Do the sex-education curricula in use in some South Carolina school districts (Be Proud! Be Responsible!, Making a Difference, Making Proud Choices, Reducing The Risk, Rights Respect Responsibility, Safer Choices) violate the state's Comprehensive Health Education Act or the First Amendment?
Plain-English summary
Three South Carolina House members (Reps. Mark Smith, Jordan Pace, and James Teeple) asked the AG to evaluate six sex-education curricula reportedly in use in at least 18 school districts: Be Proud! Be Responsible!; Making a Difference; Making Proud Choices; Reducing The Risk; Rights, Respect, Responsibility (3 R's); and Safer Choices. They wanted to know whether any of those curricula violate state law (the Comprehensive Health Education Act or "CHEA"), age-of-consent statutes, obscenity laws, or any other South Carolina or federal law.
The AG, through Solicitor General Emeritus Robert D. Cook, declined to declare any particular curriculum unlawful in an opinion, because AG opinions decide questions of law, not factual disputes about what specific lesson plans contain. But the AG reaffirmed two governing legal rules:
The CHEA framework. S.C. Code § 59-32-5 et seq. governs sex-education content in South Carolina public schools. It defines "Reproductive health education" (§ 59-32-10(2)) as instruction in human physiology, conception, prenatal care, childbirth, and postnatal care, and explicitly excludes "instruction concerning sexual practices outside marriage or practices unrelated to reproduction except within the context of the risk of disease." Abstinence until marriage must be "strongly emphasized." "Pregnancy prevention education" (§ 59-32-10(4)) must stress abstinence, help students develop skills to resist peer pressure, and explain methods of contraception in the context of future family planning, with abortion not included as a method of birth control. Discussion of "alternate sexual lifestyles from heterosexual relationships" is permitted only in the context of sexually transmitted disease instruction (§ 59-32-30(5)). § 59-32-50 requires districts to give parents notice of materials and an opt-out for their children. § 59-32-90 prohibits films, pictures, or diagrams that include actual or simulated portrayals of sexual activity.
The 2025-26 Appropriations Act (Proviso 1.40(1)) makes the CHEA mandatory and requires districts to publish their materials online. Non-compliant districts lose 1% of student-health funding. Any person can file a notarized complaint with the school board chair, and a "founded" complaint requires immediate corrective action.
The AG referenced its 2000 opinion (Op. S.C. Att'y Gen., 2000 WL 1347161 (Aug. 18, 2000)), which had concluded that sex-education curricula similar to those at issue here likely violate the CHEA. The 2025 opinion reaffirmed that conclusion: "State law does not permit a curriculum to declare neutrality with respect to whether students 'abstain or protect.' Instead, State law requires that abstaining from sex until marriage must . . . be 'strongly emphasized.'"
The Mahmoud v. Taylor First Amendment overlay. Mahmoud v. Taylor, 606 U.S. ___, 145 S. Ct. 2332 (2025), held that a Maryland school board violated the Free Exercise Clause when it introduced LGBTQ+-inclusive storybooks without notice and an opt-out for parents whose religious beliefs conflicted with the content. Citing West Virginia State Board of Education v. Barnette and Wisconsin v. Yoder, the Supreme Court held that schools cannot impose curricula that "carry with them 'a very real threat of undermining' the religious beliefs that the parents wish to instill in their children" without giving parents the opportunity to opt out. The AG stated that school districts must keep Mahmoud in mind when developing or reviewing sex-education curricula.
The opinion's bottom line: school boards should review their curricula against the CHEA's specific requirements (especially the abstinence-until-marriage emphasis) and against Mahmoud's notice-and-opt-out requirement. A person with standing can challenge a non-compliant curriculum in court. Only a court can ultimately decide whether a particular curriculum or part of one is unlawful.
