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1. Paved With Good Intentions

By Daniel E. Witte

On April 30, 2003, 12-year-old Parker Jensen was taken to a doctor to have a small growth under his tongue removed. A long nightmare for the Parker family began, culminating in a recent legal decision by the Utah Supreme Court.1

While this court decision was primarily about parents’ rights, it is pertinent to public education because many medical examinations like the one that kicked off the Parker Jensen case occur in schools. Below I have summarized the facts of the case and the Supreme Court’s decision. Facts summarized in each paragraph are taken exclusively from the court’s opinion as cited, except where otherwise stated, even though some might argue the court omitted discussion of additional information favorable to the Jensens.

Parker’s growth was referred for study to Dr. Lars Wagner at Primary Children’s Medical Center. Dr. Wagner diagnosed Ewing’s sarcoma and told the Jensens that Parker would die unless treatments in addition to surgery were utilized.2

On May 28, 2003, the Jensens consulted with Dr. Judith Moore, a family doctor in Bountiful, Utah. Ms. Barbara Jensen’s father had received treatment from Dr. Moore for prostate cancer and the family had confidence in her expertise. Dr. Moore questioned Dr. Wagner’s diagnosis because “all the evidence except for the [Primary Children’s pathology testing] were negative for cancer.” 3

Wagner asserted his approach was superior to Moore’s approach because of his consistency with federal regulations. Wagner refused to conduct additional medical tests. After the Jensens indicated they no longer wished to use Wagner or Primary Children’s Medical Center, Wagner said he would report them to the Division of Child and Family Services (DCFS).4

Based upon Wagner’s opinion and referral, Kari Cunningham, a DCFS social worker, filed a court petition indicating “Parker’s case was a medical emergency and that something needed to be done within a matter of hours or days” to save his life. Cunningham alleged the Jensens “were committing medical neglect by refusing to treat Parker with chemotherapy.” “Cunningham did not conduct an independent investigation into the claims, nor did she meet with the Jensens to get their side of the story.” She did not obtain any second opinion from a separate medical institution. She filed a “misleading” affidavit to the court under oath, which had the effect of representing to the court that a medical second opinion had been obtained and, separately, that CT and bone scan results had yielded something other than a normal result. Later, when this was uncovered, the DCFS, law enforcement, and the court system chose not to sanction or criminally prosecute Cunningham for her actions – or investigate in any serious way – because “the Jensens have offered no evidence to suggest Ms. Cunningham was motivated by anything other than a desire to further the best interests of Parker.” 5

The Jensens attempted to obtain opinions from doctors with a variety of specialties. However, at the urging of doctors from Primary Children’s Medical Center, the court insisted that the Jensens could only consult with a “board certified pediatric oncologist.” But when the Jensens did contact several oncologists, the doctors would not conduct blind testing or independently develop treatment options. Instead, the other oncologists simply deferred to Primary Children’s diagnosis and wanted to begin Wagner’s treatment without first conducting their own testing or genetic testing as requested by the Jensens. When the Jensens attempted to contact other types of specialists, the doctors declined to examine or treat Parker for fear of retaliation by legal professionals, medical professionals and law enforcement. 6

When the Jensens took Parker on a boating trip in Idaho, DCFS persuaded the court to issue a bench warrant for their arrest. The DCFS also persuaded the Salt Lake County District Attorney’s Office to charge the Jensens with criminal “custodial interference” and “kidnapping” of their son Parker. Daren Jensen was arrested in Idaho and spent four days in jail. The Jensens had restrictions put on their travel and were forced to surrender their passports. The Jensens were forced to enter a plea to “custodial interference” to avoid extended imprisonment for the “kidnapping” charge. 7

“DCFS ultimately conceded that the Jensens would not submit to chemotherapy and that it was unreasonable to force an unwilling 13-year-old boy to undergo chemotherapy.” As the political scrutiny mounted, the DCFS ultimately dismissed its verified petition against the Jensens. 8Parker is alive and healthy today, serving an LDS mission in Chile, despite predictions of imminent death from DCFS and the media. Fortunately, Parker has not been permanently sterilized by unnecessary chemotherapy. 9

The Jensens filed suit to recover damages for the harm they suffered. DCFS had interfered with their right to choose their own medical care, to travel interstate, and to be free from seizure and imprisonment. The family was traumatized by public ridicule caused by DCFS’ false claims that the Jensens were killing their son. Daren Jensen lost his job. 10 The family lost their home.

The Utah Supreme Court ruled “[t]his court has never recognized that our Constitution guarantees a right to be free from unreasonable noncustodial seizure.” 11 “[W]hen a child’s life or health is endangered by his or her parents’ decisions regarding the child’s medical care, the state may, in some circumstances, temporarily intervene without violating the parents’ constitutional rights.” 12 The court said no flagrant violation of rights occurred because “the defendants’ conduct was motivated by a legitimate concern for Parker’s life.” 13

But if the Jensens were ultimately correct about Parker’s prognosis, wasn’t it the DCFS that was endangering his health by trying to unnecessarily sterilize him? And if the test is whether “conduct was motivated by a legitimate concern for Parker’s life,” why shouldn’t the Jensens get the benefit of that same standard? Most importantly of all, exactly what “circumstances” will allow Utah officials to impose ill-conceived seizures and forced medical treatments on the rest of us?

