J. Michael Smith, President — Michael P. Farris, Chairman
 
 
November 11, 2004

Why Do We Need Parental Rights Legislation?

Parental rights are under siege. Parents, in many ways, are becoming “second class citizens” as lower courts elevate the power of the state to supersede the wisdom of parents. Parental choice is in jeopardy. Freedom is at stake. The basic fundamental freedom of parents to raise their children hangs in the balance. Have we forgotten whose children they are anyway? They are a God-given responsibility to parents.

Earlier this century, the United States Supreme Court declared “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and high duty to recognize and prepare him for additional obligations.” —Pierce v. Society of Sisters [268 U.S. 510 (1925)].

In 1972, in Wisconsin v. Yoder (406 U.S. 205), the Court described parental rights as fundamental, saying: “This primary role of the parents in the upbringing of their children is now established as an enduring American tradition.”

The U.S. Supreme Court has repeatedly recognized that the liberty clause in the 14th Amendment guarantees the fundamental right of parents to direct the education and upbringing of their children. Below are several more examples of the U.S. Supreme Court recognized parental rights as fundamental.

The Fourteenth Amendment guarantees the right of the individual … to establish a home and bring up children, to worship God according to his own conscience—Meyer v. Nebraska, 262 U.S. 390, 403, (1923)

[W]e think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.—Pierce v. Society of Sisters, 268 U.S. 510, 534, (1925)

Thus a state’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and

interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children…. This case involves the fundamental and religious future and education of their children.—Wisconsin v. Yoder, 406 U.S. 205, 214, (1973)

The fundamental liberty interest of natural parents in the care, custody, 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)

The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights … the intimate relationships to which we have accorded Constitutional protection include marriage … the begetting and bearing of children, child rearing and education.—Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 545, (1987)

[T]he Court has found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to Constitutional protection.... —Lehr v. Robertson, 463 U.S. 248, 258, (1983)

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. Troxel v. Granville, 530 U.S. 57 (2000).

Although the U.S. Supreme Court clearly recognizes parents’ rights as fundamental and thus protected by a higher standard of review, many lower courts over the last twenty-five years have eroded this traditional view of parental rights. A parental rights act will reaffirm parents’ rights, including the fundamental rights to make medical decisions, discipline, and direct the education and religious training of their children.

Furthermore, a parental rights act will mandate that courts apply the “compelling interest test” (i.e. “strict scrutiny standard”), requiring the state to prove that its regulation and infringement of parental rights is essential and the least restrictive means of fulfilling the state’s compelling interest.

Below are some examples of what happens when lower courts ignore U.S. Supreme Court precedent in not recognizing parents’ rights as fundamental or entitled to the protection of the compelling interest test. In many ways, these decisions or state actions reduce children to being “mere creatures of the state.” You be the judge!

Evidence of Lower Courts Eroding Parental Rights

American Academy of Pediatrics v. Van de Kamp
After the U.S. Supreme Court ruled that states could require parental consent before a minor’s abortion, California enacted exactly what the Court had permitted. Abortion activists filed suit against the law in a San Francisco courthouse, which ruled that under the California constitution, a child’s privacy right outweighed any fundamental right of parents to know. Assembly Constitutional Amendment 21 would clearly establish that parents’ rights are protected by the California constitution.

Cite: 214 Cal.App.3d 831 (San Francisco Sup. Ct., 1989), (aff’d sub nom. American Academy of Pediatrics v. Lungren, 26 Cal.App.4th 479 (Ct.App. 1994)).

Brown v. Hot, Sexy and Safer, Inc.
Parents in Chelmsford, Massachusetts were never told that their children would be required to sit through a ninety-minute presentation by “Hot, Sexy and Safer Productions, Inc.” In this so-called “group sexual experience,” a male child was told to lick a condom, after which a female student was told to pull the condom over his entire head and blow it up! The Court of Appeals held that the parent’s rights were not violated because the actions were not sufficiently “conscience shocking.” The court further held that even if under Meyer and Pierce the right of parents to direct the upbringing of their children is fundamental, it does not encompass a broad-based right to restrict this form of information from their children in public schools.

