Parental Rights & Education

by William A. Estrada

“…all parents were, by the law of nature, under an obligation to preserve, nourish, and educate the children they had begotten; not as their own workmanship, but the workmanship of their own maker, the Almighty, to whom they were to be accountable for them…. This is that which puts the authority into the parents’ hands to govern the minority of their children.” 

— JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT

Introduction

“There is nothing new under the sun.” So wrote King Solomon of Israel, the wisest man who ever lived. It seems that every day brings another news report of some new attack on parental rights. The stakes are high; we are engaged in a nationwide debate over whether loving parents or government employees will make decisions concerning a child. We must understand, however, that these battles are not unique to the 21st century. They began over 100 years ago in the United States, but the debate over who should make decisions for children stretches back millennia.

The Holy Scriptures — Family Predates Government

The Holy Scriptures of the Jewish and Christian faith traditions explain one position: God supernaturally created all things, including humans, and the family was established by God, pre-dating even the institution of government.

In his book The Liberty of Parents to Direct the Upbringing of their Children, Professor William Wagner traces the origins of parental rights. He explains that a key moment was when Moses introduced the Divine Law through the Ten Commandments, wherein God bestowed on parents a duty to provide their children with moral guidance. The Fifth Commandment states,

“Honor your father and your mother, as the Lord your God has commanded you, so that you may live long and that it may go well with you in the land the Lord your God is giving you.”

Wagner shows that throughout the law and the prophets, spiritual messages are passed from parent to child. For example, when God made His covenant with Abraham, God instructed Abraham and his offspring to keep the covenant. This is an example of a parent being commanded by God to direct the upbringing of his children: “Then God said to Abraham, ‘As for you, you must keep my covenant, you and your descendants after you for the generations to come.’” In another passage, we read, “For I have chosen him, so that he will direct his children and his household after him to keep the way of the Lord by doing what is right and just, so that the Lord will bring about for Abraham what he has promised him.’”

In many chapters of the Jewish and Christian wisdom literature found in Proverbs, parents share sacred wisdom with their children. Proverbs 1:8-9 urges, “Listen my son to your father’s instruction and do not forsake your mother’s teaching.” Proverbs 4:1-6 implores children to learn from their fathers and mothers and keep their commands.

In the Christian faith tradition, this is continued through the example and teachings of Jesus; and in the Epistles written by the Apostle Paul to the early Church.

The Greek Philosophers — All Over the (Ancient) Map

Some of the most influential Greek philosophers, however, challenged this ancient faith tradition respecting parental rights. Here is how the U.S. Supreme Court described one aspect of the debate in the landmark 1923 case of Meyer v. Nebraska (more on this case later):

“For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:

‘That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.’

“In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted [sic] their subsequent education and training to official guardians.”

Aristotle, writing over 300 years before the birth of Christ, disagreed with his teacher Plato’s views on the family. Aristotle recognized that the family predates government:

“[t]he friendship between man and wife seems to be inherent in us by nature. For man is by nature more inclined to live in couples than to live as a social and political being, inasmuch as the household is earlier and more indispensable than the city, and to the extent that procreation is a bond more universal to all living things [than living in a city].”

Aristotle further opined that this is rooted in love from the parents to children (parents “know better that the offspring is theirs than children know that they are their parents’ offspring, and the bond which ties the begetter to the begotten is closer than that which ties the generated to its author.” He also wrote that “parents love their children as themselves: Offspring is, as it were, another self,”and that parents “love their children as soon as they are born, but children their parents only as, with the passage of time, they acquire understanding or perception. This also explains why affection felt by mothers is greater [than that of fathers].”

Plutarch, the Greek philosopher writing a few years after the resurrection of Jesus Christ, stated that nature bestows in humanity “a kind love and tender affection towards his children.”

Plutarch mused further on the pain a mother feels during childbirth (“…but yet, for all the sorrow and dear bargain that a mother hath of it, this kind and natural love doth still so bend, incline and lead her, that notwithstanding she be in a heat still upon her travail, full of pains and afterthroes, panting, trembling, and shaking for very anguish, yet she neglecteth not her sweet babe, no windeth or shrinketh away from it; but she turneth toward it, she maketh to it, she smileth and laugheth upon it, she taketh it into her arms, she huggleth it in her bosom, and kisseth it full kindly…”, and the pain that fathers see “when their children fall to gaming, reveling, masking, and banqueting, to drunkenness, wanton love, whoring, and such-like misdemeanors…[a]nd yet for all this, fathers cease not still to nourish and bring up children….”

