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VII. LEGAL STANDARDS
Although participation in federally funded abstinence-only programs is voluntary, they represent funding that is difficult and controversial for state and local governments to ignore, especially in times of fiscal constraint.218 As Leslie Unruh, founder of the National Abstinence Clearinghouse, has noted, "abstinence has become a business," which Unruh estimates has increased by more than 900 programs in recent years.219 As a condition of receiving federal abstinence-only funds, abstinence-only programs must censor essential information about condoms as a means to prevent HIV. This prohibition applies even when students and other young people in these programs directly request such information. Federal abstinence-only restrictions distort information regarding existing effective preventive measures and decrease the likelihood that young people and adults will know that using condoms can prevent HIV. Federally funded abstinence-only programs conflict with fundamental human rights. Of particular concern is their interference with the right of every person to enjoy the highest attainable standard of health. This requires the state to provide health-related education and information to prevent epidemic diseases, and to refrain from censoring, withholding or intentionally misrepresenting health-related information. To be meaningful and effective, information on HIV/AIDS must be accurate and complete. Because HIV/AIDS is a fatal disease that as yet has no cure, the failure of the government to provide HIV/AIDS information may have serious consequences for the right to life. Unjustified limitation on the right to seek, receive and impart information violates the right to freedom of expression. And the dissemination of health information that excludes a certain group of people, in this case persons whose sexual orientation is not addressed in abstinence-only programs, infringes on the right to nondiscrimination and freedom from discrimination in education. International Law
These rights are enshrined in important international human rights treaties. The United States is a party to some of these, including the International Covenant on Civil and Political Rights (ICCPR). The United States has declared a number of reservations to the ICCPR, principal among these is a reservation that the provisions of the ICCPR are not enforceable in federal or state court without implementing legislation.220 Other treaties the U.S. has signed but not ratified include the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). While the United States is not specifically bound by the terms of these treaties, as a signatory it has the obligation to refrain from actions that would defeat the treaties' object and purpose.221 Many of the rights contained within the major human rights treaties are derived from customary international law-and are applicable whether or not they are part of a country's treaty law-or reflect prevailing international trends. Thus whatever the formal legal status of these instruments within the United States, officials at all levels of government should respect these rights in carrying out the responsibilities of their office. Right to the Highest Attainable Standard of Health
According to the committee, the right to the enjoyment of the highest attainable standard of health includes the right to information and education concerning prevailing health problems, their prevention and their control.226 The CRC specifically requires states parties "[t]o ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health."227 The committee, recognizing the importance of access to information, interprets the right to health to include the "right to seek, receive and impart information concerning health issues."228 In addition, the committee advises that states have a legal obligation to refrain from "censoring, withholding or intentionally misrepresenting health-related information, including sexual education information."229 The U.N. Guidelines on HIV/AIDS and Human Rights, published in 1998 by the Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, provide guidance in interpreting international legal norms as they relate to HIV and AIDS. The guidelines recommend that states "ensure that children and adolescents have adequate access to confidential sexual and reproductive health services, including HIV/AIDS information, counseling, testing and prevention measures such as condoms."230 The guidelines also call on states to "ensure the implementation of specially designed and targeted HIV prevention and care programmes for those who have less access to mainstream programs," including men who have sex with men, due to factors including "physical marginalization."231 Information about HIV prevention is readily available and relatively inexpensive, depending on the means of dissemination. As such, providing accurate information about the transmission of HIV and the means of protection against infection is an essential and cost-effective part of addressing the pandemic. Right to Life
