Publication Date

Summer 2011

Document Type



Education Law | Family Law | Juvenile Law | Law | Sexuality and the Law


This article examines the legal and policy implications that arise when a school district decides to instruct students on issues concerning same-sex attractions. As more states afford legal recognition to same-sex relationships and adopt non-discrimination codes that include sexual orientation, schools are faced with the decision of what, when, and how to teach children about same-sex attractions. Providing instruction on this divisive issue is fraught with conflict as views and beliefs on the topic are deeply-held, diverse, and often politically charged. In disputes concerning other sensitive topics, courts long have afforded schools broad discretion to implement curriculum without interference from parents or courts. This article explores the history and purposes of public education before summarizing current state and federal law concerning parents' rights to opt children out of curriculum. It also provides specific examples of how some public schools have dealt with the topic of same-sex attractions. After highlighting the factually inaccurate and potentially harmful information some schools provide to students concerning same-sex attractions, the article explores three possible causes of action against school districts: a state educational malpractice claim, a federal parental rights claim, and a claim for declaratory and injunctive relief. In the past, these claims have, for the most part, been unsuccessful as to curriculum challenges. This article presents a novel approach for those parents, educators, and lawyers who would like to prevent schools from teaching children that a same-sex relationship is a healthy and normal option to explore.