Opting for Opt-Out: A Libertarian Paternalist Approach to Sex Education in Texas

Note - by Volume 102 - Issue 3

Introduction

On the last day of the Eighty-seventh Legislative Session, the Texas State Legislature passed sweeping changes to sex education in Texas by creating an opt-in policy.[1] Before 2021, Texas parents could opt their children out of sex education, a policy shared by thirty-four states and D.C.[2] Under the opt-out regime, students were automatically enrolled in sex education, and if their parents did not act, the students remained enrolled.[3] Under the new opt-in policy, Texas parents must provide affirmative consent for their child to participate in sex education.[4] Section 28.004(i-2) of the Texas Education Code now reads:

Before a student may be provided with human sexuality instruction, a school district must obtain the written consent of the student’s parent. A request for written consent under this subsection:

(1) may not be included with any other notification or request for written consent provided to the parent . . . ; and

(2) must be provided to the parent not later than the 14th day before the date on which the human sexuality instruction begins.[5]

As provided in Section 28.004(i-3), the provisions expire on August 1, 2024.[6] While the Legislature did not take action to renew the opt-in provisions during the Eighty-eighth Legislative Session, it may reintroduce similar provisions in the future.

Under the opt-in regime, a child is not enrolled in sex education unless their parent returns a form indicating that they give their child permission to participate. Though little data has been collected on the impact of the opt-in provisions so far, one can imagine many scenarios in which even a parent who wants their child to participate in sex education does not opt the child in. First, parents are busy and distracted. It would be quite easy for a parent to forget to sign a permission form while juggling childcare, work, and home life. Second, children forget things. It is not uncommon for important forms to end up left at school, relegated to the back of an over-stuffed take-home folder, or crumpled in the bottom of a backpack amid Goldfish crumbs. Based on simple logic alone, the implementation of an opt-in regime raises serious doubts about whether it is capable of truly reflecting parental preferences regarding sex education.

So, how did we get here? The opt-in provisions were originally part of Senate Bill 1083, which died in the House Public Education Committee six days prior to the provisions’ passage as part of House Bill 1525.[7] House Bill 1525 was primarily a school finance bill—and one that many diverse stakeholders believed that the Legislature needed to pass.[8] In addition to resolving important bugs in the school finance system, House Bill 1525 was projected to result in a $333 million funding increase for public schools through August 31, 2023.[9] On the heels of the pandemic, that funding would have gone a long way to stabilizing Texas public schools.[10] While the House, as required, ultimately passed the version of House Bill 1525 that contained the opt-in provisions, the late addition of the provisions to the school funding bill meant that they saw no meaningful consideration in that chamber.[11] Thus, the opt-in provisions were slipped in on the coattails of an important and well-supported education bill where they may not have otherwise withstood scrutiny from members of the Legislature.

Texans should be concerned about this back-hallway policymaking for two reasons. First, sex-education programs are proven to benefit public welfare. Fundamentally, comprehensive sex education leads to better sexual health outcomes, including reduced rates of sexually transmitted infections (STIs)[12] and teen births.[13] But studies also show that sex education can lead to decreased homophobia, reduced homophobic bullying, increased appreciation of gender equity, decreased domestic violence perpetration and victimization, increased bystander interventions, improved communication skills, improved understanding of personal safety as it relates to child abuse prevention, improved social–emotional learning, and greater media literacy.[14] In short, sex education promotes safer, more equitable communities. Texans should therefore have the opportunity to cautiously consider efforts to scale it back.

Second, the Legislature’s back-hallway policymaking is cause for concern because the opt-in provisions do not reflect the opinion of a majority of Texans. According to a 2020 poll, 88% of Texas voters agree that consent education in schools is important.[15] Meanwhile, 75% support the teaching of abstinence-plus sex education, which teaches that abstinence is safest but also provides information about contraception, STI prevention, and healthy relationships.[16] Additionally, the stakes of failing to deliver sex education are high. For example, as of 2017, the pregnancy rate per 1,000 women aged fifteen to nineteen in Texas was 38.7 compared to 31 nationwide.[17] For women aged fifteen to seventeen, the pregnancy rate per 1,000 women in Texas was 18 compared to 13.6 nationwide.[18] Additionally, child sexual abuse is prevalent. Nationwide, approximately 1 in 4 girls and 1 in 20 boys experience sexual abuse or sexual assault before the age of 18.[19]

Behavioral law and economics (BLE) provides further insight into the detrimental impacts of the opt-in regime. First, overoptimism bias predicts that people view themselves as “above average” and thus underestimate the probability that they or people close to them will experience negative events.[20] Parents are thus likely to underestimate the likelihood that their child will experience negative outcomes associated with lack of sex education, including pregnancy, STIs, or sexual violence. Therefore, parents are likely to discount the value of sex education or at least doubt that their child would benefit from it. Next, an opt-in regime capitalizes on the power of default rules to ensure that fewer children receive sex education. Status quo bias predicts that once a default rule is set, people are unlikely to depart from it.[21] Thus, despite their intentions, parents will tend not to opt their child in to sex education when the default operates to keep their child out.

By contrast, an opt-out regime ensures that more children have access to sex education while ensuring that parents who genuinely oppose sex education can choose to withdraw their child from the program. The opt-out regime is, essentially, a libertarian paternalist approach. Libertarian paternalism stands for the proposition that since default rules are powerful, government should write policy—the default rules—in a way that promotes people’s welfare.[22] In other words, because government must begin somewhere with sex-education policy, it should begin in a place that promotes wellbeing by establishing a default rule of automatic enrollment. Such a regime mitigates the effects of the BLE biases identified above, including overoptimism and status quo bias, while maintaining parent choice.

Since they operate on a subconscious level, most people do not understand the impact of biases like overoptimism and status quo bias on their lives. The heuristic processes that trigger BLE biases are “fast, automatic, and belief based,” and they “can control behavior directly unless analytic reasoning intervenes.”[23] Therefore, unless one interrupts the operation of bias through engaging in analytical thinking, it is likely that bias will control behavior.[24] It is likely that most people will fall back on heuristic processes. In general, people do not have the time or mental energy to engage in analytical reasoning.[25] And because biases operate on an automatic, belief-based level, it is unlikely that most people are aware of them.[26] Despite the degree to which people generally fail to perceive the impact of cognitive biases on their own decision-making, the legislative process that accompanied the passage of the opt-in provisions suggests that a few individuals in the legislature actually did understand the impact of these biases.[27] Requiring parents to sign an opt-in form erects barriers to participation that are difficult to overcome given parents’ tendency to underestimate their children’s need for sex education and the powerful effects of default rules. A legislator who believes that sex education is harmful could easily wield these biases to impose that belief on parents who would otherwise desire their child’s participation.

In short, the opt-in regime does not reflect parental preferences regarding sex education. Assuming, as Texas long has, that parental preferences should be controlling in the sex-education space, it is in the best interest of Texas children that their parents be given every opportunity to make choices that parents believe will enhance their children’s welfare. This Note proposes that legislators should reinstate the opt-out regime. Where the legislature has already wielded the legislative process to limit the expression of parental preferences in the sex-education space, this Note advocates that the legislature should nudge people in a more welfare-enhancing direction. Doing so would not only respect parental preferences but also preserve freedom of choice for parents who genuinely oppose sex education.

This Note will proceed as follows: it begins in Part I by explaining the main BLE insights that work together to support the reinstatement of an opt-out regime. In Part II, this Note illustrates how these biases converge to impact decision-making in the sex-education space, making parents more susceptible to the foreclosure of their own preferences. Next, in Part III, it more directly addresses parents’ true preferences and demonstrates the shortcomings of disclosures as a mechanism to help ensure that parents’ true preferences are reflected in their decision-making about sex education. Part IV presents this Note’s argument for reinstating the opt-out regime as a libertarian paternalist approach to sex education. It also illustrates the ways in which a libertarian paternalist approach uses the status quo bias to mitigate the harmful effects of overoptimism in the sex-education space, a form of debiasing through law. Finally, this Note concludes with a call to put pressure on legislators to reinstate the opt-out regime.