A state's failure to provide complete and accurate information about effective means of HIV prevention may have serious consequences for the right to life. Right to Information
The U.N. Guidelines on HIV/AIDS and Human Rights emphasize the need for states to take affirmative action to provide adequate, accessible and effective HIV-related prevention and care education, information and services.237 The guidelines specifically call on states to "ensure the access of children and adolescents to adequate health information and education, including information related to HIV/AIDS prevention and care, inside and outside school, which is tailored appropriately to age level and capacity and enables them to deal positively with their sexuality."238 Similarly, the Committee on the Rights of the Child recommends that "access to information as a fundamental right of the child should become the key element in HIV/AIDS prevention strategies."239 Right to Nondiscrimination and Equal Protection, Right to Education, Right to Privacy
Under article 26 of the ICCPR, "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."240 The Human Rights Committee interprets article 26 to prohibit discrimination based on sexual orientation.241 The U.N. Guidelines on HIV/AIDS and Human Rights advise that states enact antidiscrimination and protective laws to "reduce human rights violations against children in the context of HIV/AIDS" and to "provide for children's access to HIV-related information, education and means of prevention inside and outside school."242 The guidelines also recommend that "[a]nti-discrimination and protective laws should be enacted to reduce human rights violations against men having sex with men, including in the context of HIV/AIDS, in order, inter alia, to reduce the vulnerability of men who have sex with men to infection by HIV and to the impact of HIV/AIDS. These measures should include providing penalties for the vilification of people who engage in same-sex relationships, giving legal recognition to same-sex marriages and/or relationships . . ."243
National Law
The U.S. Supreme Court has recognized that states and local school boards have broad discretion to manage their affairs and to "establish and apply their curriculum in such a way as to transmit community values."250 While "the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment,"251 public schools may, in some cases, impose "reasonable restrictions" on student expression and censor speech that the government could not censor outside the school setting.252 A federal district court has held that minors have a substantial interest in receiving accurate information about HIV/AIDS prevention, and therefore a state agency could not justify its decision to refuse to post advertisements that promoted the use of condoms to prevent the spread of HIV/AIDS by claiming that it needed to shield children from this information.253 The U.S. Constitution guarantees all persons equal protection of the laws.254 As the Supreme Court has recognized, the right to equal protection "must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons."255 Courts examine closely laws that discriminate based on race, national origin, religion, sex and illegitimacy, and require the state to establish a compelling justification for laws that impose burdens on fundamental rights (such as the right to vote).0 Where states discriminate based on other classifications, including based on sexual orientation, they must meet the lesser standard of showing only that there is at least a rational basis for the discrimination.1 Although the Supreme Court has held that some intimate personal choices deserve protection under the Constitutional right to privacy as "fundamental rights," it has not accorded such protection to same-sex relationships or same-sex marriage.2 But even when the state distinguishes among people in ways that do not implicate fundamental rights or create "suspect" classifications, it cannot act out of prejudice or out of a desire to harm a politically unpopular group.3 218 In 2002, the federal government spent $100 million on abstinence-only programs. While there is no federal program that supports comprehensive sexuality education as such, the CDC's school health education program (described in section VI above), can support school-based education programs that include discussion of both abstinence and condom use. In 2002, the CDC received $50 million for HIV prevention efforts under this program-half as much as the federal government allocated for abstinence-only education. The percentage of these funds that directly supported student education about abstinence and risk reduction through condom use is unclear, as at least some of the CDC HIV prevention funds support abstinence-only programs; and, further, the funds also support a wide range of activities, such as training teachers and school personnel in HIV prevention, monitoring risk behaviors among students, and program evaluation. See discussion of CDC HIV/AIDS grant, above.
