 95 for their hard work and dedication to
the Journal. I owe a particular debt of gratitude to Gabe Rottman for his insightful suggestions and to
Courtney Roberts for her patience and stellar editorial skills.
1979
1980
THE GEORGETOWN LAW JOURNAL
2.
[Vol. 95:1979
Forcing Political Change Through Federal Statutory
Protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2012
Using International Norms To Pursue Local Solutions . .
2013
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2014
3.
INTRODUCTION
The questions of what, if anything, children should learn about sex and who
should be responsible for teaching it to them have not only been a part
American discourse for over a century,1 but also have been a source of
discussion at the international level. The U.S. government has taken part in this
debate in both forums, but its position on the issue has been inconsistent. On the
one hand, delegations representing the United States have participated in, and
sometimes been a major player in, international conversations that have helped
give meaning to the right to comprehensive health education, including sex
education (especially for women and girls).2 Yet since 1981, the federal government has espoused a contradictory viewpoint on sex education within its
borders, providing millions of federal dollars each year only to programs that
follow a narrow abstinence-only-until-marriage curricula.3 These federally funded
programs vary widely in their content, but many of them contain false or
questionable scientific assertions,4 outdated gender stereotypes,5 and controver-
1. See generally JEFFREY P. MORAN, TEACHING SEX: THE SHAPING OF ADOLESCENCE IN THE 20TH
CENTURY (2000); MARJORIE HEINS, The Ideological Minefield: Sexuality Education, in NOT IN FRONT OF
THE CHILDREN: “INDECENCY,” CENSORSHIP, AND THE INNOCENCE OF YOUTH 137 (2001).
2. See, e.g., Madeline K. Albright, The Fourth World Conference on Women, SAIS REV. OF INT’L
AFF., Winter–Spring 1996, at 145, 148 (“The Platform [for Action agreed to at the Fourth World
Conference on Women] calls for a comprehensive approach and improved access to health care and
education for women of all ages. The U.S. delegation, in particular, played a leading role in encouraging a life span approach to health. Specific issues addressed included . . . reproductive health . . . .”); id.
at 151 (“[T]he United States went to Beijing and participated, actively, forcefully, and proudly in
shaping an agenda for action”); Hillary Rodham Clinton, First Lady of the United States, Remarks for
the United Nations Fourth World Conference on Women (Sept. 5, 1995), available at http://www.un.org/
esa/gopher-data/conf/fwcw/conf/gov/950905175653.txt (“As an American, I want to speak up for
women in my own country. . . . It is time for us to say here in Beijing, and the world to hear, that it is no
longer acceptable to discuss women’s rights as separate from human rights.”).
3. See infra Part II.B. For the sake of comparison, for fiscal year 2006 the President proposed to
devote roughly four times the amount of funding to abstinence-only programs as to the following: grant
programs expanding access to advanced placement courses for low-income students; grants to local
educational agencies and community-based organizations for mentoring programs serving at-risk youth
under the “safe and drug-free schools and communities” program; and grant programs to recruit
mid-career professionals and recent college graduates as teachers in high-need schools under the
“transition to teaching” program. Compare OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT,
BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2006 app. at 349–50, available at http://
www.whitehouse.gov/omb/budget/fy2006/pdf/appendix/edu.pdf, with Office of Mgmt. & Budget, Supporting a Compassionate Society, http://www.whitehouse.gov/omb/budget/fy2006/compassion.html
(stating that the 2006 budget provides for more than $206 million for abstinence-only activities).
4. See, e.g., Sexuality Information & Education Council of the United States (SIECUS) Public
Policy Office, Fact Sheet, In Their Own Words: What Abstinence-Only-Until-Marriage Programs Say
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1981
sial religious or moral messages6—all of which compromise children’s ability
to exercise their legal rights.
Meanwhile, as moral and political disagreements over the appropriate content
of sex education curricula rage on, the importance of the issue from a public
health perspective persists: about half of high school age children have had
sexual intercourse,7 the potential physiological consequences of which are
familiar by now—unintended pregnancy, sexually transmissible infections (STIs),
and HIV/AIDS.8 Because this Note takes a global approach to this problem, it
seems particularly salient to point out that from the international perspective,
the United States lags far behind its peer, developed nations in protecting its
children from these types of consequences.9
Yet even if it were possible to reach political and medical consensus within
the United States on the question of the state’s appropriate role in teaching
children about sex,10 the legal issues affecting sex education would remain
(2005), http://www.siecus.org/policy/in_their_own_words.pdf (“AIDS can be transmitted by skin-toskin contact.” (quoting MAUREEN GALLAGHER DURAN, REASONABLE REASONS TO WAIT, Teacher’s Guide,
Unit 5 at 19 (rev. 2002–03))). As the SIECUS fact sheet goes on to explain, HIV “can be transmitted
only through direct exchange of bodily fluids such as blood, semen, vaginal secretions, or breast milk.”
Id.
5. See, e.g., id. (“A guy who wants to respect girls is distracted by sexy clothes and remembers her
for one thing. Is it fair that guys are turned on by their senses and women by their hearts?” (quoting
COLEEN KELLY MAST, SEX RESPECT: THE OPTION OF TRUE SEXUAL FREEDOM, Student Workbook at 94
(2001))).
6. See, e.g., id. at 3 (“The only safe sex is in a marriage relationship where a man and a woman are
faithful to each other for life.” (quoting SCOTT PHELPS & LIBBY GRAY, AVOIDING THE PENALTIES: A.C.
GREEN’S GAME PLAN ABSTINENCE PROGRAM 38 (2001))). Although this Note does not focus on the issue
of gay rights and sex education, fortunately there has been some discussion of the ways in which
abstinence-only programs send damaging, discriminatory messages to both lesbian, gay, bisexual and
transgender (LGBT) youth and to children of LGBT adults. See generally Nancy Tenney, The
Constitutional Imperative of Reality in Public School Curricula: Untruths About Homosexuality as a
Violation of the First Amendment, 60 BROOK. L. REV. 1599 (1995); Advocates for Youth, Abstinence-OnlyUntil-Marriage Education: Abandoning Responsibility to GLBTQ Youth, http://www.advocatesfor
youth.org/PUBLICATIONS/safespace/abstinenceonly.htm (last visited Feb. 21, 2007); The Clara Bell
Duvall Project, ACLU-PA, Abstinence-Only Education Harms LGBT Youth, available at www.aclupa.
org/downloads/lgbt.pdf.
7. Ctrs. for Disease Control & Prevention, Dep’t of Health & Human Servs., Youth Risk Behavior
Surveillance—United States, 2005, MORBIDITY & MORTALITY WEEKLY REP., June 9, 2006, at 19, 78
tbl.44.
8. Recent congressional findings confirm the high rates of such health outcomes and social costs
arising from them. See Prevention First Act, S. 21, 110th Cong. § 2(5) (2007) (“In 2005, there were
approximately 19,000,000 new cases of sexually transmitted diseases, almost half of them occurring in
young people ages 15 to 24. According to the CDC, these sexually transmitted diseases impose a
tremendous economic burden with direct medical costs as high as $14,100,000,000 per year.”); see also
Ctrs. for Disease Control & Prevention, supra note 7, at 2 (estimating that each year there are 831,000
pregnancies among fifteen to nineteen year-old women).
9. See Prevention First Act, supra note 8, §§ 2(2), (5) (noting that “the United States still has one of
the highest rates of unintended pregnancies among industrialized nations” and “the highest rate of
infection with sexually transmitted diseases of any industrialized country”).
10. It is far from clear that such a consensus would actually be possible. See Jan de Groof, Foreword
to CHILDREN, EDUCATION AND HEALTH: INTERNATIONAL PERSPECTIVES ON LAW AND POLICY, at viii, ix
(Neville Harris & Paul Meredith eds., 2005) (noting that “[t]here is little common ground between”
1982
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
thorny. Indeed, the legal complications embedded in this issue exist, at least in
part, because the sex education debate lies at the fault line of a potentially sharp
conflict between rights and obligations familiar in U.S. education law.11 These
legal questions are even further complicated by the fact that discussions touching on sex and sexuality implicate important liberty concerns.12 But although
there are sources of domestic and international law that articulate the independent rights of children,13 in U.S. law, a child’s interest in her own education is
not nearly as well-established as the interests of her parents and the state.14 This
those who contest the validity of the role of schools in sex education and those who favor a robust role
for sex education in public schools).
11. Indeed, the leading cases in the area of education law demonstrate that the interests of the state,
parents, and children can and often do conflict with one another. See generally Pierce v. Soc’y of
Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923). Thus, figuring out how
to balance potentially competing ideas and interests becomes a key problem in thinking about the legal
dimensions of the sex education debate. One way to think about the clash between legal rights and
obligations is to consider which rights or interests have the power to trump others; that is, in the event
that the interests or preferences of one or more parties diverge—such as parents and children or parents
and the state—we might want to ask which party should prevail.
12. See, e.g., Lawrence v. Texas, 539 U.S. 558, 562 (2003) (noting that “[l]iberty presumes an
autonomy of self that includes . . . certain intimate conduct”); id. at 567 (“When sexuality finds overt
expression in intimate conduct with another person, the conduct can be but one element in a personal
bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the
right to make this choice.”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)
(explaining that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . involv[e] the most intimate and personal choices a person may
make in a lifetime,” are “choices central to personal dignity and autonomy,” and as such “are central to
the liberty protected by the Fourteenth Amendment”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)
(stressing that the right to privacy protected by the Due Process Clause encompasses “the right of the
individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child”).
13. Probably the most robust of these legal protections is the United Nations Convention on the
Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 43 [hereinafter CRC]. That this treaty came into
being relatively recently is quite consistent with one of the main themes of this Note—that legal
systems across the globe, including the United States, have paid insufficient attention to the rights and
interests of minors.
14. Indeed, in both domestic and international law, it is widely recognized that parents have an
interest in maintaining and a right to exercise some degree of control over their children’s education.
See, e.g., Pierce, 268 U.S. at 534–35 (holding that parents have a liberty interest that includes the right
to send their children to private school); Meyer, 262 U.S. at 400 (holding that a law prohibiting the
teaching of foreign languages in schools infringed on parents’ rights to direct the education of their
children); Kjeldsen v. Denmark, 23 Eur. Ct. H.R. (ser. A) 25 (1976) (recognizing the interest of parents
in children’s education but upholding school’s compulsory sex education program); CRC, supra note
13, art. 5 (recognizing that “States Parties shall respect the responsibilities, rights and duties of
parents”). Likewise, U.S. law has long acknowledged that the government has an interest in the
education of its citizens. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44 (1973)
(recognizing the value of independent, local control over schools); Pierce, 268 U.S. at 534; Meyer, 262
U.S. at 402; see also Charles Glenn, Enlightenment and Trust: The Debate Over Sex Education in the
United States, in CHILDREN, EDUCATION AND HEALTH: INTERNATIONAL PERSPECTIVES ON LAW AND POLICY
85, 86–87 (Neville Harris & Paul Meredith eds., 2005) (discussing the emphasis civic education once
played in schools and arguing that this emphasis has waned). More recently, international human rights
treaties have also recognized that parties to those treaties have an obligation to make education
available, and that that education must meet certain internationally accepted standards. See, e.g., CRC,
supra note 13, arts. 28–29; United Nations Convention on the Elimination of All Forms of Discrimina-
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1983
Note starts from the premise that children have an independent interest in their
education— regardless of the prerogatives of either the state or their parents15
—because the quality and content of children’s education will profoundly affect
them as individuals throughout their lives.16 Building on the argument that
insufficient attention has been paid to U.S. minors’ rights, especially in the area
of sex education,17 the remainder of this Note’s analysis will focus on the rights
of the child to sex education on the one hand, and the obligations of the
government to respect, protect, and fulfill those rights on the other.18
This Note seeks to address the question of whether the legal rights of minors
dictate a particular policy outcome with respect to what kind of sex education
may be taught in schools. To think about this question in the U.S. context, this
Note will examine whether international human rights law places on the United
tion Against Women art. 10, Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW]; United Nations
International Covenant on Economic, Social and Cultural Rights art. 13, Dec. 16, 1966, 993 U.N.T.S. 3
[hereinafter ICESCR].
15. If one assumes that both the parents’ and the state’s interests will always be aligned with the
child’s, it might make sense that the child’s interest in education would be less important to articulate in
law. But it is easy to imagine a myriad of situations in which the child’s interest would diverge from
either the parents, the state, or both. See also infra note 18.
16. See, e.g., Hazel Glenn Beh & Milton Diamond, The Failure of Abstinence-Only Education:
Minors Have a Right to Honest Talk About Sex, 15 COLUM. J. GENDER & L. 12, 50–51 (2006) (“It is
particularly compelling to change the focus in education cases from parental rights and state interests to
the needs and rights of children because of the lifelong impact of educational choices on children.”);
Deena Haydon, Children’s Rights to Sex and Sexuality Education, in THE NEW HANDBOOK OF CHILDREN’S
RIGHTS: COMPARATIVE POLICY AND PRACTICE 182, 191–94 (Bob Franklin ed., 2002) (criticizing the
dominant method of sex education policy development, which “excludes children” and “is based on
adult perceptions rather than children’s knowledge and feelings”).
