York on Kindergarten Sex Ed

A fact check gone wrong

This week, National Review published an article by Byron York with the simple headline “On Sex-Ed Ad, McCain Is Right.”

Too bad that’s not what York’s article proves.

You’ll recall that last week the McCain campaign, to much opprobrium, released an ad spotlighting a sex education bill that Obama supported while an Illinois state senator. Here’s the full script:

Education Week says Obama “hasn’t made a significant mark on education”.

That he’s “elusive” on accountability.

A “staunch defender of the existing public school monopoly”.

Obama’s one accomplishment?

Legislation to teach “comprehensive sex education” to kindergartners.

Learning about sex before learning to read?

Barack Obama.

Wrong on education. Wrong for your family.

There are a slew of problems with this—the ad’s tortured definition of the word “accomplishment,” for one. The bill didn’t pass, and Obama wasn’t a prime author, co-sponsor, or sponsor. Given that characterization of “accomplishment,” it’s even more absurd to believe that the failed bill could be described as his “one accomplishment.”

There have been several valuable fact checks on this point, and on the nitty gritty of what the bill, should it have passed, would have actually done. All have found, essentially, that the ad’s central, nasty claim—that Obama voted to “teach ‘comprehensive sex education’ to kindergartners”—is bunk.

But York, in brave defense of the ad, and in defiance of common sense, does his best to prove otherwise. He suggests that there’s something rotten about all this fact checking, and about the “’McCain-is-a-liar’ storyline” that came from this ad. “But before accepting the story at face value,” he writes,

it might first be a good idea to examine the bill in question, look at the statements made by its supporters at the time it was introduced, talk to its sponsors today (at least the ones who will consent to speak), and find answers to a few basic questions. What were the bill’s provisions? Why was it written? Was it really just, or even mostly, about inappropriate advances? And the bottom-line question: Is McCain’s characterization of it unfair?

Agreed! The bottom line question is whether or not McCain’s description of the bill is fair. (Hint: It isn’t.) But reread the italicized sentence about “inappropriate advances.” By including that question, York, like a magician trying to distract his audience, introduces a side issue—namely, the validity of Obama and his campaign’s explanation for why he backed the bill. Perhaps that’s a worthy question, but not one that has anything to do with the truthfulness of McCain’s ad, ostensibly the subject of York’s piece.

Obama’s favorite retort, when confronted with this matter, is to note that the bill would have sanctioned warning young students about inappropriate sexual contact and rape. He mentioned this in 2004, when his GOP senatorial opponent, Alan Keyes, tried the attack in a debate. Here’s what Obama said in response:

We have a existing law that mandates sex education in the schools. We want to make sure that it’s medically accurate and age-appropriate. Now, I’ll give you an example, because I have a six-year-old daughter and a three-year-old daughter, and one of the things my wife and I talked to our daughter about is the possibility of somebody touching them inappropriately, and what that might mean. And that was included specifically in the law, so that kindergarteners are able to exercise some possible protection against abuse, because I have family members as well as friends who suffered abuse at that age. So, that’s the kind of stuff that I was talking about in that piece of legislation.

His basic point—that the bill would have required sex ed to include age appropriate discussions of inappropriate touching—is sound. Was it the sole focus of the bill? No, but it’s still there, and its presence is hardly inconsistent with Obama’s 2004 statement describing the predator issues as “an example” of the “kind of stuff” to be found in the legislation.

After McCain’s ad slammed the bill, Obama spokesperson Bill Burton issued this statement:

It is shameful and downright perverse for the McCain campaign to use a bill that was written to protect young children from sexual predators as a recycled and discredited political attack against a father of two young girls—a position that his friend Mitt Romney also holds.

Burton’s flackery, claiming that the bill “was written to” address the predator issue, could read as false if you take the phrase to mean that predation was the bill’s only or main purpose. But if you take it to mean that the bill was written in a way that would sanction teaching kindergartners about predators, then there’s no problem here. The crime, in York’s eyes, seems to be that Obama and his staff, when called to account for a controversial bill, chose to cite a section that’s a good illustration for why some types of sex education are appropriate at the kindergarten level. Outrageous, I know.

