On certification to the State Board of Education.
For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
Appellants challenge a regulation of the State Board of Education (Board) that requires each local school district to develop and implement a family life education program in the public elementary and secondary curricula. N.J.A.C. 6:29-7.1. Appellants contend that such a program impinges upon the free exercise of their religion and constitutes an establishment of religion in violation of the United States Constitution. U.S. Const. amend. I. They also allege that the process of adopting the regulation did not comply with the requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15.
The Board adopted the regulation on August 6, 1980. Appellants then sought review in the Appellate Division, R. 2:2-3(a)(2). Before argument was heard in the Appellate Division we certified the matter directly. 88 N.J. 471 (1981).
In January 1979 the Board appointed a committee, called the Family Life Committee, to make recommendations concerning the teaching of family life and human sexuality in the public schools. Prior to that time the Board's policy toward sex education was embodied in a resolution that had been adopted in 1967. That policy recommended but did not require that local school boards develop programs for sex education. A survey by the Department of Education, conducted at the Family Life Committee's request, determined that under the "recommended-but-not-required" policy, only 40 per cent of the state's public school pupils were receiving sex education. See Report of the Family Life Committee of the New Jersey State Board of Education, August 1979 (hereinafter Report).
In the Report, the Family Life Committee pointed out several sociological factors and statistics that it believed reinforced the need for sex education. Although the source of these statistics is not given, there is nothing to indicate that they are unreliable nor do appellants dispute them. The Report sets forth the following:
in the United States one in five births is to a teenager between 15 and 19; in 1977 one million babies were born to girls between the ages of 10 and 18; in New Jersey in 1977, twelve thousand babies were born to girls between 15 and 19; 60% of these girls were unmarried;
of the teenagers who do become pregnant when in school, about 80% drop out and do not return to complete their education;
research studies continue to show that babies born to adolescent mothers are more apt to be premature and underweight;
babies of low birth weight often suffer from a lag in development through their early years which affects their ability to learn in school;
the incidence of venereal disease in both males and females continues to rise.
The Committee also cited the results of a 1978 Gallup poll indicating that 77 per cent of the public and 95 per cent of the students favored sex education in the schools. However, the Committee pointed out that no research studies had been found that showed a correlation between teaching about human sexuality and a reduction in teenage pregnancy or venereal disease.
The Committee then made the following recommendations:
that the study of family life education as part of the sequential comprehensive kindergarten through twelfth grade curriculum be required;
that the State Board's regulation provide for an excusal policy from sections of the curriculum dealing directly with sex education on parental grounds of conscience;
that the districts provide appropriate services to assist pregnant teenagers and teenage parents;
that the Department of Education be directed to prepare for consideration of the board, administrative code regulations to implement the above ...