17. See Beh & Diamond, supra note 16, at 49 (“In conflicts regarding the education of children,
court battles have traditionally focused on the clash between the parental right to raise children and the
state’s interest in preparing children for their role in a democratic society, with children’s rights often
taking a backseat in such disputes. . . . The highly charged nature of the fight between parents and the
state concerning sexual matters in particular makes it easy to neglect the distinct and significant rights
of the minor in procreative and self-actualizing decisions.”); Haydon, supra note 16, at 191–94.
18. The questions of how parents’ and children’s rights may diverge in discussions about sex
education and whose rights should prevail in such a situation are both deeply interesting and difficult to
resolve. On the one hand, parents’ rights to rear their children and participate in decisions about their
children’s education are well-established in both domestic and international law. See supra note 14 and
accompanying text. On the other hand, children—especially adolescents—are likely to seek out
information about sex and sexuality, and may well have strong preferences about whether or not they
should be able to receive it in school. Although international legal sources recognize the children’s
interest in their education, see CRC, supra note 13, arts. 28–29, U.S. law is unclear about whose
preferences would prevail in the event of a disagreement about whether an adolescent should be able to
pursue a course in sex education over the objection of a parent. Although these issues are important to
resolve and likely to arise, the remainder of this Note shall put aside the potential for a clash between
the rights of parents and children. Instead, the baseline assumption will be that the interests of parents
and children are aligned, and that both parties desire a state-sponsored sex education curriculum that
incorporates medically accurate, unbiased information about sex and sexuality. The reason for creating
these assumptions are self-conscious (and perhaps self-evident): pitting the sex-education seeking
parent and child against the state makes it possible to put aside at least some of the inevitable concerns
that arise when considering how decisions about sex education are made and who has the right to make
them. Thus, by aligning the parent and children, we may focus entirely on the government’s role in sex
education.
1984
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
States any obligations to provide sex education, and if so, whether principles of
international law constrain the kind of sex education that the U.S. government
may provide. I will argue that through its current policy of funding abstinenceonly education, the federal government is violating its obligations to respect
minors’ human rights to health, freedom of information, and equal treatment.
Part I will provide context for the discussion by briefly commenting on what is
at stake in the debate over what children should be taught about sex and will
explain the current status of federal support for sex education in the United
States. Part II will suggest that because of inadequate and inconsistent protections for minors in current U.S. constitutional law, it may be more fruitful to
examine international legal principles instead of, or in addition to, domestic law.
Part III will discuss various international human rights principles that can be
brought to bear in a discussion of minors’ rights to sex education. Finally, Part
IV will propose some ways in which a careful examination of international
human rights law can help to provide a framework for resolving the debate
about sex education in the United States that is at once more attentive to and
respectful of minors’ legal rights.
I. CURRENT EVENTS: SEX EDUCATION IN THE UNITED STATES
Before discussing the relevant domestic and international law governing sex
education, it is necessary to understand the basic state of affairs as it currently
exists in the United States. This Part will give a brief introduction to the major
points of contention that currently exist with respect to the provision of sex
education in the United States. In addition, this Part will briefly summarize
current federal laws and policies governing sex education.
A. THE PARAMETERS OF THE CURRENT DEBATE OVER SEX EDUCATION
The stakes of the current sex education debate are high. Indeed, discussions
about what children should be taught and who should teach it are almost
inseparable from concerns about high rates of teen pregnancy, abortion, STIs,
and HIV/AIDS.19 Yet despite widespread agreement that teenagers are at continuous risk because of sexual behavior, there is little consensus about how best to
approach sex education in U.S. classrooms. Three interrelated questions often
crop up in discussions about sex education, and attempts to answer them both
highlight some of the profoundly divergent worldviews implicated by the sex
education debate and also suggest that attention to international human rights
might prove a useful legal framework for structuring sex education curricula.
First of all, any discussion of sex education necessarily entails addressing the
question of what, exactly, children should learn about sex and sexuality. Although some people still dispute whether public schools are an appropriate
19. See supra notes 7–8 and accompanying text.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1985
forum for teaching children anything about sex and sexuality,20 for the past
thirty or so years—especially since the rise of the HIV/AIDS epidemic—much
of the conflict over sex education in the United States has been about the
appropriate content of sex education curricula rather than the appropriate forum.21 The general acceptance of publicly-funded sex education in the United
States suggests that Americans agree with the growing international consensus
that governments have an obligation to provide for the health education of its
citizens.22 To the extent that this is true, there is also good reason to look at
international sources of law to develop the content of that curriculum when
policy debates stall—which they appear to have done in the United States.
The crux of the current policy debate centers on two different, potentially
diametrically opposed types of curricula: abstinence-only-until-marriage (abstinence-only) education23 and comprehensive sexuality education.24 Although the
20. As Jan de Groof has recently noted,
It is by no means universally accepted . . . that schools have a legitimate role in the provision
of sex education at all: many parents would take the view in all sincerity that the provision of
sex education and counseling over issues of sexuality should be carried out exclusively within
the family. . . . Many, on the other hand, would take the view that schools should play a most
important role in . . . giving [children] the widest possible range of educational experience
consistent with a balanced, objective and critical presentation of issues.
De Groof, supra note 10, at ix; see also Rebecca J. Cook, Human Rights and Reproductive SelfDetermination, 44 AM. U. L. REV. 975, 1005 (1995) (“Including reproductive health information in
school curricula can be a matter of profound controversy because teachers may explain sexual functions
in a way parents oppose, at a time that parents consider premature, or with the effect of causing children
to ask questions at home with which parents are uncomfortable.”).
21. One historian attributes this shift in the terms of the debate over sex education to the rise of the
AIDS epidemic. See MORAN, supra note 1, at 212–13 (“By the late 1980s, many conservatives
recognized that AIDS had transformed the question of whether or not the schools should offer sex
education into the question of what kind of sex education they should present.”). It is important to
recognize, however, that although sex education is often taught in public middle and high schools,
much of the federal funding for abstinence-only education is going to community-based programs, such
as after-school programs, faith-based organizations, and other extracurricular programs. See infra note
41 and accompanying text.
22. See infra Part III.A (discussing international sources of law and policy that require governments
to protect their citizens’ rights to health and health-related information).
23. A recent report by the Government Accountability Office defined abstinence-only education as
programs that “teach adolescents to abstain from sexual activity until marriage in order to avoid risks of
unintended pregnancy, STDs, and related health problems.” U.S. GOV’T ACCOUNTABILITY OFFICE,
ABSTINENCE EDUCATION: EFFORTS TO ASSESS THE ACCURACY AND EFFECTIVENESS OF FEDERALLY FUNDED
PROGRAMS 1 (2006) [hereinafter GAO REPORT].
24. One of the leading American organizations that supports comprehensive sexuality education
described their position on sex education in this way:
All people have the right to comprehensive sexuality education that addresses the biological, sociocultural, psychological, and spiritual dimensions of sexuality from the cognitive
domain (information), the affective domain (feelings, values, and attitudes), and the behavioral domain (communication and decision-making skills).
...
Comprehensive school-based sexuality education that is appropriate to students’ age, developmental level, and cultural background should be an important part of the education program
at every grade. A comprehensive sexuality program will respect the diversity of values and
1986
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
details of sex education curricula vary from school to school and from program
to program, these two types of curricula are somewhat self-explanatory: abstinence-only curricula tend to focus almost exclusively on teaching minors to
abstain from sexual activity until marriage; comprehensive curricula teach
minors about abstinence as simply one way to prevent pregnancy and STIs, and
also provide more detailed information about issues pertaining to sex, contraception, abortion, and sexuality.25
However, the fact that there are only two main types of curricula at play in
the current debate over sex education policy obscures not only the wide
spectrum of opinion about what children should learn about sex, but also the
wide spectrum of opinion about precisely why they should learn it. Examining
the various rationales behind the goals of sex education uncovers both the
source of sex education debates and the profound depth of disagreement on this
issue. Some people believe that sex education should teach children only basic
biological facts about reproduction and avoid contested moral and ethical
questions. Indeed, one author questions whether in teaching anything beyond
basic biology it is even “possible to arrive at a genuinely authentic or definitely
objective conclusion regarding the true nature and purpose of human sexuality.”26 Many proponents of comprehensive sex education, however, believe that
sex and sexuality education has deep implications for freedom and liberty. For
example, in 1968, the founder of the Sex Information and Education Council of
the United States (SIECUS) wrote that the goals of sex education should be to
provide “the kind of knowledge and opportunity for learning and discussion that
will develop the ability of young people to make rational and responsible
decisions in their personal lives.”27 Still others believe that sex education’s only
legitimate goal is to discourage adolescents from engaging in sexual activity
until marriage.28 These disagreements over the appropriate purpose of sex
beliefs represented in the community and will complement and augment the sexuality
education children receive from their families, religious and community groups, and health
care professionals. Because child development involves sexuality, all pre-kindergarten through
twelfth-grade teachers should receive at least one course in human sexuality.
Sexuality Information and Education Council for the United States (SIECUS), Position Statements,
Sexuality Education & School-Based Sexuality Education, http://www.siecus.org/about/abou0001.html
(last visited Nov. 25, 2006).
25. This description is necessarily over-simplified. For a more in-depth explanation and exploration,
see, for example, Beh & Diamond, supra note 16, at 25–38; Julie Jones, Money, Sex, and the Religious
Right: A Constitutional Analysis of Federally Funded Abstinence-Only-Until-Marriage Sexuality Education, 35 CREIGHTON L. REV. 1075, 1076–86 (2002).
26. ALEXANDER MCKAY, SEXUAL IDEOLOGY AND SCHOOLING 8 (1999), quoted in Glenn, supra note 14,
at 93.
27. Glenn, supra note 14, at 95 (quoting Mary Calderone, founder of SIECUS).
28. Note that this viewpoint has been codified into federal law. See 42 U.S.C. § 710(b)(2) (2000);
infra text accompanying note 44; see also ADMIN. FOR CHILDREN & FAMILIES, DEP’T OF HEALTH & HUMAN
SERVS., FUNDING OPPORTUNITY NO. HHS-2006-ACF-ACYF-AE-0099 (2006) (explaining that “[s]ex
education programs that promote the use of contraceptives are not eligible for funding under” this
Community-Based Abstinence Program).
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1987
education reveal underlying assumptions and beliefs about the appropriate role
for values within this type of curricula.29 Yet by marshalling international
protections of minors’ human rights, it is possible to consider whether, regardless of the debate over values, minors’ legal rights dictate either a certain type of
sex education or at least a minimum amount of information.30
At some level, however, one might expect the outcome of debates about sex
education to turn not on moral values but rather on effectiveness. In other
words, one of the seemingly pressing questions in the debate over sex education
is: What works? On the one hand, framing the question in this way belies the
fact that evaluating the effectiveness of a particular type of sex education
throws us back into the mire of determining the goals and purposes of sex
education. Nevertheless, even if we could agree that, at least in its narrowest
form, a primary goal of sex education should be to reduce the rates of unwanted
teenage pregnancy and STIs, there is still disagreement about what kind of sex
education actually produces these results. Indeed, attempts at gathering data and
analyzing the effectiveness of sex education programs have yet to create
consensus among scientists, scholars, or citizens about what kind of sex education works best.31 In the future, perhaps it will be possible to provide an
objective, medically grounded answer to the question of what type of sex
education program most effectively prevents negative health outcomes for
teens.32 But despite the value of scientific data, these kinds of conclusions
29. See MCKAY, supra note 26, at 7, quoted in Glenn, supra note 14, at 93 (describing divergent
viewpoints about sex education as “not trivial differences of opinion but rather represent[ative of] a
clash of opposing systems of belief about the nature of the world and humankind”).
30. Indeed, the analysis in this Note will suggest that the principles of liberty and freedom inherent
in a free society do point to a particular legal conclusion with respect to sex education, and that a
recognition of minors’ human rights requires that we teach them more than simply abstinence-only
education. See infra Part III.
31. Compare Glenn, supra note 14, at 99 (citing a study indicating that teen pregnancy rates in the
United States increased when comprehensive sex education became widespread), with SPECIAL INVESTIGATIONS DIV., U.S. HOUSE OF REPRESENTATIVES, THE CONTENT OF FEDERALLY FUNDED ABSTINENCE-ONLY
EDUCATION PROGRAMS 4 (2004) [hereinafter WAXMAN REPORT] (citing studies that suggest abstinenceonly education “do[es] not show any overall effect on sexual behavior or contraceptive use” (quoting
DOUGLAS KIRBY, SUMMARY, EMERGING ANSWERS: RESEARCH FINDINGS ON PROGRAMS TO REDUCE TEEN
PREGNANCY 18 (2001), www.teenpregnancy.org/resources/data/pdf/emeranswsum.pdf)), and GAO REPORT, supra note 23, at 31–39 (explaining why most efforts to evaluate the effectiveness of abstinenceonly programs “have not met certain minimum criteria that . . . are necessary in order for assessments
of program effectiveness to be scientifically valid”).
