Challenge to schools' distribution of condoms rejected Supreme Court refuses to review dispute

January 09, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court gave implied permission yesterday to public schools to offer birth control devices to students without having to inform parents or getting parents' consent.

Refusing to be drawn into a controversy that has been building across the nation since 1989, the court turned aside the first constitutional challenge to reach it in a case from Falmouth, Mass.

The action does not mean that the court endorses programs of free condom distribution, or that it agreed with the decision by Massachusetts' highest state court to uphold such a program.

It was an indication that the court did not consider the constitutional dispute worth reviewing at this stage, even though state courts are in dispute on it.

The justices issued their order in a flurry of activity that made the court the only part of the government fully functioning yesterday. Eight of the justices were picked up at home and taken to the court.

Only Justice John Paul Stevens, who spends most weekends in Florida, could not make it back.

The Falmouth case involves a program that has been in effect in the Massachusetts community's junior and senior high schools since January 1992.

The schools provide free condoms to students who ask a school nurse for them. The high school also has a condom vending machine in restrooms.

The program provides no notice to parents and parents are not given a formal option to keep their children out of the program.

A group of parents claimed in a challenge that they lose their right to control their children's moral upbringing and attitudes about sex before marriage if there is no notice to them or any veto power over access to the condoms.

Condom distribution programs have been adopted in a number of the nation's largest school districts since the public schools in Adams County, Colo. in the Denver area adopted the first district-wide plan when schools opened in fall 1989.

The controversy gained notoriety after New York City school officials adopted a program the next year. That program was struck down by a state court in 1993.

School officials and youth health organizations have defended the programs as necessary to help reduce teen pregnancy, and to help reduce the spread of sexually transmitted diseases, including AIDS. There are 1 million teen pregnancies a year in the nation, and 3 million teen-agers a year develop a sexually transmitted disease, according to the American Civil Liberties Union.

Before the system-wide programs developed, condoms were distributed through a number of school-based health clinics, as a health service.

Lawyers for the Falmouth parents had been optimistic that the court would hear their case, because the justices frequently take on a controversy when lower courts reach conflicting rulings on it as the Massachusetts and New York courts have.

Jay Alan Sekulow, chief counsel of the American Center for Law and Justice, the main lawyer in the Falmouth parents' case, assailed the Supreme Court's order: "A condom has more constitutional protection in America today than parents and children."

In another order yesterday, the court cleared the way -- after a 20-year effort that had failed repeatedly -- for the government to bar "indecent" programs from regular radio and television during daytime and evening hours.

The court made no comment as it turned aside a constitutional challenge to a 1992 federal law that banned all programs that fit within a Federal Communications Commission definition for "indecency" between the hours of 6 a.m. and midnight.

A federal appeals court upheld the law, but said such programs had to be allowed between 10 p.m. and midnight. Thus, the programs now may be aired between 10 p.m. and 6 a.m. only.

In another order yesterday, the Supreme Court refused to disturb a state court order that bars one of the best-known Vietnam War era radicals -- Katherine Ann Power of Boston -- from making any money by telling the story of her role in crime or her 23 years as a fugitive.

Power was convicted of driving the getaway car when others robbed the State Street Bank and Trust Co. in Boston in 1970 -- a crime planned to get money for anti-war protest activity. Power fled, and surrendered after living 23 years under another identity in Oregon.

Also without comment, the court rejected arguments that boxer Mike Tyson was denied a fair trial in 1992 when he was convicted of raping Desiree Washington, a beauty pageant contestant, in Indianapolis in 1991.

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