What this means for you
Parents with children in public schools
You have two enforceable rights under current South Carolina law and federal law. First, under S.C. Code § 59-32-50, your district must provide you advance notice of the content of reproductive-health, family-life, pregnancy-prevention, and (if separately taught) sexually-transmitted-disease instruction. You must be given enough time to preview materials and opt your child out, and your district cannot penalize the child for an opt-out. Second, under Mahmoud v. Taylor (2025), if a curriculum materially burdens your free exercise of religion, you are constitutionally entitled to notice and an opt-out, separate from the CHEA's requirement.
Practical step: ask your school board, in writing, for the title and publisher of all health-education materials in use. The Appropriations Act (Proviso 1.40(1)) requires districts to publish that information online. If you cannot find it, you can file a notarized complaint with the chair of the governing board.
School board members
Two compliance regimes overlap here. Under the CHEA, abstinence until marriage must be "strongly emphasized," contraceptive instruction must be in the context of future family planning, and alternate-sexual-lifestyles content is permitted only in disease-prevention context. The 2025 opinion treats curricula that take a "neutral" stance toward whether students should abstain or use contraception as likely violating the CHEA. The Department of Education enforces compliance through the annual CHE Compliance Survey and can withhold 1% of Student Health and Fitness Act funds for non-compliance.
Under Mahmoud, beyond CHEA-required opt-outs, you must provide notice and opt-out for any curriculum that creates a "very real threat" to parents' religious upbringing of their children. The Mahmoud holding extends well beyond explicit sex-education to any content that pressures children toward viewpoints inconsistent with their parents' religious teachings.
If your district uses any of the six curricula named in the opinion (Be Proud! Be Responsible!; Making a Difference; Making Proud Choices; Reducing the Risk; Rights Respect Responsibility; Safer Choices), this opinion is a strong signal to have legal counsel review the specific lesson plans for CHEA compliance and Mahmoud notice-and-opt-out adequacy.
School district attorneys
The CHEA is a textually specific statute. Match your district's curriculum sections against the language of § 59-32-10(2), -10(4), -30, -50, -80, and -90. Watch for the Mahmoud-mandated notice and opt-out, separate from the CHEA opt-out, when content might burden religious exercise. Coleman v. Caddo Parish School Board, 635 So. 2d 1238 (La. Ct. App. 1994), is cited as persuasive support for judicial scrutiny of allegedly noncompliant curricula. Standing for a parent or other person to sue is plausible.
Curriculum vendors and authors
If your curriculum is being used in South Carolina, ensure that the abstinence-until-marriage emphasis is structurally prominent (not buried), contraceptive content is framed in terms of future family planning, abortion is not included as a method of birth control, and content is reviewable by parents in advance. Materials that present LGBTQ+ relationships outside disease-prevention context will likely be found CHEA-noncompliant.
State Department of Education staff
You enforce CHEA compliance through the annual CHE Compliance Survey and the website-publication requirement. The Appropriations Act gives you withholding power for non-compliance. The 2025 AG opinion gives you legal cover to scrutinize the named curricula closely.
Common questions
Q: What are the six curricula at issue?
A: Be Proud! Be Responsible!; Making a Difference; Making Proud Choices; Reducing The Risk; Rights Respect Responsibility (3 R's); and Safer Choices. The opinion notes at least 18 South Carolina districts report using one or more of them.
Q: Does the AG say these curricula are illegal?
A: The AG cannot make factual findings in an opinion. The opinion does reaffirm that a 2000 AG opinion concluded similar curricula likely violate the Comprehensive Health Education Act, and explicitly says today's opinion reaffirms that conclusion.
Q: What does the CHEA require?
A: Among other things, abstinence until marriage must be "strongly emphasized" (§ 59-32-10(2), -10(4)); contraceptive information must be given in the context of future family planning, not as a stand-alone preference; abortion cannot be presented as a method of birth control; alternate-sexual-lifestyle content is allowed only in disease-prevention context (§ 59-32-30(5)); parents must get notice and opt-out (§ 59-32-50); and films, pictures, or diagrams cannot include actual or simulated sexual activity (§ 59-32-90).
