25,617 La.App. 2 Cir. 3/31/94, Coleman v. Caddo Parish School Bd.

• Decision Date: 31 March 1994
• Citation: 635 So.2d 1238
• Parties: 25,617 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1238

635 So.2d 1238

25,617 La.App. 2 Cir. 3/31/94, 90 Ed. Law Rep. 1343

Bettye COLEMAN, et al., Plaintiffs-Appellees, v. CADDO PARISH SCHOOL BOARD and Committee on the Status of

Women, Defendant/Intervenor-Appellants.

Bettye COLEMAN, et al., Respondents, v. Judy D. BOYKIN, Applicant.

Bettye COLEMAN, et al., Respondents, v. CADDO PARISH SCHOOL BOARD, Applicant.

Nos. 25617-CA, 25925-CW and 25931-CW.

Court of Appeal of Louisiana,

Second Circuit.

March 31, 1994.

Order Granting Rehearing in Part

May 2, 1994.

Writ Denied July 1, 1994.

Davidson, Nix, Arceneaux, Jones & Askew by Allison Jones, Shreveport, for Bettye Coleman, et al.

Beard & Sutherland by Roy L. Beard and Fred H. Sutherland, Shreveport, for Caddo Parish School Bd.

Pugh, Pugh & Pugh by Robert G. Pugh, Shreveport, for Committee on the Status of Women.

Peatross, Greer & Frazier by L. Edwin Greer, Shreveport, for Judy D. Boykin.

Before MARVIN, C.J., and NORRIS and HIGHTOWER, JJ.

MARVIN, Chief Judge.

In this appeal of the judgment in what has become popularly known as the Caddo sex education case, we amend in some particulars and recast to make specific, the judgment granting declaratory and injunctive relief, effectively affirming, in large part, the result in the trial court.

Exercising our supervisory jurisdiction on the respective applications of the school board and its president, Ms. Boykin, we consolidated with the appeal a writ of review in each instance to review the trial court's finding each applicant in contempt of court for their respective conduct after the trial court rendered its judgment in the case.

While amending and recasting to effectively affirm, in large part, the trial court's judgment in the appeal of the sex education case, we reverse the contempt judgments.

PREFACE

Plaintiffs, a group of Caddo Parish parents whose children attend the public schools operated by the defendant Board, instituted the action, contending that numerous written passages of varying length in the sex education curricula adopted by the Board violated LRS 17:281. The publisher of the curricula intervened in the action, joining the Board as a defendant and as an appellant in this appeal. Except where necessary to distinguish the appellants, we shall refer to appellants simply as the Board.

The trial court found that many of the challenged passages complained of violated the statute, while others did not. This appeal presents only statutory and not constitutional issues: whether a particular passage either

(1) includes religious beliefs, practices in human sexuality, or subjective moral and ethical judgments of the instructor or other persons;

(2) does not contain factually accurate biological or pathological information on a permissible subject;

(3) counsels or advocates abortion; or

(4) quizzes, surveys, or tests students about personal or family beliefs or practices in sex, morality or religion.

These issues, of course, are framed in the language of the statute, which was initially adopted by the 1979 legislature, but which has been since amended by six other legislatures, none of which has further defined the words or terms in the legislation's mandates and prohibitions. We shall later quote the pertinent language of the statute in discussing the passages the trial court found to have violated the statute. Plaintiffs have not appealed or otherwise complained of the trial court's ruling that found some challenged passages did not violate the statute. Those passages are not before us.

Because of its mandates and prohibitions [shalls and shall nots], the statute, in short, defines sex education and states what may and may not be included in the curriculum.

The statute does not delegate unlimited legislative authority to school boards. The Board, of course, is implicitly authorized to assess the educational merit of sex education curricula and select one or more to be taught in its schools. Recognition of this authority does not shield, however, the selected curriculum from judicial scrutiny when the curriculum is alleged to violate in some particulars a specific part of the statute. The judiciary is constitutionally burdened with this responsibility in each case where an action alleges that conduct of a person, natural or juridical, violates a statute.

Here, the trial court had the initial responsibility of determining whether the language of the two curricula in question was contrary to the language of the statute [What does the language of each mean?]. As an appellate court, we determine whether the trial court was clearly wrong in its factual determinations or in its legal conclusions.

