A judge in Fresno County, California, ruled last week that a lawsuit against the Clovis Unified School District’s abstinence-focused sex education program was justified because it was out of compliance with the state’s law mandating sex education to be medically accurate and free of bias. In what advocates are calling an historic ruling, Judge Donald Black stated that “access to medically and socially appropriate sexual education is an important public right.” The decision will have a direct impact on the students in Clovis schools and across the state; at a time when sexual health advocates are looking to make California’s law even stronger, it also shows the importance of implementing policies supporting accuracy in sex education.
The Program in Question
As Rewire reported that year, in 2012 the American Civil Liberties Union (ACLU) of Northern California filed a lawsuit against the Clovis Unified School District on behalf of parents in the district, the American Academy of Pediatrics California District, and the Gay-Straight Alliance Network. At issue was the district’s high school sex education curriculum, which, as the ACLU outlined in court records, focused exclusively on staying abstinent until marriage and did not provide accurate information on sexually transmitted infections (STIs) or contraception.
At the time, the ACLU said, the program used the Holt Lifetime Health textbook. Among other errors, the text defined marriage as being between a man and a woman; suggested that “getting plenty of rest” was a good way to avoid pregnancy and STIs; and told young people that one benefit of practicing abstinence was that they would “not be accused of date rape.”
The program also, according to the ACLU, showed students a video from 1988 that told the story of young man who contracted HIV through a blood transfusion and was forced to stop playing sports and to use separate bathrooms to avoid infecting his friends. Such information is irrelevant (other than as a history lesson) to the realities of those living with HIV today.
Additionally, the district used Sex Still Has a Price Tag, a video by national abstinence-only speaker Pam Stenzel who travels the country providing assemblies that spread fear and shame. Her message is simple: “No one has ever had sex with more than one partner and not paid.” As Rewire reported a few years ago, her speeches can upset young people because of her tendency to yell at her audience and her implications that anyone who has had premarital sex is of poor character. A student at one of her presentations noted that there were pregnant teens in the audience and told the local newspaper: “She doesn’t like you if you’re not a virgin … Shaming girls for having sex isn’t teaching abstinence.” As the lawsuit explained, the district also showed students a supplemental video that compared women who were not virgins to a dirty shoe.
The school also invited speakers from a crisis pregnancy center into the classroom, court records note.
The ACLU argued that this program did not meet the standards set by the 2003 state law that requires all sex education to be medically accurate and free of bias. The organization worked with parents in the district for many years after that law was passed to try to get Clovis to update and improve its sex education program. While they had some success getting the district to update its middle school program, administrators would not budge on the high school curriculum—so the ACLU decided to file the suit.
The District Makes Changes
Though administrators deny that the lawsuit had any influence on their decisions, over the following two years they made many changes to the high school curriculum, reported the ACLU. They got rid of the supplemental videos and stopped inviting the crisis pregnancy center representatives to talk to students; they created a binder of lesson plans explaining which pages of the textbook teachers should and should not use, thereby avoiding the most offensive content; and they added material that updates the outdated information in the text book. They also added supplementary material from a California-based program called Positive Prevention Plus that meets the standards of the law. And they trained staff on meeting the needs of students of all sexual orientations.
By 2014, the program was completely different than it had been when the lawsuit was filed. Though there was some progress left to be made (like abandoning the textbook altogether), the ACLU and their plaintiffs felt that the district was on the right track and decided to dismiss the lawsuit. A press release at the time explained: “The improvements to sex education in Clovis are a victory for the district’s students. Going forward, Clovis, like all districts, should strive to provide the best possible comprehensive sex education and thereby promote healthy relationships, healthy decisions, and healthy futures for youth.”