Q: What is Mahmoud v. Taylor?
A: A 2025 U.S. Supreme Court decision holding that a Maryland school district violated the Free Exercise Clause by refusing to provide notice and an opt-out when LGBTQ+-inclusive storybooks were taught. The Court relied on Wisconsin v. Yoder (1972) and West Virginia State Board of Education v. Barnette (1943) to conclude that curricula carrying "a very real threat of undermining" parents' religious upbringing of their children must come with notice and opt-out.
Q: How does the state enforce the CHEA?
A: Through the Department of Education's annual CHE Compliance Survey. The 2025-26 Appropriations Act, Proviso 1.40(1), authorizes withholding of 1% of Student Health and Fitness Act funds from non-compliant districts. Any person can file a notarized complaint with the school board chair, and the board must "ensure that immediate action is taken to correct the violation" of a "founded" complaint.
Q: Can a parent sue a district over a curriculum that violates the CHEA?
A: The opinion cites Coleman v. Caddo Parish School Board, 635 So. 2d 1238 (La. Ct. App. 1994), for the proposition that allegedly noncompliant sex-education curricula are subject to judicial scrutiny. Standing and the specific cause of action would need to be evaluated by a lawyer, but the AG reads CHEA as enforceable in court.
Q: Are LGBTQ+-inclusive materials illegal in South Carolina sex-education?
A: § 59-32-30(5) limits discussion of "alternate sexual lifestyles from heterosexual relationships" to the context of sexually-transmitted-disease instruction. Material that presents such relationships outside the disease-prevention context likely violates the CHEA. Whether any specific curriculum does so is a factual question for a court.
Q: What can teachers do if they believe a curriculum is non-compliant?
A: § 59-32-80 authorizes dismissal of any teacher who refuses to comply with the curriculum the school board prescribes. The board, not the individual teacher, has authority to select compliant materials.
Background and statutory framework
The Comprehensive Health Education Act (S.C. Code § 59-32-5 et seq.) was enacted in 1988. It establishes mandatory instruction in comprehensive health education for grades 6-8 (§ 59-32-30(2)) and at least once during grades 9-12 with at least 750 minutes of reproductive health and pregnancy prevention education (§ 59-32-30(3)). It is supplemented by § 59-32-50 (parental notice and opt-out), § 59-32-60 (Department of Education enforcement), § 59-32-80 (teacher dismissal for noncompliance), and § 59-32-90 (no actual or simulated sexual activity in materials).
The 2025-26 Appropriations Act, Proviso 1.40(1), reinforces compliance with two new mechanisms: districts must publish their health-education materials online, and the Department of Education must withhold 1% of Student Health and Fitness Act funds from non-compliant districts. Any person can file a notarized complaint with the school board chair.
The First Amendment overlay comes from Mahmoud v. Taylor, decided by the U.S. Supreme Court in 2025. Mahmoud applied the Yoder-Barnette free-exercise framework to school curricula and held that materials creating "a very real threat of undermining" parents' religious upbringing of their children require notice and opt-out. The AG's 2025 opinion treats Mahmoud as binding constitutional law that supplements (not replaces) the CHEA's existing opt-out framework.
The opinion is signed by Solicitor General Emeritus Robert D. Cook for AG Alan Wilson. It builds on Op. S.C. Att'y Gen., 2000 WL 1347161 (Aug. 18, 2000), and Op. S.C. Att'y Gen., 1997 WL 569041 (July 23, 1997), 1997 WL 569098 (Aug. 21, 1997), all of which read the CHEA's abstinence emphasis the same way.