Plutarch’s conclusion was that “surely the cause of this their kindness and affection [of parents to their children] proceedeth altogether from nature.”

The English Common Law Philosophers — Back to the Beginning

The great English Common Law philosophers, whose views so influenced the Founders of the U.S. Constitution, drew on this rich history. Consider the following from John Locke’s Second Treatise of Civil Government, first published in 1690, almost a century before the ratification of the U.S. Constitution in 1787:

“Adam was created a perfect man, his body and mind in full possession of their strength and reason, and so was capable, from the first instant of his being, to provide for his own support and preservation, and govern his action according to the dictates of the law of reason which God had implanted in him. From him the world is peopled with his descendants, who were all born infants, weak and helpless, without knowledge or understanding: but to supply the defects of this imperfect state, till the improvement of growth and age hath removed them, Adam and Eve, and after them all parents were, by the law of nature, under an obligation to preserve, nourish, and educate the children they had begotten; not as their own workmanship, but the workmanship of their own maker, the Almighty, to whom they were to be accountable for them….

“This is that which puts the authority into the parents’ hands to govern the minority of their children. God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it.”

Locke’s understanding of the right and obligation of parents to direct the upbringing of their children reflected the Common Law understanding of his day and is similar to the views of William Blackstone and others. It is a view that was shared by our Founders and the first generations of our nation’s leadership, which is a major reason why the U.S. Supreme Court had no opportunity to decide a parental rights case until 1923.

For the reader who wants to do a deep dive into this rich history — from ancient times to the Founders of our nation to the present, this author highly recommends two books: “Parental Rights in Peril,” edited by Professor Stephen M. Krason and published in 2022, which features essays by numerous subject matter experts on the issue of parental rights, and To Whom Do Children Belong? Parental Rights, Civic Education, and Children’s Autonomy, by Professor Melissa Moschella.

Battles Over Parental Rights – America’s Pastime

The domestic political battles we see today regarding parental rights had their genesis 100 years ago.

As America industrialized and mobilized for The War to End All Wars, World War I, intense patriotism was the order of the day. A deep anti-German sentiment sprang out of that and continued beyond the signing of the Armistice. William G. Ross, in his 1988 University of Cincinnati Law Review article “A Judicial Janus: Meyer v. Nebraska in Historical Perspective,” explained:

“The advent of war, however, precipitated a paroxysm of hostility toward German ethnicity. Although there was no reason to question the loyalty of most Americans of German ancestry, the government’s crusade to inspire ‘100 percent Americanism’ and to portray the German nation as anti-democratic and barbarous inevitably inspired suspicion of German-Americans who retained distinctly Germanic customs.… The widespread use of the German language was the most visible aspect of German ethnicity and it became the primary target of anti-German hysteria.… Twenty-three states enacted statutes that imposed restrictions upon instruction in foreign languages, especially the German language.”

Nebraska was one of those 23 states, which led to the arrest of Lutheran school teacher Robert Meyer at Zion Parochial School. His crime? Using a German Bible to teach a 10-year-old immigrant boy how to read.

Robert Meyer was arrested, convicted after a trial, and fined $25. And to the everlasting gratefulness of future generations and parents today, he appealed. He lost before the Nebraska Supreme Court and then appealed to the U.S. Supreme Court.

On June 4, 1923, the U.S. Supreme Court overruled Robert Meyer’s conviction in a 7-2 decision and struck down Nebraska’s law. Not only had Robert Meyer won, but the Court’s decision was also the first in a line of cases protecting parental rights as a fundamental right — the highest right in our constitutional system.

The U.S. Supreme Court held in its decision that “it is the natural duty of the parent to give his children education suitable to their station in life.” This reasoning hearkened back to the Declaration of Independence, when our Founders recognized two crucial ideas: 1) our rights come not from government, but from “the Laws of Nature and of Nature’s God”; and 2) that “all men are created equal [and] that they are endowed by their Creator with certain unalienable Rights.”

