(orally from the bench) Decided: February 8, 1971.
The complaint in the case at bar was originally filed in the Law Division and upon motion of defendants was ordered transferred to the Chancery Division.
This matter is now before the court on the motions of the Attorney General as attorney for the New Jersey State Board of Education, the New Jersey Department of Education,
Carl Marburger, Commissioner of Education, the members of the State Board of Education and Leslie V. Rear, county superintendent of schools, joined in by the attorneys for defendants Parsippany Troy Hills Board of Education, the superintendent of schools, the assistant superintendent of schools, and the individual members of the Parsippany-Troy Hills Board of Education.
The motions are two-fold attacks upon plaintiffs' verified complaint. The first seeks a dismissal of the complaint on the ground that it fails to state a claim upon which relief can be granted in this court. The second is for summary judgment. At the conclusion of arguments the court rendered an oral opinion. This opinion is in supplementation thereof.
Generally, plaintiffs allege that a course entitled "Human Sexuality" given in the Parsippany-Troy Hills public schools requiring the attendance of their children violates the First, Ninth, Tenth and Fourteenth Amendments of the United States Constitution and Art. I, pars. 3 and 4 of the New Jersey Constitution.
Collating the allegations of the verified complaint in each of its seven counts with the answers, there is but one area in which denials are found. For the most part the Attorney General expresses neither admission nor denial, asserting lack of knowledge, leaving plaintiffs to their proof. The local board, in answering many vital paragraphs of the complaint, neither admits nor denies. The local board does deny that the questioned course includes teachings and discussions of sexual intercourse, masturbation and contraception, contrary to religious beliefs of plaintiffs; that the course is critical of parental authority; that a defacto religion is created.
The thrust of the first motion made by both State Board and local board is that plaintiffs have failed to exhaust their administrative remedies, for the Legislature of New Jersey has given a quasi -judicial power to the State Board of Education to determine school disputes. Defendants assert that
the issues raised by the complaint are school disputes. It is the position of defendants that since no formal application has been made for State Board adjudication in approval or disapproval of the local board's action, plaintiffs are left to their exclusive remedy under the statutes of New Jersey (N.J.S.A. 18A:6-9) to contest administratively what the local board is doing before the Commissioner of Education and if an adverse ruling results, appeal to the State Board. Thereafter, an appeal pursuant to rule of court may be taken directly to the Appellate Division as an appeal from an administrative determination R. 2:2-3 (a) (2).
Plaintiffs are Larance Valent and Joan Valent, guardian and natural parents of Anthony, Amy and Coleen Valent. The children attended the Parsippany-Troy Hills public schools. Plaintiffs are members of the Catholic faith.
On January 4, 1967 the New Jersey State Board of Education issued a policy statement recommending that appropriate programs of sex education be developed by educational institutions in this State. On July 2, 1969 the Legislature of the State of New Jersey in an Assembly Concurrent Resolution noted that public controversy had arisen in the area of sex education and requested the Commissioner of Education to direct all boards of education that no new sex education program should be instituted pending the outcome of a legislative inquiry.
On July 25, 1969, pursuant to that resolution, the Commissioner of Education with the approval of the State Board of Education advised all school boards to postpone consideration of new sex education programs. Notwithstanding the Assembly Concurrent Resolution and the Commissioner's memorandum of advice to the local boards, defendant Parsippany-Troy Hills Board of Education instituted a program in "Human Sexuality" in its school district. It is this program which is the subject of the complaint.
On April 9, 1970 the Senate and the Assembly Committees on Education made a joint report to the Legislature concerning and endorsing with recommended limitations sex
education in the public schools. On July 27, 1970 the State Board of Education by memorandum of the Commissioner of Education advised all superintendents, county superintendents and all local boards of education that the moratorium on the institution of programs of sex education pending the conclusion of the legislative inquiry was rescinded. The State Board concurred in some of the limiting recommendations of the Legislature, but rejected others. It is in this latter area that the controversies here arise. In his memorandum of July 27, 1970 the Commissioner of Education conveyed the views and directives of the State Board of Education. The first sentence is an expression of that agency:
The State Board of Education has received the report to the Legislature by the Senate and Assembly Committees on education concerning sex education in the public schools and wishes to acknowledge to the Joint Committee its appreciation for that body's fair, impartial and comprehensive study of problems and issues relating to sex education.
The third paragraph of the Commissioner's memorandum states:
The third recommendation [of the Legislature] to which the State Board takes specific exception is that local boards of education permit students to take sex education courses unless a parent or guardian files written objection with the Board of Education. [Emphasis in text]
The Commissioner went on to say:
It is the belief of the State Board that local boards of education should not be required to grant such exceptions. To do otherwise would be to establish a precedent which could have far-reaching impact on the efficacy of the public school system. Such a precedent could open the door for demands for exclusion, on grounds of conscience , from such courses as health and physical education, biology, history and even English literature. This belief of the State Board does not alter the accepted principle that local boards of education have a right either to establish sex education courses or to refrain
from approving any sex education in the schools under their control. ...