Citations and references
Statutes:
- S.C. Code Ann. § 1-7-90 (AG advisory opinion authority)
- S.C. Code Ann. § 59-32-5 et seq. (Comprehensive Health Education Act)
- S.C. Code Ann. § 59-32-10(2) (reproductive health education definition)
- S.C. Code Ann. § 59-32-10(4) (pregnancy prevention education definition)
- S.C. Code Ann. § 59-32-30 (local board implementation)
- S.C. Code Ann. § 59-32-50 (parental notice and opt-out)
- S.C. Code Ann. § 59-32-60 (Department of Education enforcement)
- S.C. Code Ann. § 59-32-80 (teacher dismissal)
- S.C. Code Ann. § 59-32-90 (limits on visual materials)
- 2025-26 S.C. Appropriations Act, Proviso 1.40(1) (compliance mechanism)
Cases:
- Mahmoud v. Taylor, 606 U.S. ___, 145 S. Ct. 2332 (2025)
- West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
- Wisconsin v. Yoder, 406 U.S. 205 (1972)
- Coleman v. Caddo Parish School Board, 635 So. 2d 1238 (La. Ct. App. 1994), as amended on reh'g (May 2, 1994), writ denied 94-1387 (La. 7/1/94), 639 So. 2d 1171
Prior AG opinions:
- Op. S.C. Att'y Gen., 1997 WL 569041 (July 23, 1997)
- Op. S.C. Att'y Gen., 1997 WL 569098 (Aug. 21, 1997)
- Op. S.C. Att'y Gen., 2000 WL 1347161 (Aug. 18, 2000)
- Op. S.C. Att'y Gen., 1985 WL 259225 (Oct. 9, 1985)
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-what-curricula-some-school-districts-are-currently-using-for-sex-education/
- Original PDF: https://www.scag.gov/media/0vynez1a/smith-pace-teeple-os-11065-final-opinion-10-28-2025.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
ALAN WILSON
ATTORNEY GENERAL
October 28, 2025
The Honorable Mark Smith, Member
The Honorable Jordan Pace, Member
The Honorable James Teeple, Member
327-A Blatt Bldg.
Columbia, SC 29201
Dear Representatives Smith, Pace and Teeple:
You have made inquiry regarding six curricula which some school districts are currently using regarding sex education. These are: Be Proud! Be Responsible!; Making a Difference; Making Proud Choices; Reducing The Risk; Rights Respect Responsibility (3 R's) and Safer Choices. You note that "[a]t least 18 districts are reporting on their websites that one or more of those curricula are currently in use."
Your concern is that one or more of these curricula or certain aspects thereof violate South Carolina or federal law. In this regard, you ask that we consider "the S.C. Comprehensive Health Education Act, laws regarding which age minors can legally consent to sex, laws regarding adults accepting or encouraging minors to break the law (age of consent), obscenity laws, or any other laws. . ."
Law/Analysis
We begin by noting that an Attorney General opinion only attempts to answer questions of law and how we believe a court may rule thereupon. See § 1-7-90 (Attorney General shall advise members of the General Assembly as to "questions of law."). We cannot determine issues of fact in an advisory opinion. Id. As we recognized in Op. S.C. Att'y Gen., 1985 WL 259225 (October 9, 1985):
[a]s previous opinions of this Office and other Attorneys General conclude, the scope of an Attorney General's opinion is to address questions of law rather than the investigation of facts. Ops. Att'y Gen. (South Carolina April 5, 1984, and December 12, 1983)....
Because this Office does not have the authority of a court or other fact-finding body, we are not able, in a legal opinion, to adjudicate or investigate factual questions.
Accordingly, we are able to advise you as to the issues of law which a court would likely address with respect to the questions raised in your letter.
With that caveat in mind, we first turn to the Comprehensive Health Education Act. As recognized in Op. S.C. Att'y Gen., 1997 WL 569098 (August 21, 1997), the Act is:
. . . codified at Section 59-32-5 et seq.[and] was enacted in 1988. The General Assembly's purpose in adopting the legislation was
. . . to foster the department and dissemination of educational activities and materials which will assist South Carolina students, teachers, administrators and parents in the perception, appreciation and understanding of health principles and problems and responsible sexual behavior.
