195 A.D.2d 46, Alfonso v. Fernandez

Citation:195 A.D.2d 46, 606 N.Y.S.2d 259
Party Name:Alfonso v. Fernandez
Case Date:December 30, 1993
Court:New York Supreme Court Appelate Division, Second Department

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195 A.D.2d 46

606 N.Y.S.2d 259

In the Matter of Ignacia ALFONSO, et al., Appellants,


Joseph A. FERNANDEZ, et al., Respondents.

Supreme Court of New York, Second Department

December 30, 1993.

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[606 N.Y.S.2d 260] Donovan, Leisure, Newton & Irvine, New York City (Paul A.

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Crotty, Patrick J. Sullivan, Jana L. Van Tatenhove, and Sundria R. Lake, of counsel), for appellants.

O. Peter Sherwood, Corp. Counsel, New York City (Doron Gopstein and Fred Kolikoff, of counsel), for respondents.

New York Civil Liberties Union Foundation, New York City (Catherine Weiss, Donna Lieberman, and Arthur N. Eisenberg, of counsel); AIDS Project, American Civil Liberties Union Foundation, New York City (William B. Rubenstein and Ruth E. Harlow, of counsel); Berle, Kass & Case, New York City (Jean M. McCarroll and Deborah Goldberg, of counsel); Planned Parenthood Federation of America, New York City (Roger K. Evans and Beth Otten, of counsel), for The New York Civil Liberties Union, et al., amici curiae.


PIZZUTO, Justice.

Today, we hold that the respondents are prohibited from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision. Condom distribution [606 N.Y.S.2d 261] in the public schools is a health service rather than health education and thus, in the absence of a provision requiring the prior consent of unemancipated minor students' parents or guardians, or in the absence of an opt-out provision, lacks common-law or statutory authority. In addition, the respondents' plan to dispense condoms to unemancipated minor children without the consent of their parents or guardians, or an opt-out provision, violates the civil rights of the parent petitioners and similarly-situated parents or guardians under the substantive due process clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article 1, § 6.


In September 1987 the New York State Commission of Education directed all elementary and secondary schools to include, as part of health education programs, instruction concerning the Human Immunodeficiency Virus (HIV) which causes Acquired Immune Deficiency Syndrome (AIDS) (see, 8 NYCRR 135.3[b][2]; [c][2]. In late 1990, Joseph Fernandez, then Chancellor of the New York City Board of Education, suggested enlarging the existing HIV/AIDS curriculum to impart additional education about the transmission and prevention

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of HIV/AIDS. The former Chancellor also suggested that condoms be made available to high school students upon request. On February 27, 1991, the New York City Board of Education voted to establish an expanded HIV/AIDS Education Program in New York City's public high schools, consisting of two components.

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

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

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

The petitioners contend that implementation of the condom availability component of the program: (a) violates Public Health Law § 2504, because it constitutes "health services" to unemancipated, minor children without the consent of their parents or guardians, and therefore is not authorized by law, (b) violates their due process rights to direct the upbringing of their children, and (c) violates their rights to the free exercise of their religion as guaranteed by the First Amendment of the U.S. Constitution and N.Y. Constitution, Article 1, § 3.

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Intense controversy has surrounded the expanded HIV/AIDS education program. The impetus for the program is a deadly public health threat of epidemic proportions. New York City teenagers allegedly account for 20% of the reported cases of adolescent AIDS in the United States, although they make up only 3% of the nation's teenagers. The supporters of the condom availability component of the plain view it as a legitimate and necessary part of public school health education directed at control of a public health crisis. On the other hand, many persons [606 N.Y.S.2d 262] are concerned that the condom availability component of the plan is tantamount to condoning promiscuity and sexual permissiveness, and that the exposure to condoms and their ready availability may encourage sexual relations among adolescents at an earlier age and/or with more frequency, thereby weakening their moral and religious values. They doubt the wisdom or the desirability of a public school system engaging in what they view as a controversial social program peripheral to the immediate task of educating children.

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



At common law it was for parents to consent or withhold their consent to the rendition of health services to their children. The general incapacity of minors to consent to health services derives from this common-law rule that treated a minor's "normal condition [as] that of incompetency" (66 NYJur2d, Infants And Other Persons Under Legal Disability § 3; see also, Bonner v. Moran, 126 F.2d 121 [applying common-law rule requiring consent of parent to surgery performed on minor and reviewing relevant State cases]. As legal incompetents, minors could no more consent to medical treatment than they could enter into binding contracts and they continued to be incompetent in many

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circumstances to give effective consent to health care. The courts identified exceptions to the common-law rule regarding the incapacity of minors. For example, children were regarded as emancipated and competent to consent when they were married ( see, Cochran v. Cochran, 196 N.Y. 86, 89 N.E. 470); or supported themselves ( see, Cohen v. Delaware, Lackawanna & Western R.R. Co., 150 Misc. 450, 269 N.Y.S. 667); or were inducted into military service ( see, Matter of Fauser v. Fauser, 50 Misc.2d 601, 271 N.Y.S.2d 59); or when their parents abandoned them or failed to support them ( see, murphy v. murphY, 206 misc. 228, 133 n.y.s.2D 796). in addItion, a physician could render health services to a minor in an emergency without first consulting his or her parents.

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

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

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

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

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

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

[606 N.Y.S.2d 263] The petitioners argue that the distribution of condoms to high school students is a health service, that such distribution does not fall within any of the exemptions set forth in Public

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