Tuesday, April 24, 2007 | For the past three years, officials at the San Diego Unified School District’s have chosen to defy the state’s top law enforcer by refusing to give underage students permission to leave campus to have an abortion without notifying their parents.
That decision is just one aspect of a two-decade-old school board policy that district staff admits conflicts with state laws. Adopted in 1988, the policy requires school employees, including nurses and counselors, to notify parents when they learn that a student is pregnant or is mulling an abortion.
Rights of Passage
Critics of the requirement, both inside and outside of the district, say that the policy flouts a 2004 opinion by the state’s attorney general, which concluded that districts cannot require parental notification before allowing students to leave school for certain confidential reproductive services. They also warn that it threatens the confidential relationship between patients and their physical or mental health professionals — even if they do happen to be employees of a school. Some of these professionals say they’re actively disobeying the policy.
“A lot of times, California law is in conflict with school policy and procedures, and a lot of it is because the issues are not black and white. There is a lot of gray area,” said Marge Kleinsmith, a resource teacher and the head of the district’s sex education program.
District officials say they have no idea how many students have been affected by the policy, nor the extent to which it is enforced on individual school campuses. Kleinsmith, for example, said she wasn’t even aware that the policy covered abortion until she was contacted by Planned Parenthood of San Diego and Riverside Counties, one of several groups that reviewed the policy at the request of voiceofsandiego.org last week.
At least some school counselors, however, say that the rule has been put into effect by the district, and has forced them to choose between implementing the policy enacted by the local school board and respecting their ethical and legal duty as mental health professionals to keep private the information shared by their students.
“As a counselor, this has been a big issue for me and others in the district,” said Michael Askey, the head counselor at Hoover High School.
Askey said he has chosen to err on the side of student confidentiality.
“I don’t call them,” he said of the parents. “This will probably get me in trouble, so ask me if I care.”
The school district adopted its current notification policy less than a year after the California state Legislature passed a similar law requiring doctors to seek consent from parents before performing abortions on minors.
Soon after the law was passed, courts blocked its implementation, and in 1997, the California Supreme Court threw out the legislation as an unconstitutional violation of the right to privacy. The state’s constitution, unlike its federal counterpart, includes explicit privacy protections.
Two trustees who were on the school board at the time say the district did not move to change its policy after the court decision.
“I don’t remember any big to-do votes,” said John de Beck, a school board member first elected into office in 1990.
Frances O’Neill Zimmerman, who served on the school board between 1996 and 2004, said she was not aware of the policy and remembers no discussion of it during her years on the board.
De Beck was the only one of the five current school board members who responded to requests to comment for this story. A former school counselor, de Beck says he has always opposed the policy and thinks some school employees openly defy it.
“Knowingly trying to violate the policy, I don’t recommend, but I think sometimes judgment should prevail,” he said.
In June 2003, according to district records, Superintendent Alan Bersin approved an update to the district administrative procedures for married or pregnant students, though it is unclear if the parental notification portion of the procedures was altered. The procedures were first drafted in 1962.
A year later, in 2004, a state Attorney General’s Office opinion extended the state Supreme Court’s decision to school districts. After securing permission from school nurses, students must be allowed to leave campus for the purpose of receiving confidential medical services, including prenatal care and abortion, the then-Attorney General Bill Lockyer concluded.
“Not only may minors seek insensitive medical treatment without parental consent,” the state’s top attorney wrote, “they have the right to keep the existence of such medical services confidential even from their parents.”
That opinion appeared to invalidate certain applications of San Diego Unified’s policy, said Jennifer Gorman, the head of the district’s nursing and wellness program.
Gorman said she sent a copy of the attorney general’s decision to school attorneys but was surprised when the lawyers wrote back saying they disagreed with the state attorney general and concluding that the district could continue to enforce its parental notification requirement.
Vince Hall, a spokesman for Planned Parenthood, said his organization was unaware that district staff rejected the attorney general’s opinion and maintains that the district policy is illegal.
“It’s a violation of medical privacy law to require the school nurse to notify the principal. Medical privacy means medical privacy,” Hall said. “It is incumbent on those who work within the government, including these schools, to respect the privacy of women who are seeking medical services that have been deemed by the Supreme Court to be confidential, even when a woman is a minor.”
Planned Parenthood, which has criticized laws mandating parental notification by doctors throughout the country and helped defeat two recent ballot initiatives that attempted to write such policies in state law, argues that they endanger children with abusive parents or victims of rape and incest. Proponents of these measures say that parents have a right to be involved in the health care of their kids when it comes to pregnancy, as the law currently says they do with most other medical decisions.
The district policy, unlike other state-level laws, does not allow students the option of challenging the notification requirement in court on a case-by-case basis.
Earlene Dunbar, the district’s head of guidance counseling, said she only knew of “one or two cases where [enforcing the policy] didn’t go well.”
“If the family reacts in a negative way, the students can always go back to the counselor and the counselor will continue to work with them to help them deal with the stress of the situation where the family is not accepting them,” she said.
Dunbar said the district has known for some time that its notification requirement is in conflict with state law.
“That is what the policy says. Because we are a public institution, sometimes the policies do vary from the law a little bit,” she said.
Dunbar also said the district instructs counselors to notify students that their confidentiality could be waived if they reveal their pregnancy or their plans to terminate it, though she admits she has little information about whether those instructions are carried out.
Staff members at individual school sites, including principals, say that the policy puts them in a bind. On one hand, they believe it’s best for students to involve their parents in potential life-and-death decisions, and openly encourage students to notify their parents of their pregnancy. On the other, they worry that communicating with parents directly threatens the trust between students and their advisers, and may discourage kids in trouble from seeking help.
Not all legal observers agree that all aspects the district policy are illegal. At the heart of both the state court decision and the attorney general’s opinion was the perception that certain medical services were contingent on the parental notification. The district’s more general policy simply requires school staff to notify parents when they learn that a student is pregnant or considering an abortion, and thus faces fewer legal hurdles, said Katie Short, the legal director of the Life Defense Legal Foundation.
It is also far from clear how much confidentiality extends to school staff when they are not acting as the student’s health care provider and are just lending a helping ear.
“The school nurse maybe begins to get problematic — maybe,” Short said. “But I’m still inclined to say that you can’t just line up people and say, we’re going to bring them all in to the umbrella of physician-patient privilege. They aren’t.”
Hall, from Planned Parenthood, said his organization plans ask the school board to remove the notification requirement, though district staff warns that any talk of updating the current language will likely attract opposition from conservative-minded San Diego voters and, by extension, the school board that represents them.
“The school board tends to be more conservative than perhaps the counselors’ feelings toward helping the students,” Dunbar said. “My guess is that it hasn’t been overtly challenged, because it’s unlikely that the policy would shift.”
If the district doesn’t change its mind, said Askey, the Hoover High counselor, the policy will continue to put a strain on the dual loyalties of school personnel: one to their superiors, and one to the well-being of their students.
“Primarily, it’s an issue about where your responsibility lies. Does it lie with your employer?” he said. “You could be a yes-man do what the district says. Or you could take your lumps.”