Moreover, in Op. S.C. Att'y Gen., 2000 WL 1347161 (August 18, 2000), we discussed the Act, in detail (CHEA) as follows:
[t]he CHEA provides specific guidelines for implementing this general policy. Section 59-32-10(2), for example, defines "Reproductive health education" as instruction in human physiology, conception, prenatal care and development, childbirth, and postnatal care, but does not include instruction concerning sexual context of the risk of disease. Abstinence and the risks associated with sexual activity outside of marriage must be strongly emphasized (emphasis added).
Section 59-32-10(4) defines "Pregnancy prevention education" to be "instruction which is intended to:
(a) stress the importance of abstaining from sexual activity until marriage;
(b) help students develop skills to enable them to resist peer pressure and abstain from sexual activity;
(c) explain methods of contraception and the risks and benefits of each method. Abortion must not be included as a method of birth control. Instruction explaining the methods of contraception must not be included in any education program for grades kindergarten through fifth. Contraceptive information must be even in the context of future family planning. (emphasis added).
In addition, Section 59-32-30 requires local school boards to implement the CHEA. Pursuant to Subsections (2), (3) and (5) of § 59-32-30, it is required that
(2) Beginning with the 1988-89 school year, for grades six through eight, instruction in comprehensive health must include the following subjects: . . . . reproductive health education. Sexually transmitted diseases are to be included as a part of instruction. At the discretion of the local board, instruction in family life education or pregnancy prevention education or both may be included, but instruction in these subjects may not include an explanation of the methods of contraception before the sixth grade.
(3) Beginning with the 1989-90 school year, at least one time during the four years of grades nine through twelve, each student shall receive instruction in comprehensive health education, including at least seven hundred fifty minutes of reproductive health education and pregnancy prevention education.
(5) The program of instruction provided for in this section may not include a discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted diseases. (emphasis added).
Other provisions of the Act are also worthy of note. For example, § 59-32-50 gives parents the right to receive notice of the materials being taught as part of the comprehensive education program and to exempt their children from the program if they so choose. Section 59-32-50 provides:
[p]ursuant to policies and guidelines adopted by the local school board, public school principals shall develop a method of notifying parents of students in the relevant grades of the content of the instructional materials concerning reproductive health, family life, pregnancy prevention, and of their option to exempt their child from this instruction, and sexually transmitted diseases if instruction in the diseases is presented as a separate component. Notice must be provided sufficiently in advance of a student's enrollment in courses using these instructional materials to allow parents and legal guardians the opportunity to preview the materials and exempt their children.
A public school principal, upon receipt of a statement signed by a student's parent or legal guardian stating that participation by the student in the health education program conflicts with the family's beliefs, shall except that student from any portion or all of the units on reproductive health, family life and pregnancy prevention where any conflicts occur. No student must be penalized as a result of an exemption. School districts shall use procedures to ensure that students exempted from the program by their parents or guardians are not embarrassed by the exemption. (emphasis added).
Section 59-32-60 requires the State Department of Education to "ensure compliance with this chapter." Section 59-32-80 provides that "[a]ny teacher violating the provisions of this chapter or who refuses to comply with the curriculum prescribed by the school board as provided by this chapter is subject to dismissal." Finally, § 59-32-90 expressly provides that "[f]ilms, pictures, or diagrams in any comprehensive health education program in public schools must be designed solely for the purpose of explaining bodily functions or the human reproduction process and may not include actual or simulated portrayals of sexual activities or sexual intercourse."
