American parents who believe public schools are violating their right to guide their children’s education have recently scored victories at the polls from Virginia to San Francisco. They can also have a legal action for redress in court, made easier by the Supreme Court’s decision last month in Dobbs v. Jackson Women’s Health Organization.
This decision overturned the constitutional right to abortion, which is not mentioned in the Constitution. Neither do parental rights. But the majority opinion of Justice Samuel Alito recognized a crucial distinction that militates strongly in favor of the latter.
Justice Alito followed the standard set by Chief Justice William Rehnquist in Washington v. Glucksberg (1997), who rejected a claim that the Constitution protects a right to physician-assisted suicide. Glucksberg argued that the Due Process Clause of the 14th Amendment protects individual rights if and only if they are “deeply rooted in the history and tradition of this nation” and “implicit in the concept of ordered liberty”.
Unlike assisted suicide and abortion, parental rights fit squarely within the “deep-rooted” norm. The Supreme Court recognized that the rights of parents were constitutionally sacrosanct almost a century ago, in Meyer v. Nebraska (1923) and Pierce v. Sisters’ Society (1925). Both decisions were written by Justice James McReynolds and both dealt with a vast intrusion of governmental power into traditionally private affairs prompted by World War I pressure for a national monoculture to meet the demands of the nation in times of war.
In Meyer, the judges addressed a Nebraska law that banned classroom instruction in German, Italian, French, Spanish and other modern languages, which were seen as having a divisive effect on young people. Oregon’s law in pierce was even more drastic in supplanting parental authority over the education of their children: the law prohibited practically all private education until the eighth grade.
In Meyer, Decided by a 7-2 majority, McReynolds likened the Nebraska law to the military indoctrination of male youth that was characteristic of ancient Sparta but totally irrelevant to American self-government. In a fitting response to today’s anti-parenting ideologies, the court of pierce unanimously concluded that the constitutional order presupposes a sphere of liberty protecting the relationship between parents and their child: “The child is not the mere creature of the state; those who nurture it and direct its destiny have the right, coupled with high duty, to recognize it and prepare it for further obligations.
In the decades that followed, the High Court reiterated the fundamental status of parental rights. In May v. Anderson (1953), the judges noted that a mother’s right “to the care, custody, management, and companionship of her minor children” is a “far more valuable” interest than any property right. In Wisconsin v. Yoder (1972), they concluded that parental rights are firmly rooted in “the history and culture of Western civilization” and “established beyond all debate”. And in Troxels c. Granville, decided in 2000, the Supreme Court struck down a Washington law that allowed state courts to disregard custodial parents’ opinions about whether “third parties” — in this case, grandparents — should have visitation rights for minor children. In an opinion for a plurality of four judges, Justice Sandra Day O’Connor noted that parental rights were “the oldest of the fundamental interests of liberty”, dating back to Meyer and Pierce.
Even before Dobbs, Federal judges are citing this series of cases to uphold recent claims of parental rights. In May, Judge Holly Teeter enjoined a Kansas school policy prohibiting teachers from revealing a transgender student’s “first name and preferred pronouns” when communicating with parents. Although the plaintiff in Ricard against USD 475 was a teacher, Judge Teeter went out of her way to chastise the school’s intrusion into parental rights. Quote pierce and Troxel, she wondered why a school would even claim an “interest in withholding or withholding from parents of minor children fundamental information about a child’s identity, personality, and mental and emotional well-being.”
In March, Judge Trevor McFadden issued a preliminary injunction against a local law allowing children 11 and older to be vaccinated without parental consent and forcing health care providers and schools to conceal vaccine records. vaccination of parents who have requested a religious exemption. The alleged parents in Booth vs. Bowser that the government had created a “pressure cooker environment, seductive and psychologically manipulating [their minor children] to defy their parents and get vaccinated against their parents’ wishes. Judge McFadden challenged the city to present evidence of the public interest of the law sufficient to justify the lack of parental consent.
The Supreme Court has not always broken along predictable ideological lines in deciding parental rights cases. Rehnquist agreed with Justice O’Connor in Troxel, as did Justices Ruth Bader Ginsburg and Stephen Breyer. Judge Antonin Scalia dissented, arguing that “if we embrace this unenumerated right. . . we will inaugurate a new system of family law prescribed by the courts and by the federal government.
But now that the majority has embraced the idea of “deeply entrenched” unenumerated rights, parents can breathe a sigh of relief that the Constitution is on their side.
Mr. Toth is an attorney in Austin, Texas.
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