I. Major BLE Insights

This Part will explore three major BLE insights that shed light on parental decision-making in the sex-education space: overoptimism bias, status quo bias, and libertarian paternalism.

A. Overoptimism Bias

Overoptimism is an umbrella term that refers to people’s tendency to believe that they are better than their peers.[28] This “above-average effect,” combined with people’s related overconfidence in their own abilities, leads people to make flawed probability assessments.[29] For example, people underestimate the likelihood that they will experience negative events such as heart attacks or car accidents.[30] People also tend to make assessments of their skills and character that are not firmly rooted in reality or objective performance.[31]

Researchers have demonstrated overoptimism bias across groups. In a survey of high school seniors, 70% believed they had above average leadership skills, while only 2% believed their leadership skills were below average.[32] Statistically, it is impossible for the students to be correct. This phenomenon cannot be chalked up to youthful hubris, either. Ninety-four percent of college professors believe that their work is above average.[33] And in a survey of adults, the mean respondent rated their likelihood of suffering from food poisoning, lung cancer, drug addiction, mugging, and other negative events between “average” and “much below average.”[34] Assuming a representative sample, such an outcome is statistically impossible and strongly supports a finding of overoptimism bias.

The above-average effect is especially pronounced when people compare traits that they believe are controllable.[35] In general, people believe that they are more cooperative and self-disciplined than others (controllable traits) but not more creative (a non-controllable trait).[36] The above-average effect is also more pronounced when people compare traits that they believe are internal. People tend to think they are more self-conscious or self-critical than their peers (internal traits) but not more aggressive or poised (external traits).[37]

Why does overoptimism occur? One psychological mechanism fueling overoptimism bias is information neglect. Particularly salient in the sex-education context, where statistics on pregnancy, STIs, and abuse abound, information neglect refers to people’s tendency to neglect or minimize “valuable information that would guide them toward appropriate self-evaluations.”[38] For example, people generally prefer to compare themselves with others rather than with objective standards.[39] Comparisons with others, in turn, exercise a greater influence over individuals’ behavior than comparisons with objective standards.[40] And since people consistently estimate that they are “above average” when compared to their peers, they judge themselves to have better or more healthy behaviors than their peers.

B. Status Quo Bias

In its most basic form, the status quo bias describes a pervasive preference for the current state. The bias derives from people’s tendency to be loss averse. Because people feel the pain of loss more than the joy of gain, the disadvantages of a loss “loom larger” than the advantages of gain.[41] Framed in relation to the status quo, loss aversion means that individuals have a strong tendency to remain at the status quo because departure tends to feel like they are giving something up.[42]

Status quo bias is well documented. Researchers have demonstrated status quo bias in a natural experiment on car insurance policies in New Jersey and Pennsylvania.[43] New Jersey and Pennsylvania each let drivers choose between two types of insurance policies: one policy was cheaper and limited the policyholder’s right to sue, while the other was more expensive but allowed the policyholder to sue without restriction.[44] Whereas in Pennsylvania the default option was the more expensive policy, the default option in New Jersey was the cheaper version.[45] Despite the fact that there was no reason to suspect any differences between New Jersey and Pennsylvania residents’ preferences regarding car insurance policies, residents of each state routinely chose their state’s default option.[46]

Status quo bias has also been demonstrated in studies of opt-in and opt-out policies. For example, researchers have observed that organ donation rates are much higher in countries where consent to organ donation is presumed than where explicit consent is required.[47] More recently, status quo bias and its interaction with default rules have been demonstrated in opt-in/opt-out regimes like COVID-19 testing, mobile shopping, and household recycling among individuals who do not demonstrate a strong concern about the environment.[48]

Notably, loss aversion and the status quo bias demonstrate that people often do not make decisions according to an objective standard of welfare or what actual welfare outcomes they can expect from the decision.[49] Rather, people make decisions based on where that decision will place them relative to a neutral reference point[50]—one that in the real world is often determined by another actor, such as government. More simply, people evaluate potential gains or losses in reference to their or their environment’s current state of affairs, not according to the actual welfare outcomes they can expect from the change.[51]

C. Libertarian Paternalism

Libertarian paternalism is a theory of governance that aims to promote welfare while maintaining individual choice. It is also a tool by which government may harness the power of the status quo bias to combat overoptimism. Developed by Cass Sunstein and Richard Thaler, libertarian paternalism relies on the proposition that people are strongly influenced by the context in which they make their choices.[52] Their choices are thus boundedly rational and often influenced by heuristics such as the status quo bias.[53] For example, default rules establish a status quo. Because of status quo bias, default rules exercise considerable influence over behavior: at a given company, the savings rate among employees will be much higher if the employer automatically opts them into a savings program than if the employer requires employees to opt in themselves.[54]

Given that people are strongly influenced by the context in which they make their choices and are generally unlikely to deviate from their original position, libertarian paternalism argues that decision makers should place individuals in a default position that promotes their welfare.[55] The “paternalism” piece of libertarian paternalism is this: It is inescapable that in crafting public policy, governments must begin somewhere.[56] That “somewhere,” or default choice, should promote welfare.[57] Consider the cafeteria analogy.[58] In any given school lunchroom, staff serve food in a buffet line and students move from the beginning of the line to the end, making food selections along the way. Since staff must choose to arrange the food in some order, it makes good sense for staff to put health-promoting foods at the beginning of the line. As students progress, they will fill their plates with the healthier options, leaving less room for sweets, which they will not encounter until they reach the end of the line. In this scenario, lunchroom staff will have made a conscious decision to do their job in a way that promotes student wellbeing. Governments are a lot like school lunchrooms. Since governments must start somewhere with public policy, Sunstein and Thaler posit that governments should make “self-conscious efforts . . . to steer people’s choices in directions that will improve the choosers’ own welfare.”[59]

The idea that government should design policies that promote welfare seems relatively intuitive at first, though the degree to which one is comfortable with this approach to governance may depend on the type of policy contemplated.[60] However, the default choice will not improve everyone’s welfare, and some individuals will perceive that a paternalist approach to public policy infringes on their freedom of choice.[61] This is where the “libertarian” piece comes into play. Libertarian paternalism insists that people should be free to make a different choice from the one necessarily prescribed—that is, they should be free to opt out.[62] Returning to the employee savings plan example, automatic enrollment would ensure that most employees participate, promoting their welfare. But any employee who wished to opt out of the plan, perhaps due to the fact that they preferred to manage their savings separately or not to save at all, would be free to do so. Libertarian paternalism thus imagines a system in which the good of the many is prioritized, but not at the expense of the few.

Notably, libertarian paternalism’s “nudge” effect, whereby governments and other actors design policies to nudge people toward welfare-enhancing activities,[63] is stronger where people’s preferences are weak or nonexistent. When a preference is weak or nonexistent, choosers are more likely to go along with the default.[64] This is because people will not spend energy or attention on selecting the non-default option when it is not important to them to do so. Additionally, the default rule is more likely to stick in domains dealing with impersonal, remote, or complex risks, like selecting a car insurance policy.[65] Compare the fact that default rules are generally ineffective when it comes to women’s marital names.[66] Even though the default rule in the U.S. is that a person retains their pre-marital surname after marriage, around 79% of American women do change their names.[67] Because women who are getting married have strong preferences and there are generally no risks associated with name changes, the default rule carries less weight.[68]

II. Overoptimism and Decision-Making Around Sex Education

Empirical evidence shows that people are overoptimistic about positive traits they possess.[69] Applied to the sex-education/sexual violence context, students and parents alike will underestimate the likelihood of negative outcomes. First, students themselves are likely to overestimate the likelihood that their actions will be socially desirable or right. Students may also be overconfident in their own sense of judgment, overestimating the chances that their decisions in any given moment are sound and correct. Thus, students may be overoptimistic in relation to their likelihood of committing sexual offenses—believing that their actions are right and judgments sound, they will fail to recognize the harm they cause others. They may also underestimate their likelihood of contracting an STI or becoming or getting someone else pregnant. Additionally, such beliefs about one’s own virtues may cause students to tune out during sex-education class since they perceive the information to be aimed at people other than themselves. If a student believes they have an above-average likelihood of being a person who does not cause harm to others or an above-average likelihood of avoiding adverse events like teen pregnancy or STIs, they likely view sex education and prevention education programs as aimed at those who are below average.

