that right will inform the court's decision about how to evaluate the state's action it's a fundamental right that has been since a beginning and it continues to be today there's language in the mire and here's cases it seems and make us about that but state's action infringes upon that right or not very clear that the state doesn't infringe on the right because the state is giving a sexually explicit psychologically intimate test to eight year old eight year old this were part of the school curriculum you would not have a constitutional violation that's correct your honor and the reason is that the remedy that we're asking for would be part of the california statutory s california statute for sex education the fill the constitutional rights of parents to control the education and upbringing their children and there's two parts of the statutory scheme that make that happen whether this thing whether the school your claim is based on the fact that this is sort of an extracurricular activity it's a non curricular acronym curricular there is no educational purpose whatsoever to this activity and children didn't learn anything from this act it well they probably did it's the case at the moment but let's assume we were later on in a case and the school conducted these tests for reasons of good to two that is improving its ability to deal with fear is in problems of students so let's assume or was that there was a valid educational for pedagogical purpose to the to the testing then where would we be then we would be conducting strict scrutiny analysis to determine whether that pedagogical purpose is a compelling state interest or not we are dealing with the fundamental right here it's the state of vides advance notice in a meaningful opportunity for parents to off their children out of survey correct we have case law that says the school district is immune in california out of the funding scheme we are also bringing actions against individuals individual claims are not granted by the eleventh amendment even though they're acting statutes both at the state and federal level that describe when and how and in what manner a school may expose children to the sorts of material and there we are talking about sex education and educators are charged with knowing and you know the statute they do know that you're supposed to send out noticed parents before hand before you do sex education this is this is not going leap from that no that's not that's statutory not constitutional law what's your best case that you would if  education program to go forward despite the objections of the parents but knowing the distribution condoms to the high school children and the court who reckon he drew the line here between curricular activity which was sex education and a nonphysical or activity she hadn't yet completed her degrees but she herself should have had training that exposure to this kind of material can be harmful to children even at her state of education there is a school psychologist who was fully licensed employed by the school district oh give the parents rights but the basically the right is to do to give provide a different education than the public school monies provide  there is no case that says is that i'm aware that the parents have a right to put their children in public school and then override what the school has where do you get that right you're talking about  private school you want to have other courses nobody can deprive you of that right fake kind of the fear with it but what king says here that says if you put your child in a public school you then have a right constitutional right to practice public school from doing whatever on my own tears you have the right to control the direction and upbringing of your children arguing that school have to pick and choose for each student based on some cafeteria plan for each family's moral or religious belief but i am saying that this particular subject by virtue of its very sensitive nature to serve special protection why would it make a difference whether it was curricular curriculum if the subject of sex education is so sensitive that it involves  constitutional right of the parent to override the school what difference does it make whether it's part of the curriculum or it's extracurricular because the curricular sex education is already regulated by statute well it may be in real relevance to the constitutional issues that we're here to talk about and i don't think that the manner in which it was done under the current it finds whether a liberty interest rises to the level of the constitutional magnitude and  quote a number of these cases that say we appraise this request with humility and caution as judicial self restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field and that's exactly what i think the attorneys in this case you're doing they're asking this court to create a new law because quite frankly if you review all of the decisions since my appears the only case i've seen that deals with carette all rights to control education and that the court's holding specifically distinguish condom distribution crum talk or literature on the subject of sexual behavior which is clearly what we have here there is another case curtis reeves the school whether or not you can be compelled to do something with your child compelled to go to public schools opposed to private school compelled the type german versus not this is not a compulsion things even on the face of the conflating th understand extension of your argument if the school required the students to fill out the survey and they're not asked for concern that you thank that passes constitutional muster yes i do we talking about two things first do we get to a liberty to court lovely as well the fact that we hear on a matter that appears to be one of the first impressions not only in this jurisdiction but probably in any country since there is no reported case even close to these facts anywhere that's been cited to the court i think that might involve a constitutional right that could happen in the school suppose again there's judge wright heard mentioned the religious right suppose furniture i think in a situation of the purposes of qualified immunity would be hard pressed to argue that it's not a clearly established right that the officials should know about and exercising whatever conduct their exercise and i'm like this case where i don't seem pretty close to being out of time are there any other questions the court has on the eleventh amendment if you don't mind i recognize our case law is fairly strong to california but it strikes me that since question and i don't know the answer to you to be honest with your own but i think encourage mccain's vs lake elsinore which my firm at one time or another not myself handle i think makes this pretty clear in terms of where the courts are with respect to the district's  unity i don't think it's been any sort of i'm california but it would challenge california is unique and every other state and within the ny thing may be accepting why we allow direct suits and what i see happening just a observation is that school districts pick and choose when they want to be in federal court or not they los angeles unified district often doesn't bother to assert a length of them immunity because they'd rather be in federal court for whatever reason and presented that you're not raising that issue you're just raising the seven is due process issue we have not represented the children's rights before the court one way or the other on that right that is true children have rights under under various federal laws like for people sure i think the problem though is that the privacy rights of an invading the child's privacy are somewhat different from the parental rights to control education and i tend to read  invading the rights of privacy that the child might have it seems to me the primary privacy case that i'd point you to the roberts versus j c and that puts the right of intimates association firmly within the realm of federal privacy right that brings you back to the parent's right to control the child's education i mean that's a totally different privacy argument you could have made and i would say i think you should have i'm just trying to find out what the issues are the totally different argument you could have made that this isn't treading into matters that are professional private that they have no right to intrude into to compel children to give answers to these things that's another case another parent cannot control when and how their children are exposed to sexually explicit material as part of their upbringing what is being a parent what does that mean you just agreed that the parent can't if it's part of the curriculum because they have the ability to know beforehand and the ability to opt out that is the right that we are asking that is that is all they are asking for and i think they can't teach it we're not saying that they can't make the information available but we are saying that parents have a parent's right is completely dependent on what the state or the school district or whatever decides the rules should be it's not a constitutional right you're saying you're  issue that isn't regulated by the statute and doesn't survive constitutional analysis i think that makes a very difficult situation for any school teacher