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November 1, 1997
Vol. 55
No. 3

Why Parental Rights Laws Are Necessary

The steady erosion of parental rights requires a legislative solution to protect the parent-child relationship against unwarranted interference and to reinstate this bedrock principle of a free society.

Last year, news hit the press concerning 59 6th graders in Pennsylvania's East Stroudsburg Area School District who were forced against their will by school officials to strip to their underwear and submit to a full genital examination. According to some of the parents, this exam included digital penetration. Many of the 11-year-olds objected, wept, and sought permission to call their parents. School officials ridiculed the students, blocked the door, called them "babies," and refused their request.
One of the more astonishing aspects of this episode was the incredulity expressed by East Stroudsburg officials that their authority could be questioned by parents. One pediatrician summed up the school's position, stating, "Even a parent doesn't have a right to say what's appropriate for a physician to do when they are doing an exam." As news of the incident spread across the country, thousands of parents expressed outrage, echoing the cry: "Not with my child, you don't!"
When the Massachusetts Court of Appeals upheld the right of a school to require children to sit through a 90-minute presentation by "Hot, Sexy and Safer Productions, Inc." in which children were told to participate in a "group sexual experience," parents were incensed. Although male and female children were told to engage in lewd play with condoms as part of the exercise, the court held that the right of parents to direct the upbringing of their children does not encompass a broad-based right to restrict this form of information from their children in public schools. When news of the court's decision circulated, outraged parents proclaimed: "Not with my child, you don't!"
Earlier this year one of the authors received a phone call from a member family of The Home School Legal Defense Association. The panicked mother reported that a social worker was at her door demanding entry and an immediate private interview of her four young children. It seems that a member of the extended family who had been diagnosed with mental problems had used the anonymous tip hot line to report to the Department of Social Services that various members of his family were abusing their children.
The social worker knew there was no evidence of abuse and that the anonymous tipster was a mentally unstable family member with a reputation for making false charges. Nevertheless, she verbally abused the family for their reluctance to cooperate and, when refused entry, threatened to make things worse for the family if she had to get a court order.
Under duress, the family allowed her to enter and interview the children. During the interview, the social worker asked the children numerous sexually explicit questions. The distraught mother stated that her previously innocent children had been defiled by the questioning and were having horrible nightmares as a result. Her tearful message: "Never again with my children, they won't!"
All of this would be minimally significant in the grand scheme of American law and jurisprudence if the above examples represented isolated instances of abuse—mere glitches in the system and not symptomatic problems. However, such abuses of parental rights have become all too commonplace.
It is fair to say that somewhere today a parent will be threatened with child abuse charges for using reasonable corporal discipline on a child because an "expert" thinks the practice is inherently abusive; that somewhere today a social worker will challenge a parent's right to educate a child at home; and that somewhere today a public school official will rebuff a parent who objects to the curriculum being taught to her child.

The Origins of the Parental Rights Movement

The Home School Legal Defense Association has been fighting since 1983 to protect the right of parents to direct the education and training of their children. Based on thousands of experiences with social workers, truant officers, and school superintendents, it is our observation that the system is out of balance. This imbalance has precipitated the national movement to reestablish parental rights protections.
During the 1990s a grassroots movement emerged to seek statutory and judicial protections over the parent-child relationship. The timing is significant. For more than three decades Americans have witnessed the wide-scale erosion of parental rights. A hodgepodge of judicial decisions has called into question the common-law presumption of parental competence that undergirds our Constitution, leaving one to wonder whether parental rights are still considered fundamental.
Widespread "family abuse" by the child protective services industry, as well as a growing feeling that parents have been disenfranchised from the education of their children by "experts" and heavy-handed bureaucrats, has led many to call for legislation that will protect the right of parents to make independent decisions about the education and discipline of their offspring. The threat of the United States ratifying the United Nations Convention on the Rights of the Child, which would give children fundamental rights enforceable against their parents, has also sparked action. Still others simply want the freedom to reject what they perceive as a politically correct, assembly-line, one-size-fits-all approach to their children's education.
To rectify these problems, attempts at parental rights legislation often focus on one or more of the following points: (1) formal legislative recognition that parental rights are fundamental and, consequently, deserve the highest level of protection against government interference; (2) enforcement of due process restrictions on child protective services workers, so that intact families will not be subject to abusive treatment by state officials who disagree with the family's religious beliefs or child training practices; and (3) the rights of parents to have greater control over their children's public education, including the ability to opt out of morally offensive programs.