Additionally, research shows that people’s behavior is more likely to be affected by comparisons with others rather than with objective standards.[70] Whereas sexual violence prevention advocates and the law define unwelcome touching as harmful,[71] a student embedded in an environment where sexual violence runs rampant may view their actions as more upstanding in relation to the more harmful actions taken by peers (i.e., rape). Presented with statistics on the prevalence of sexual violence,[72] a student will likely assume that they account for a relatively smaller portion of that harm than each of their peers. Finally, students likely think of themselves as superior to their peers in terms of controllable traits like self-restraint and compassion.[73] A student who believes he is more respectful and compassionate toward women, for example, may not view his actions as harmful in light of this flawed judgment of his own character. The same is true for other risky behaviors such as unprotected sex. Students who are in an environment that normalizes unprotected sex may come to view their own risky behaviors as presenting less potential for harm than those of their peers, who may have unprotected sex more frequently or with more partners. These biases will lead students to discount their need for sex- or violence-prevention education.

While the finding that people do not typically possess all the information required to reach perfectly accurate self-assessments may highlight the importance of sex education, people’s tendency to ignore such information illuminates biases that may bar its effectiveness. Even when people have information that would guide them to make more appropriate self-evaluations, they tend to neglect this information or minimize its weight.[74] One might think that the solution to flawed self-assessments among students is to put decisions regarding sex education in the hands of actors who are allegedly more rational. Increasingly, parents have taken center stage in the sex-education debate and pushed back against sex education in schools. But the flawed self-assessments of parents, too, adversely impact the effectiveness of sex-education efforts. Particularly, overoptimism bias impairs parental judgments in the sex-education space.

Like their children, parents overestimate the likelihood of desirable events and thus discount the likelihood of poor outcomes. For example, researchers have demonstrated that parents underestimate their children’s risk of negative health outcomes. In a study of parents bringing their children to doctor’s appointments, researchers found that 91.5% of parents believed their child was less likely or much less likely than others to become a smoker before age 18.[75] In addition, 86.3% of parents believed their child was less likely or much less likely to gain excessive weight in the year following the survey.[76] Notably, the authors of the study chose factors (those associated with smoking and weight gain) that were “influenced by parent behavior,” suggesting that parents are also optimistic about their influence as parents.[77] In a different study, researchers found that parents predicted that their child was less likely to experience negative outcomes like getting a divorce, dropping out of college, or being sued compared to their child’s peers.[78] On the other hand, parents predicted that their children were more likely to experience positive events than their peers, including remaining happily married, completing college, and staying happy.[79]

In addition, parents are likely to believe that they are above average at parenting.[80] An Australian study measured the impact of the above average effect on people’s perceptions of their own performance in key roles, including parenting.[81] Among respondents, 78.3% believed that they were an above-average parent.[82] Only 20.2% believed they were an average parent, and a meager 1.7% believed they were below average.[83] This statistical impossibility reflects a pervasive overoptimism bias in parenting. Because good parenting helps children become healthier and happier, parents’ perceptions of their own prowess may lead them to believe that they have raised above-average children—children who are unlikely to engage in risky behaviors or experience negative events.

Applied to the sex-education space, these findings suggest that parents are likely to underestimate the probability that their children will experience a host of negative outcomes associated with a lack of sex education. In particular, the findings on parents’ predictions about their children’s likelihood of remaining happily married show that parental overoptimism extends to their children’s intimate relationships with others.[84] Therefore, it is likely that parents underestimate their children’s likelihood of becoming or getting someone else pregnant, contracting an STI, perpetrating sexual violence, or becoming a victim of sexual violence.[85] Parents may thus discount the potential negative impact of opt-in provisions in sex education and the negative impact of failing to opt their children in to sex education. Finally, because parents are likely to believe that they themselves are above average at being parents, they may infer that their children are above average by virtue of having been raised by the parents. Parents may thus discount their children’s need for sex education and the positive impact that receiving sex education would have on their children’s welfare.

Relatedly, parents are likely to demonstrate motivated reasoning. The theory of motivated reasoning is that when decision makers hope to see a particular result come about, they engage in inadvertently biased thinking that makes the desired result seem more likely.[86] Parents might be resistant to sex education because of its potential to enmesh students in conversations about potential harms, including unwanted pregnancies, STIs, and sexual violence. In particular, when it comes to sexual violence, a parent might reason that their child’s perpetrating sexual violence would mean they were a bad parent. The parent would thus be subconsciously motivated to believe that their child would not perpetrate sexual violence or engage in other sexually risky behaviors. They would thus be likely to oppose sex education because of the belief that their child does not need it. Moreover, when a harmful event occurs, motivated reasoning predicts that people will “tend to blame an actor who evokes a negative emotional response.”[87] So when parents are presented with data or anecdotal evidence about teen pregnancy, the spread of STIs, or sexual violence, they will tend to want to blame anyone but their child. Their child, then, is not one of the students who needs sex education—it’s everyone else’s child who might.[88]

Somewhat ironically, a person’s acquaintances may be a better judge of their abilities or performance than the person themselves.[89] So, it is possible that a student’s classmates, teachers, coaches, and other acquaintances are better judges of the student’s abilities and performance than the student. On these grounds, one might argue that a parent is more like an acquaintance in that they are more removed from the student’s flawed self-assessments than the student. A parent might therefore be better suited to make assessments regarding a student’s behavior than the student. But in fact, research shows that parents are especially ineffective judges of their children’s behaviors—less effective, even, than the children themselves. In a study of college students and their parents, researchers found that parents rated their children’s health higher than the children rated their own.[90] While parents were generally accurate in estimating some of their children’s risky behaviors, including likelihood of driving a car under the influence or failing to use sunblock, parents underestimated the frequency with which students engaged in particularly risky behaviors, including sex.[91] In cases where students had reported having sex in the last thirty days, parents thought the child had not had sex 39% of the time.[92] Such a disparity among parental and student estimates of risk behavior in particularly risky activities such as sex may be due to parents’ and children’s discomfort with talking about the subject, a finding that cuts toward a greater need for sex education and encouraging dialogue about healthy sexual behaviors.[93]

III. Parents’ True Preferences and the Failure of Information Disclosure

A. What Are Parents’ “True” Preferences?

Evidence suggests that most parents have, at worst, weak or modestly positive attitudes toward sex education. Despite the fact that parents fail to opt their students in to sex education, 88% of Texas voters agreed in 2020 on the importance of students learning about consent.[94] Seventy-five percent supported teaching “abstinence-plus” sex education—that is, a curriculum that teaches students that abstinence is the safest choice but also provides information and resources pertaining to contraception, prevention of STIs, and healthy relationships.[95] In that group, 71% of parents with children under eighteen supported abstinence-plus sex education.[96] These statistics show that the true preference of most Texas parents is that their children participate in sex education. In addition, these data suggest that the reason parents do not opt in is not that they disagree about the value of sex education, but rather that their preferences are not strong enough to overcome the barriers erected by an opt-in regime. These barriers include lack of time, students’ forgetfulness with take-home forms, and other personal factors. Relatedly, those who opt out are likely individuals who have strong preferences—strong enough to overcome the barriers to exercising that choice in an opt-out regime.