The Supreme Court went further in its decision by stating, “the individual has certain fundamental rights which must be respected . . . [The individual] cannot be coerced by methods which conflict with the Constitution—a desirable end cannot be promoted by prohibited means.”

And then the Court did something spectacular: It went back to the family as the building block of society. As classically trained individuals, the justices on the Court rejected the Greek philosopher Plato’s musings discussed above as contrary to our own nation’s founding:

“Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.”

Two years later, in Pierce v. Society of The Sisters of The Holy Names of Jesus And Mary, in a case challenging an Oregon law standardizing education of children in public schools and centralizing it within state power, the Court unanimously again found that parental rights are a fundamental right, building upon the foundation laid in Meyer: “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Then came the 1972 case of Wisconsin v. Yoder. The Court overturned the convictions of members of the Old Order Amish religion and the Conservative Amish Mennonite Church who were convicted of violating Wisconsin’s compulsory attendance statute by not sending their children to public school after the eighth grade. The Court said:

“The values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. … 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 American tradition.”

Seven years later came Parham v. J.R., where the Supreme Court made this ringing pronouncement:

“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare their children for additional obligations. … The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition. Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. … Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. … We cannot assume that the result in Meyer v. Nebraska, and Pierce v. Society of Sisters, would have been different if the children there had announced a preference to learn only English or a preference to go to a public, rather than a church, school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child. Neither state officials nor federal courts are equipped to review such parental decisions.”

And most recently, in the grandparent visitation case of Troxel v. Granville, the Supreme Court summed up almost a century’s worth of precedence, including many cases not listed here, stating the following:

“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court. … In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. … The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.”

We Interrupt This Rich History with Some (Very Important) Legalese

A century of U.S. Supreme Court case law demonstrates that parental rights are a fundamental right. Or, to use the phrasing of the Declaration of Independence, an “inalienable right.”

As a fundamental right, the correct standard of review that courts should use when evaluating whether a governmental action that infringes upon parental rights can survive is strict scrutiny.

What is strict scrutiny?

Strict scrutiny is the most rigid standard of judicial review and is applied when a law infringes on a fundamental right. Under this analysis, the government must 1) use the least restrictive means to achieve its objective; 2) prove that the objective is compelling; and 3) prove that there is no other means to achieve the objective. By this standard, a law is automatically deemed unconstitutional unless the government can demonstrate otherwise according to all three criteria under the strict scrutiny analysis.

The U.S. Supreme Court described this in the 1997 case of Washington v. Glucksburg: “[t]he Fourteenth Amendment forbids the government to infringe ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

In the 1993 case of Reno v. Flores, the Court said, “the Fifth and Fourteenth Amendments’ guarantee of ‘due process of law’ [] include[s] a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

Using different terminology, but still standing for strict scrutiny, the Supreme Court explained this in Wisconsin v. Yoder:

“[t]he essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.”

While some have criticized the Supreme Court in Troxel for not specifying a strict-scrutiny standard in the context of nonparental visitation cases decided under state law, the Court held for the parent and found Washington’s nonparental visitation statute was unconstitutional without needing to reach a strict scrutiny determination: “[Washington’s nonparental visitation statute] unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad.”

And the Supreme Court made it clear prior to its declaration that parental rights are a fundamental right that “[t]he [Fourteenth Amendment’s Due Process] Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’”

Parental rights are fundamental rights. As such, they require strict scrutiny analysis by the courts.

We Return to Our Regular Programming — No More Legalese

Now, you as a reader of this Theology of Politics White Paper about parental rights in education may be confused. If parental rights are fundamental, if the U.S. Supreme Court has held this so eloquently in an unbroken line of cases for the past 100 years, why are we having so many battles over parental rights in our nation’s public schools? Why does it seem that parents are losing their rights in our nation’s public schools?

The last two words should answer that question: public schools.

Another way of looking at this is by considering how much parents have won. One hundred years ago, private schools in the United States were under attack and were being banned by state law. Those battles are over. Parents won the right to enroll their children in the private school of their choice.

Forty years ago, homeschooling was illegal in almost every single state, and parents who defied the law and homeschooled anyway faced jailtime. Due to the work of the Home School Legal Defense Association (HSLDA), state homeschool organizations, freedom-loving lawyers, and parents willing to go to jail over their passion for educating their children at home, homeschooling is not just legal today but it is widespread, common, and accepted in this post-COVID era.