The August 8, 2000 opinion also referenced Op. S.C. Att'y Gen., 1997 WL 569041 (July 23, 1997). There, we addressed the question whether "a curriculum teaching putting off intercourse until an older age or until you're ready would comply with § 59-32-10(2)?" We stated:
[t]he referenced statute states that "reproductive health education" "... does not include instruction concerning sexual practices outside marriage or practices unrelated to reproduction except within the context of the risk of disease." It also states that "(a]bstinence ... must be strongly emphasized." Under the above rules of construction, teaching about intercourse outside of marriage does not appear to be permitted by the General Assembly except in the context of disease. (emphasis added).
In other words, gratuitous, graphic descriptions of sex outside of marriage, which are unrelated to disease control, violate both the letter, as well as the spirit, of the CHEA.
In addition, the 1997 opinion dealt with the question of whether "contraceptive information [can] be given in hopes of preventing a future family for the students or does this paragraph [§ 59-32-10(4)(c)] apply to teaching about the use of contraceptives in future marriages as applied in § 59-32-10(2)." Our response to this question was as follows:
Section 59-32-10(2) requires contraceptive information to be ". . . given in the context of future family planning" and paragraph (4)(c), as quoted above, restricts instruction about sexual practices outside marriage or unrelated to reproduction. These restrictions in paragraph (10)(4)(c) indicate that the contraceptive information in (4)(c) must be given in the context of planning a future family during marriage.
Again, as we read the CHEA, gratuitous promotion of contraceptives is the antithesis of what the Legislature had in mind in the CHEA. While students must certainly be instructed with regard to contraceptives, educators must also take care that such instruction does not promote premarital sex, but rather discourages it.
The 2025-26 Appropriations Act makes clear that the Comprehensive Health Education Act is mandatory and binding upon every school district in South Carolina. Proviso 1.40(1) of the Act states:
[e]ach school district is required to ensure that all comprehensive health education, reproductive health education, and family life education conducted within the district, whether by school district employees or a private entity, must utilize curriculum that complies with the provisions contained in Chapter 32, Title 59 and aligns to all standards and regulations adopted by the South Carolina State Board of Education. Each district shall publish on its website the title and publisher of all health education materials it has approved, adopted, and used in the classroom. If the department determines that a district is non-compliant with mandated health education upon review of the districts annual CHE Compliance Survey or if the district fails to publish the title and publisher of materials on its website, then the Department of Education shall withhold one percent of the districts funds allocated in Part 1A, Section 1, X — Student Health and Fitness Act until the department determines the district is in compliance.
In addition, the proviso allows "any person" to "complain in a signed, notarized writing to the chairman of the governing board of a school district that matter not in compliance with the requirements of Chapter 32, Title 59 is being taught in the district." If the complaint is deemed "founded," the board must ensure that "immediate action is taken to correct the violation." Failure to take such action will result in withholding of one percent of funding.
Legislation setting forth the limitations of sex education curricula are also generally enforceable in court. As one decision has explained,
[b]ecause of its mandates and prohibitions [shalls and shall nots] the statute, in short, defines sex education and states what may and may not be included in the curriculum.
The statute does not delegate unlimited authority to school boards. The Board, of course, is implicitly authorized to assess the educational merit of sex education curricula and select one or more to be taught in its schools. Recognition of this authority does not shield, however, the selected curriculum from judicial scrutiny when the curriculum is alleged to violate in some particulars a specific part of the statute. The judiciary is constitutionally burdened with this responsibility in each case where an action alleges that conduct of a person, natural or juridical, violates a statute.
Coleman v. Caddo Par. Sch. Bd., 635 So. 2d 1238, 1246 (La. Ct. App.) as amended on reh'g. (May 2, 1994), writ denied 94-1387 (La. 7/1/94), 639 So. 2d 1171 and writ denied 94-1431 (La. 7/1/94), 639 So. 2d 1171. Thus, any violation of the Health Education Act is enforceable in court.