When preferences are weak, tiny barriers have substantial effects. The status quo bias predicts that individuals have a strong tendency to stick with the status quo because the disadvantages of leaving it “loom larger” than the advantages.[97] Thus, it makes sense that when the advantages of leaving the status quo are small—when the chooser has weak preferences—it is unlikely that these advantages are worth the effort needed to opt out. In this way, the status quo operates to create greater disjunction between preferences and outcomes. Most Texas voters support age-appropriate sex education for their children,[98] but since their preferences are relatively weak, their children are not getting it.

B. Failures of Information Disclosure as a Mechanism for Increasing Support for Sex Education

To the extent that advocates might want to strengthen parents’ preferences or encourage more parents to become pro-sex education, they may suggest an information campaign. Such a campaign might consist of required disclosures to parents and voters about the prevalence of negative outcomes associated with a lack of sex education and the benefits of receiving it. But research shows that information disclosure is generally ineffective in overcoming the biases that cause even pro-sex education parents to fail to ensure their child’s participation. First, overoptimism bias predicts that people will neglect or minimize “valuable information that would guide them toward appropriate self-evaluations.”[99] That is, people’s biases do not vanish upon being presented with helpful, accurate information; a parent who already believes their child is above-average will likely view statistics on the prevalence of teen pregnancy, STIs, and sexual violence as representative of children other than their own.[100] Additionally, information disclosure does not make parents any less busy or susceptible to status quo bias.[101] In fact, increasing the amount of information parents must consider when making choices about sex education may make them even less capable of devoting time and energy to the consideration of those choices.

Further, researchers have demonstrated that mandated disclosure is often ineffective. Mandated disclosure is a “regulatory technique” that aims to protect and promote the autonomy of the unsophisticated disclosee from the sophisticated discloser by requiring the discloser to give the disclosee information.[102] The idea is that the disclosee may then use that information to make better or more rational choices.[103] Among a host of other pitfalls, disclosures tend to be too complex, long, or elaborate for disclosees to read, understand, analyze, and apply.[104] One might argue that the solution to this particular pitfall is to simply make disclosures less complex. But research also suggests that it is incredibly challenging for government and other actors to prevent an information snowball. Mandates typically expand because people need more information to interpret the information they have already been given.[105] And as information requirements expand, “it becomes hard to argue that yet other data are not equally relevant,” especially when dealing with large and diverse interest groups.[106] Moreover, disclosures must compete for disclosees’ time and attention.[107] Disclosees are presented with increasing amounts of information (disclosure-related and otherwise) on a daily basis. It is also doubtful that consumers, having read the information contained in mandated disclosures, will actually use that information to inform their choices.[108] In addition to the fact that it would be highly undesirable to read every single disclosure one encountered in a day, there are also barriers to understanding them.[109] Not every parent will be able to digest and make sense of data regarding the impact of and need for sex education, rendering the disclosures essentially useless. It is also likely that parents would not read the disclosures given to them, choosing instead to accept the default option.[110]

Furthermore, to the extent that parents actually would read the disclosures and act on them, the content of sex-education disclosures may impair parental choice and further divorce policy from parental preferences. Lawmakers may distrust disclosers and thus dictate the way in which information is provided.[111] But it is also lawmakers who ultimately choose what information should be disclosed. Given that the Legislature essentially—and however accidentally—overrode parental preferences regarding sex education in the passage of House Bill 1525, it is possible that mandated disclosures in Texas would contain unreliable and biased information.[112] The writing of ineffective disclosures could be the result of a back-hallway process similar to the one that led to the passage of House Bill 1525, or it could be the product of a concentrated effort on the part of the legislature to quantitatively and substantively limit the type of information that Texans receive about sex education. Either way, it is doubtful that the Texas Legislature, given the procedural rules that govern it,[113] is a body well-suited to crafting disclosures. Because legislators disagree on sex education, disclosures would likely be subject to a series of modifications reducing their overall effectiveness. It is also unlikely that a measure to include mandated disclosures regarding the need for and benefits of sex education would succeed absent a serious upset in the state’s Legislature and political climate. Mandated disclosures would therefore be unsuccessful in combatting optimism bias in decisions surrounding sex education in Texas.

“Nudging” disclosures might work instead. Nudging disclosures occur when government uses disclosures to gently push people in a welfare-enhancing direction. One example appears in the consumer safety context. Rather than warning labels, products liability standards, or bans, government might address consumers’ tendency to overestimate the safety of products by using the availability heuristic.[114] The availability heuristic predicts that the probability of certain events will be (often incorrectly) estimated based on “how easily examples of the event can be called to mind.”[115] Given that people respond to narrative information more than general statistics, advocates might produce a detailed and personal advertisement to warn consumers of the dangers of a particular product.[116] The theory might be that once consumers have that narrative available, they are less likely to be affected by overoptimism. However, this approach may not be effective. While nudging disclosures and the availability heuristic might mitigate overoptimism bias somewhat, it is unclear that such disclosures could adequately overcome people’s tendency to shut out information that will help them make more accurate self-assessments.[117]

IV. Libertarian Paternalism as a Solution to Biases in Sex-Education Decision-Making

Having illustrated the impossibility of relying on mandated disclosures and the shortcomings of nudging disclosures, this Part proposes that a libertarian paternalist approach to sex education is the best way to promote student welfare while also maintaining freedom of choice for parents who oppose sex education.

A. Advocating for a Majoritarian Default

Majoritarian default rules are created based on what most people prefer.[118] Majoritarian defaults thus work to limit what we might call “transaction costs,” or the number of instances in which people must act to make a different choice.[119] The majority of individuals will take no action, adopting the default rule as their preference or at least as a close approximation of it. Only those who disagree with the majority will likely opt out. In the Texas sex-education space, a majoritarian default would look like an opt-out form—the system that Texas used prior to instating the opt-in policy. Children would be automatically enrolled in sex education, reflecting the preferences of the majority, and parents would retain the option to make a different choice according to their own, less widely held beliefs. As previously discussed, the status quo bias predicts that individuals with weaker preferences will remain at the status quo, while individuals with stronger preferences will opt out.[120] Since it takes energy and effort to opt out, such a rule places the burden to act on those with the strongest preferences.

Placing the burden to act on those with the strongest preferences will ensure that sex-education policy more accurately reflects parental preferences. The parents who oppose sex education do so avidly[121] and will opt out despite barriers to action such as lack of time. As with women’s marital names, parents who oppose sex education have clear preferences, and the issue of sex education is salient to them.[122] So, when an opt-out form arrives in a child’s take-home folder, a parent who opposes sex education and understands that they have the right to opt their child out will be looking for it. These parents want to make sure that their child does not participate. Perhaps they will even take extra steps to ensure that it makes its way back to the child’s teacher by delivering it themselves. In this way, parents who oppose sex education will overcome the status quo bias.

On the other hand, parents who do not oppose sex education tend to be less opinionated. To be clear, this does not mean that the parents do not actually support sex education; it means that in a busy life, opting their child into sex education does not rise to the level of importance needed to overcome the many other demands on parents’ attention and energy. When an opt-in form arrives in a take-home folder, parents who support sex education are more likely to miss it because they are not looking for it. They may also be more likely to forget to follow up with their child to make sure the form was returned to the teacher. Thus, the majority of parents’ preferences will not be accurately reflected in their children’s non-attendance in a sex-education class. To avoid this result, government should begin with a majoritarian default.

B. The Libertarian Paternalist Approach

Given that most parents’ preferences regarding sex education are weakly positive, employing a libertarian paternalist approach with a majoritarian default is the best way to ensure that parents’ preferences across the spectrum are accurately reflected in their children’s sex-education experience (or lack thereof). A libertarian paternalist approach will ensure that children’s welfare is promoted while maintaining freedom of choice for parents who oppose sex education.

Just like a school lunchroom staff, the state of Texas must set a default rule for sex education.[123] The most readily available possibilities include banning sex education, mandating sex education across the board, creating a majoritarian default/opt-out regime, or creating an opt-in regime. Given popular support for age-appropriate consent and sex education,[124] it is unlikely that an outright ban would accurately reflect most Texas parents’ wishes. As evidenced by Texas’s opt-out tradition and the recent passage of the more restrictive opt-in provisions, it would be politically impossible to impose a statewide sex-education mandate. Thus, Texas must choose between an opt-out or opt-in regime.