32. To date, attempts to evaluate abstinence-only programs have not shown that they are effective in
altering teenage sexual behavior. See Sexuality Information and Education Council of the United States
(SIECUS), Public Policy Office, Fact Sheet, What the Research Says . . . (2006), www.siecus.org/policy/
research_says.pdf (citing to and reporting on the results of several state studies that found abstinenceonly programs had limited or no effect on teenage sexual behavior); cf. infra note 47 and accompanying
text (discussing GAO Report that criticized the lack of empirically valid evaluations of abstinence-only
programs). Even more recently, a congressionally mandated study found that students who participated
in federally funded abstinence-only programs were “just as likely to have sex as those who did not” and
that these students have similar numbers of sexual partners and initiate sexual intercourse at roughly the
same age as their non-abstinence-schooled peers. Kevin Freking, Study: Abstinence Classes Don’t Stop
Sex, ASSOCIATED PRESS, Apr. 14, 2007; see generally CHRISTOPHER TRENHOLM ET AL., MATHEMATICA
1988
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
would likely not resolve the political debate. Rather, deep rifts about the
appropriate role of sex education in the development of minors are likely to
persist. However, the later Parts of this Note will suggest that international
human rights law can provide structure for developing sex education programs
consistently with the widely shared goal of creating curricula that are effective
in protecting and promoting children’s health. First, however, a brief canvass of
the current federal law and policy on sex education is in order.
B. THE FEDERAL GOVERNMENT’S ROLE IN THE SEX EDUCATION DEBATE
Although control over American education is largely left to states and
localities, the federal government has long been involved in attempts to educate
Americans about sex.33 In the past few decades, the U.S. government has
entered the thicket of the sex education debate to provide federal support for a
particular viewpoint, providing substantial funding for sex education programs
that exclusively teach abstinence-only education.
In 1981 Congress passed the Adolescent Family Life Act (AFLA), and for the
first time in American history made federal funding available for abstinenceonly sex education programs.34 This federal support increased significantly in
1996 when, as part of a comprehensive welfare reform initiative,35 Congress
amended the Social Security Act to include Title V, Section 510 (Title V), which
drastically increased federal funding for abstinence-only education.36 To receive
funding under Title V, states apply to the federal government for funds that are
then distributed to organizations—including schools, community-based organizations of various kinds, and faith-based organizations—that apply for direct
grants.37 Under this program, states must provide matching funds (three nonfederal dollars for every four federal dollars) to receive federal support.38 Title
V programs receive up to fifty million dollars per year.39
POLICY RESEARCH, INC., IMPACTS OF FOUR TITLE V, SECTION 510 ABSTINENCE EDUCATION PROGRAMS: FINAL
REPORT (2007), available at http://www.mathematica-mpr.com/publications/PDFs/impactabstinence.pdf
(presenting the results of “a multi-year, experimentally-based impact study” that focused on four
federally funded abstinence-only programs).
33. See generally MORAN, supra note 1 (tracing the evolution of sex education in the United States
from the late nineteenth century to the present and discussing federal involvement at various points in
history).
34. See 42 U.S.C. § 300z (2000). Under this program, the U.S. government provides “competitive
grants to public or private nonprofit organizations or agencies, including community-based and
faith-based organizations, to facilitate abstinence-until-marriage education in a variety of settings,
including schools and community centers.” GAO REPORT, supra note 23, at 11.
35. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193,
110 Stat. 2105.
36. See id. § 912, 110 Stat. at 2353–54 (codified at 42 U.S.C. § 710 (2000 & Supp. III 2003)).
37. See Jones, supra note 25, at 1082.
38. Maternal and Child Health Bureau, U.S. Dep’t of Health & Human Servs., SPRANS CommunityBased Abstinence Education Project Grant Program, ftp://ftp.hrsa.gov/mchb/abstinence/cbofs.pdf (last
visited Nov. 28, 2006) [hereinafter SPRANS-CBAE Program].
39. See TRENHOLM ET AL., supra note 32, at xiii (observing that because of the seventy-five percent
matching requirement, Title V programs actually receive $87.5 million per year).
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1989
However, by far the largest amount of federal funding for abstinence-only
education comes from a program initiated in 2000 called Special Programs of
Regional and National Significance—Community-Based Abstinence Education
(SPRANS-CBAE)40 and administered by the Department of Health and Human
Services (HHS). The main differences between this program and Title V are that
(1) instead of having to go through the states, community-based organizations
are able to apply directly for grants under CBAE, and (2) CBAE funding is
increasing at a faster rate than Title V.41 By fiscal year 2004, CBAE “had over
100 grantees and a budget of $75 million,” and by “fiscal year 2005, $104
million [was] appropriated, an increase of more than 30%.”42 All told, the
federal government is dedicating more than 150 million federal dollars to
abstinence-only education programs each year, an amount that has more than
doubled since 2001.43
To qualify for funding under Title V or CBAE, an abstinence education
program is required to follow eight guidelines. Among those requirements, an
abstinence program funded by the federal government must:
(A) ha[ve] as its exclusive purpose, teaching the social, psychological, and
health gains to be realized by abstaining from sexual activity;
(B) teach[] abstinence from sexual activity outside marriage as the expected
standard for all school age children;
(C) teach[] that abstinence from sexual activity is the only certain way to
avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other
associated health problems;
(D) teach[] that a mutually faithful monogamous relationship in context of
marriage is the expected standard of human sexual activity;
(E) teach[] that sexual activity outside of the context of marriage is likely to
have harmful psychological and physical effects; [and]
(F) teach[] that bearing children out-of-wedlock is likely to have harmful
consequences for the child, the child’s parents, and society.44
These requirements demonstrate that the U.S. government has not only been
participating in the debate over sex education, but has emerged as a strong,
powerful voice for abstinence-only education.
Apart from these conceptual mandates, the Administration of Children and
Families (ACF), the department of the Executive Branch responsible for dispersing both Title V and CBAE funds, “does not review its grantees’ education
40. This program is often referred to as SPRANS or CBAE, but usually not both. The remainder of
this Note will refer exclusively to “CBAE,” with the understanding that although some of the cited
sources use “SPRANS,” both acronyms refer to the same federal grant program.
41. See WAXMAN REPORT, supra note 31, at 3; SPRANS-CBAE Program, supra note 38.
42. WAXMAN REPORT, supra note 31, at 2.
43. Id. at 1; see also Freking, supra note 32 (reporting that the federal government spends “about
$176 million annually” on abstinence-only education).
44. 42 U.S.C. § 710(b)(2) (2000).
1990
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
materials for scientific accuracy and does not require grantees of either program
to review their own materials for scientific accuracy.”45 In fact, ACF has only
recently begun to require CBAE recipients to submit their educational materials
with their grant applications, and even then ACF reviews the curricula only to
ensure that the program addresses all of the abstinence education parameters
described above.46 In October 2006, a report by the Government Accountability
Office (GAO) expressed concern about the lack of scientific evaluation of
federally funded abstinence-only education programs and suggested that the
Secretary of HHS should develop procedures to ensure the scientific accuracy of
such programs.47
Given the significant role of the federal government in funding sex education
programs across the United States and the lack of oversight of those programs, a
legal analysis of the federal government’s role in the sex education debate is
warranted. The next Part will briefly consider the legal dimensions of the
federal government’s involvement in abstinence-only education from a domestic perspective and conclude that international human rights law may provide a
useful alternative framework for engaging in rigorous legal critique of the
federal government’s current sex education policy.
II. DOMESTIC LEGAL PROTECTION FOR SEX EDUCATION AND THE VALUE OF
CONSULTING INTERNATIONAL HUMAN RIGHTS LAW
Attempts to apply international human rights norms in the United States are
often met with resistance and skepticism, so it is important to clarify at the
outset why this Note turns to international law in the sex education context.
This Part will articulate the value that international human rights have in
dictating both binding and persuasive legal answers to the sex education debate.
Furthermore, this Part will propose reasons why international law can help to
give more meaningful content to U.S. legal protections for minors’ rights to sex
education.
A. INTERNATIONAL LAW IN THE U.S. CONTEXT: WHY BOTHER?
International human rights norms prove important when debating sex education for a number of reasons. First, some sources of international law are legally
binding upon the United States. Most important for the purposes of this Note’s
analysis are multilateral treaties that deal broadly with civil rights, minors’
rights, and women’s rights—all of which are implicated in discussions of the
role of the federal government in sex education. While the United States is a
State Party to only one multilateral treaty that bears directly on the issue of sex
45. GAO REPORT, supra note 23, at 5. By contrast, the administrative office in charge of grants under
AFLA—which accounts for the smallest amount of federal funding—does screen the funded curricula
for medical accuracy. See id. at 5.
46. Id. at 14.
47. See id. at 39–40.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1991
education,48 as a signatory to a number of additional relevant treaties the United
States is prohibited from defeating the objects and purposes of those agreements.49 In particular, three treaties—the U.N. Convention on the Rights of the
Child (Children’s Convention), the U.N. Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW), and the U.N. International
Covenant on Civil and Political Rights (ICCPR)—provide a useful framework
for considering the federal government’s50 obligations under international law
with respect to the funding of particular sex education programs.51
As a more general matter, international human rights are useful as a set of
aspirational principles that provide a normative structure from which to think
about a debate that has become characterized by ideological entrenchment.
Although reference to international law may not be able to create true political
consensus, as a signatory to many international human rights treaties and a State
Party to others, the United States has—at the very least—a moral obligation to
uphold the objects and purposes of international human rights.52 With this in
mind, and with reference to international legal sources, it should be possible to
determine whether the current federal funding regime contravenes internationally accepted notions of minors’ rights to health and equal rights. If federally
funded abstinence-only programs do conflict with international norms, then
reference to those norms can buttress the argument that either American policy,
law, or both, should change to acknowledge and accommodate these rights.53
Furthermore, reference to international human rights is worthwhile because
the United States has argued that American law already protects the sum and
substance of international human rights.54 If this claim is true, then advocates
should be able to marshal domestic law to ensure that minors’ human rights gain
adequate protection under U.S. law—either through statutory law or constitutional protections. Indeed, as one scholar has noted, “the principles in [international law] provide an important benchmark against which the substance of
48. See generally United Nations International Covenant on Civil and Political Rights, Dec. 16,
1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. The United States ratified the ICCPR on June 8, 1992.
See Office of the United Nations High Commissioner for Human Rights, International Covenant on
Civil and Political Rights, Ratifications and Reservations, http://www.ohchr.org/english/countries/
ratification/4.htm.
49. See Vienna Convention on the Law of Treaties art. 18, May 23, 1969, 1155 U.N.T.S. 331
[hereinafter Vienna Convention].
50. Although the issue of states’ obligations under international law is an interesting one, because
this Note takes up the issue of federal funding of abstinence-only education, I focus mostly on the
federal government’s obligations vis-a-vis international legal instruments. State involvement in the sex
education debate does, however, come into play infra Part IV.B.3.
51. See generally CRC, supra note 13; CEDAW, supra note 14; ICCPR, supra note 48; see also
ICESCR, supra note 14.
52. See Vienna Convention, supra note 49.
53. Indeed, the Supreme Court has used international law in this way. See infra notes 59–67 and
accompanying text.
54. See Denise Gilman, Calling the United States’ Bluff: How Sovereign Immunity Undermines the
United States’ Claim to an Effective Domestic Human Rights System, 95 GEO. L.J. 591, 600–03 (2007).
1992
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
domestic law may be evaluated.”55 Yet it is by no means a forgone conclusion
that U.S. law, as it is currently formulated, protects minors’ human rights as
strongly as do the human rights treaties that the United States has signed and
ratified.56 If domestic legal protections do not adequately protect minors’ rights,
then the United States must seek to resolve a fundamental inconsistency:
between its recognition of human rights norms through its participation in the
international legal community and its claim that domestic law adequately
protects its minor citizens’ human rights on the one hand, and the reality of U.S.
legal protection of minors’ human rights on the other. International human
rights norms can thus help to further develop domestic law. Indeed, if an
analysis of international human rights shows, which this Note argues that it
does, that federal funding of abstinence-only education violates minors’ rights
to health, freedom of information, and equal treatment, then in order to maintain
coherency U.S. law must change to accommodate those rights.57 Indeed, the
analysis presented here will suggest that although past legal challenges to
federally funded abstinence-only programs have focused almost exclusively on
the Establishment Clause,58 there are powerful, untapped legal arguments against
these programs that rely instead on the rights to equality, information, and
liberty—and that these arguments can and should be shaped with reference to
55. Andrew Bainham, Sex Education: A Family Lawyer’s Perspective, in CHILDREN, SEX EDUCATION,
LAW: EXAMINING THE ISSUES 24, 32–33 (Neville Harris ed., 1996).