Roots in Common Law

The United States Constitution does not explicitly mention parental rights. Like other legal principles at the time of the nation's founding, the right of parents to direct the education and upbringing of their children was an implicit and necessary assumption of society. That parents had a God-given duty as well as right to make all decisions with respect to the future of their unemancipated children was part of the higher law that the Declaration of Independence termed "the laws of nature and of nature's God." For more than a thousand years, the doctrine of parental rights had been a bedrock principle of the Western legal tradition, expressed throughout the "common law." This common law was eventually incorporated by reference.
Modern proponents of parental rights look not only to common law but also to several key provisions of the Bill of Rights that safeguard the family. These include the religious liberty and free speech provisions of the First Amendment; the due process and liberty provisions of the Fourth, Fifth, and Fourteenth Amendments; and the limitation on federal interference in the family that would be the necessary result of a government bound by the strictures of the Tenth Amendment.
Yet it is precisely because confusion reigns regarding the proper interpretation and application of these very constitutional provisions, and interpretive discrepancies exist among the various lower courts, that organizations such as the Home School Legal Defense Association believe the time has come for a legislative remedy.
Opponents of parental rights argue that such rights are not expressly enumerated in the Constitution. They fail to recognize that when drafting the Bill of Rights, the Framers specifically addressed those rights that had been challenged by the Crown during colonial days. Amendments such as the Third, which prohibits the quartering of troops in private residences, may appear to be mostly of historical significance, yet even within this provision, one finds the simple principle that agents of the state should hold the sanctity of the home inviolable.
Thus, the fact that the Constitution does not explicitly mention parental rights does not mean that the framers considered them of little consequence. In fact, the opposite was true. Parental rights were the functional equivalent of the right to breathe—a right so obvious and fundamental as to be unnecessary of mention. But just in case future generations might have any doubts, the Framers ratified the Ninth Amendment, which states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In sum, parental rights have long been recognized as implicit in the concept of ordered liberty.
Although lower courts have repeatedly denied parental rights, the United States Supreme Court has consistently recognized the fundamental rights of parents to direct their children, as the following decisions indicate:This case involves the fundamental interest of parents, as contrasted with that of the state, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring tradition. Wisconsin v. Yoder, 406 U.S. 233 (1972).The fundamental liberty interest of natural parents in the care and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. Santosky v. Kramer, 455 U.S. 745, 753 (1982).
Finally, in Meyer v. Nebraska, the Court held that the right of parents to instruct their children was within the liberty of the 14th Amendment.
It is important to note that the Supreme Court employs two basic levels of protection in its analysis of constitutional rights. It uses a higher level of protection in cases involving "fundamental rights" (speech, press, religion, parental rights). It provides a significantly lower level of protection to rights it has labeled "nonfundamental." The standards of review for such fundamental rights is called the "compelling interest test." When government regulations conflict with a fundamental right, the government has the burden to prove the regulations are "essential" and "the least restrictive means" to fulfill a compelling interest. When nonfundamental rights conflict with government regulation, the government need only prove its regulations are "reasonable."
For example, homeschool parents were thrilled by the 1993 decision of the Supreme Court of Michigan, in a case handled by the Home School Legal Defense Association, which declared that teacher certification was unconstitutional as applied to religiously motivated homeschooling parents (People v. DeJonge, 501 N.W. 2d 127 1993). However, in a companion case decided the same day, the Michigan Supreme Court held that secular homeschooling parents suffered no constitutional violation when forced to comply with the certification requirement (People v. Bennett, 501 N.W. 2d 88 1993).
The difference between these two decisions was simple, but profound. The Michigan Supreme Court, on one hand, held that the right to freely exercise religions was a fundamental right, whereas "parents' rights" were "nonfundamental" in nature. The result was that Christian parents were allowed to homeschool but secular parents were not. Within a few years, the Michigan Legislature restored the proper balance by enacting the following language:It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children.M.C.L.A. 380.10.
Due to a grassroots outcry for explicit recognition of parental rights, two other states—Kansas and Texas—have enacted similar parental rights laws.

A Response to Critics

Critics of parental rights legislation have raised concerns that such limitations would inhibit the state's ability to protect genuinely abused children. Our response is that well-drafted legislation would protect only those rights that should lawfully belong to parents. For example, no parent would ever have a right to disable, starve, or abuse (as the term has been historically understood) a child. In such cases the state has an absolute obligation to criminally prosecute the parent. Ideally, parents' rights legislation would make it difficult for the state to harass parents for their religious beliefs, choice of education, or decision to use corporal discipline, without undermining the ability of law enforcement to prosecute genuine abusers.
In the final analysis, stronger families mean a stronger nation. Families must feel secure in their liberty to raise their children according to the dictates of their conscience. Parents should be applauded, not penalized, for investing time in the discipline and nurturing of their children. Parents, not social workers or teachers, are in the best position to make decisions for their children. Other than in cases of genuine child abuse, which should be treated as a crime, the fundamental right of parents to direct the education and upbringing of their children should in every case trump the policy objectives of bureaucrats and social workers.
We want to return to an America where 11-year-old girls will not be stripped against their will by school officials, where parents can say no to public school programs that expose children to sexually explicit material, and where the Fourth Amendment still prevents warrantless officials from entering homes to harass parents. Well-crafted parental rights legislation will help to reestablish the sanctity of the home as a fundamental principle of liberty for our free society.

Christopher J. Klicka has been a contributor to Educational Leadership.

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