Because Texas must make a choice—imposing the government’s will in some way or another on the population—it should make the choice that best enhances the welfare of Texas children. The welfare-enhancing choice is, without a doubt, the majoritarian default/opt-out regime. First, a majoritarian default/opt-out regime accurately reflects parental preferences.[125] An opt-out regime also ensures that more children have access to sex education, which is an invaluable tool for promoting student health.[126] Not only does sex education increase young people’s knowledge, but it also improves their attitudes about sexual and reproductive health.[127] With sex education, young people initiate sexuality later, participate in fewer risky sexual behaviors, and use contraception more often.[128] Moreover, sex education reduces teen pregnancy and STI rates.[129] And while the link is not yet as clearly established, some research shows that sex-education curricula that include consent help prevent child sexual abuse, sexual assault, and intimate partner violence.[130]

Even as it ensures that more children will reap the benefits of sex education, a libertarian paternalist approach maintains parental choice. While an opt-out regime will leverage the status quo bias to ensure that more children receive sex education in accordance with most parents’ preferences, it also preserves the opportunity for parents who are opposed to sex education to choose what they believe is right for their child. Given that parents who oppose sex education are likely to have stronger preferences regarding sex education, they are more likely to exercise their opt-out option; status quo bias does not have the same strong effect.[131] As Sunstein and Thaler explain, libertarian paternalism is a weak form of paternalism that refrains from blocking off choice.[132] It also imposes only trivial costs on those who make a different choice—as trivial as signing a form.[133]

Finally, not only does a libertarian paternalist approach to sex education make sense in BLE terms, but it is also politically feasible. Texas has long operated under an opt-out regime. And in the face of growing parental-rights sentiment in the state, an opt-out regime preserves a parent’s right to make choices about their own children’s education.

C. Debiasing Through Law

In its role as libertarian paternalist setter of the status quo, government uses the status quo bias to combat overoptimism. Since we know that the status quo bias will tend to make people resist change, taking steps to place people in a welfare-enhancing status quo position limits the extent to which the overoptimism bias can harm them. That is, people’s tendency to believe that bad things are unlikely to happen to them or that negative outcomes are unlikely to occur will not be able to harm them as much.

Responses to people’s bounded rationality have typically sounded in efforts to inform people or to “insulate” legal outcomes from the effects of inevitable failures in rationality.[134] For example, in response to consumers’ tendency to underestimate the risks associated with products they use, government may require companies to affix detailed warning labels to packaging, apply heightened standards of products liability, or ban the product altogether.[135] One problem with the informational approach is that it does not actually mitigate overoptimism bias. When people view accurate statistics reflecting a high likelihood of injury on, for example, a trampoline, they still believe that they will be one of the few customers whose children will not break their arms.[136] Heightening products liability standards in an attempt to shift the burden to producers imposes costs like reducing competition.[137] Finally, an outright ban on the use of a product infringes on the freedom of choice of both rational and irrational actors.[138]

By contrast, the concept of debiasing through substantive law advocates a more active approach that maintains choice. The central idea of debiasing through substantive law is that it is “desirable to understand or to reform the substance of law—not merely the procedures by which the law is applied in an adjudicative setting—with an eye toward debiasing those who suffer from bounded rationality.”[139] Although this Note does not advocate its application to the sex-education space[140] and rather references it here only as an illustration, using the availability heuristic to combat overoptimism among consumers is an accessible example of debiasing through law.[141] By creating personal narrative advertisements about the harmful effects of a certain product, government ensures that such events are brought to the front of consumers’ minds.[142] The new “availability” of the risk means that consumers are less likely to be affected by overoptimism when considering it.[143]

One of the benefits of debiasing through substantive law is that it solves problems while maintaining individual choice.[144] It thus refrains from imposing high costs on actors who do act rationally.[145] This is particularly true when “the absence of one form of bounded rationality correlates . . . with the absence of others.”[146] Applied to the consumer protection example, an individual who is not subject to overoptimism bias but subject to the availability heuristic might ultimately be overcorrected.[147] Whereas that individual had a healthy fear of the risks associated with a particular product before exposure to the narrative advertisement, they may now be too afraid, potentially stymieing their ability to participate in the market for that product or reap its benefits.[148] But for an individual who behaves rationally with respect to both overoptimism bias and the availability heuristic, their choices will not be substantively constrained by the advertising campaign or the use of debiasing through law in general.[149] While there may be some cost imposed on rational individuals who have to process the information and advertisement, this cost is minimal compared to the benefits that these measures produce.[150]

The use of a libertarian paternalist approach to sex education is an example of debiasing through law. In particular, libertarian paternalism leverages the status quo bias to combat overoptimism. Overoptimism encourages parents to disregard the importance of sex education.[151] Once brought to bear upon individual choices via the installation of a majoritarian default, status quo bias counteracts this effect. It takes cognitive and physical effort to opt one’s child out of sex education once the majoritarian default/opt-out regime is in place. Insofar as status quo bias predicts that people will remain with the default option, an opt-out regime makes people less likely to opt their child out of sex education. The effects of overoptimism bias, which would encourage parents to opt out insofar as they view sex education as unnecessary to their children’s welfare, are thus mitigated by a strong bias toward the baseline of having their children enrolled in sex education. In this context, status quo bias thus ensures that parents are well-equipped to make the welfare-enhancing choice that evidence shows they want to make.[152] And for the minority of parents who believe that sex education is not the right choice for their children, a libertarian paternalism approach ensures that those parents retain the ability to opt out.

Concerns about overcorrecting individuals who already act rationally are misplaced with respect to sex education.[153] First, given the goals of sex education to reduce teen pregnancy, STI rates, and sexual violence, it is unlikely that overcorrection would lead to real harm. One cannot over-promote safe sex and consent among youth. Second, it is unlikely that there will be true costs imposed on students who truly do not need sex education (to the extent that those children actually exist).[154] Receiving more sex education will equip students who do not need it to be better active bystanders and serve as a useful reminder of the importance of safe practices. Finally, given that most parents support age-appropriate sex education, the use of debiasing through law is not overly manipulative and does not undermine parental choice.[155]

Conclusion

BLE provides insight into the harmful effects of the new opt-in regime for sex education in Texas. Taken together, overoptimism and status quo bias predict that the opt-in regime will not promote parental choice in the sex-education space, but rather will further divorce sex-education policy from parental preferences. But BLE also provides the tools for ensuring that parental preferences are accurately represented in sex-education policy. A libertarian paternalist approach to sex education as reflected in an opt-out regime would ensure that largely subconscious heuristics like overoptimism and status quo bias do not inhibit parents from making choices that promote their children’s welfare. Importantly, a libertarian paternalist approach also ensures that parents who genuinely oppose sex education will be able to make the choice they believe is best for their child. To shape sex education in a way that truly reflects parental preferences, Texas voters should advocate for the reinstatement of an opt-out regime.

