“Ever heard of Daniel J. O’Hern?” my husband asked over breakfast last week. Before I had a chance to respond, he added, “He was a justice of the Supreme Court in New Jersey and he died on Wednesday.”
It took me a second to respond. “Oh, yes, of course, I remember Dan O’Hern, but I remember him best when he was serving as the chief counsel to Governor Byrne.” After a pause I said, “We might not have family life and sex education in New Jersey public schools if it weren’t for Dan O’Hern.”
To be honest, I hadn’t thought of Dan O’Hern since the early 1980s, when I was a member of the New Jersey State Board of Education, which under law sets policy for the public schools. In late 1979, a committee of the State Board recommended a statewide mandate requiring family life education in elementary and secondary schools.
A furor erupted with health officials. College faculty and K-12 educators supported schools’ providing instruction to help young people make informed decisions about their sexuality, and state education associations, conservative organizations and religious groups opposed it, claiming that discussing sex in classrooms would promote sexual activity and that the state was usurping local control of education and parental responsibilities. (See The Struggle for Sex Education in New Jersey, 1979-2003: Policy, Persistence and Progress, by Philip E. Mackey, Ph.D.)
I remember the year 1980 as one of almost constant controversy about the mandate. It was filled with open public meetings, newspaper headlines and revision after revision of the policy in order to meet concerns of opponents. Hanging over the heads of the Board was the distinct possibility that the legislature would pass a law negating the State Board’s mandate, which was its right under the Constitution.
Enter Dan O’Hern.
One morning I received a phone call from Paul Ricci, president of the Board, who said that he and I, as chair of the committee that had recommended the mandate for family life education, had been summoned to the Governor’s office. When we arrived, we were ushered into Dan O’Hern’s office, where for next half hour we made our case for the State Board’s action and policy.
O’Hern didn’t say very much. We touched on all of the important points, particularly one that we thought might be particularly persuasive: The policy was supported by the New Jersey Catholic Conference, a lay group representing the bishops. Church leaders backed the State Board, because they wished to mandate family life education in parochial schools and felt that the statewide policy in public schools would advance their case.) (To show that the conflict over teaching family life education in public and parochial schools never ends, log on to the most current controversy in Perth Amboy, NJ.)
At the end of the 30 minutes, O’Hern said something like, “It’s okay; the Board can go forward.”
Safely back on the sidewalk outside the State Capitol, Paul and I exchanged views of the meeting. We decided that Dan O’Hern was going to tell the Governor that the State Board’s actions should not be overturned by the legislature, which was controlled by the Governor’s party, and that word would be passed to legislative leaders to let the Board proceed.
That is exactly what happened. The Board made some gentle changes to the policy to satisfy members of the Senate Education Committee, then the policy was passed by the Board and went into effect in all school districts in 1983.
But Dan O’Hern had one more role to play in the family life education controversy. In 1981, then-Governor Byrne appointed him to become an associate justice of the Supreme Court. After the mandate passed, family life education’s opponents calling themselves the New Jersey Coalition of Concerned Parents sued the State Board, claiming that it had overstepped its authority in requiring family life education. In 1982, the Supreme Court heard the case, Smith v. Ricci, and ruled unanimously that the Board had the right under the New Jersey constitution to set the mandate.
Justice Dan O’Hern was one of the justices voting for the Board; I like to think that he was persuasive and supportive of the Board and family life education in conference with his fellow justices. He certainly had all our arguments up the sleeve of his long, black robe.
In Dan O’Hern’s obituary in The New York Times, the reporter mentioned that among his 231 majority opinions—he served for 19 years until his retirement in 2000—he helped to “define state policies on issues like the death penalty, law enforcement and homelessness,” mostly favoring the views of liberals, but sometimes bowing to the views of the conservatives. In other words, he tried wherever possible to be fair and balanced.
There is no mention in the obituary of the role that Dan O’Hern played in assuring that all young people in New Jersey have school programs in family life and sexuality education. But those programs, which we take for granted now, might not have been developed or sustained without him.
Yes, I shall always remember Dan O’Hern, and with gratitude.