A Second Lawsuit
The ACLU, however, filed a second lawsuit asking that the school district pay its legal fees. The organization argued that its lawsuit was the catalyst for the changes the district made and, as such, the plaintiffs were the “prevailing party.” Judge Black agreed. What makes this decision so important, however, is that he did not stop with the finding that the lawsuit was justified and the district should pay ACLU’s fees. He went on to agree that some of what had been taught, based on depositions of teachers, was inaccurate and biased. He wrote that “by failing to include the required STD and pregnancy prevention information, by promoting and reinforcing bias in gender and sexual orientation, and by containing medically inaccurate information,” the district had been violating state law.
Phyllida Burlingame, reproductive health policy director at the ACLU of Northern California, explained to Rewire that this decision was groundbreaking on a national scale:
This is the first time to my knowledge that a judge has ruled on the medical inaccuracy and bias problems with abstinence-only-until-marriage programs. Other cases have been about religious content. So even though this decision is based on California law, it should be of interest in other states as well.
She went on to note:
The decision makes it clear that it is important for states to have requirements that sex education be medically accurate and free of bias. At a baseline level that seems like something everyone could get behind. It would be hard to argue in any state that it’s acceptable to parents, educators, or students to teach information that is inaccurate.
In other words, even though the ACLU dismissed the first case, the judge’s ruling in the second could make it easier for advocates to hold states accountable to laws mandating fact-based sexual education. Unfortunately, according to the Sexuality Information and Education Council of the United States (SIECUS), only 13 states have laws mandating that sexuality education be medically accurate; only eight state require it to be free from bias based on race, sex, or ethnicity.
How Effective Is California’s Law?
Even in California, advocates for sexuality education think the state’s policies could be better. The ACLU, California Latinas for Reproductive Justice, Equality California, Forward Together, and Planned Parenthood Affiliates of California have explained that the law is causing some confusion that is preventing students from getting the information they need.
California passed one of the first laws requiring accuracy in sexuality education in the mid-1990s. In 2003, advocates in the state worked to strengthen that law to ensure materials were also free of bias and religious content. The law now states that: “[I]nstruction and materials shall be appropriate for use with pupils of all races, genders, sexual orientations, ethnic and cultural backgrounds, and pupils with disabilities” and that programs “may not promote or teach religious doctrine.” It also provides some guidance on content to ensure that students learn about abstinence along with STI and pregnancy prevention, including emergency contraception.
One of the issues is that HIV prevention and sexuality education are currently covered in two separate parts of California law. HIV prevention is mandated—schools must teach it. Sexuality education is not mandated—schools don’t have to teach it, but if they choose to, they must follow the guidelines above. In reality, though, most schools combine the two topics. This makes sense because it would be hard to teach HIV prevention without adding some sex education. But not all of them follow the sex education guidelines, because they assume they are exempt from parts of the law that apply to sex education by calling their program HIV prevention. Advocates would like to close this loophole, which prevents some students from getting complete sex education.
The HIV prevention education guidelines themselves were adopted in 1992 and don’t reflect the current understanding of the disease.
So the groups mentioned above are working together to support the California Healthy Youth Act. Introduced in February by Assemblywoman Shirley Weber, AB 329 would mandate both HIV prevention and sex education, update the HIV information, ensure that students are also getting information about other STIs and pregnancy, and strengthen the requirement that programs and materials be appropriate for students of all genders and sexual orientations. The bill would also add guidelines requiring content on relationship abuse and sex trafficking to make sure students understand healthy and unhealthy relationships.
The bill has passed the education committee with a bipartisan vote but faces its biggest hurdle now in the appropriations committee. Advocates argue that since most schools are already providing a combination of sex education and HIV prevention, there should be few associated expenses.
As Deb Hauser, president of Advocates for Youth, told Rewire in an email:
Young people have the right to complete and honest information about sex and sexual health. This week’s decision by the Fresno County Superior Court demonstrates the important role state sex education laws can play in ensuring whether or not young people are provided all of the information they need to safeguard their health and even save their lives. We applaud the advocates and lawmakers in California who are working to make their state’s law even stronger and hope that other states follow suit.
The committee’s vote is expected at the beginning of next month.