Government paternalism and incompetence is a danger to children. Governor Gary Herbert should pardon the Jensens for the “crime” of saving their son.

The author, Daniel E. Witte, J.D., is director of Sutherland Institute’s Center for Educational Progress. Mr. Witte has an extensive background in issues related to parental liberty, educational choice, and organizational reform. He has worked with the Utah Supreme Court, the U.S. Attorney’s Office in the District of Utah, the Tenth and Seventh Federal Circuit Courts of Appeal, the U.S. Senate, law firms in Korea, Puerto Rico, and California, and as associate general counsel for an insurance company.

ENDNOTES

1. Jensen v. Cunningham, 2011 UT 17, ¶ 5.
2. Ibid. at ¶¶ 5-7, 9.
3. Ibid. at ¶ 12.
4. Ibid. at ¶¶ 16-17.
5. Ibid. at ¶¶ 21, 88-89.
6. Ibid. at ¶¶ 25, 27-28, 30, 91.
7. Ibid. at ¶¶ 26, 28-29, 31.
8. Ibid. at ¶ 31.
9. Ruth Westheimer, The Family Encyclopedia of Sex http://www.sexuality-encyclopedia.com/dr-ruth/Artificial_Insemination_by_Donor_(AID).The court opinion did not acknowledge that the DCFS attempted to unnecessarily sterilize Parker, that the Jensens lost their home, or that Parker is currently healthy and serving an LDS mission because of his parents.
10. Jensen at ¶ 102.
11. Ibid. at ¶ 101.
12. Ibid. at ¶ 78.
13. Ibid. at ¶103.

 

2.Saving Education and Ourselves 2011

Sutherland Institute announces the release of an updated publication, Saving Education and Ourselves 2011: The Moral Case for Self-Reliance in Education. The 100-page treatise – first written in 2003 by Sutherland Institute President Paul T. Mero and updated this year by Daniel E. Witte, director of Sutherland’s Center for Educational Progress, and Sutherland staff – tackles comprehensive education reforms that respect tradition and highlight innovation.

“Quite apart from all other criticisms of public education as it exists currently, this report makes a moral argument: Educational authority — the authority to make educational decisions for children — rests primarily and supremely with parents,” states the report. “This is our pre-eminent point and motivation.”

Saving Education and Ourselves 2011 offers suggestions that will “empower parents, bless the lives of children, and return public schooling to its original stated purpose of providing community assistance for those families that need it. … Our intent is not to monopolize solutions, but to promote the type of honest dialogue and discussion that can improve the lives of children in Utah,” the report affirms.

PART I: THE NEED FOR COURSE CORRECTION 
PART II: THE LEGAL AND MORAL BASIS OF PUBLIC EDUCATION 
PART III: THE POLITICAL BASIS OF PUBLIC EDUCATION
PART IV: A BLUEPRINT FOR CHANGE
Or click here to download the publication in its entirety. 

 

3. Letter confirms that power is top issue for union

By Derek Monson

Last month, I argued that the objection of the Ogden Education Association (OEA), the Ogden teachers union, to the district’s move toward performance pay for teachers was motivated by a fear of losing union power. Well, a new piece of evidence – in the form of a letter from OEA President Doug Stephens to the union membership (hat tip to Holly on the Hill for publishing the letter) – has surfaced to substantiate this claim. In the letter, Mr. Stephens asks OEA members to do six things to help the union in its opposition to the school board’s decision. Here is a summarized list, but I recommend reading the full letter on the Holly on the Hill blog. …

To read the rest of this post on the Sutherland Daily blog, click here .

 

4. Keeping Utah schools shackled via the back door

By Matthew Piccolo 

As Congress continues to delay reauthorization of No Child Left Behind (NCLB), many states, including Utah, are requesting waivers from parts of the federal law, and some states are being openly defiant about it.

With all this waiver action, due to congressional inaction, prognostications for the future of NCLB are bleak. Is the era of federal accountability in public education really over?

Not so fast. …

To read the rest of this post on the Sutherland Daily blog, click here .

 

5. Parents as a supply of revenue enhancements

By William C. Duncan

The newspapers are reporting that a state senator is raising (again) the idea that what Utah schools need is more money and that this money should come from increasing taxes on parenting. Specifically, the “revenue enhancement” (“a politically correct term for raising taxes,” as an online dictionary explains) would come “by ending state income tax exemptions for dependents.” The rationale is explained by Senator Pat Jones: “We have to invest in our neighborhood schools, and I believe this is the way to do it.”

There is certainly common ground here. Public schools should be true neighborhood schools, though not just in funding but also in local control. Society also has an interest in the education of children. However, this particular proposal and the comments made in support of it disclose some subtle but important (and deeply problematic) ways of understanding parents, children and education.

First, the proposed change is riddled with contradictions. …

To read the rest of this post on the Sutherland Daily blog, click here .