We are also of the opinion that the recent Supreme Court decision in Mahmoud v. Taylor, 606 U.S. ___, 145 S. Ct. 2332 (2025), is particularly applicable here. In Mahmoud, parents of students and an unincorporated association of parents and teachers brought an action against a school board alleging the board's refusal to provide notice when "LGBTQ+ inclusive" storybooks would be taught and an opportunity to opt out of instruction infringed their First Amendment right to the free exercise of their religion. The United States Supreme Court held that the Board's introduction of the storybooks without notice and the opportunity to opt out violated the First Amendment.
In Mahmoud, the Supreme Court referenced its earlier decisions in West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) and Wisconsin v. Yoder, 406 U.S. 205 (1972) as controlling. According to the Supreme Court,
[t]hese books carry with them "a very real threat of undermining" the religious beliefs that the parents wish to instill in their children. Yoder, 406 U.S. at 218. Like the compulsory high school education considered in Yoder, these books impose upon children a set of values that are "hostile" to their parents' religious beliefs. Id., at 211. And the books exert upon children a psychological "pressure to conform" to their specific viewpoints. Ibid. The books therefore present the same kind of "objective danger" to the free exercise of religion that we identified in Yoder. Id., at 28.
That "objective danger" is only exacerbated by the fact that the books will be presented to young children by authority figures in elementary school classrooms. As representatives of the Board have admitted, "there is an expectation that teachers use the LGBTQ-Inclusive Books as part of instruction," and "there will be discussion that ensues."
145 S. Ct. at 2355. In short, a school curriculum cannot, consistent with the First Amendment, carry "a very real threat" of undermining the religious beliefs which parents wish to instill in their children. Such a "threat" must provide parents with the opportunity to "opt out" their children from such a threat.
Conclusion
Of course, we cannot make factual determinations regarding the curriculum in question. While we appreciate your submitting the details of this curriculum, the Attorney General, in an opinion, does not possess the capability or the expertise to make a factual determination with respect to the legality thereof. Such a determination would, of necessity, be within the province of a court, or even the Department or State Board of Education. However, we have noted that a person with standing may challenge in court a curriculum which is violative of state law. Op. S.C. Att'y Gen., 1997 WL 569098 (August 21, 1997). Of course, only a court may ultimately deem a curriculum or parts thereof illegal.
Having expressed these caveats, we note that our August 8, 2000 opinion concluded that a court was likely to rule that the sex education curricula in question violated the Comprehensive Health Education Act. We today reaffirm the conclusions made in that opinion. School districts must strictly abide by the terms of the Health Education Act, particularly that part which stresses that abstinence must be emphasized in sex education classes. As our 2000 opinion earlier concluded, ". . . State law does not permit a curriculum to declare neutrality with respect to whether students 'abstain or protect.' Instead, State law requires that abstaining from sex until marriage must . . . be 'strongly emphasized.'" That is the law.
Moreover, we also caution that the Supreme Court's holding in Mahmoud v. Taylor instructs that notice must be provided to parents and parents given the opportunity to "opt out" their children with respect to any curricula or instruction which infringes upon the Free Exercise of their religion under the First Amendment. Certainly, much in the curricula referenced in your letter could be challenged in court upon these First Amendment grounds. Of course, only a court may definitively so conclude. Nevertheless, it is our strong suggestion that school boards proceed with great caution in presenting health education curricula for the reasons referenced herein. The Comprehensive Health Education Act and the Free Exercise Clause of the First Amendment must be strictly followed.
To that end, Justice Thomas, in his concurring opinion in Mahmoud, noted that traditional sex education is hardly what is being taught as such in many schools today. He stated that "[t]he practice of teaching sexuality and gender identity to very young children at school appears to be significantly more recent than typical sex education. . . . Teaching young children about sexual and gender identity in ways that contradict parents religious teachings undermines those parents right to 'direct the religious upbringing of their children. . . .'" 145 S. Ct. at 2375, 2380. School boards must keep the First Amendment in mind when developing sex education curricula.
Sincerely,
Robert D. Cook
Solicitor General Emeritus