  1. . H.B. 1525, 87th Leg., Reg. Sess. (Tex. 2021); see also 87(R) History of HB 1525, Tex. Leg. Online Hist., https://capitol.texas.gov/billlookup/History.aspx?LegSess=87R&Bill=
    HB1525 [https://perma.cc/SFU2-BPAK] (showing that the bill was signed in the Texas House and Senate on May 31, 2021); Patty Santos & Lee Carpio, Upcoming Texas Legislature Expected to Tackle Redistricting, Public Safety and Budget Issues, Ksat.com (Jan. 5, 2021, 10:34 PM), https://www.ksat.com/news/local/2021/01/06/upcoming-texas-legislature-expected-to-tackle-redistricting-public-safety-and-budget-issues/ [https://perma.cc/5J68-3GL7] (stating that the regular legislative session would run from January 12 to May 31). ↑
  2. . Sex Ed & Parental Consent: Opt-In vs. Opt-Out, Sexuality Info. & Educ. Council of the U.S., https://siecus.org/wp-content/uploads/2018/09/Policy-Brief-Opt-in-v.-Opt-out-Redesign
    -Draft-09.2018.pdf [https://perma.cc/V7ZL-3UGX] (last updated Sept. 2018). ↑
  3. . Id. ↑
  4. . H.B. 1525. Currently, the affirmative consent requirement expires August 1, 2024. Id. A bill was introduced during the Eighty-eighth Legislative Session to repeal the August 1, 2024 expiration date. S.B. 163, 88th Leg., Reg. Sess. (Tex. 2023). The bill passed the Senate but died in the House. See 87(R) History of SB 163, Tex. Leg. Online Hist., https://capitol.texas.gov/
    BillLookup/History.aspx?LegSess=88R&Bill=SB163 [https://perma.cc/Z6UH-4PEN] (showing that the bill passed the Senate on April 20, 2023, but that its most recent activity in the House was placement on the General State Calendar). ↑
  5. . Tex. Educ. Code Ann. § 28.004(i-2) (West 2023). ↑
  6. . Id. § 28.004(i-3) (West 2023). ↑
  7. . S.B. 1083, 87th Leg., Reg. Sess. (Tex. 2021); see also 87(R) History of SB 1083, Tex. Leg. Online Hist., https://capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=SB1083 [https://perma.cc/UB9F-46SS] (showing that the bill stalled after being referred to the House Public Education Committee on May 24, 2021); 87(R) History of HB 1825, supra note 1 (showing that both the House and the Senate voted on the bill on May 30, 2021). ↑
  8. . See Jen Biundo, How Did the Legislative Session Impact Sex Education?, Texas Is Ready (July 30, 2021), https://www.texasisready.org/post/how-did-the-legislative-session-impact-sex-education [https://perma.cc/JE5Q-F5A9] (describing the bill as a “must-pass school finance bill”). ↑
  9. . House Rsch. Org., HB 1525 Bill Analysis, H.R. 87, Reg. Sess., at 7–8 (Tex. 2021). ↑
  10. . See Hannah Norton, Texas School Districts Struggle with State Funding Due to COVID-19’s Impact on Attendance Rates, Cmty. Impact (Nov. 2, 2022, 4:22 PM), https://
    communityimpact.com/san-antonio/na/education/2022/11/01/texas-school-districts-struggle-with-state-funding-due-to-covid-19s-impact-on-attendance-rates/ [https://perma.cc/G6UX-B3P6] (discussing the shortage of funding and other additional costs that student absences due to the pandemic brought upon schools). ↑
  11. . Biundo, supra note 8. ↑
  12. . See, e.g., Rebekah Rollston, Dave Grolling & Elizabeth Wilkinson, Sexuality Education Legislation and Policy: A State-by-State Comparison of Health Indicators, Robert Graham Ctr. (Jan. 19, 2023), https://storymaps.arcgis.com/stories/2586bb2dc7d045c092eb020f43726765 [https://perma.cc/94NV-7MKR] (noting that out of the six states with the lowest STI rates, five mandate sex education). ↑
  13. . See, e.g., Nicholas D. E. Mark & Lawrence L. Wu, More Comprehensive Sex Education Reduced Teen Births: Quasi-experimental Evidence, Proc. Nat’l Acad. Sci. U.S., Feb. 22, 2022, at 1, 5 (finding that federal funding for more comprehensive sex education on teen births “reduced the overall rate of teen births at the county level by more than 3%”). ↑
  14. . Eva S. Goldfarb & Lisa D. Lieberman, Three Decades of Research: The Case for Comprehensive Sex Education, 68 J. Adolescent Health 13, 13–14, 16, 19–22 (2021). ↑
  15. . Public Opinion Poll Results, Tex. Campaign to Prevent Teen Pregnancy, https://www.texasisready.org/_files/ugd/fae15f_11a6b89ccf0941b7ace50a39d020c09a.pdf [https://perma.cc/5YBT-W8L2] (reporting results of a poll taken between March 3 and March 10, 2020). ↑
  16. . Id. ↑
  17. . Data Center, Guttmacher Inst., https://data.guttmacher.org/states/table?state=TX+US
    &dataset=data&topics=170 [https://perma.cc/B3RA-6WLT]. ↑
  18. . Id. ↑
  19. . David Finkelhor, Anne Shattuck, Heather A. Turner & Sherry L. Hamby, The Lifetime Prevalence of Child Sexual Abuse and Sexual Assault Assessed in Late Adolescence, 55 J. Adolescent Health 329, 331 (2014). The state of Texas does not publish child sexual abuse statistics. However, there is no indication that child sexual abuse rates in Texas differ substantially from national rates. ↑
  20. . See infra subpart I(A). ↑
  21. . See infra subpart I(B). ↑
  22. . See infra subpart I(C). ↑
  23. . Jonathan St. B.T. Evans, Dual-Processing Accounts of Reasoning, Judgment, and Social Cognition, 59 Ann. Rev. Psych. 255, 263 (2008). ↑
  24. . Id. ↑
  25. . Geoffrey Ellis, So, What Are Cognitive Biases?, in Cognitive Biases in Visualizations 1 (Geoffrey Ellis ed., 2018). ↑
  26. . See Jonathan St. B.T. Evans, supra note 23, at 263 (describing the subconscious operation of heuristic processes). ↑
  27. . See supra notes 7–11 and accompanying text. ↑
  28. . Sean Hannon Williams, Probability Errors: Overoptimism, Ambiguity Aversion, and the Certainty Effect, in The Oxford Handbook of Behavioral Economics and the Law 335, 336 (Eyal Zamir & Doron Teichman eds., 2014). ↑
  29. . Id. at 336–37. ↑
  30. . Id. at 337. ↑
  31. . David Dunning, Chip Heath & Jerry M. Suls, Flawed Self-Assessment: Implications for Health, Education, and the Workplace, 5 Psych. Sci. Pub. Int. 69, 70 (2004). ↑
  32. . Id. at 72. ↑
  33. . K. Patricia Cross, Not Can, but Will College Teaching Be Improved?, New Directions for Higher Educ., Spring 1977, at 1, 10. ↑
  34. . Neil D. Weinstein, Unrealistic Optimism About Susceptibility to Health Problems: Conclusions from a Community-Wide Sample, 10 J. Behav. Med. 481, 485–86 (1987). ↑
  35. . Dunning et al., supra note 31, at 75. ↑
  36. . Id. ↑
  37. . Id. ↑
  38. . See id. at 73 (discussing people’s tendency to give too little weight to valuable information and thus make errors that could have been avoided). ↑
  39. . Id. at 75. ↑
  40. . Id. ↑
  41. . Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, J. Econ. Persps., Winter 1991, at 193, 197–98. ↑
  42. . Id. ↑
  43. . Eric J. Johnson, John Hershey, Jacqueline Meszaros & Howard Kunreuther, Framing, Probability Distortions, and Insurance Decisions, 7 J. Risk & Uncertainty 35, 48 (1993). ↑
  44. . Id. ↑
  45. . Id. ↑
  46. . See id. (showing that about 80% of New Jersey drivers and 75% of Pennsylvania drivers chose their respective default options). ↑
  47. . Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives?, 302 Science 1338, 1338 (2003). ↑
  48. . See Allison H. Oakes, Jonathan A. Epstein, Arupa Ganguly, Sae-Hwan Park, Chalanda N. Evans & Mitesh S. Patel, Effect of Opt-In vs Opt-Out Framing on Enrollment in a COVID-19 Surveillance Testing Program, J. Am. Med. Ass’n Network Open, June 2021, at 1, 3 (“In this randomized clinical trial, an opt-out framed recruitment strategy increased enrollment into a COVID-19 screening program and increased the overall rate of test completion.”); Jacques Nel & Christo Boshoff, Status Quo Bias and Shoppers’ Mobile Website Purchasing Resistance, 54 Eur. J. Mktg. 1433, 1452 (2020) (discussing results of a study showing that “desktop purchasing inertia positively and statistically significantly influences mobile website purchasing resistance”); see generally Adam Priban, Behavioural Economics for Environmental Policy: Lessons from Salience, Status-Quo Bias, and the Power of Social Norms in Curbside Recycling Programs (July 23, 2012) (Major Research Project, University of Ottawa) (discussing the positive impact that a default option to recycle has on recycling habits). ↑