219 Scott Williams, "Abstinence Becomes a Business," Milwaukee Journal Sentinel, Oct. 9, 2000. Section 510(b) abstinence-only program funding alone supports more than 700 programs nationwide. Mathematica Policy Research Institute, Inc.,The Evaluation of Abstinence Education Programs Funded Under Title V Section 510: Interim Report (2002), p. 13. See also Peggy Burch, "Just Say `Not Yet' Lecturer Pushes `Sexual Revolution' - Abstinence," The Commercial Appeal, Oct. 14, 2000, p. G1 (describing "Aim for Success" abstinence-only program, a family business that runs abstinence-only education programs in schools in Texas, Tennessee, Arkansas, Mississippi, Oklahoma, New Mexico, Georgia and Montana). 220 The Human Rights Committee has refused to accept reservations that effectively deprive individuals of the means to secure their rights. General Comment 24(52), General Comment on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, U.N. Human Rights Committee, 52nd sess. , 1989, para. 11. The United States' declarations that the ICCPR is not self-executing denies individuals the means to obtain a remedy for human rights violations prohibited by these treaties if existing federal or state law does not allow them to challenge these violations. Because these declarations effectively deny individuals access to the courts to secure the rights protected by the ICCPR, they are incompatible with the object and purpose of the treaty. 221 See Vienna Convention on the Law of Treaties, art. 18, concluded May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). Although the United States has not ratified the Vienna Convention on the Law of Treaties, it regards this convention as "the authoritative guide to current treaty law and practice." S. Exec. Doc. L. 92nd Cong., 1st sess. (1971), p. 1. 222 ICESCR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, art. 12. 223 CRC, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, art. 24. 224 CEDAW, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981, art. 12. 225 General Comment 14. The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, 22nd sess., 2000, para. 16; see also ibid., para. 36 (states must promote "health education, as well as information campaigns, in particular with respect to HIV/AIDS"). 226 See General Comment 14. The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, paras. 12(b), 16 and note 8. 228 General Comment 14. The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, para. 12(b) and note 8. 230 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights-International Guidelines" (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998, para. 38(h). 232 ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 6. 233 Human Rights Committee, General Comment 6 (16th sess., 1982), para. 1. 235 See ICCPR, art. 19, CRC, art. 13. 236 See General Comment 14, The Right to the Highest Attainable Standard of Health. Committee on Economic, Social and Cultural Rights, para. 12 and note 8. 237 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights-International Guidelines" (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998,para. 38(b). 239 United Nations High Commissioner for Human Rights, Committee on the Rights of the Child, general discussion on "Children living in a world with HIV/AIDS," September 21 - October 9, 1998. 240 ICCPR, art. 26. A related provision of the ICCPR provides that states may not discriminate in securing the fundamental rights and liberties guaranteed in the convention. ICCPR, art. 2. The United Nations Human Rights Committee, the body charged with monitoring compliance with the ICCPR, determined in a 1994 case that an Australian law banning sexual contact between consenting adult men was a violation of Australia's obligations as a party to the ICCPR. This decision concluded that the discrimination provision of the ICCPR should be understood to prohibit discrimination on the basis of sexual orientation. See Toonen vs. Australia, U.N. Human Rights Committee, CCPR/C/50/D/488/1992, April 4, 1994. 241 See Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para 8.7, Human Rights Committee, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994). 242 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights - International Guidelines (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998, para. 30(g). 244 Convention on the Rights of the Child, articles 2(1), 2(2), 28(1); International Covenant on Economic, Social and Cultural Rights, articles 2(2), 13. 245 General Comment 13. The Right to Education, Committee on Economic, Social and Cultural Rights, para. 13. International human rights bodies have held that laws criminalizing consensual sex between adults of the same sex, such as the law that is incorporated into Texas' model health curriculum, violate article 17 of the ICCPR, which guarantees the right to privacy. See, for example, Views of the Human Rights Committee under article 5, paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 9, Human Rights Committee, 50th Sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994). 246 U.S. Constitution, amend. 1. The First Amendment applies to both federal and state action. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 247 See Board of Education v. Pico, 457 U.S. 853, 866-72 (1982) (plurality opinion) (local school board cannot remove books from school library for political or partisan reasons without violating students' constitutional right to receive information); Tinker v. Des Moines School District, 393 U.S. 503, 511 (1969) (constitutional right to freedom of expression extends to minors). 