State Ex Rel. Wasilewski v. Board of School Directors of Milwaukee ( 1961 )

Martin, C. J., and Hallows, J.

(concurring). We concur in the result but do not agree with much of the dicta and the reasoning of the majority. Much of what has been said would have been better off unsaid. We especially object to the proposition advanced that a teacher certified to teach history, English, and speech can discuss a controversial subject of sex in his speech class as a teacher certified to teach biology might discuss it in a biology class in the absence of any rule of the school authorities or any specific warning that sex was not to be the subject of discussion in speech classes.

A teacher is hired for his competency to teach certain subjects. Sex education is a subject matter for which a teacher should be especially competent to teach. A parent and the school authorities have a right to expect that children are not going to be exposed to comments, discussions, and personal opinions of a teacher on sex who had not been certified to teach such subject in classes which do not relate to such subjects. There need be no rule of school authorities prohibiting the same or any specific warning to the teacher not to discuss, sex in his classroom unless specifically authorized.

The majority opinion fails to recognize the right of the parent to determine whether his child shall be taught about sex in the public schools. The subject is optional. The concern of the parent as to who is to teach the subject and what his or her background and qualifications are, and the parent’s right to visit the class in which the subject is discussed, are all ignored in the majority opinion. Only one qualified and so certified by the proper authorities should be allowed to undertake to teach this delicate subject and only in a class expressly held for that purpose.

A parent has the right to visit such a class to determine how such instructions are being given, who is giving the instructions, and in general know of the existing conditions. A parent should not be forced to visit each and every class which his child attends to determine whether sex education is being given and if it is, how it is being handled.

What has happened in this case may well be taken as an example of what we may expect if sex education is being given in classes other than those designated for that purpose.

Under the majority opinion, an unqualified, unauthorized person, entirely unfit, may have his fling at teaching or instructing in sex education with little fear of the consequences, except perhaps a mild censure, unless the school board adopts a rule prohibiting such activity. It seems to us to be bad in itself, not bad because it is prohibited, mala in se, not mala prohibita.