  49. . Kahneman et al., supra note 41, at 199. ↑
  50. . Id. ↑
  51. . See id. (“A central conclusion of the study of risky choice has been that such choices are best explained by assuming that the significant carriers of utility are not states of wealth or welfare, but changes relative to a neutral reference point.”). ↑
  52. . Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003). ↑
  53. . Id. at 1167–68. ↑
  54. . Id. at 1161. ↑
  55. . Id. at 1162. ↑
  56. . Id. at 1162, 1164–65. ↑
  57. . Id. at 1162, 1166. ↑
  58. . See id. at 1164 (using the decision of how to sequence foods in a cafeteria line to exemplify libertarian paternalist thinking). ↑
  59. . Id. at 1162. ↑
  60. . See Cass R. Sunstein, Do People Like Nudges?, 68 Admin. L. Rev. 177, 183 (2016) (concluding that people are indifferent about the concept of nudging in general, but that their assessment “turns on whether they approve of the purposes and effects of particular nudges”). ↑
  61. . Sunstein & Thaler, supra note 52, at 1160, 1170. ↑
  62. . Id. at 1161. ↑
  63. . See Sunstein, supra note 60, at 178 (defining “nudges” as “interventions that steer people in particular directions but that also allow them to go their own way”). ↑
  64. . Cass R. Sunstein, Nudges that Fail, 1 Behav. Pub. Pol’y 4, 10 (2017). ↑
  65. . See generally Johnson et al., supra note 43 (discussing how framing impacts individuals’ choices pertaining to insurance, including car insurance). ↑
  66. . Sunstein, supra note 64, at 8. ↑
  67. . Luona Lin, About 8 in 10 Women in Opposite-Sex Marriages Say They Took Their Husband’s Last Name, Pew Rsch. Ctr. (Sept. 7, 2023), https://www.pewresearch.org/short-reads/2023/09/07/about-eight-in-ten-women-in-opposite-sex-marriages-say-they-took-their-husbands-last-name/ [https://perma.cc/M8YY-QZUZ]; see also Elizabeth F. Emens, Changing Name Changing: Framing Rules and the Future of Marital Names, 74 U. Chi. L. Rev. 761, 785 (2007) (stating that the majority of women adopt their husband’s last name after marriage). ↑
  68. . See Sunstein, supra note 64, at 10–11 (explaining that when choosers have strong rather than weak preferences, the default rule carries less weight). ↑
  69. . Dunning et al., supra note 31, at 71–72. ↑
  70. . Id. at 75. ↑
  71. . See Tex. Penal Code Ann. § 22.012(a) (West 2023) (defining indecent assault).  ↑
  72. . See Bruce G. Taylor, Nan Stein & Frances F. Burden, Exploring Gender Differences in Dating Violence/Harassment Prevention Programming in Middle Schools: Results from a Randomized Experiment, 6 J. Experimental Criminology 419, 421 (2010) (“[R]esearch on teen dating violence suggests that as many as 40–60% of teenagers experience dating violence, including sexual, physical, and psychological abuse.”). ↑
  73. . See Dunning et al., supra note 31, at 75 (explaining that people “think of themselves as superior to their peers when thinking about traits that are construed as controllable”). ↑
  74. . Id. at 73, 75. ↑
  75. . Olivier Drouin, Jonathan P. Winickoff & Anne N. Thorndike, Parental Optimism About Children’s Risk of Future Tobacco Use and Excessive Weight Gain, 19 Acad. Pediatrics 90, 92 (2019). ↑
  76. . Id. ↑
  77. . See id. at 91 (stating that the study authors chose factors to observe that are “strongly associated with the development of tobacco smoking and obesity” and “influenced by parent behavior”). ↑
  78. . Heather C. Lench, Jodi A. Quas & Robin S. Edelstein, My Child Is Better Than Average: The Extension and Restriction of Unrealistic Optimism, 36 J. Applied Soc. Psych. 2963, 2969–70 (2006). ↑
  79. . Id. ↑
  80. . Bruce Headey & Alex Wearing, The Sense of Relative Superiority—Central to Well-Being, 20 Soc. Indicators Rsch. 497, 502–03 (1988). ↑
  81. . Id. at 501–03. ↑
  82. . Id. at 503. ↑
  83. . Id. ↑
  84. . Lench et al., supra note 78, at 2969–70. ↑
  85. . Williams, supra note 28, at 336–37 (explaining that many people systematically underestimate the probability that they will experience a negative event, such as an unwanted pregnancy, because people “fall prey to a host of self-serving biases that cause them to interpret ambiguous information” in an unduly optimistic fashion). ↑
  86. . See Avani Mehta Sood, Motivated Cognition in Legal Judgments—An Analytic Review, 9 Ann. Rev. L. & Soc. Sci. 307, 308 (2013) (explaining motivated reasoning in the context of judges and juries). ↑
  87. . Id. at 311. ↑
  88. . This parental assumption is borne out in data. A study of fourth through twelfth graders and their parents in rural Indiana found that although some parents acknowledged that other children in their child’s school used substances, parents almost invariably believed that their child did not. Kim B. Deffenbaugh, Roger L. Hutchinson & Michael P. Blankschen, Substance Use Among Youth (Grades 4–12) in Rural Indiana: Students’ Reported Use vs. Parents’ Perceptions of Students’ Use, J. Alcohol & Drug Educ., Fall, 1993, at 19, 28. Because behaviors like drinking alcohol are strongly associated with “risky sexual behavior,” there is good reason to believe that parents similarly underestimate their children’s sexual activity compared to the sexual activity of other children. See Mich. Dep’t Cmty. Health, Alcohol Consumption and Teen Pregnancy: 2013 Michigan Youth Risk Behavior Study, Michigan.gov, https://www.michigan.gov/-/media/Project/Websites/mdhhs/Folder2/Folder78/Folder1/Folder178/Teen_Pregnancy_Fact
    _Sheet-_Final.pdf [https://perma.cc/6HFX-EP54] (comparing drinking rates with various sexual behaviors to suggest that an association exists between alcohol use and risky sexual behavior); Xiaowen Tu, Chaohua Lou, Ersheng Gao, Nan Li & Laurie S. Zabin, The Relationship Between Sexual Behavior and Nonsexual Risk Behaviors Among Unmarried Youth in Three Asian Cities, 50 J. Adolescent Health S75, S80 (Supp. 2012) (finding that sex is associated with various nonsexual risk behaviors, such as smoking, drug use, and drinking). But see John Santelli, Marion Carter, Mark Orr & Patricia Dittus, Trends in Sexual Risk Behaviors, By Nonsexual Risk Behavior Involvement, U.S. High School Students, 1991–2007, 44 J. Adolescent Health 372, 377 (2009) (explaining that trends in sexual and nonsexual risk behaviors were not shown to influence each other in the study). ↑
  89. . Dunning et al., supra note 31, at 72. ↑
  90. . Carma L. Bylund, Rebecca S. Imes Ma & Leslie A. Baxter, Accuracy of Parents’ Perceptions of Their College Student Children’s Health and Health Risk Behaviors, 54 J. Am. Coll. Health 31, 33 (2005). ↑
  91. . Id. at 35. ↑
  92. . Id. ↑
  93. . See id. (comparing parents’ lack of awareness of their children’s sexual activity to their awareness of risk behaviors that parents and children may be more comfortable discussing, such as neglecting sun protection). Researchers have also demonstrated similar flawed parental assessments among parents with younger children. See Thomas L. Young & Rick Zimmerman, Clueless: Parental Knowledge of Risk Behaviors of Middle School Students, 152 Archives Pediatrics & Adolescent Med. 1137, 1138–39 (1998) (demonstrating that parents were largely unaware that their middle school-aged children engaged in certain high-risk behaviors like having sex). ↑