56. Perhaps the most obvious example of this comes through the right to education—a right
obviously relevant to this Note. Whereas numerous human rights treaties protect the right to education
as fundamental, the Supreme Court has explicitly rejected the idea that the U.S. Constitution protects
such a right. Compare ICESCR, supra note 14, art. 13(1) (“[E]ducation shall be directed to the full
development of the human personality and the sense of its dignity . . . [and] shall enable all persons to
participate effectively in a free society.”); Universal Declaration of Human Rights art. 26(2), GA Res.
217A, at 76, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) (“Education shall
be directed to the full development of the human personality and to the strengthening of respect for
human rights and fundamental freedoms.”); and CRC, supra note 13, art. 29(d) (“[T]he education of the
child shall be directed to . . . [t]he preparation of the child for responsible life in a free society.”); with
San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among
the rights afforded explicit protection under our Federal Constitution.”). For further discussion of this
theme, see infra notes 70–74 and accompanying text and infra note 82.
57. This Note does not wholeheartedly support the position that the U.S. Constitution, as it is
currently interpreted, protects an affirmative obligation on the part of the federal government to provide
its minor citizens with comprehensive sex education. See Cynthia Price Cohen, Children’s Rights: An
American Perspective, in THE HANDBOOK OF CHILDREN’S RIGHTS: COMPARATIVE POLICY AND PRACTICE 163,
165 (Bob Franklin ed., 1995) (noting that “[t]he American understanding of rights can best be described
as claims by citizens for protection from undue interference by the State. It does not include claims by
citizens for benefits or services.”). Rather, the claim is simply that it may be possible to recognize a
negative constitutional obligation against funding abstinence-only education, and that it is certainly
possible to develop an affirmative obligation to provide more comprehensive sex education under
federal statutory law.
58. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 622 (1988) (upholding AFLA against a facial
challenge based on the Establishment Clause); Complaint, Am. Civil Liberties Union of Mass. v.
Leavitt (D. Mass. filed May 16, 2005), available at http://www.aclu.org/FilesPDFs/teeneducomplaint.
pdf (alleging an Establishment Clause violation by officials of the Department of Health and Human
Services for funding the “Silver Ring Thing,” an abstinence-only program that purportedly contained
religious messages).
AND THE
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1993
international legal principles.
Two recent examples of U.S. Supreme Court precedents shaped in part by
reference to international law can provide concrete support for the approach
proposed throughout this Note. First, in Lawrence v. Texas59 the Court invalidated an anti-sodomy statute as a violation of the liberty protected by the Due
Process Clause of the Fourteenth Amendment.60 In the course of its analysis, the
Court briefly considered international norms, noting that laws in the United
States which criminalized private homosexual sex contravened these norms:
Other nations . . . have taken action consistent with an affirmation of the
protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an
integral part of human freedom in many other countries. There has been no
showing that in this country the governmental interest in circumscribing
personal choice is somehow more legitimate or urgent.61
Lawrence is thus important not only because the Court reaffirmed the wellestablished principle that U.S. constitutional law protects core sexual rights,62
but also because in doing so, a majority of the Court signaled that international
practice and consensus—even when not binding as law63—may sometimes be
an important consideration in the development of our domestic law.
More recently, the Court considered Roper v. Simmons,64 a case presenting a
claim that the Eighth Amendment’s bar against cruel and unusual punishment
prohibited the execution of criminal defendants who were under the age of
59. 539 U.S. 558 (2003).
60. See id. at 578 (“The petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making their private sexual conduct a crime. Their
right to liberty under the Due Process Clause gives them the full right to engage in their conduct
without intervention of the government.”).
61. Id. at 576–77 (international citations omitted).
62. It is worth pointing out, however, that the Court went out of its way to note that, among other
things, the case did not “involve minors.” Id. at 578. Although this should probably be read merely as
an attempt to limit the decision to the facts presented, it is also consistent with the argument that U.S.
constitutional law generally has not been particularly protective of minors’ rights. See infra Part II.B.
63. To be sure, Justice Kennedy’s language about international consensus was dicta, and the
authorities he cited (cases from the European Court of Human Rights) were necessarily persuasive
rather than binding. Similarly, most of the sources discussed within this Note are persuasive legal
authority—but in some ways it is precisely the Court’s willingness to pay attention to these types of
sources that has made arguments like the ones presented here more readily available.
64. 543 U.S. 551 (2005). Although the discussions of international norms in both Roper and
Lawrence have encountered strong criticism from legal scholars and Supreme Court Justices, see, e.g.,
id. at 622–28 (Scalia, J., dissenting); Lawrence, 539 U.S. at 598 (Scalia, J., dissenting), the cases are
still an important instance of using international law as a reference point for determining the normative
contours of domestic law. This point is made even stronger by the fact that most of the criticism leveled
at Roper and Lawrence was made in the context of constitutional jurisprudence. Although this Note
does not explicitly take a position against using international norms in constitutional interpretation (and
in fact does advocate some form of this approach in Part IV.B.1), many of its recommendations for
reform of sex education law and policy could be accomplished without the use of federal constitutional
litigation. See generally Parts IV.B.2–3.
1994
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
eighteen when the crime was committed.65 Accepting this argument and so
holding, the Court found the examination of international human rights law to
be “instructive for its interpretation of the Eighth Amendment[].”66 Indeed, the
Court discussed the provision in the Children’s Convention that prohibits capital
punishment for minors, finding it relevant that the United States and Somalia
were the only countries that had failed to ratify the treaty.67 Roper is valuable as
an example of international norms carrying weight in U.S. courts, and as an
example of those norms being applied to expand U.S. legal protections for the
rights of minors.
B. LIMITATIONS OF DOMESTIC LAW: UNEVEN CONSTITUTIONAL PROTECTION FOR
MINORS’ RIGHTS
Notwithstanding Roper and the fact that the United States has signed the
Children’s Convention, the prevailing interpretation of U.S. constitutional law is
largely ambivalent with respect to protecting minors’ individual rights. Although a number of landmark Supreme Court decisions have recognized that
minors are protected by the Constitution,68 federal courts have also reiterated
numerous times that the Constitution often permits greater limitations on minors’ rights than it would countenance for similarly situated adults. For example, the Court has granted government authorities discretion to place
restrictions on children’s rights to speech and privacy when the state can show
that the regulation targets minors because of their status as students or “immature” decisionmakers.69
65. See Roper, 543 U.S. at 559–60 (majority opinion).
66. Id. at 575.
67. See id. at 576; see also id. at 578 (“The opinion of the world community, while not controlling
our outcome, does provide respected and significant confirmation for our own conclusions.”).
68. See, e.g., Carey v. Population Servs. Int’l, 431 U.S. 678, 693 (1977) (invalidating a state law that
prohibited distribution of contraceptives to minors and affirming that “the right to privacy in connection
with decisions affecting procreation extends to minors as well as to adults”); Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (declaring that students do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate” and affirming the right
of students to engage in political speech at school); In re Gault, 387 U.S. 1, 27–28, 41 (1967)
(recognizing that due process protections and the constitutional right to counsel extend to a minor in a
juvenile delinquency proceeding).
69. See, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (upholding the partial
censorship of a school newspaper as “reasonably related to legitimate pedagogical concerns”); New
Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (relaxing the constitutional requirements for warrantless
searches in schools because regular procedures would “unduly interfere with the maintenance of the
swift and informal disciplinary procedures needed in the schools”); Bellotti v. Baird, 443 U.S. 622, 634,
647 (1979) (invalidating the parental consent provision in an abortion regulation for failure to meet the
requirements of a judicial bypass procedure, but noting that “the constitutional rights of children cannot
be equated with those of adults [because of] the peculiar vulnerability of children; their inability to
make critical decisions in an informed, mature manner; and the importance of the parental role in child
rearing”); cf. Hutchins v. Dist. of Columbia, 188 F.3d 531, 543–44 (D.C. Cir. 1999) (upholding a
juvenile curfew law against constitutional challenge because it was substantially related to the state’s
interest in protecting vulnerable minors); Qutb v. Strauss, 11 F.3d 488, 496 (5th Cir. 1993) (holding that
a city’s juvenile curfew law was narrowly tailored to the government’s interest in protecting minors).
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1995
Specifically in the realm of education, the Court in San Antonio Independent
School District v. Rodriguez70 rejected the argument that the Constitution
protects a fundamental right to education.71 In Rodriguez the Court considered
an equal protection challenge, brought on behalf of economically disadvantaged
children in Texas, to a state scheme that allocated some money to schools based
on the property taxes of the districts in which the schools were located.72 Noting
that education was not a fundamental right triggering heightened scrutiny, the
Court held that the funding scheme bore a rational relation to a legitimate state
purpose and therefore upheld the law.73
To be sure, the legal question resolved in Rodriguez—whether state funding
of schools based on property taxes violated the Equal Protection Clause of the
Fourteenth Amendment—is quite different from the legal issues presented by
federal funding of abstinence-only programs in schools and community-based
programs.74 But the key point is that without constitutional protection for a
minor’s right to education, it is difficult to see how a U.S. court would be
willing to recognize that minors have an affirmative right under the Constitution
to particular educational content.
Yet notwithstanding this somewhat bleak portrayal of minors’ rights under
the U.S. Constitution, two scholars have recently suggested that “[f]ederal
sponsorship of abstinence-only education impairs the constitutional rights minors enjoy with respect to their sexual health and procreation decisions.”75
Focusing largely on minors’ rights to decisional privacy in procreation recognized in Carey v. Population Services International,76 Hazel Glenn Beh and
Harold Diamond conclude that “a minor’s constitutionally protected privacy
interests in obtaining information about procreative choices may be significantly
burdened [by school-sponsored abstinence-only education] because he or she
may lack access to other outlets to obtain information.”77 Even if minors’ rights
to privacy create no affirmative government obligation to fund sex education,
Beh and Diamond argue that the erroneous information in abstinence-only
70. 411 U.S. 1 (1973).
71. See id. at 35 (“Education, of course, is not among the rights afforded explicit protection under
our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have
said, the undisputed importance of education will not alone cause this Court to depart from the usual
standard for reviewing . . . social and economic legislation.”).
72. See id. at 6, 9–10.
73. See id. at 35, 40–41, 47.
74. Indeed, some of the rationales offered by the Rodriguez Court—such as local control of schools
and tax schemes, a lack of judicial expertise in education policy, and federalism, see id. at 41–44, are
inapplicable in the context of federal funding for sex education. Nevertheless, some of these concerns,
especially those relating to local control of education policy, might bolster criticism of federal funding
for abstinence-only education. Yet because of the significant factual differences, I simply do not think
this case could successfully be marshaled to support a challenge to the current federal policy on sex
education.
75. Beh & Diamond, supra note 16, at 60–61.
76. 431 U.S. 678 (1977). In Carey the Court invalidated a state law that, among other things,
prohibited the distribution of contraceptives to minors under the age of sixteen. See id. at 693–99.
77. Beh & Diamond, supra note 16, at 55.
1996
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
curricula burdens minors’ rights because it may prevent them from seeking
more comprehensive information elsewhere.78 In short, the authors argue, “because of its relationship to a minor’s present health and reproduction rights, [sex
education] necessarily stands on a different footing than more mundane curricular choices.”79
Although Beh and Diamond’s argument for constitutional protection of comprehensive sex education is compelling (and worth returning to later), it seems
dangerous and unsatisfactory to rely solely on reproductive privacy in arguing
for domestic legal protection against federal funding of abstinence-only education. First of all, even assuming that their analysis is correct, from a pragmatic
perspective the current political climate and the makeup of the Supreme Court
have made arguments about constitutional protection for procreative decisions
seem somewhat unstable. Moreover, these arguments do not seem to counter the
well-established line of constitutional cases that have specifically permitted the
rights of minors to be limited in the school setting.80 Finally, from the perspective of international human rights, the argument stemming from decisional
privacy only captures one facet of minors’ interests in accessing information
and education about sex and sexuality. Thus, to the extent that international
legal protections might provide broader protections for minors’ rights than
domestic law, it will be worthwhile to consider the international human rights
dimensions of sex education in more depth.
