Law & Courts Opinion

What the Law Says About Parents’ Rights Over Schooling

Why would we let adults take away students’ freedom to learn to treat each other as equals?
By Joshua Weishart — November 29, 2021 5 min read
People hold signs and chant during a meeting of the North Allegheny School District school board regarding the district's mask policy, at at North Allegheny Senior High School in McCandless, Pa., on Aug. 25, 2021. A growing number of school board members across the U.S. are resigning or questioning their willingness to serve as meetings have devolved into shouting contests over contentious issues including masks in schools.
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It is the rallying cry heard in supermajority-controlled statehouses, contentious school board meetings, and the run-up to Virginia’s recent election of a Republican governor: parental freedom! A freedom that credulous, grievance-fueled parents claim they can exert in schools over the curriculum, the books in the library, even health measures during a deadly pandemic.

It’s a ruse. In our constitutional order, children’s freedoms take priority over parental freedoms. Given the overriding importance of schooling to democracy, our laws elevate and protect the rights of all children to learn and to grow as citizens.

That perspective has been lost amid the sound and fury of the education culture war over parental rights. Politicians and activists instead play to the fear that demands for equality and an honest reckoning of our nation’s past threaten parental freedom. We’ve heard that before.

Remember that the demand for equal educational opportunity crystallized in the U.S. Supreme Court’s Brown v. Board of Education decision, which then sparked opponents’ cries for parental freedom. Many saw then and see now that parental freedom meant the freedom to preserve a racist structure of schooling.

Segregation indeed remains our most disgraceful yet enduring sacrifice on the altar of parental freedom. Time and again, the Supreme Court has revered the residential and private school choices of parents even as they have exacerbated segregation and widened school funding disparities, leaving far too many of our schools separate and unequal—essentially upending Brown’s declaration that both segregation and unequal educational opportunities subvert the equal protection of the laws.

For all its lore, Brown was not the first landmark decision to outlaw school segregation. That honor goes to Clark v. Board of Directors, decided by the Iowa supreme court under the Iowa constitution 86 years before Brown. The Clark decision offered a stern rebuke to the notion that law protects the choice to segregate in public school settings.

Underlying the court’s reasoning was the notion that segregation denies children the freedom to learn through a unifying school experience open to all, one meant to cultivate a core of shared values, sense of community, and mutual understanding essential for the common good in a democratic society.

Segregation, the court thus concluded, deprived all children, Black and white alike, of “the privileges and benefits of our common schools,” guaranteed to them under the state constitution.

Variations on the freedom-to-learn theme remained a constant for progressives for the better part of the next century, featured in the educational writings of John Dewey and W.E.B. Du Bois and put to practice in “freedom schools” and by Southern Black teachers during the civil rights era.

Unbounded, parental freedom serves only to stratify students, divide communities, and undercut the mission of public schools.

But somewhere along the way, progressives forgot about education as freedom for all children and allowed conservatives to own the term “freedom.” Now, all the oxygen in the room is consumed by a negative conception of parental freedom, a “freedom from” something—from public schools, health mandates, anti-racism curriculum. Fear and uncertainty, abundant in these times, drive us to such isolating, individualized forms of freedom.

Yet unbounded, parental freedom serves only to stratify students, divide communities, and undercut the mission of public schools. And perhaps dismantling public education is ultimately the point. Experience has indeed shown that school choice practices that prioritize or cater to parental freedoms perpetuate segregation along the lines of race and ethnicity, disability, class, and other intersecting disadvantages.

Refusing to sing these discordant hymns of liberty, we must reclaim and advance a positive vision of educational freedom—a “freedom to” be an equal among equals. For children, that demands not merely a future-tense freedom to become an equal someday but a present-tense freedom to learn how to treat each other as equals today. Such freedoms to become and to learn can be cultivated in schools that bring together children of different backgrounds and are designed to serve the common good.

Fortunately, state constitutional law largely embraces educational freedoms to become and to learn, either explicitly in their education clauses or in precedents, like Clark, applying those clauses in ways that orient schoolchildren’s freedoms toward democratic equality.

Those equality-enhancing freedoms can thrive in well-resourced, safe classrooms, led by high-quality teachers with professional autonomy to employ a culturally responsive curriculum and encourage positive relationships.

To be sure, supportive parents can be highly influential in a child’s educational success as well. But to the extent that the law empowers parents in public schooling, it does so to complement—not displace—their children’s educational freedoms.

See Also

Sen. Josh Hawley, R-Mo., speaks during a Senate Armed Services Committee hearing on the conclusion of military operations in Afghanistan and plans for future counterterrorism operations, Tuesday, Sept. 28, 2021, on Capitol Hill in Washington.
U.S. Sen. Josh Hawley, R-Mo., says "it's time to give control back to parents, not woke bureaucrats."
Patrick Semansky/AP

Parents, of course, retain the privilege, under the U.S. Constitution, to decide whether their children will receive a public or private education and, in a more general sense, control their children’s education.

But that “control” has always been subject to reasonable state regulation and must yield to state compelling interests in a democratically educated citizenry. In no case does it secure parents the right to dictate the curriculum, restrict the flow of information from the school, or jeopardize the health and well-being of other children.

What’s more, parents’ freedom to select a publicly subsidized school of their choice enjoys no constitutional protection whatsoever.

Public education law, therefore, reflects the priority of children’s freedoms to become and to learn over parental freedoms of choice and control.

The constitutional interests at stake are important, but freedom talk only takes us so far. At bottom, most parents’ strongest impulse is to want what’s best for their children, even if that means sacrifice for parents. Those tradeoffs, including relinquishing some choice and control, are more acceptable to parents when they trust their schools. That is why the rhetoric that fetishizes parental freedom starts from a place of distrust and doubt. Such a mindset, once indulged, easily gives way to paralyzing fear that further inhibits trust and impairs thinking.

The law, for all its force, cannot guarantee us freedom from fear. We must liberate ourselves and each other from fear. Those of us who, therefore, see our children’s current and future freedom bound to the democratizing mission of public schools owe it our children to speak up. We must convince parents that if they want what’s best for their own child, they must want what’s best for all children. We must convince parents that if they want their own child to enjoy the blessings of liberty, all children must be free.


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