HONOLULU (CN) - A state lawmaker sued the University of Hawaii for the questions it uses in a sex education survey of middle-school children.
State Rep. Bob McDermott, R-Ewa Beach, claims the University of Hawaii at Manoa refused to let him see its "Pono Choices" sex education program survey questions, which were approved by the Hawaii Department of Education.
The university responded to his requests with a letter stating that it "does not release survey instruments of ongoing research studies while they are still being used," because "disclosure of the instruments while the study is in progress could compromise the integrity of the study."
But McDermott insists, in his Feb. 24 request to compel disclosure of government records, in Hawaii's First District Court.
His attorney, former Hawaii state Sen. John Carroll, said the survey could reach children as young as 6, and expose them to explicit materials.
"The troublesome thing is that this survey is to be given to 6- and 8-year-old kids, and they (university officials) are not willing to tell us what kinds of questions are going to be asked," Carroll told Courthouse News in an interview.
"I think it is a fair inquiry to know what is being asked of these children. What if they are asking about things like anal intercourse? Parents, and everybody, have a right know what is being asked of their children. They could ask questions about anal and oral sex. It is an important thing to know what the hell is going on there."
But University of Hawaii director of media production and external affairs Daniel Meisenzahl said the survey will not be given to students younger than 11.
"The students are seventh-graders," Meisenzahl told Courthouse News. "After the initial survey, there is a follow-up with those same students within the 12 to 13 range, and then another follow-up when they are 13 to 14. Six-year-olds will not see the survey. That's impossible, unless a student takes the survey home and gives it to his 6-year-old brother."
The Pono Choices sex education program has gone through several revisions by developers, who call it a "culturally responsive" program aimed at reducing teen pregnancies and preventing sexually transmitted diseases.
The program generated a firestorm of controversy after a special legislative session last year on gay marriage.
Critics claimed the survey instrument contained medically inaccurate anatomical descriptions, including classifying the anus as genitalia. They also criticized it for its explicit "lessons" they called inappropriate for children younger than 12.
The Department of Education has stopped the program twice, asking program developer UH Manoa Center on Disability Studies to revise the curriculum based on a stakeholder review panel's recommendations.
The university made 10 changes, including reclassifying the anus.
Last summer, the Department of Education changed its policies to make sex education optional and to require parents to sign their kids up for it, instead of requiring them to opt out.
Meisenzahl said the survey falls under an exemption within the Uniform Information Practices Act (UIPA).
The act governs access to public records in Hawaii. It provides certain exemptions, including the "Frustration Exemption," which grants exemptions for "government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function."
"The survey contains proprietary information and is protected under the Frustration Exemption under the UIPA," Meisenzahl said.
He agreed that allowing the survey questions to be reviewed before they are distributed could taint the research. He said the research project should be complete in 2016 and that the Department of Education will decide then whether the sex education program should be permanent.
"We can't stress enough that we appreciate his concern," Meisenzahl said of McDermott, pointing out that Hawaii is No. 10 in the U.S. in teen pregnancy. "This is an opportunity to experiment with sexual education with seventh-graders."
He said the survey contains controversial material dealing with sex between same-sex partners, but that it is a "small section" and does not "promote sexual preferences."
"We are currently in the middle of the one-year follow up and want to know if there was any kind of impact, knowledge or tools that helped [children] abstain from sex," Meisenzahl said. "The ultimate goal is to preach more abstinence, but we come at it from a different angle from what else is out there."
The Department of Education said in a statement: "No student is required to participate in sexual health education. The DOE strengthened the role of parents in this decision by changing its policy from an opt-out to an opt-in. Beginning in the 2014-15 school year, all parents must sign an opt-in form permitting their children to participate in sexual health education."
McDermott says the survey questions should be accessible whether the program is opt-in or opt-out.
He said that ideological issues aside, the university is violating the Uniform Information Practices Act, state law and administrative rules by failing to disclose a government record. He says the public has a right know what is taught in public schools.
"There is full justification to know what questions are being asked at this age, or any age, through public education, which taxpayers pay for," Carroll said.
"Because [he] has no information regarding the exact questions of the survey ... plaintiff has no way to determine whether defendant does, in fact, have a valid justification for refusing to produce the survey," the complaint states.
McDermott wants to see the questions.
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