All that is left to the opponents of parental rights is the public schools. And the reason that this terrain is so uncertain is because the U.S. Supreme Court has declined to grant certiorari review in numerous cases over the past two decades which would have answered the question of which rights parents have when it comes to their own children in the public schools. Instead, the federal appellate courts have filled the gap. And universally, these powerful federal courts, which are just a step below the U.S. Supreme Court, have held that parental rights are fundamental; parents can choose to homeschool or private school, but for the public schools to function, state laws and locally elected school boards currently hold authority over parental rights in the public school classroom. The federal appellate courts have encouraged parents to use these levers of power but have generally declined to insert themselves in battles between parents and public schools.

In a 1998 law review article that would become prescient, Michael Farris and Bradley P. Jacob argued that a defeat of parental rights in the public school context would harm the public schools in several ways:

First, “When court decisions effectively shut out parents who want to have a meaningful say in their children’s education, they will often choose to remove their children from the public schools. These parents will instead look to alternative forms of education which respect their desires and their rights. The number of students in private education, including home schooling, continues to increase dramatically.”

Second, they wrote, “Setbacks in parental rights fuel the desire for an even greater variety of educational choices, including charter schools, vouchers, and tuition tax credits. Every time parents’ rights are diminished — whether in a local school board skirmish or a published decision of a United States Court of Appeals — a greater number of families become determined to take their own money, their tax money, and their children to non-public schools.”

Third, “The public schools’ victories over parental rights serve to diminish the quality of American public education. Overwhelming evidence demonstrates that one of the greatest predictors for a child’s educational success in any school environment is parental involvement.”

Fourth, “Schools’ legal victories over parents who want real involvement in their children’s education … have a chilling effect on the parents who remain in the public school system. As a consequence, there grows a greater ‘involvement gap’ between private and public education resulting in an even greater ‘achievement gap.’ Not only do the schools lose the students who transfer to other educational venues, but the students who do remain lose the benefit of improved education that results from active involvement of concerned parents in the educational process.”

Farris and Jacob concluded with a warning that is even more true today than it was in 1998:

“In our litigious culture, it is often assumed that a win in the courtroom is a cause for rejoicing. However, it is essential that those who care about the long-term success of the public schools — a concern shared by these authors — be engaged in a thoughtful assessment of whether the victories of schools over parents’ rights are worth the cost.”

An Overview of the Circuit Court Decisions on Parental Rights in Public Schools

In 2005, in a lawsuit by a father on behalf of his sixth-grade daughter challenging a school dress code, the Sixth Circuit Court of Appeals dismissed the father’s lawsuit:

“The critical point is this: While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally committed to the control of state and local authorities.”

In 2006, in the case of Fields v. Palmdale, the Ninth Circuit Court of Appeals dismissed a lawsuit brought by several parents who were outraged about a survey given by the public school to their elementary school children (ages 7-9) asking them about their frequency of “thinking about having sex” and “thinking about touching other peoples’ private parts.” In affirming the dismissal of the parents’ lawsuit against the public school and denying en banc review, a panel of the Ninth Circuit Court of Appeals had this to say:

“Nor does our decision address any question of state law, or consider any issues that might be raised by the parents in state court. Nor, as we stated unequivocally, does our opinion address the propriety of the school allowing the survey to be circulated. Finally, our decision does not affect the rights of parents to influence or change the conduct of school boards through all lawful means generally available to citizens of this nation. … In sum, we affirm that the Meyer-Pierce due process right of parents to make decisions regarding their children’s education does not entitle individual parents to enjoin school boards from providing information the boards determine to be appropriate in connection with the performance of their educational functions[.] …”

And in 2008, the First Circuit Court of Appeals dismissed a lawsuit brought by several parents who argued that the classroom reading of certain books was promoting gay marriage to their kindergarten and elementary school children, contrary to the parents’ beliefs. The court held the following:

“Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them. … The reading by a teacher of one book, or even three, and even if to a young and impressionable child, does not constitute ‘indoctrination.’ … We do not suggest that the school’s choice of books for young students has not deeply offended the plaintiffs’ sincerely held religious beliefs. If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state. … They are not entitled to a federal judicial remedy under the U.S. Constitution.”

For the reader who wishes to dig deeper, other decisions in other federal appellate courts have held similarly to these three cases.