But again, the question is dilatory. Despite York’s feint, the framing and nuance that Obama uses to respond to the attack really doesn’t address the truthfulness of the attack itself—which, if you look at the ad, is that Obama supported “comprehensive sex education” for kindergartners. But York’s claim is also shaky on that front.

To understand, you’ll need some background on sex ed in Illinois. As Matt Vanover, a spokesperson for the Illinois State Board of Education, explained to me, Illinois does not require that formal sex education be taught in any grade. Rules broadly related to sex ed are found in three sections of the Illinois school code. One decrees that schools offer a “Comprehensive Health Education Program” in all elementary and secondary schools. The program is a bit of a grab bag, requiring that health courses include some information on abstinence, nestled alongside instruction on public health, first aid, nutrition, tobacco, alcohol, drug use, and a host of other loosely related subjects. In sixth through twelfth grades, some instruction on AIDS is required.

The other two sections of the school code broadly relating to sex ed only apply if a local district or school should choose to offer a full sex ed course, or a full family life course. If they do, state statutory requirements outline what material must be included. For example, the sex education statute requires instruction in “honor and respect for monogamous heterosexual marriage” and “alternatives to abortion,” and stressing that “abstinence is the norm.” It includes no language on contraception.

Senate Bill 99, the bill cited by McCain’s ad, would have amended all three relevant sections of the code. The bill’s amendments required that curriculums be based on peer-reviewed science. The scope of instruction was expanded to include information on sexual predators, sexual harassment, sexual peer pressure, counseling, and contraception, clearly stating that the topics were to be covered in an age-appropriate fashion. By amending the mandatory health course statute, the bill, in effect, would have created a mandatory statewide sex-ed program.

So where does kindergarten come into this? Two of three sections of the school code—the mandatory health section, as well as the sex education section, which only applies to districts choosing to offer such courses—already used language envisioning some sort of instruction in elementary school, which could include kindergarten. But all three sections specifically mandated that AIDS prevention instruction be included in the sixth through twelfth grades.

The Senate bill would have amended all three sections of the school code to expand AIDS instruction down to the kindergarten level. In two of those instances—one in the only-if-locally-decided-upon family life section, and one in the state required health section—the revision was weakened by very clearly being paired with a phrase saying that it only be done where “age appropriate.”

In other words, districts that wanted to offer some AIDS education before 6th grade had a clear green light, but wouldn’t be required to do so where they didn’t feel it was age appropriate. (York even quotes the head of the Illinois Education Association, who said that lowering the potential age for beginning AIDS instruction was a goal of the legislation. “What might be appropriate in an urban inner city might not be appropriate in a rural community,” he said.)

There was only one instance—again, only mandating instruction on HIV and other STDs—where the words “age appropriate” were omitted. Guess which of the three York quotes in full?

Yes, Obama and the committee majority voted for the bill without the “age appropriate” clause in that one section. Considering that the same language appears in two other nearly identical revisions, it has the flavor of oversight rather than intentionality. And the two other instances, including the one in the more serious, state-required, health course section, would explain the legislators’ intentions vis-à-vis kindergarten.

Even so, using York’s cramped, hyper-literal, and extremely ungenerous reading of the text, Obama is guilty, at most, of voting a bill out of committee that, had it passed unamended, would have required that local districts continuing to provide sex ed courses to their kindergartners (separate from the revamped health courses) not fail to mention HIV, other STDs, and appropriate means of prevention. I don’t know Illinois well, but I can guess that that would be a pretty narrow sample size.

Still, this is how York concludes:

The fact is, the bill’s intention was to mandate that issues like contraception and the prevention of sexually-transmitted diseases be included in sex-education classes for children before the sixth grade, and as early as kindergarten. Obama’s defenders may howl, but the bill is what it is.

Well, yes, the bill is what it is. And York’s piece is what it is.

Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.