## Facts

- The New York State Commissioner of Education directed schools to include HIV/AIDS instruction in health education curricula.
- The New York City Board of Education expanded its HIV/AIDS Education Program for public high schools to include a condom availability component.
- Under the program, unemancipated minor high school students could obtain condoms upon request from designated school locations.
- The program provided no requirement for parental notice or consent and included no parental opt-out mechanism.
- Parents of public school students challenged the program, arguing that condom distribution is a health service requiring parental control and that the program interfered with parents’ authority over their children’s upbringing and medical decisions.
- The trial court dismissed the petition and upheld the program; the parents appealed.

## Issues

1. Whether school-based condom distribution to unemancipated minor students, without parental consent or an opt-out provision, constitutes a “health service” (rather than “health education”) and therefore lacks legal authority absent parental involvement.
2. Whether dispensing condoms to unemancipated minors without parental consent or an opt-out provision violates parents’ substantive due process rights under the U.S. and New York Constitutions.

## Decision

- The Appellate Division, Second Department, reversed the trial court’s dismissal of the petition.
- The court held that distributing condoms in public schools is a health service, not merely health education.
- The court held the Board lacked common-law or statutory authority to provide this health service to unemancipated minors without prior parental consent or a parental opt-out mechanism.
- The court held that dispensing condoms to unemancipated minor students without parental consent or an opt-out provision violated parents’ substantive due process rights under the Fourteenth Amendment and N.Y. Const. art. I, § 6.
- The court prohibited the Board from dispensing condoms to unemancipated minor students absent parental consent or an opt-out mechanism.

## Legal Principles

- Physical provision of contraceptive devices by a public school constitutes a “health service,” distinct from classroom instruction about HIV prevention.
- A school board’s authority to provide HIV/AIDS instruction does not, without more, confer authority to dispense prophylactic devices to unemancipated minors.
- Absent specific statutory authorization, a school may not provide a health service to unemancipated minors without parental consent or a meaningful opt-out procedure.
- Parents possess a constitutionally protected liberty interest in directing the care and medical decisions of their unemancipated minor children; state action that supplies health services to minors without parental participation can violate substantive due process.

## Conclusion

The court treated school condom distribution as a health service and held that providing condoms to unemancipated minors without parental consent or an opt-out exceeded the school board’s authority and violated parents’ substantive due process rights, requiring parental participation as a condition of any such program.


Alfonso v. Fernandez, 195 A.D.2d 46, 606 N.Y.S.2d 259 (N.Y. App. Div. 2d Dep’t 1993)