Alfonso v. Fernandez
| Decision Date | 30 December 1993 |
| Citation | 606 N.Y.S.2d 259,195 A.D.2d 46 |
| Parties | , 62 USLW 2430, 88 Ed. Law Rep. 747 In the Matter of Ignacia ALFONSO, et al., Appellants, v. Joseph A. FERNANDEZ, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Donovan, Leisure, Newton & Irvine, New York City (Paul A. 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.
Before BALLETTA, J.P., and MILLER, EIBER, COPERTINO and PIZZUTO, JJ.
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 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.
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 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.
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
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 []. 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 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:
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 Health Law § 2504 to the common-law requirement of parental consent, and therefore, that parental consent is required. The respondents argue that the distribution program is not a "health service" but merely an "adjunct to an education program" or an "aspect of instruction in disease prevention". Thus, the...
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