While these federal appellate court decisions may be frustrating to some parents, they have also frustrated other parents. For example, a Missouri school board recently adopted a policy regarding which books were featured in public school libraries for third-grade students and instituting review protocols whereby public school librarians would respond to parent complaints about books and review whether certain books should be kept in school libraries or featured in school libraries for younger students. As a result of this policy, several books were removed from school libraries, or otherwise restricted in school libraries. Several parents, represented by the ACLU, filed suit in federal district court, arguing that the books which were removed all “feature and present the perspective of an author or protagonist who is ‘non-white, LGBTQ+, or otherwise identifies as a minority.’” A U.S. District Court dismissed the parents’ lawsuit against the school district, holding that “it is not the function of the courts to make the decisions that have been properly relegated to the elected members of school boards.”

It is interesting to note that the U.S. Supreme Court in older cases has generally been highly deferential to locally elected school boards.

Whither Forward for Parental Rights in Education?

As discussed above, parents have won hard-fought battles for parental rights in education when it comes to private schools and homeschools. Thanks to the ongoing work of organizations across the nation, these victories remain and are — for the most part — unchallenged.

For parents of children in our nation’s public schools – even while numerous lawsuits continue to work their way (hopefully) to the U.S. Supreme Court – there are opportunities to fight and win the battle for parental rights in public schools right now.

First, and most importantly, are local school boards. Local school board races are incredibly important — this author believes that local school board elections are as important, and arguably more important, than presidential elections. A local school board has more day-to-day impact on the future of children attending the local public school than does the President of the United States. And yet, school board elections are, unfortunately, an after-thought to most voters. This must change. Parents and grandparents need to run for school board. Citizens need to donate to candidates for school board, go door to door for candidates for school board, and attend candidate forums. We need to make school board elections great again.

Second, local school boards need to reclaim their power. This may not be easy – and state laws vary widely on how much power a school board has. But local school boards must seek competent legal advice, they must educate themselves on their power as elected representatives of the voters, and they must act accordingly.

Third, state legislators have great power. Sixteen states have enshrined parental rights as a fundamental right in state code, with Iowa being the most recent. These laws allow governors, attorneys general, statewide secretaries of education, and other state officials to act to protect parental rights, whether through statewide regulations, model education policies, executive orders, and more. These laws also allow local school boards to adopt policies to protect parental rights more broadly, in order to bring local school board policies into line with state law. And these laws also potentially allow parents to file suits in state court for violations of their parental rights.

Fourth, even if a state has not yet passed a law enshrining parental rights as fundamental in state code, statewide elected officials can act now. For example, Indiana Attorney General Todd Rokita’s office recently published a Parents’ Bill of Rights Toolkit, relying on federal and state judicial precedents. This example should be emulated by state attorneys general across the nation.

Conclusion

The heart of parental rights is that children need loving guidance. They are not yet mature enough to handle the decisions, pressures, and cares of life. They will only receive this guidance from one of two places: loving parents, either biological or adoptive; or from the state, through the actions of government employees.

This author believes that loving parents, not the state, should be the ones to raise, educate, nurture, and guide the upbringing, education, and care of their children. I will likely disagree with other parents about how they raise their children, sometimes strongly, but in a pluralistic, free country like the United States of America, we must respect the decisions made by a loving parent, even if we don’t agree with those decisions. For the alternative is far worse: the state taking actions using the force of government to break the sacred parent-child bond. That should be rejected by every single parent, and instead, we should affirm, once and for all, that loving parents know better than the government how to raise a minor child. Or to paraphrase a certain well-known former elected official: It takes a family to raise a child.

William A. Estrada

William A. Estrada is a husband, dad, attorney, and the president of ParentalRights.org and the Parental Rights Foundation, two nationwide not-for-profits headquartered in Loudoun County, Virginia, that have advocated at the local, state, and federal level for the last 16 years to protect children by empowering parents. He is a member of the U.S. Supreme Court Bar, the First Circuit Court of Appeals Bar, the California Bar, and the District of Columbia Bar. He has testified before the U.S. Congress and numerous state legislatures. He received his Juris Doctor law degree from Oak Brook College of Law and Government Policy in 2006.

Click here for Mr. Estrada’s treasure trove of footnotes & cited sources: Theology of Politics | Parental Rights in Education

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