In a ruling with potential ramifications for education, the U.S. Supreme Court last week strongly reaffirmed the constitutional right of parents to make decisions about the upbringing of their children.
The justices were highly splintered on the central issue in the case: Did a Washington state law go too far in granting grandparents and others the right to petition for visits with children against the wishes of a parent? In a 6-3 judgment, the court severely limited the application of the statute. Only four justices, however, signed the main opinion, which called the law “breathtakingly broad.”
But in a flurry of six written opinions in Troxel v. Granville (Case No. 99-138), the justices were in much broader agreement regarding the idea that parents have a fundamental right under the U.S. Constitution to control the upbringing of their children, including their education.
Citing Supreme Court cases dating to the 1920s, Justice Sandra Day O’Connor said in the main opinion that “it cannot now be doubted that the due process clause of the 14th Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
She cited Meyer v. Nebraska, a 1923 ruling that struck down a Nebraska law barring instruction in foreign languages because it interfered with parents’ right to “control the education of their own,” and Pierce v. Society of Sisters, a 1925 decision that struck down an Oregon law mandating public school attendance and thus precluding enrollment in parochial schools.
At least seven justices expressed strong support for such parental rights. As Justice Anthony M. Kennedy put it, “A custodial parent has a constitutional right to determine, without undue influence from the state, how best to raise, nurture, and educate the child.”
A ‘Strong Rebuke’?
The strong reaffirmation of parental rights is significant, some legal experts said, because the court has had little to say on the subject since its 1972 ruling in Wisconsin v. Yoder, which required the state of Wisconsin to exempt Amish children from compulsory school attendance beyond the 8th grade.
Since then, a growing number of parents, often religious conservatives, have voiced objections to their children’s participation in certain elements of public schooling, such as sex education classes, self-esteem lessons, social science surveys, and compulsory community- service requirements, among others.
In some legal challenges to such practices, lower courts have ruled that parental rights to control their children’s education is outweighed by a school district’s interest in including all students.
The reaffirmation of parental control of a child’s upbringing as a fundamental right “is a strong rebuke to lower federal courts that have sought on their own to reverse Meyer and Pierce,” said Vincent P. McCarthy, a lawyer with the American Center for Law and Justice.
The Virginia Beach, Va.-based legal organization, founded by the religious broadcaster Pat Robertson, has represented parents who object to their children’s mandatory participation in sex education classes.
Julie Underwood, the general counsel of the National School Boards Association, agreed that the Troxel ruling “could be an important case for education.”
“I believe conservative litigators will take this ruling and use it to challenge compulsory education laws, curriculum decisions by school boards, and really any kind of educational requirement,” she said.
But she does not believe that the high court has moved to treat parental rights as deserving of the court’s highest level of constitutional scrutiny. Under so-called strict scrutiny, a government action infringing on a fundamental right must serve a compelling governmental interest, instead of merely being rationally related to a governmental need.
Although Justice O’Connor discussed parental rights as a “fundamental liberty interest,” only Justice Clarence Thomas called for applying strict scrutiny to an infringement of that right.
Justice Antonin Scalia, in a provocative dissenting opinion, raised doubts about whether Meyer, Pierce, and Yoder merited respect as precedents.
While parents’ rights to control their children’s upbringing are inherent in the “unalienable rights” cited in the Declaration of Independence, Justice Scalia said, such rights aren’t mentioned in the Constitution. He said federal judges should avoid trying to define parental rights, or else “we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law.”