248 Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37 (1983). Abstinence-only programs may narrowly fall within Supreme Court jurisprudence permitting viewpoint discrimination in certain government-funded programs. See, for example, Rust v. Sullivan, 500 U.S. 173 (1991); but see Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) and Legal Services v. Velazquez, 531 U.S. 533 (2001). These programs nonetheless suppress speech in a manner that is deeply at odds with basic First Amendment norms protecting the free flow of honest and accurate information, see Board of Education v. Pico 457 U.S. 853 (1982) and the public freedom of mind, see generally Stanley v. Georgia,394 U.S. 557 (1969). 249 Erznoznick v. City of Jacksonville, 422 U.S. 205, 212-14 & n. 11 (1975) (invalidating ordinance prohibiting nudity in drive-in movies in part based on rejection of argument that ordinance was a valid exercise of police power to protect children; also noting that age is a relevant factor in determining child's capacity for individual choice that presupposes First Amendment guarantees); see also Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 & n. 30 (noting that statute that prohibited unsolicited mailing of contraceptive advertisements "clearly denies information to minors, who are entitled to a `significant measure of First Amendment Protection'"). 250 Board of Education v. Pico, 457 U.S. 853, 864 (1982). 251 Ibid.; see also West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943) (holding that public school student could not, under the First Amendment, be compelled to salute the flag and noting that boards of education must exercise their discretion within the limits of the Bill of Rights. "That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."); Tinker v. Des Moines School District, 393 U.S. 503 (1969); see also Edward v Aguillar, 482 U.S. 578 (1987) (invalidating statute that prevented schools from teaching evolution unless accompanied by instruction in "creation science" because, in seeking to employ the government's symbolic and financial support, it violated First Amendment Establishment Clause). 252 Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988). Schools may also regulate student speech in school-sponsored activities more broadly than other student speech in schools. Compare Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (school need not tolerate vulgar speech at school sponsored function inconsistent with its "basic educational mission") and Hazelwood School Dist. 484 U.S. at 273 (school may censor articles in school-sponsored newspaper if action is "reasonably related to legitimate pedagogical concerns") with Tinker, 393 U.S. at 509 (student expression may be curtailed or censored only where it would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school"). 253 AIDS Action Committee of Massachusetts, Inc. v. Massachusetts Bay Transportation Authority, 849 F. Supp. 79 (D. Mass. 1993), aff'd, 42 F.3d 1 (1st Cir. 1994) (minors' interest in receiving information about use of condoms to prevent HIV outweighed state's interest in insulating them from this information by restricting display of advertisements about condoms); cf. Bolger, 463 U.S. at 74 & n. 30 (observing that "it cannot go without notice that adolescent children apparently have a pressing need for information about contraception" as data indicate that a significant number of teenagers are sexually active and become pregnant unintentionally). 254 U.S. states are bound by the Equal Protection clause of the Fourteenth Amendment, which provides that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, amend. XIV, § 1. The federal courts have interpreted the Due Process clause of the Fifth Amendment to require the federal government to observe substantially similar norms of equal treatment. See, for example, Bolling v. Sharpe, 347 U.S. 497 (1954) (invalidating racial segregation in District of Columbia public schools under the Due Process clause of the Fifth Amendment). The Due Process clause provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. Constitution, amend. V. 255 Romer v. Evans, 517 U.S. 620, 631 (1996). 0 Education is not a fundamental right protected by the U.S. Constitution. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). 1 Rational basis review is a deferential standard under which there is no constitutional violation if "there is any reasonably conceivable state of facts" that would provide a rational basis for the government's conduct. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). 2 In Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court upheld Georgia's sodomy statute, holding that the U.S. Constitution does not protect consensual sexual relations between members of the same sex in the privacy of their own home. The Court has held that state may not enact laws that interfere with personal decisions to marry a person of the opposite sex, to have children, or not to have children. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating law against racial intermarriage); Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating state law providing for sterilization of certain repeat felons); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating state statute criminalizing use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (holding that only a compelling state interest can justify state regulation of a decision to end a pregnancy). 3 See Romer v. Evans, 517 U.S. 620 (1996) (holding that amendment to Colorado constitution prohibiting all legislative, judicial or executive action protecting against discrimination on the basis of sexual orientation violated the U.S. Constitutional guarantees of equal protection).
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