Condoms in Schools

By Elaine A. Lisko, Health Law & Policy Institute

As a school nurse, my mother had many interesting stories to recount. She removed rocks from ears and bandaged countless scraped knees. Excuses for gaining access to the sick room cot or the jar of animal crackers she kept to ward off fainting spells for kids who had skipped breakfast were varied and creative. We looked forward to a run down of each dayís adventures. One episode that remains vivid in my memory dealt with sex education.

The point in the school year for giving "The Talk" had arrived. At the time, my mother was covering two different schools. As was the practice in the school district where the schools were located, she sent notices to the studentsí parents advising them of the topic to be discussed and inviting anyone interested to attend. At one of the schools, it was just my mother and the students. At the other school, some concerned parents added themselves to the mix.

The result was interesting and instructive. My mother gave essentially the same presentation at both schools. She then opened the floor to questions. At the school without parents, the questions and background information leading up to them were numerous. At the school with parents, the room was silent.

Sex education in schools has changed since my mother gave her presentation. Today, it often includes a discussion of condom usage and, in some schools, condom distribution. Parentsí desire to remain actively involved in their childrenís sex education, on the other hand, has not changed. The potential chilling effect of parentsí involvement has also not changed.

While parents have primary responsibility for rearing their children, they need to recognize that sometimes children are more comfortable seeking counsel from others. An informed, accessible health care provider, like a school nurse, can serve this important role. As in the past, the nurse can explain without judgment the consequences of sexual relations. In light of the current reality of teen sexuality, the nurse can also explain how to use a condom properly and, when approached by a student who has decided to have sexual relations, ensure that the student has a condom.

Making condoms available in schools is not a simple matter, however, and the state of the law on the issue is divided. Courts have tended to defer to school boardsí decisions and allow condom distribution programs to stand, but legislators have tended to restrict school boardsí powers and prohibit such programs from being instituted. The debate revolves around rights, responsibilities, and potential liability. It also revolves around the message teens receive from such programs.

The need to reduce the risk of teen pregnancy and sexually transmitted disease for those who decide to have sexual relations requires less divisiveness. Parents can still instruct their children as they see fit, but parents and their elected representatives should entrust school boards with the power to supplement that instruction with informed, health-based programs and services, including condom distribution programs. The principal message teens should receive is that their continued health and safety is key.

The court decisions that address the issue of condom distribution in schools include:
Parents United for Better Schools, Inc. v. School District of Philadelphia Board of Education, 148 F.3d 260 (3d Cir. 1998) (applying Pennsylvania law). For Court held that school board did not exceed its statutory powers in implementing voluntary condom distribution program in high schools. Program constituted health service designed to protect students by preventing disease. Parentsí fundamental right to remain free from unnecessary governmental interference with child rearing was not violated where program was voluntary for both parents and students and reserved to parents the option to disallow their childís participation.
Curtis v. School Committee of Falmouth, 652 N.E.2d 580 (Mass. 1995), cert. denied, 516 U.S. 1067 (1996). For Court held that voluntary condom distribution program in junior high and high schools did not unconstitutionally infringe upon parents and studentsí right to familial privacy, parental liberty, and exercise of religious freedom. Program did not constitute a medical service for which parental consent was required. Because program lacked any degree of coercion or compulsion, plaintiffs could not demonstrate a substantial burden on their rights to any degree approaching constitutional dimensions. Court noted that students were free to decline to participate and parents were free to instruct their children not to participate in the program, even without express opt out provision.
Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. Sup. Ct. 1993). Against Court held that voluntary condom distribution program in high school violated parental right to rear children as parents saw fit but did not violate right to exercise religious freedom. Program constituted a health service for which parental consent was required under public health law. Parentsí fundamental right to remain free from unnecessary governmental interference with child rearing was violated where program had no opt out provision. However, parentsí right to free exercise of religion was not violated where no sanction was visited upon students who failed or refused to participate in the program.

The enacted and proposed state statutes that address the issue of condom distribution in schools include:
Ark. Code Ann. § 6-18-703 For Acknowledges that local school boards retain sole authority over whether and to what extent family planning education is provided in school-based health clinics, including any purchase or distribution of condoms, but provides that parental consent to contraceptive services and condom distribution must be obtained.  Enacted.
Mo. S.B. 647 Against Prohibits school districts from distributing condoms or other contraceptives, but allows local boards to determine policies concerning referrals and parental notification regarding contraception. Introduced on 01/07/98; referred to Missouri Senate Committee on Education on 01/13/98; 1998 Regular Session adjourned on 10/02/98 with no further action and no carryover.
N.J. A.B. 687 Against Prohibits distribution of condoms in state institutions and specifically prohibits Department of Education from distributing condoms to students attending a school or educational facility. Statement preceding bill notes that billís sponsor believes that condom distribution program sends false signal to students regarding the safety of use in preventing disease transmission and subjects persons involved in program to untold liability. Introduced and referred to New Jersey Assembly Committee on Health on 01/13/98.
N.C. Gen. Stat. § 115C-81 Against Prohibits making available or distributing contraceptives, including condoms, on school property. Enacted.
Okla. H.B. 1187 Neutral Requires State Board of Health to adopt and promulgate rules relating to practice of condom distribution by Department of Health. Introduced on 02/03/97; referred to Oklahoma House Committee on Community and Family Responsibilities on 02/04/97; carried over to 1998 Regular Session on 05/30/97; 1998 Regular Session adjourned on 07/21/98 with no further action and no carry over to next session.
R.I. H.B. 8077 For Requires that condoms be made available in all state public high schools in order to reduce the dramatic increase in confirmed exposures to sexually transmitted disease by students. With regard to accessibility, provides that no teacher or staff member shall distribute condoms to students or require students to receive them but that condoms shall be made readily available. Also provides that no student shall be penalized for retrieving condoms and no notification shall be sent to the studentís parents of his or her retrieval, but that a studentís parents may request, in writing, that their child not be allowed to retrieve condoms. Introduced and referred to Rhode Island House Committee on Health, Education and Welfare on 02/03/98; transferred to Rhode Island House Committee on Finance on 03/04/98.
S.C. H.B. 3734 Against Prohibits Department of Health and Environmental Control and any other state agency or department from distributing condoms or other types of contraceptives to persons under 16 years old without the written consent of a parent or guardian. Introduced and referred to South Carolina House Committee on Medical, Military, Public and Municipal Affairs on 03/26/97; carried over to 1998 Regular Session on 06/17/97.
Tex. Educ. Code Ann. § 28.004 Against Provides that a school district may not distribute condoms in connection with instruction relating to human sexuality. Enacted. During the 1997 Regular Session, Tex. H.B. 178, which provided that each institution of higher education (i.e., college level) shall provide a condom to any enrolled student requesting one was introduced. The bill was not enacted or carried over to the next session.