III. INTERNATIONAL HUMAN RIGHTS AND THE PROTECTION OF A MINOR ’S RIGHT TO
SEEK COMPREHENSIVE SEX EDUCATION
In thinking broadly about the international norms implicated by the debate
over sex education, there are a number of widely recognized human rights that
might protect minors from federal funding of abstinence-only education.81
Although there are undoubtedly additional international norms that could be
relied upon to support minors’ rights to sex education, this Part will focus on the
rights to health, freedom of information, and equal treatment as they apply to
78. Id.
79. Id. at 56.
80. Although the school cases may be distinguishable on factual grounds, it is more difficult to
ignore the general willingness of U.S. courts to permit restrictions on minors’ rights. Indeed, taken
together, most of the cases dealing with minors’ constitutional rights seem to suggest that although
minors enjoy some constitutional rights, the courts are unlikely to go out of their way to provide
heightened protection for minors—in the way that international human rights treaties such as the CRC
could be read to require. See generally CRC, supra note 13, art. 4 (requiring States Parties to
“undertake all appropriate legislative, administrative, and other measures for the implementation of the
rights recognized” in the CRC).
81. As one author put it, “[t]here are a number of rights which may be called upon as broadly
supporting a child’s independent choice to seek and obtain sex education.” Corinne Packer, Sex
Education: Child’s Right, Parent’s Choice or State’s Obligation?, in OF INNOCENCE AND AUTONOMY:
CHILDREN, SEX AND HUMAN RIGHTS 163, 165 (Eric Heinze ed., 2000).
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1997
sex education funded by the federal government.82
A. THE RIGHT TO HEALTH
The right to health is a good starting point for considering what human rights
norms require of U.S. policies on sex education, because sex and sexuality carry
with them many implications for health. The United States has implicitly
recognized the right to health in numerous international fora, and the norms
embodied by the right to health should therefore be at least persuasive authority
in discussions about federal involvement in sex education. For example, the
United States has signed onto many of the international human rights treaties
that protect the right to health, many of which include a right to seek healthrelated information as a part of this right. Most important in the context of sex
education are the Children’s Convention,83 the International Covenant on Economic, Social and Cultural Rights (ICESCR),84 and CEDAW,85 each of which
provides strong affirmative protections for the right to health. Moreover, enforcement bodies responsible for overseeing implementation of the international
human rights treaties have recognized that the right to health encompasses the
right to seek information about health, and have consistently expressed specific
concerns about safeguarding the use of comprehensive, medically accurate sex
education in promoting the right to health.86 Additionally, U.S. delegations have
82. Notably missing from this Part is a separate discussion of the right to education. This is for two
reasons. First, the Court’s rejection of a fundamental right to education in Rodriguez makes a discussion
of a human right to education in the United States seem somewhat futile. But perhaps more importantly,
some of the other rights discussed in this Part, most notably the right to health, arguably encompass (or
at least implicate) the substantive right to education. To the extent that this is true, the right to education
is incorporated into the other sections in this Part.
83. CRC, supra note 13, arts. 24.1, 24.2(f) (recognizing “the right of the child to the enjoyment of
the highest attainable standard of health” and requiring States Parties to take appropriate measures to
“develop . . . family planning education”).
84. ICESCR, supra note 14, art. 12.1 (recognizing “the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health”). The United States signed the ICESCR on
October 5, 1977, but has not ratified the treaty. See Office of the UN High Commissioner on Human
Rights, International Covenant on Economic, Social, and Cultural Rights, Ratifications and Reservations, http://www.ohchr.org/english/countries/ratification/3.htm.
85. CEDAW, supra note 14, art 16.1(e) (“States Parties shall take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage and family relations and in
particular shall ensure, on a basis of equality of men and women . . . [t]he same rights to decide freely
and responsibly on the number and spacing of their children and to have access to the information,
education and means to enable them to exercise these rights” (emphasis added)). The United States
signed CEDAW on July 17, 1980, but has not ratified the treaty. See Office of the UN High
Commissioner on Human Rights, Convention on the Elimination of All Forms of Discrimination
Against Women, Ratifications and Reservations, http://www.ohchr.org/english/countries/ratification/
8.htm.
86. See, e.g., Concluding Observations of the Committee on the Elimination of Discrimination
Against Women, Brazil, U.N. Doc. A/58/38, Supp. No. 38, ¶ 127 (2003) (“The Committee recommends
that further measures be taken to guarantee effective access of women to health-care information and
services, particularly regarding sexual and reproductive health . . . . [and] that programmes and policies
be adopted to increase the knowledge of and access to contraceptive methods with the understanding
that family planning is the responsibility of both partners. The Committee also recommends that sex
1998
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
played a leadership role in key international summits addressing the international human rights of women, particularly at the 1995 World Conference on
Women in Beijing.87 There the Committee emphasized the importance of
comprehensive information about sex and sexuality as a key part of young
women’s right to health, instructing governments to “[e]nsure education and
dissemination of information to girls, especially adolescent girls, regarding the
physiology of reproduction, reproductive and sexual health, . . . responsible
family planning practice, family life, . . . sexually transmitted diseases, HIV
infection and AIDS prevention. ”88
According to one author, the right to health, in conjunction with the right to
freedom of information, “carr[ies] the most direct impact and provide[s] the
greatest degree of protection” for minors’ rights to seek comprehensive sex
education.89 Key to the right to health in particular is that it cannot be realized
without the realization of other rights, especially the rights to education and
information.90 Thus the Center for Reproductive Rights has explained that “all
adolescents need accurate and adequate information about sexual and reproductive health. . . . Without easy access to accurate information, adolescents are at
risk of being misinformed about sexual and reproductive matters, which may
lead them to make decisions that could have negative effects on their lives.”91
Likewise, two commentators have noted that “[e]ducation contributes to . . .
[the child’s] ability to seek and to receive information[] and its gradually
increasing ability to make the right choices in issues of relevance to health as
education be widely promoted, particularly targeting adolescents, with special attention to the prevention and further control of HIV/AIDS.”); Concluding Observations of the Committee on the Rights of
the Child, Portugal, U.N. Doc. CRC/C/15/Add.162 ¶ 39(a) (2001) (“The Committee recommends that
the State party . . . [t]ake steps to address adolescent health concerns, including teenage pregnancy and
sexually transmitted diseases, through, inter alia, sex education, including about birth control measures
such as the use of condoms.”); Concluding Observations of the Committee on Economic, Social and
Cultural Rights, Poland, U.N. Doc. E/C.12/1/Add.26 ¶ 20 (1998) (“The Committee recommends that
every effort be made to ensure women’s right to health, in particular reproductive health. It recommends that family planning services be made available to all persons, including . . . reliable and
informative sex education for school-age children.”).
87. See supra note 2.
88. World Conference on Women, Sept. 4–15, 1995, Beijing Declaration and Platform for Action,
Annexes 1 & 2, ¶ 281(e), U.N. Doc. A/CONF.177/20/Rev.1 [hereinafter Beijing Platform]. It is also
interesting to notice that the Report, which the United States signed onto, reaffirmed the commitment to
the principles embodied in the CRC, CEDAW, and other human rights treaties that contain norms
generally supportive of minors’ rights to education, health, information, and equality. See id. Annex 1 ¶
8. Nonetheless, the United States stated that its approval of the Declaration was subject to the
understanding that “the Declaration . . . constitutes a general commitment to undertake meaningful
implementation of the Platform’s recommendations overall, rather than a specific commitment to
implement each element of the Platform.” Id. at 171.
89. Packer, supra note 81, at 165.
90. See ASBJORN EIDE & WENCHE BARTH EIDE, ARTICLE 24: THE RIGHT TO HEALTH 6 (Andre Alen et al.
eds., 2006).
91. CTR. FOR REPROD. RIGHTS, IMPLEMENTING ADOLESCENT REPRODUCTIVE RIGHTS THROUGH THE CONVENTION ON THE RIGHTS OF THE CHILD 4 (1999), http://www.reproductiverights.org/pdf/pub_bp_implementin
gadoles.pdf.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
1999
well as in other matters.”92
This conception of the right to health has obvious applications in the context
of sex education: Without the ability to seek comprehensive, medically accurate
information about sex and sexuality, a minor’s ability to exercise her right to
health is substantially weakened. So, for example, a sex education curriculum
that provides incomplete information about the proper use of condoms, gives
inaccurate information about their effectiveness in preventing pregnancy or
STIs, or gives students misinformation about the ways in which HIV can be
transmitted likely interferes with a minor’s ability to protect his health in the
event that he has sexual intercourse.93
The application of a right to health in the U.S. context—especially when
taken together with other human rights such as the right to education—strongly
suggests that the federal government has an obligation not to interfere with its
citizens’ exercise of their rights to health-related information.94 Indeed, when
taken together, the Children’s Convention’s protection of both health and education mandates broad protection for a minor’s right to access sex education.95
Thus, at a minimum, the obligation to protect citizens’ rights to health requires
that the United States should be prevented from affirmatively thwarting its
minor citizens’ abilities to make decisions relating to their health. Yet even on
their face, the federal guidelines for abstinence-only education seem to inhibit
minors from making fully informed decisions about their health. By requiring
that abstinence-only programs teach minors that “sexual activity outside of the
context of marriage is likely to have harmful psychological and physical
effects”96—a claim that is at best contested and at worst simply false—the
government is putting a substantial roadblock in the way of minors who wish to
make informed decisions about their health.
It is also worth noting that a broad reading of the right to health, when
coupled with the Children’s Convention’s emphasis on preparing children for
life in a “free society,”97 brings to mind the types of liberty interests recognized
92. EIDE & EIDE, supra note 90, at 6.
93. There is evidence that some federally funded abstinence-only programs do all of these things.
See, e.g., WAXMAN REPORT, supra note 31, at 8–11, 22 (noting examples of CBAE curricula that list
“tears” and “sweat” as creating a risk of HIV transmission and exaggerate the failure rates of condoms
in preventing pregnancy, HIV, and STIs).
94. See Packer, supra note 81, at 171 (“At a minimum, the rights of children to information and
health imply a negative obligation (or obligation of forbearance) on the part of the State. This means
that the State cannot interfere with a child’s ability to seek and receive information. . . . Accordingly,
States must not implement legislation, policies or other measures which violate these rights.”).
95. See CTR. FOR REPROD. RIGHTS, supra note 91, at 3 (“The Children’s Convention’s comprehensive
approach to the right to health imposes upon governments the obligation to ensure adolescent girls’
access to comprehensive reproductive health services.”).
96. 42 U.S.C. § 710(b)(2)(E) (2000).
97. Article 29 of the treaty states that “the education of the child shall be directed to . . . [t]he
preparation of the child for responsible life in a free society.” CRC, supra note 13, art. 29(d); see also
ICESCR, supra note 14, art 13.1 (expressing the idea that “education shall enable all persons to
participate effectively in a free society”).
2000
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
under U.S. constitutional jurisprudence. By this logic, one might argue that the
right to sex education requires governments to prepare children for all of the
activities protected in a free society. And given that liberty interests in the
United States include the right to engage in private, consensual sex98 and the
right to use contraception,99 one could further conclude that withholding information about sex and imposing value judgments about sexuality through statesponsored education is incompatible with the right to health information
embodied in treaties like the Children’s Convention.
Yet even without an affirmative obligation to promote comprehensive sex
education, the negative obligation to avoid interfering with the health rights of
minors dictates that the United States’ current policies violate international
human rights norms. For although the federal government’s abstinence-only
policies, specifically Title V,100 may not affirmatively prevent minors from
seeking sexual health-related information outside of schools, from a practical
perspective they likely prevent children from doing so:
Even where other sources of information are available, . . . students are
unlikely to appreciate that they should and could seek more comprehensive
sex instruction from a more reliable source. After all, a young person will
very likely view a teacher working under the auspices of a program funded by
the federal government as reliable and honest.101
Viewed from this perspective, the scientific inaccuracies contained in federally
funded abstinence-only programs pose a particular threat to minors’ rights to
health. Additionally, given that much of the government funding for abstinenceonly education is actually being directed towards organizations outside of the
school system, such as community groups and faith-based organizations, it is
becoming increasingly difficult for children to access alternative outlets that
could provide the kind of information about sex that the right to health arguably
requires. In short, the federal government’s funding of abstinence-only education is particularly troubling in light of the international recognition of a right to
health coupled with widespread consensus that comprehensive, accurate information is a key component to exercising this right.
