The Home School Court Report
VOLUME XII, NUMBER 5
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SEPTEMBER / OCTOBER 1996
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Visalia's Daytime Curfew Battle

Federally Funded College and the GED

Cover Story

Kennedy Family Battles DCS

Regular Features

Litigation Report

Across the States

Education: Where the Parties Stand

Press Clippings

Parents: The Real Child Advocates

National Center Reports

A Novel Idea: Interview with Mike Farris

President’s Page

S P E C I A L   R E P O R T

The Real Child Advocates

Home School Legal Defense Association Attorney Scott Somerville traveled to Kokomo, Indiana, on August 13, 1996, to testify on behalf of the Parental Rights and Responsibilities Act introduced in that state's legislature. The following text is excerpted from his speech.

Mr. Chairman and honorable Members of the Committee: I was a father of five when I took a course at Harvard called "Child, Family, and State," taught by professor Robert Mnookin, the man who wrote the textbook on the subject. Professor Mnookin made a remarkable statement about child advocates. He noted that teachers claim to be child advocates, and social workers claim to be child advocates. "But who are the real child advocates?" he asked. "Parents! Parents always have been the child's first and best advocate."

So why don't you ever hear about parents as child advocates? Because, Professor Mnookin argued, parents are too busy being parents to organize as a special interest group. Tax-funded professionals are highly motivated to lobby for extra spending. Parents are too busy changing diapers to change the laws.

The Fundamental Rights of Parents

Indiana parents are just as busy as any others. Most of the parents here today would be home changing diapers or at work earning a paycheck-but for one thing. A judge in your state has ruled that parents do not have fundamental rights. On November 30, 1995, Marion County Superior Court Judge Patrick L. McCarty held, "There exists no Fourteenth Amendment fundamental right of parents to direct the secular education of their children." I respectfully reject his ruling.

A parents' right to direct the education and upbringing of a child is one of the most important principles of constitutional liberty in our nation. Strong families are the building blocks of society. Law and order originates there, because children first experience lawful authority and loving discipline in the home. Friends and neighbors may give the children candy and presents; but parents tell the children to eat their broccoli and clean their rooms. Nations cannot stay healthy without children who do their chores, any more than a body can stay healthy without vegetables. Uphold and reinforce the home, and you build a free and virtuous society. Invade and undercut the home, and you breed a generation that mocks authority and despises discipline.

Constitutional Protections of the Home

How can government uphold and reinforce the home? With wise laws and sound constitutions. We protect the house-the physical walls and doors-from unlawful intrusion by the State through the warrant requirement of the Fourth Amendment. The State's power to search a home or make an arrest within a home is severely limited because we recognize the home is fundamental to society.

Constitutional Protection of Parental Rights

In Parham v. J.R., 442 U.S. 584 (1979), the Supreme Court gave an extremely strong endorsement of parental authority to control the important decisions which concern their minor children. In that case, Chief Justice Burger wrote for the majority:

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." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) [other citations omitted]. 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. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190.

Chaos in the Lower Courts

Despite this ringing endorsement from the Supreme Court, lower courts are less consistent. They will search this passage and say, "Well, yes, the Supreme Court said parental rights are very important, but they did not use the magical phrase 'fundamental rights.'" Judge McCarty, in Marion County, has so ruled. That is why we are here today.

All that is necessary for evil to triumph, said Edmund Burke, is for good men to do nothing. Judge McCarty can strip parents of their rights because the Supreme Court, the United States Congress, and the Indiana Legislature have said much yet done nothing. And if this Committee says much but does nothing, evil will triumph for years to come.

Parental Rights in Indiana Courts

The Indiana courts know that federal courts have long recognized parental rights as fundamental. The Indiana Supreme Court long ago recognized the parent-child relationship as "most hallowed" and "sacred." Duckworth v. Duckworth, 179 N.E. at 773. Lower Indiana courts have ruled, "The right to raise one's child is an essential and basic right more precious than property rights" (in 1991). In the Matter of the Adoption of Topel (1991), Ind. App., 571 N.E.2d 1295. The Court of Appeals cites, with approval, the U.S. Supreme Court:

"It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' In the Matter of Joseph (1981), Ind. App., 416 N.E.2d 857, 859, citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)."

Child Abuse and Neglect Investigations

In Indiana today, an anonymous tipster can make a report about you which, if there is any evidence to support it, will result in a finding of "indicated" child abuse which they may or may not bother to tell you about. If you are one of the lucky ones who finds out about your new legal status as a child abuser, what right to you have to appeal this finding, or even to submit your own statement of the facts to your own file?

[HSLDA] believe[s] that child abuse is a crime, and that every child abuser should be put in jail. Indiana's child abuse procedures seem perversely designed to make that difficult. You can't put a child abuser in jail unless you can convict him of the crime, and you can't convict him of the crime unless you have evidence that is admissible in court.

Tougher, fairer standards for child abuse investigators would result in more convictions of guilty criminals and less disruption for innocent families. Uphold parental rights, and you protect children. Undercut parental rights, and you will see both innocent children and innocent families suffer.

Parental Rights and Public Schools

Despite what the Indiana teacher's union may say, parents are generally the solutions to the problems in our public schools, not the problems. Would the public schools go down in flames if parents were respected? The tax-funded teachers' union suggests they would, but have they looked at private schools, lately? Private schools respect parents' rights. They have to. Parents pay their bills. Private schools generally have lower budgets and higher test scores than the neighboring public school. This isn't despite parental involvement-it is because of it. Ask the private schools. Ask the public school teachers in Iowa.

The school district must do what is good for children in general; parents have a duty to do what is best for their own child. Home schoolers have demonstrated that parents can replace the entire public school curriculum if they must. How much more easily can parents fill in one or two objectionable assignments!

At a time when there are constant pressures to have parents' rights and responsibilities overridden by "experts," whether at school or in the home, the idea that a mother can tell the education bureaucrats to mind their own business is anathema to those with a collectivist mentality, who talk about "America's children" and say "It takes a village" to raise a child.

Conclusion

Ladies and gentlemen of the Parental Rights Study Committee, you have a great task before you. By upholding parental rights, you can crack down on child abusers, improve the public schools, and defend the rights of children. By upholding the fundamental rights of parents, you can uphold the foundations of our society.

Do not be misled by those with mixed motives. Remember the old Watergate rule: follow the money! Parental rights are most opposed by those who are paid most by the State to care for children. Think twice about a State Teachers Association that sees parents as the problem with the schools the teachers run. Think twice about a Child Protective Services system that doesn't even tell parents that they have determined they are neglecting their child. And let's crack down on child abuse by putting every abuser in jail, not by putting every child into foster care.

Listen to Indiana's families. Listen to the steelworker fathers, who get up before dawn day after day to bring a paycheck back to their little ones. Listen to the mother of three, who was up at three last night with a colicky baby. Listen to the grandparents, who remember a time when Indiana honored its fathers and its mothers, and was stronger for it. And listen to your own hearts and your conscience and that still small voice that says, "This is the way: walk in it."

May God guide your deliberations. God bless your work, and in so doing, God bless the children and families and the great state of Indiana!