Bench Memos

D.C. Circuit Nominee Cornelia Pillard—Part 3

See Parts 1 and 2

I’ll turn now to D.C. Circuit nominee (and Georgetown law professor) Cornelia Pillard’s argument (in Part I of her “Our Other Reproductive Choices” article, pp. 946-962) that abstinence-only sex education in public schools “is permeated with stereotyped messages and sex-based double standards” and thus “violates the constitutional bar against sex stereotyping and is vulnerable to equal protection challenge” (p. 948). (Pillard particularly objects to the role of “religious and conservative groups such as Focus on the Family and Concerned Women for America” in supporting abstinence-only curricula (p. 955), but she applies her argument against all such curricula.)

Let me highlight at the outset that, of the countless possible variations of sex education in the public schools, I have no considered position as to which is best as a matter of policy (though this recent Public Discourse essay by psychiatrist Miriam Grossman indicates that there is a lot wrong with most “comprehensive” sex ed programs). The matter of sex education strikes me as one on which reasonable people may well have a wide range of different judgments. Further, local decisionmaking might lead to diverse approaches that suit different contexts, and might enable comparative assessments as to what works best in practice. So, absent a clear violation of the Constitution, decisions on sex education would seem especially suited to the democratic processes.  

Pillard, by contrast, would aggressively expand constitutional equality principles both to invalidate abstinence-only programs and to invite further federal judicial micromanagement of the sex-education curricula of public schools.* Under the vague standards that Pillard sets forth, federal judges would have broad freedom to require “egalitarian sex education”:

Egalitarian sex education should recognize the realities of sex-based subordination and harm even while it strongly counters sex-based stereotypes and double standards. It should acknowledge and oppose male-on-female aggression and the larger system of gender hierarchy that such aggression exemplifies and sustains. It should also, however, recognize that boys and men, too, are frequently harmed by sexual aggression, and that girls and women can be the moving force behind irresponsible or otherwise harmful sex. And it should always–especially as applied to young people—express hope that old patterns will change. [p. 959]

Further:

Egalitarian sex education should communicate relevant ethics and concerns to both sexes. It should affirm the value of sexual pleasure for females as well as males, and the vulnerability of males as well as females to emotional and physical harm. It should alert girls as well as boys that the power of sexual desire can test our rationality and emphasize that we are all nonetheless obligated—and are expected to learn—to exercise self-control. Egalitarian sex education should teach students of both sexes that parenthood imposes enormous responsibilities, which should be shared by both women and men. Evenhanded teaching about abstinence and contraception would stress that those behaviors are the responsibility of both sexes. [pp. 961-962]

I’ll simply submit that anyone who imagines that federal judges should be applying these standards to decide whether a sex-education curriculum (both on paper and as taught) is constitutionally permissible shouldn’t be trusted with judicial power.

More to come on this article.

* At one point in her article, Pillard, citing standing doctrine, observes that constitutional equality norms “are not always judicially enforceable” (p. 958). But she immediately thereafter states that her “equal protection critique of abstinence-only criteria is strengthened and rendered more amenable to judicial resolution by the fact that sex education classes are designed … to shape student behavior,” and she concludes that that “the conduct-shaping purpose of sex education curricula makes them vulnerable to equal protection challenge”—i.e., subject to judicial invalidation (p. 958).

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