B. THE RIGHT TO FREEDOM OF INFORMATION
Whether or not minors have access to certain kinds of information is at the
root of the sex education debate, and as such, the international human right to
free-flowing information is highly relevant. The ICCPR, like other international
human rights treaties, provides that individuals shall have the “freedom to seek,
98. See Lawrence v. Texas, 539 U.S. 558 (2003).
99. See Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).
100. See 42 U.S.C. § 710 (2000 & Supp. III 2003).
101. Beh & Diamond, supra note 16, at 55.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2001
receive and impart information and ideas of all kinds.”102 In some ways, the
primacy of the right to information about sex parallels the primacy of the right
to gather the kind of information that relates to more public aspects of citizenship:
Without the free flow of information, governments cannot be held accountable
for their actions. . . . [P]eople cannot make informed decisions about the most
important aspects of their public lives, including their form of government,
nor their private lives, including . . . their reproductive health. Without information, they can neither make true choices nor assume responsibility for their
lives. Democracy is undermined, human growth is impeded, and individual
liberty and human dignity are violated.103
In the context of sex and sexuality, the Cairo Programme of Action from the
1994 International Conference on Population and Development specifically
recognized the importance of providing young people with access to information that would help them make informed decisions about their sexual health:
The response of societies to the reproductive health needs of adolescents
should be based on information that helps them attain a level of maturity
required to make responsible decisions. In particular, information and services
should be made available to adolescents to help them understand their sexuality and protect them from unwanted pregnancies, sexually transmitted diseases and subsequent risk of infertility.104
One scholar has taken this line of argument one step further, insisting that, when
taken together, Articles 13 (the right to freedom of information) and 24 (the
right to health) of the Children’s Convention require “a commitment to sex
education provision which addresses the needs and interests of children and
young people on their terms.”105 Moreover, the Human Rights Committee, the
enforcement body of the ICCPR (which the United States has ratified), has
102. ICCPR, supra note 48 (emphasis added); see also CRC, supra note 13, art. 13.1 (noting that the
right to freedom of expression includes the “freedom to seek, receive and impart information and ideas
of all kinds”); CEDAW, supra note 14, art. 10 (“States Parties shall take all appropriate measures to
eliminate discrimination against women in order to ensure to them equal rights with men . . . and in
particular to ensure . . . [a]ccess to specific educational information . . . on family planning.”).
103. Sandra Coliver, The Right to Information Necessary for Reproductive Health and Choice Under
International Law, in THE RIGHT TO KNOW: HUMAN RIGHTS AND ACCESS TO REPRODUCTIVE HEALTH
INFORMATION 38, 46 (Sandra Coliver ed., 1995).
104. International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994,
Report, ¶ 7.41, U.N. Doc. A/CONF.171/13/Rev.1 (emphasis added); see also id. ¶ 7.47 (“Governments,
in collaboration with non-governmental organizations, are urged to meet the special needs of adolescents and to establish appropriate programmes to respond to those needs. Such programmes should
include . . . education and counselling of adolescents in the areas of gender relations and equality,
violence against adolescents, responsible sexual behaviour, responsible family-planning practice, family life, reproductive health, sexually transmitted diseases, HIV infection and AIDS prevention.”).
105. Haydon, supra note 16, at 191.
2002
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
recognized the importance of the ability to access comprehensive, reliable
information about sex, directing one State Party to “include accurate and
objective sexual education in [its] curricula.”106
Regardless of whether one conceives of the right to information as a negative
or affirmative obligation on the part of the government,107 the inclusion of
scientific and medical inaccuracies in federally funded abstinence-only education is a fairly straightforward violation of minors’ rights to information.108 For
if the right to information means anything at all, it must mean that when the
state does step forward to provide information, that information cannot be false
or misleading. The right to freedom of information arguably imposes an additional obligation on governments not only to ensure that publicly funded
programs do not “withhold information relevant” to minors’ health, but also to
“prevent private groups or individuals from interfering with the communication
of information necessary for reproductive health and choice.”109 Thus it should
be no response to say that the U.S. government is not actually developing the
curricula that it funds.
Federally funded sex education programs, however, include precisely the
type of inaccurate and misleading information that any conception of the right
to information directly proscribes. For example, some abstinence-only programs
106. Human Rights Committee, Poland, Dec. 2, 2004, Concluding Observations, ¶ 9, U.N. Doc.
CCPR/CO/82/POL.
107. Although there is some dispute on this point, there is ample support for the notion that the right
to information imposes some sort of affirmative obligation on the part of governments. See Coliver,
supra note 103, at 46 (arguing that governments must not only “refrain from infringing” on the right to
free information but also have a “positive obligation to take all necessary measures, including
legislation, to give effect to the right”); Packer, supra note 81, at 171 (describing the right to
information under the CRC as an example of a “human rights provision[ that] entail[s] positive
obligations to act (or obligations of performance) on the part of the State” and arguing that “the child’s
right to freedom of information . . . requires States to take direct affirmative action”). But see Coliver,
supra note 103, at 47 (noting that the right to information has “traditionally been understood to be
limited to . . . receive and impart information free from government interference”). Here, however, a
negative obligation against infringing on the informational rights of minors is not only sufficient to
challenge federal funding of abstinence-only education that contains misinformation, but is also more
consistent with the traditional conception of U.S. constitutional rights as “negative” rather than
“positive” liberties. See, e.g., Harris v. McRae, 448 U.S. 297, 316 (1980) (stating, in a case challenging
the Hyde Amendment, part of a congressional appropriations act that placed restrictions on public
funding for abortion services, that “a woman’s freedom of choice [does not] carr[y] with it a
constitutional entitlement to the financial resources to avail herself of the full range of protected
choices. . . . [A]lthough government may not place obstacles in the path of a woman’s exercise of her
freedom of choice, it need not remove those not of its own creation.”); Jackson v. City of Joliet, 715
F.2d 1200, 1203 (7th Cir. 1983) (“[T]he Constitution is a charter of negative rather than positive
liberties. The men who wrote the Bill of Rights were not concerned that government might do too little
for the people but that it might do too much to them. The Fourteenth Amendment . . . sought to protect
Americans from oppression by state government, not to secure them basic governmental services.”);
David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864 (1986) (discussing
and challenging the traditional understanding of constitutional rights as negative rather than positive
obligations).
108. Cf. Packer, supra note 81, at 171 (noting that “States must not implement legislation, policies,
or other measures” that violate minors’ rights to information).
109. Coliver, supra note 103, at 39–40.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2003
teach that HIV/AIDS can be transmitted through saliva, tears, sweat, or touching.110 Moreover, although abstinence-only programs are prohibited from advocating the use of condoms, many of them contain ample information about
contraceptive failure rates that is incomplete and misleading.111 For example,
although when used properly and consistently condoms are actually 98% effective in preventing pregnancy, one curriculum teaches that “[a]t the least, the
chances of getting pregnant with a condom are 1 out of 6.”112 Another curriculum “relies on numerous outdated sources to present a distorted and exaggerated
view of the dangers of legal abortion[,] . . . inaccurately describ[ing] the risks of
sterility, premature birth and mental retardation, and ectopic pregnancies.”113
The failure to provide context or explanation for these types of “scientific”
assertions is legally problematic on a number of levels. First, as discussed in the
section on the right to health, inadequate or incomplete education about health
inhibits minors’ ability to make decisions about their health and well-being.
Moreover, by providing misleading information about abortion and contraception, this type of education also prevents minors from exercising decisional
privacy rights that are already well-established in domestic law.114 Finally, the
above analysis, which demonstrates that governments have an obligation to
avoid interfering with adolescents’ access to relevant, accurate, comprehensive
information about sex, suggests that the United States’s funding of abstinenceonly education programs—coupled with its failure to ensure that the content of
those programs is medically accurate and complete115—constitutes a per se
violation of minors’ rights to information.
C. THE RIGHT TO EQUAL TREATMENT
International human rights law directly prohibits education that promotes
gender stereotypes, so to the extent that the federal government is funding
abstinence-only curricula that reinforce gender stereotypes a claim on this basis
is quite strong. For example, the ICCPR declares that “[a]ll persons are equal
before the law and are entitled without any discrimination to the equal protection of the law” and explicitly protects against sex discrimination.116 CEDAW
110. See WAXMAN REPORT, supra note 31, at 22; supra note 4.
111. See WAXMAN REPORT, supra note 31, at 11–12 (explaining the way in which some programs
conflate the difference between “typical use” and “perfect use” contraceptive failure rates, leading
students to believe that condoms are much less effective than they actually are).
112. SIECUS, supra note 4, at 1 (quoting NANCY ROACH & LEANNA BENN, ME, MY WORLD, MY
FUTURE 257 (rev. 1998)).
113. WAXMAN REPORT, supra note 31, at 13.
114. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 899 (1992) (upholding
parental consent requirement for minors seeking abortions, but reaffirming women’s core right to make
decisions “central to personal dignity and autonomy”); Carey v. Population Servs. Int’l, 431 U.S. 678,
693 (1977) (plurality) (recognizing that privacy rights touching on procreation decisions “extend[] to
minors as well as to adults”).
115. See supra notes 45–47 and accompanying text.
116. ICCPR, supra note 48, art. 26; see id. arts. 2, 3.
2004
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
provides even stronger protection against sex discrimination in education, affirmatively requiring “[t]he elimination of any stereotyped concept of the roles of
men and women at all levels and in all forms of education . . . in particular, by
the revision of textbooks and school programmes and the adaptation of teaching
methods.”117 The Beijing Platform for Action recognized the problem of gender
bias in education and specifically noted the relevance of sex education in this
context:
Curricula and teaching materials remain gender-biased to a large degree, and
are rarely sensitive to the specific needs of girls and women. This reinforces
traditional female and male roles that deny women opportunities for full and
equal partnership in society. Lack of gender awareness by educators at all
levels strengthens existing inequities between males and females by reinforcing discriminatory tendencies and undermining girls’ self-esteem. The lack of
sexual and reproductive health education has a profound impact on women
and men.118
Indeed, this statement aptly captures why “sexual and reproductive health
education” that is gender-biased is problematic under international norms of
equal treatment.
Yet despite U.S. involvement in the international recognition of equal treatment, there is ample evidence that some federally funded abstinence-only
curricula are directly infringing on the rights of minors to equal treatment in
education. Both the Center for Reproductive Rights and the National Organization for Women recently submitted shadow reports to the Human Rights Committee decrying federally funded “curricula [that] promote the most egregious of
gender stereotypes.”119 The curricula about which these groups were complaining contain messages that disparage women’s equality and reinforce traditional,
outdated views of women. For example, one federally funded program teaches
that “[t]he father gives the bride to the groom because he is the one man who
has had the responsibility of protecting her throughout her life. He is now
giving his daughter to the only other man who will take over this protective
117. CEDAW, supra note 14, art. 10(c).
118. Beijing Platform, supra note 88, at 26–27.
119. CTR. FOR REPROD. RIGHTS, WOMEN’S REPRODUCTIVE RIGHTS IN THE UNITED STATES: A SHADOW
REPORT 26 (2006), available at http://www.reproductiverights.org/pdf/HRC_shadow-FINAL6-3006.pdf; see HUMAN RIGHTS ADVOCATES INT’L ET AL., Executive Summary of REPORT ON WOMEN’S HUMAN
RIGHTS IN THE UNITED STATES UNDER THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS IN
RESPONSE TO THE SECOND AND THIRD PERIODIC REPORT OF THE UNITED STATES OF AMERICA 4 (2006),
available at http://www.nowfoundation.org/issues/economic/GenderShadowReport.pdf (requesting the
Human Rights Committee to “recommend that the U.S. Government take steps to ensure that any
sexuality education program it funds does not perpetuate sexual stereotypes”). The Human Rights
Committee declined to comment on the United States’s funding of abstinence education in its 2006
Report, focusing instead on torture allegations and the War on Terror. This does not, however, diminish
the force of these allegations.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2005
role.”120 Another teaches that “[j]ust as a woman needs to feel a man’s devotion
to her, a man has a primary need to feel a woman’s admiration. To admire a man
is to regard him with wonder, delight, and approval. A man feels admired when
his unique characteristics and talents happily amaze her.”121 These types of
messages evoke images of women as property of their fathers and husbands and
reinforce other stereotypes that, in the modern era, verge on absurdity.
Abstinence-only programs not only present archaic images of women and
girls, they also reinforce troubling myths and stereotypes about the differences
between men and women. For example, messages that it is “natural” for men to
fantasize about sex not only imply that it is “unnatural” for women to do so,122
but are also reminiscent of the long-rejected notion that men are unable to
control their sexual urges, that rape or sexual aggression are somehow inevitable, and that women have a responsibility to curb men’s desires. In a review of
one federally funded curriculum SIECUS explains this problem in depth:
[This curriculum] perpetuates the stereotype of female responsibility for
male desire. . . .
The idea that teen girls are to modify their behavior so that the boys around
them can control theirs is also highlighted in the scenarios used as class
activities. One such example tells students about Stephanie and Drew, a
couple trying to save sex for marriage. Stephanie is too affectionate and wears
tight clothing: “Drew likes her a lot, but lately keeping his hands off her has
been a real job!” Stephanie has been clear with Drew that she doesn’t want to
have sex, “her actions, however, are not matching her words.”