  94. . Public Opinion Poll Results, supra note 15. ↑
  95. . Id. ↑
  96. . Id. ↑
  97. . Kahneman et al., supra note 41, at 197–98. ↑
  98. . Public Opinion Poll Results, supra note 15. ↑
  99. . See supra subpart I(A); Dunning et al., supra note 31, at 73. ↑
  100. . See supra Part II. ↑
  101. . See supra subpart I(B). ↑
  102. . Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 649 (2011). ↑
  103. . Id. ↑
  104. . Id. at 687. ↑
  105. . Id. at 688. ↑
  106. . Id. ↑
  107. . Id. at 689. ↑
  108. . See id. at 705 (rejecting the “outrageously ridiculous” assumption that “people want to make all the consequential decisions about their lives, and that they want to do so by assembling all the relevant information, reviewing all the possible outcomes, reviewing all their relevant values, and deciding which choice best promotes their preferences”). ↑
  109. . See id. at 705, 711–12, 716–17 (stating that people receive “too many disclosures to digest most of them” and listing illiteracy, innumeracy, and a lack of full understanding as additional obstacles to comprehending disclosures). ↑
  110. . See supra subpart I(B). ↑
  111. . Ben-Shahar & Schneider, supra note 102, at 702. ↑
  112. . See supra Introduction. ↑
  113. . See generally Tex. Legis. Council, The Legislative Process in Texas (2022), https://tlc.texas.gov/docs/legref/legislativeprocess.pdf [https://perma.cc/4Z6C-2EKF] (describing the process for passing a bill in Texas and the various sources, such as the Texas Constitution, statutes, and separate legislative rules of procedure, that govern that process). ↑
  114. . Christine Jolls & Cass R. Sunstein, Debiasing Through Law, 35 J. Legal Stud. 199, 208–10 (2006). ↑
  115. . Id. at 203–04. ↑
  116. . Id. at 210. ↑
  117. . See Dunning et al., supra note 31, at 73 (asserting that “even when people do have valuable information that would guide them toward appropriate self-evaluations, they often neglect it or give it too little weight”). Having questioned the effectiveness of narratives as nudging disclosures here, this Note use them simply as an example to illustrate the concept of debiasing through law in subpart IV(C). ↑
  118. . Mateusz Grochowski, The Majoritarian Concept of Default Rules: Towards a Shift in Paradigms?, 15 Studia Prawa Prywatnego [Stud. Priv. L.], no. 1, 2020, at 63, 65–67. ↑
  119. . Id. at 65–66 & n.9. ↑
  120. . See supra subpart I(B). ↑
  121. . See, e.g., Deepa Bharath, Parents Opposed to Comprehensive Sex Education Pull Children Out of Schools, Stage Rallies Across Southern California, Orange Cnty. Reg. (May 17, 2019, 6:06 PM), https://www.ocregister.com/2019/05/17/parents-opposed-to-comprehensive-sex
    -education-pull-children-out-of-schools-stage-rallies-across-southern-california/ [https://perma.cc/N5DU-M38T] (covering a statewide protest of California’s sex-education curriculum); Esteban Bustillos, A Worcester School Committee Candidate’s Views on Sex Ed Have Rocked the Local Election, GBH News (Aug. 9, 2023), https://www.wgbh.org/news/
    education-news/2021-10-29/a-worcester-school-committee-candidates-views-on-sex-ed-have-rocked-the-local-election [https://perma.cc/5VLX-QX3Y] (profiling a local school board race centered around views on sex education); Taylor Bowie, State Board of Education Pushes Back on Campaign Against “Rogue Sex Ed”, Mich. Radio (Feb. 17, 2023, 8:28 PM), https://www.michiganradio.org/education/2023-02-17/state-board-of-education-pushes-back-on-campaign-against-rogue-sex-education [https://perma.cc/UN8Y-Y5M7] (discussing a nonprofit that “created a new form to share with parents who want to opt their children out of sex education at school”). ↑
  122. . See supra subpart I(C). ↑
  123. . See supra subpart I(C). ↑
  124. . Public Opinion Poll Results, supra note 15. ↑
  125. . See supra subpart IV(A). ↑
  126. . See Goldfarb & Lieberman, supra note 14, at 16, 19–22 (describing the various benefits that sex education provides to children). ↑
  127. . Comprehensive Sexuality Education: For Healthy, Informed and Empowered Learners, UNESCO (Nov. 16, 2023), https://www.unesco.org/en/articles/why-comprehensive-sexuality-education-important [https://perma.cc/U2D4-B47Q]. ↑
  128. . Dunja Mijatović, Comprehensive Sexuality Education Protects Children and Helps Build a Safer, Inclusive Society, Council of Eur., Comm’r for Hum. Rts. (July 21, 2020), https://www.coe.int/en/web/commissioner/-/comprehensive-sexuality-education-protects-children
    -and-helps-build-a-safer-inclusive-society [https://perma.cc/9TJ2-KT8T]. ↑
  129. . Rollston et al., supra note 12; see also Mark & Wu, supra note 13, at 1 (finding that “federal funding for more comprehensive sex education led to an overall reduction of more than 3% in the rate of teen births at the county level”). ↑
  130. . Rollston et al., supra note 12; see Goldfarb & Lieberman, supra note 14, at 20–21 (surveying literature that shows implementing sexual education curricula has yielded positive long-term effects in combatting domestic violence, interpersonal violence, and child sexual abuse). ↑
  131. . See supra subpart IV(A). ↑
  132. . Sunstein & Thaler, supra note 52, at 1162. ↑
  133. . Id. ↑
  134. . See Jolls & Sunstein, supra note 114, at 207 (discussing efforts to correct bounded rationality in the context of consumer safety law). ↑
  135. . Id. ↑
  136. . See Howard Latin, “Good” Warnings, Bad Products, and Cognitive Limitations, 41 UCLA L. Rev. 1193, 1243–44 (1994) (explaining that people tend to overestimate their ability to avoid certain risks and therefore fail to respond properly to warnings about those risks). ↑
  137. . See Jolls & Sunstein, supra note 114, at 207 (explaining that heightened standards may impose large costs on consumers). ↑
  138. . See id. at 208 (suggesting that outright bans of products to preserve consumer safety are not “protective of consumer prerogatives”). ↑
  139. . Id. at 202. ↑
  140. . See supra subpart III(B). ↑
  141. . See supra subpart III(B). ↑
  142. . See supra subpart III(B). ↑
  143. . See supra subpart III(B). ↑
  144. . Jolls & Sunstein, supra note 114, at 202. ↑
  145. . Id. ↑
  146. . Id. at 230. ↑
  147. . Id. at 229. ↑
  148. . See id. at 229–30 (describing the effects of non-correlative bounded rationality). ↑
  149. . See id. (suggesting that when one acts rationally with respect to the targeted bias and the bias employed by government to counteract the other, there are no significant costs imposed). ↑
  150. . Id. at 230. ↑
  151. . See supra Part II. ↑
  152. . See Public Opinion Poll Results, supra note 15 (showing that over 70% of polled Texas parents want their children to receive abstinence-plus sex education). ↑
  153. . See Jolls & Sunstein, supra note 114, at 229–30 (describing the effects of non-correlative bounded rationality). ↑
  154. . See id. at 230 (“If the intervention produces important benefits for those who are prone to bounded rationality, then the intervention may be desirable even if it imposes modest costs on others.”). ↑
  155. . See id. at 231–32 (implying that there is no real risk to autonomy when government action does not violate the publicity condition, defined as the assumption that regulators should not “engag[e] in acts that could not be defended in public to those who are subject to those acts”). ↑

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