In its assignments of error, the Board contends the trial court used an improper legal standard to "review" the written passages that were challenged and that the judgment enjoining the Board is too broad.

We agree that the judgment enjoining the Board technically violates the specificity requirement of CCP Art. 3605, notwithstanding the trial court's more specific reasons that were later given for denying the Board's motion to recall the injunction on the grounds of lack of specificity. Compare Brown v. East Baton Rouge Parish School Bd., 405 So.2d 1148 (La.App. 1st Cir.1981). Agreeing with plaintiffs, however, that this issue may be resolved by our recasting the judgment, as here amended, we shall "cure" the specificity violation.

For the reasons we assign in the last section of this opinion, we do not agree with the Board's assertion that the trial court employed an erroneous legal standard of review in determining that some passages in the curricula violate the statute. Also to avoid burdening readers other than the litigants and their counsel, we resolve the assignments of error that relate to the passages the trial court found to be in violation of the statute before we discuss the Board's assignments relating to the trial court's rulings on evidentiary matters.

The statute, LRS 17:281, initially enacted in 1979 with seven subsections, A through G, has since been amended or supplemented in part by seven acts adopted by the legislature[s] in 1982, 1987, 1988, 1990, 1992, and 1993. The statute now contains four subparts of the § 281 A subsection and includes an additional subsection H. Pertinent to this litigation are subsection F and subparts (2) and (3) of subsection A.

The curricula before us are: Sex Respect: The Option of True Sexual Freedom, for use in the 7th and 8th grades, and Facing Reality: A New Approach to the Real World of Today's Teen, for use in the 10th grade. Each curriculum includes at least two publications, a text for students and a guide for either or both the teacher and parents. These publications total 482 pages, Sex Respect, 232 total pages and Facing Reality, 250 total pages. The Board asserted in the trial court that the student texts alone should be scrutinized for statutory violations, but does not complain on appeal of the trial court's ruling that the teacher and parent guides must also comply with the statute because the guides direct what and how the students are taught.

THE STATUTE

LRS 17:281 provides that public elementary and secondary schools may, but are not required to, offer sex education instruction in grades seven and higher, provided the instruction is offered as part of an existing course such as biology, science, physical hygiene or physical education. A child may be excused from such instruction at the option of his or her parent or guardian.

We emphasize the language of the statute in subsections A(2), A(3) and F that is pertinent:

A(2). It is the intent of the legislature that, for the purposes of this Section, "sex education" shall mean the dissemination of factual biological or pathological information that is related to the human reproduction system and may include the study of sexually transmitted disease, pregnancy, childbirth, puberty, menstruation, and menopause, as well as the dissemination of factual information about parental responsibilities under the child support laws of the state. However, the dissemination of factual information about parental responsibilities under the child support laws of the state may be offered only in grade nine or above. It is the intent of the legislature that "sex education" shall not include religious beliefs, practices in human sexuality, nor the subjective moral and ethical judgments of the instructor or other persons. Students shall not be tested, quizzed, or surveyed about their personal or family beliefs or practices in sex, morality, or religion.

A(3). ... The major emphasis of any sex education instruction offered in the public schools of the state shall be to encourage sexual abstinence between unmarried persons.

F. No program offering sex education instruction shall in any way counsel or advocate abortion.

Before trial, plaintiffs identified the written passages claimed to have violated the statute, using a letter designation to identify the specific statutory basis for the violation:

"R"--Includes religious beliefs, practices in human sexuality, or the subjective moral and ethical judgments of the instructor or other persons;

"M"--Does not contain factual biological or pathological information related to the human reproduction system or the study of sexually transmitted disease, pregnancy and childbirth, and is thereby medically inaccurate;

"A"--Counsels students on the subject of abortion;

"Q"--Quizzes, surveys or tests students about their personal or family beliefs or practices in sex, morality or religion.

THE EVIDENCE

The case was tried on stipulations, documentary evidence and expert testimony. No lay witnesses testified.

Plaintiffs' four experts were Rabbi Michael Matuson, an expert in religion and theology, and three M.D.'s: Dr. Joseph Bocchini, a pediatrician specializing in infectious diseases; Dr. Warren Otterson, an obstetrician/gynecologist; and Dr. George Seiden, a psychiatrist. Each M.D. was accepted as an expert in...