The curriculum ignores the importance of Stephanie’s words while choosing to focus on her clothing. As a result, it teaches that men cannot control
themselves and that women cannot dress sexually or behave affectionately
without provoking expectations of sex. Messages like these undermine the
importance of teaching responsibility to teen boys. The lesson suggests that
Stephanie’s tight clothing and affectionate behavior are an invitation to sex,
instead of focusing on her expressed desire to remain abstinent. Why kNOw?
makes Drew’s sexual desire Stephanie’s fault, and reinforces a lack of male
sexual responsibility.123
120. WAXMAN REPORT, supra note 31, at 17 (quoting “Why kNOw” curriculum); see also CTR. FOR
REPROD. RIGHTS, supra note 119, at 26 (citing other examples of curricula that reinforce gender
stereotypes by presenting images of women as “dependent wife and mother” and by suggesting that
girls focus on relationships rather than on “success at school or work”).
121. WAXMAN REPORT, supra note 31, at 17 (quoting “WAIT Training” curriculum).
122. In fact, sometimes curricula are explicit about this. See SIECUS, supra note 4, at 2 (“A young
man’s natural desire for sex is already strong due to testosterone . . . females are becoming culturally
conditioned to fantasize about sex as well.” (quoting COLEEN KELLY MAST, SEX RESPECT: THE OPTION OF
TRUE SEXUAL FREEDOM, Student Workbook at 11 (2001))).
123. SIECUS Curriculum Review, Why kNOw?: A Fear-Based Abstinence-Only-Until-Marriage
Curriculum For Students in Grades 6–12, http://www.communityactionkit.org/reviews/WhyKnow.html
(last visited Feb. 21, 2007) (internal citations omitted); see also, e.g., SIECUS, supra note 4, at 2 (“Men
sexually are like microwaves and women sexually are like crockpots . . . a woman is stimulated more
by touch and romantic words. She is far more attracted by a man’s personality while a man is
2006
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
These types of ideas are troubling not only because they seem to undermine at
least some notion of equality between the sexes,124 but also because they tend to
perpetuate dangerous cultural norms about the appropriate sexual roles of men
and women—norms that CEDAW and other legal instruments articulating
protections for women’s rights were specifically intended to eliminate.
One commentator aptly captured the problem with these types of educational
messages, explaining that “[t]eaching that reinforces conventional sexual stereotypes violates the right to [equality in] education in that it narrows ambitions.”125 Indeed, in some sense it is difficult to imagine educational messages
that more directly conflict with the international human rights mandate to
eliminate gender stereotypes in education. And perhaps even more than the
rights to health and information, the right to sex equality is quite wellestablished in domestic law. The next Part will bridge these legal frameworks
and demonstrate how advocates for minors can use the international principles
discussed thus far to ensure that domestic law effectively protects the human
rights of minors—rights that have been seriously compromised by abstinenceonly curricula.
IV. MOVING FORWARD: PROTECTING MINORS’ HUMAN RIGHTS IN THE
UNITED STATES
A full discussion of international human rights norms makes clear that
whether or not the United States is bound by directly enforceable legal obligations, the federal government has committed to treaties that require robust
protection for minors’ rights to sex education and that directly conflict with the
federal government’s decision to fund at least some abstinence-only education
programs. This Part will briefly discuss the potential impact that increased U.S.
involvement in the international legal community could have, and then will
focus more closely on the various ways in which international human rights
norms could be used to influence U.S. law in ways that would enhance minors’
protections against insufficient and misleading sex education.
stimulated by sight. A man is usually less discriminating about those to whom he is physically
attracted.” (quoting FRIENDS FIRST, WAIT (WHY AM I TEMPTED) TRAINING, Workshop Manual at 37
(1998))).
124. At this juncture it is difficult not to think of Justice Ginsburg’s caveat in United States v.
Virginia:
“Inherent differences” between men and women, we have come to appreciate, remain cause
for celebration, but not for denigration of the members of either sex or for artificial constraints
on an individual’s opportunity. Sex classifications may be used . . . to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be
used, as they once were, to create or perpetuate the legal, social, and economic inferiority of
women.
United States v. Virginia, 518 U.S. 515, 533–34 (1996).
125. Cook, supra note 20, at 1005.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2007
A. INCREASED INTERNATIONAL PARTICIPATION THROUGH TREATY RATIFICATION
U.S. ratification of international human rights treaties, especially the Children’s Convention and CEDAW, would increase legal protection for minors in a
wide variety of areas and would provide a particularly powerful enhancement of
their rights to sex education. As the previous discussion has shown, those
treaties safeguard the rights to health, freedom of information, and equal
treatment, and an agreement on the part of the United States to be bound by the
specific terms of the treaties—rather than simply their purposes and objects—
would grant greater recognition for the interests of minor citizens in the United
States.
But ratification of the Children’s Convention, CEDAW, and other international human rights treaties would not be a panacea. First of all, it is highly
unlikely that the United States would make the treaties self-executing, effectively eliminating the possibility of enforcing the treaties directly in the United
States.126 Second, because of the limited enforceability of international human
rights law, the rights embodied in the treaties would, for the most part, remain
aspirational ideals rather than concrete legal rights attaching to individuals.
Indeed, individuals cannot bring actions to either the Committee on the Rights
of the Child (the implementing body of the Children’s Convention)127 or the
Committee on the Elimination of Discrimination against Women (the CEDAW
oversight body),128 so from a formalistic perspective the legal rights of minors
in the United States would be no different after ratification of such treaties.129
126. Cf. Gilman, supra note 54, at 600–02 (describing debates in the Senate over ratification of the
ICCPR and explaining that Senate ratification was made “contingent on the inclusion of language
making the ICCPR non-self-executing”).
127. See Office of the United Nations High Commissioner for Human Rights, Committee on the
Rights of the Child, Monitoring Children’s Rights, http://www.ohchr.org/english/bodies/crc/index.htm
(last visited Dec. 6, 2006).
128. In fact, although the Committee has yet to issue any decisions, the Optional Protocol to
CEDAW does permit citizens from States Parties to bring individual complaints in front of the
Committee. See Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
Against Women, Oct. 6, 1999, 2131 U.N.T.S. 97; see also U.N. Dep’t of Econ. & Soc. Aff., Div. for the
Advancement of Women, Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women, Optional Protocol Entered into Force 22 December 2000, http://
www.un.org/womenwatch/daw/cedaw/protocol/ (last visited Dec. 6, 2006) (describing the complaint
procedures established by the Optional Protocol). However, given that the United States has not even
signed the Optional Protocol to CEDAW, the pursuit of this avenue of relief is, at least at present, an
option that is unavailable to U.S. citizens. See U.N. Dep’t of Econ. & Soc. Aff., Div. for the
Advancement of Women, Signatures and Accessions/Ratifications to the Optional Protocol, State
Parties: 83 as of 2 November 2006, http://www.un.org/womenwatch/daw/cedaw/protocol/sigop.htm
(last visited Dec. 6, 2006).
129. Similar to CEDAW, the Optional Protocol to the ICCPR gives the Human Rights Committee
the authority to examine individual complaints of violations by State Parties. See Optional Protocol to
the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 302. The United
States, however, has not signed or ratified the Optional Protocol to the ICCPR, so although the United
States is a State Party to the ICCPR, this particular enforcement avenue remains closed to U.S. citizens.
See Office of the United Nations High Commissioner for Human Rights, Ratifications and Reservations, Optional Protocol to the International Covenant on Civil and Political Rights New York, 16
2008
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
Ratification would, however, add an additional layer of scrutiny of the U.S.
government, obligating the United States to make periodic reports to the
implementing committees and permitting those bodies to make concrete recommendations about the federal government’s handling of a variety of legal and
policy issues, including sex education policy. This type of oversight could in
and of itself have the potential to transform domestic discussions about sex
education.
Indeed, the greatest potential impact of U.S. ratification of a treaty such as the
Children’s Convention or CEDAW would likely be its symbolic significance.
Because both the President and the Senate play key roles in the adoption of
international treaties,130 ratification would signal to the American people—most
importantly to minors—that the political branches of the federal government are
committed to protecting American children’s human rights. In this way, ratification would be a first step towards developing a baseline for considering children’s needs and interests in policymaking on sex education. As one scholar has
suggested, acceptance of Article 13 of the Children’s Convention would require
that “[s]ex and sexuality education . . . be predicated on the principle of children’s right to knowledge, information and understanding about their bodies
and the processes of physical, emotional, personal and social development.”131
This approach, she says, “necessitates using the experiences, questions, concerns and interests of children as the appropriate starting point.”132 Ratification
of the Children’s Convention could therefore be a meaningful first step towards
approaching sex education in the United States from the perspective of minors’
rights. And instead of simply being prevented from thwarting the objects and
purposes of these treaties, the United States would have an affirmative (though
admittedly difficult to enforce) obligation to bring its policies in line with the
specific protections contained therein.
To be sure, the United States need not ratify any treaties to rethink sex
education from an international human rights perspective and to incorporate
those norms into domestic law. Indeed, as the next section will show, a robust
commitment to minors’ rights in accessing medically accurate, unbiased sex
education could radically reframe the sex education debate in the United
States—and this recognition need not be premised on ratification of any treaty.
December 1966, http://www.ohchr.org/english/countries/ratification/5.htm (last visited Dec. 6, 2006).
As the next section discusses, for these reasons and others, domestic legal avenues remain the most
powerful potential source for addressing complaints about federal funding of abstinence-only education.
130. U.S. CONST. art. 2, § 2 ((“[The President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”).
131. Haydon, supra note 16, at 193–94.
132. Id. at 194.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2009
B. USING INTERNATIONAL NORMS TO EXPAND DOMESTIC LEGAL PROTECTION FOR
MINORS’ RIGHTS
Although increased involvement in the international legal community might
pave the way for greater protection of U.S. minors’ rights, it is international
human rights principles, rather than the concrete enforcement potential of
treaties, that provide a worthwhile framework for thinking about sex education
in the United States. Indeed, from both a normative and an instrumental
perspective, it is ultimately domestic law that must change in order to ensure the
adequate protection of minors’ rights to sex education. By suggesting a number
of ways in which U.S. law could be reformed to integrate greater protections for
minors’ rights against abstinence-only education, this Part will examine how a
discussion of the human rights to health, freedom of information, and equal
treatment might be marshaled to support a shift in domestic law and policy.
1. Developing Constitutional Jurisprudence
As Part II suggests, the normative framework provided by international
human rights law can provide a lens through which to view domestic law. This
section will discuss how using these international norms might help identify
areas of U.S. constitutional law that could be strengthened to protect minors
against sex education programs containing medical inaccuracies, misleading
information about health and sex, and gender stereotypes.
The First Amendment protection of free speech133 might be an interesting
avenue for protecting minors’ rights and for challenging abstinence-only programs that contain false, misleading, or inaccurate information. As Professor
Catherine Ross has explained:
The Constitution protects the right to receive information and ideas. The right
to receive information is the logical corollary of the right to speak. . . . The
right to receive information is . . . essential to the realization of liberty
interests that emphasize individual self-realization and autonomy. [T]he liberty model of the First Amendment [is] inseparable from the goal of democratic self-governance expressed through the Speech Clause.134
This description builds on the earlier discussion about international human
rights in several important ways. First, Ross’s reference to “democratic selfgovernance” directly echoes one of the key justifications for the human right to
freedom of information: Just as public information permits people to make
democratic decisions about their governments, private information permits
individuals to make decisions about the more intimate aspects of their lives.135
133. See U.S. CONST. amend. I.
134. Catherine Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. PA. J.
CONST. L. 223, 227 (1999) (citations omitted).
135. See supra text accompanying note 103.
2010
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
Indeed, “the liberty model of the First Amendment” directly parallels the
justifications for protecting a right to gather information as a part of the right to
health. Without the ability to make informed decisions about her health, a
minor’s ability to exercise autonomy and gain self-realization are severely
compromised. In its abortion jurisprudence the Supreme Court has repeatedly
recognized the connection between a woman’s ability to make decisions about
her health, particularly her sexual health, and her liberty interests. For example,
in Planned Parenthood of Southeastern Pennsylvania v. Casey136 the Court
recognized that decisions
involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the
liberty protected by the [Constitution]. At the heart of liberty is the right to
define one’s own concept of existence, of meaning, of the universe, and of the
mystery of human life.137
Thus, like the norms contained in international human rights law, U.S. constitutional law also acknowledges the primacy of both the right to receive information and the right to make decisions about one’s reproductive health. By
combining these two strands of cases, one might argue that the First Amendment protects minors’ rights to receive information about sex—or at the very
least that it protects minors from information that might affirmatively inhibit
their ability to make informed choices central to “personal dignity and autonomy.”138
Apart from the speech and information protections of the First Amendment, it
might also be worth exploring the argument that the U.S. Constitution directly
protects the right to health.139 Indeed, although the Court has not articulated a
136. 505 U.S. 833 (1992).
137. Id. at 851.
138. Although this argument is certainly related to Beh and Diamond’s discussion of the unconstitutionality of abstinence-only programs, see Beh & Diamond, supra note 16, at 51–60, it proceeds from a
separate and distinct premise—namely that First Amendment principles, reproductive rights jurisprudence, and international human rights norms should all be read together. Perhaps the closest point of
connection between these two arguments is in the authors’ analysis of Rust v. Sullivan, 500 U.S. 173
(1991), in which they argue that “[i]mplicit in Rust . . . is the principle that, when government programs
restrict information that . . . affirmatively mislead and thus impair an individual’s ability to exercise
fundamental rights, such programs are unconstitutional.” Beh & Diamond, supra note 16, at 60; see
also id. at 57 n.233 (“[W]hile the ‘courts have not addressed directly the theory that inaccurate or
misleading information violates the freedom of speech and the right to receive information,’ such a
right is inherent in light of the . . . First Amendment interests in access to information.” (quoting and
describing Nancy Tenney, The Constitutional Imperative of Reality in Public School Curricula:
Untruths About Homosexuality as a Violation of the First Amendment, 60 BROOK. L. REV. 1599,
1631–33 (1995))).
139. Cf. Appellants’ Reply Brief at 7–10, Raich v. Gonzales, No. 03-15481 (9th Cir. Mar. 6, 2006)
(arguing that the constitutional right to preserve one’s health is not limited to the abortion context);
Appellants’ Opening Brief at 11–19, Raich v. Gonzales, No. 03-15481 (9th Cir. Nov. 23, 2005) (arguing
that the liberty protected by the Due Process Clause protects the right to make decisions to preserve
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2011
constitutional right to health in those terms, the Court has recognized the
importance of health in the context of abortion, and has held that the failure to
provide for the protection of women’s health in an abortion regulation constitutes an independent constitutional flaw.140 Building on the long line of abortion
jurisprudence recognizing the primacy of women’s health, advocates for minors’ rights might pursue the expansion of a constitutional right to health. As in
the First Amendment context, advocates of this approach could look to international human rights principles to provide a coherent articulation of the connection between health, liberty, and the primacy of information in realizing these
ideals.
Yet another example of a potential “constitutional avenue” for challenging
abstinence-only sex education programs is the Equal Protection Clause of the
Fourteenth Amendment.141 Although a detailed discussion of the complicated
area of equal protection jurisprudence is beyond the scope of this Note, equal
protection is worth mentioning precisely because it provides such seemingly
strong protections for gender equality.142 Indeed, as one senator noted—in
arguing against the ratification of CEDAW—“the United States has led the
world in advancing opportunities for women.”143 It is precisely for this reason
that the existence of gender-biased messages in federally funded sex education
programs is particularly troubling. Thus, international human rights protections
of gender equality discussed above should, if nothing else, serve as a reminder
of the strong equality principles enshrined in the U.S. Constitution.
In short, despite constitutional roadblocks in the constitutional jurisprudence
surrounding minors’ rights, there are Constitution-based arguments against
federally funded abstinence-only education. And through reference to and exploration of international human rights norms, those who desire greater protection
of minors’ constitutional rights can develop helpful language with which to
articulate the constitutional norms at stake in the debate over sex education.
one’s health, life, and bodily integrity). But see Raich v. Gonzales, No. 03-15481, 2007 WL 754759, at
*10–12 (9th Cir. Mar. 14, 2007) (rejecting appellants’ formulation of the constitutional right to make
health-preserving decisions; reframing the question as one of whether the Constitution “embraces a
right to make a life-shaping decision on a physician’s advice to use medical marijuana to preserve
bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and
remedies have failed”; and dismissing the notion that federal law “recognize[s] a fundamental right to
use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human
suffering”).
140. See Stenberg v. Carhart, 530 U.S. 914, 938 (2000) (holding that a Nebraska ban on a particular
abortion method was unconstitutional because it lacked an exception to preserve the mother’s health).
But see Gonzales v. Carhart, 127 S. Ct. 1610, 1635–37 (2007) (distinguishing Stenberg and upholding
the federal Partial Birth Abortion Ban Act of 2003 despite the lack of a health exception).
141. U.S. CONST. amend. XIV (“No state shall . . . deny to any person within its jurisdiction the
equal protection of the laws.”).
142. See, e.g., United States v. Virginia, 518 U.S. 515, 533–34 (1996) (requiring an “exceedingly
persuasive justification” for legal classifications that “create or perpetuate the legal, social, and
economic inferiority of women”).
143. 146 CONG. REC. 1469, 2199 (2000) (statement of Sen. Helms).
2012
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
2. Forcing Political Change Through Federal Statutory Protections
Regardless of whether constitutional jurisprudence could be expanded to
protect minors’ rights against misleading, gender-biased abstinence-only education, international human rights law can undoubtedly serve as a framework for
seeking to change current federal statutory law. Indeed, perhaps the most
intuitive way to use international human rights norms is to push for a political
revision of the current regime of federally funded sex education. In other words,
advocates for more comprehensive sex education can channel the internationally recognized rights to health, information, and equal treatment in support of a
campaign to remove the current funding regime—and perhaps even use these
norms to advocate that the federal government should be funding comprehensive sex education programs.
In addition to recently releasing a report that expressed concern over the lack
of oversight of federally funded abstinence-only programs,144 the GAO has also
suggested that there may already be a federal law that would require the
removal of certain information about condoms from current abstinence-only
programs.145 In a letter to the Secretary of HHS, the GAO concluded that
section 317P(c)(2) of the Public Health Service Act146 requires that at least
some federally funded abstinence-only programs include medically accurate
information about condom effectiveness.147 Although this would admittedly not
reach all abstinence-only programs, this is simply one example of a way in
which a rigorous examination of current federal law might supply some of the
protections discussed in this Note. Using this approach and the principles
embodied in international human rights law, advocates for minors’ rights to sex
education can look to federal law to protect against the most egregious violations of minors’ human rights to information, health, and equality.148
Members of the 110th Congress have introduced a bill called the Prevention
First Act,149 which closely comports with the approach to sex education suggested by the international human rights analysis presented here. Among the
initiatives proposed to “reduce unintended pregnancy, reduce abortions, and
improve access to women’s health care,”150 the bill would require that “any
144. See generally GAO REPORT, supra note 23.
145. See Letter from U.S. Gov’t Accountability Office to Michael O. Leavitt, Sec’y of Health &
Human Servs., B-308128 (Oct. 18, 2006).
146. 42 U.S.C. § 247b-17(c)(2) (2000).
147. See Letter from U.S. Gov’t Accountability Office, supra note 145, at 4–5 (suggesting that if
programs “are specifically designed to address sexuality transmitted diseases” then they are required
under the statute to include accurate information about condoms).
148. Although a full exploration of this approach is beyond the scope of this Note, another avenue of
federal statutory law worth exploring might be Title IX, which provides protections for women in
education. See 20 U.S.C. § 1681 (2000) (“No person in the United States shall, on the basis of sex . . .
be subjected to discrimination under any education program or activity receiving Federal financial
assistance.”); Cannon v. Univ. of Chicago, 441 U.S. 677, 709 (1979) (recognizing an implied cause of
action in Title IX that permits private victims of sex discrimination to sue to enforce their rights).
149. Prevention First Act, supra note 8.
150. Id. pmbl.
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2013
information concerning the use of a contraceptive provided through any federally funded sex education, family life education, abstinence education, comprehensive health education, or character education program . . . be medically
accurate and . . . include health benefits and failure rates relating to the use of
such contraceptive”;151 provide federal grants to states for comprehensive sex
education programs;152 and mandate both national and statewide efficacy evaluations on an annual basis.153 In short, it appears that at least some politicians at
the federal level are committed to creating sex education programs that conform
to international norms much more closely than do abstinence-only programs. If
this bill were to become law, the use of constitutional litigation and other legal
advocacy mechanisms would, at least for the moment, become less integral
means for protecting minors’ rights. Nevertheless, it is still worthwhile to
consider the full range of ways in which international human rights can be used
to implement domestic legal change.
3. Using International Norms To Pursue Local Solutions
In addition to pursuing change at the federal level, critics of abstinence-only
education programs can use international human rights principles to push for
greater legal protections for minors at the state and local level. Indeed, advocacy for this type of legal change makes particular sense in the sex education
context, because despite the availability of federal dollars, the actual formation
of education policy tends to take place at the local level. Although this approach
might be less satisfying for those who desire broad-scale change in U.S. policies
on sex education—and raises additional questions about the importance of
providing uniform protections for U.S. minors’ human rights—from a pragmatic
perspective, a grassroots approach to sex education policy reform makes a great
deal of sense.
Legal reform at the state and local levels could come in a variety of forms.
First of all, grassroots efforts to impact sex education policy can take place at
school board meetings, with individual parents or other interested parties using
arguments based on international human rights norms to persuade policymakers
that certain education programs are inhibiting minors’ rights to health, information, and equality. Relatedly, individual citizens and politicians can make these
types of arguments at the state level, lobbying state politicians to reject federal
funding for abstinence-only education or to adopt obligations that would require
151. Id. § 602 (emphases added).
152. Id. § 802. This program might better be classified as what is often referred to as “abstinenceplus” education in that it defines the program as one that, among other things, “teaches that abstinence
is the only sure way to avoid pregnancy or sexually transmitted diseases” and “stresses the value of
abstinence while not ignoring those young people who have had or are having sexual intercourse.” Id.
§ 802(b)(3)–(4). The key point here is that the sponsors of the bill have abandoned abstinence-only as
an appropriate form of sex education for minors. Relatedly, at least one part of the bill—the “At-Risk
Communities Teen Pregnancy Prevention Act,”—specifically renders existing federally funded abstinenceonly programs ineligible for grants. See id. tit. V § 399N–1(f).
153. See id. § 804.
2014
THE GEORGETOWN LAW JOURNAL
[Vol. 95:1979
education programs to use accurate, gender-neutral curricula.
However, under the umbrella of state law reform, the approach that may have
the most potential is the use of international human rights norms in interpreting
state constitutional grants.154 Because many state constitutions provide for the
affirmative protection of health, education, and other rights implicated by sex
education policy, critics of the current federal regime of sex education might
find state constitutional challenges to be a fruitful source of law reform. As
Professor Martha Davis has argued,
[international] law can inform the meaning of state constitutional grants that
have no federal analogues but that are similar to international human rights
law and to provisions of modern constitutions around the world. The United
States Constitution, which textually focuses on limiting government action,
may yield no guidance to state courts asked to interpret, for example, the
substantive meaning of positive rights to “health,” “education,” or “welfare.”
In such an instance, international norms articulated in transnational law may
be a singularly important guide to the substantive content of the provisions.155
Indeed, Davis provides a detailed case study, using international legal sources
(including many of those discussed in this Note) to argue that federal and state
funding for abstinence-only education programs violate the New York State
constitution’s protection of public health.156 Legal advocates can use international human rights principles in precisely this way to challenge federally
funded abstinence-only education programs in state court and to push for
greater state constitutional protections for minors’ human rights.157
CONCLUSION
In the current political atmosphere it can be difficult to avoid becoming
entrenched on one side of the highly fraught debate over sex education in the
United States. But from a legal perspective, and especially when viewed
through the lens of the internationally recognized rights to health, freedom of
information, and equal treatment, it seems clear that—at a minimum—the U.S.
government should be prevented from funding sex education programs that
provide minors with false, misleading information about sex or that reinforce
dangerous, outdated gender stereotypes. At least in principle, U.S. law already
154. This argument, and a clear and compelling explication of it, comes from Martha F. Davis, The
Spirit of Our Times: State Constitutions and International Human Rights, 30 N.Y.U. REV. L. & SOC.
CHANGE 359 (2006).
155. Id. at 360.
156. See id. at 390–407.
157. Cf. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489, 503 (1977) (arguing that state courts must increase their scrutiny where federal
courts have diminished theirs, and “breathe new life into the federal due process clause by interpreting
their common law, statutes and constitutions to guarantee ‘property’ and ‘liberty’ that even the federal
courts must protect”).
2007]
FEDERAL FUNDING OF ABSTINENCE-ONLY EDUCATION
2015
provides its citizens with affirmative protections against state-sponsored discriminatory treatment and a robust right to speak that is also understood as a right to
receive information. Although the right to health is less well-developed as a
matter of constitutional law, there are other sources of domestic law that protect
the right to make informed decisions about one’s health. Moreover, the principles enshrined in international human rights law counsel the United States to
ensure that its own legal system provides adequate protections for minors,
which necessarily include respecting and nurturing their ability to make informed decisions about their sexual health. Although the most ardent advocates
for minors’ rights might hope for federally mandated comprehensive sex education, the movement towards “abstinence-plus education” may be a good first
step towards creating a political compromise that also respects, protects, and
fulfills minors’ human rights. Indeed, the introduction of the Prevention First
Act reveals a path to legislative progress, and when judged by the standards
embodied in international human rights law, also reinforces an important lesson:
while there is certainly room for political discussion and disagreement, legislators and other government actors must take affirmative steps to ensure that
minors’ interests are considered—and that their human rights are given sufficient weight—in the debate over sex education curricula.