Cite: 68 F.3d 525 (1st Cir. 1995)

In re Sumey
In this case the Supreme Court of Washington ruled that it was not a violation of constitutional parents’ rights to remove a child from the home because she objected to her parents’ reasonable rules. The parents had grounded their eighth grade daughter because she wanted to smoke marijuana and sleep with her boyfriend. The Supreme Court found that it was reasonably within the lower court’s jurisdiction to remove the girl from her family home. No strict standard was applied.

The parents’ rights were completely terminated for simply grounding their daughter to stop her from using illegal drugs and engaging in illicit sex.

Cite: 94 Wash.2d. 757, 621 P2d. 108 (1980)

People v. Bennett
In the case of Michigan v. DeJonge, 501 N.W.2d 127 (Mich. 1993), the Michigan Supreme Court held that parents who home educate their children due to their religious convictions have a fundamental right protected by the First Amendment. Given those facts, the State had to prove that a teacher certification requirement was necessary to achieve a compelling state goal before it could restrict a parental right. The State was not able to justify such a burden, so the religiously motivated home schoolers won.

In Bennett, the companion case to DeJonge, a family challenged the same law deemed a violation of the DeJonge family’s parental rights. The court rejected the Bennett’s challenge, holding that mere parental rights as guaranteed by the 14th Amendment could be infringed by any rule that was rationally related to a legitimate state purpose. In other words, the courts did not recognize parental rights under the 14th Amendment as fundamental. As a result, the court reasoned, the strict scrutiny standard, which applied to the Christian parents in DeJonge did not apply to the secular parents in Bennett.

In other words, parental rights exercised for religious reasons are protected; secular reasons are not.

Cite: 501 N.W.2d 106 (Mich. 1993)

Ohio Association of Independent Schools v. Goff
In this case, the U.S. Sixth Circuit Court of Appeals rejected the request of an association of independent schools to enjoin the State of Ohio from revoking their charter because the school association did not require its students to take outcomes based tests. The state of Ohio argued that a parent had a “limited right, if any, to direct the secular education of his or her children secured by the Fourteenth Amendment.”

The Court agreed and crushed the parents’ rights. The Court concluded that secular parental rights do not receive protection of the “compelling interest test” standard of review. The Court ruled,

The Supreme Court has applied strict scrutiny to such Fourteenth Amendment claims where they are coupled with a challenge based on the Free Exercise Clause of the First Amendment. Yoder, 406 U.S. at 233, 92 S.Ct. at 1542. Absent a free exercise challenge, however, the Court has applied rational basis review, noting that parents have no constitutional right to “private school education unfettered by reasonable government regulation.”—Runyon, 427 U.S. at 178, 96 S.Ct. At 2598.

This is an example of a court ruling that the parents’ right to direct secular education is not protected.

Cite: 92 F. 3d 419 (6th Cir. 1996)

Immediato v. Rye Neck School District
In another very similar case, the United States Court of Appeals held that parents who objected on moral grounds to a mandatory community service graduation requirement did not have a fundamental right to direct the education of their children. The court held that the moral concerns of the parents were purely secular and not religious in nature. The court indicated its belief that the Supreme Court has never expressly indicated whether the right of a parent to direct the upbringing of a child is “fundamental” and thus deserving of strict scrutiny when invoked against a state regulation.

Cite: 73 F.3rd 454 (2nd Cir. 1996).

Herndon v. Chapel Hill-Carrboro City Board of Education
Parents objected to a school graduation requirement that forced the children to perform certain community service projects. The Fourth Circuit Court held that “Because plaintiffs’ objection to the program arises out of purely secular concerns, the right asserted by the plaintiff parents in this case is not a fundamental right.” The court held that the state’s right to direct the secular education of a child are superior to the rights of the parents as long as it is rationally related to a legitimate governmental interest.

Cite: 89 F.3d 174, (4th Cir. 1996)

Cornwell v. State Board of Education
When Maryland required every elementary school to provide comprehensive sex education for all students, parents went to federal court demanding an “opt-out” provision. The judge dismissed all their claims outright. The court avoided properly applying the compelling interest test.

Cite: 314 F.Supp. 340 (D.Md. 1969), aff’d. 428 F.2d. 471 (4th Cir.1970), cert. den. 400 U.S. 942 (1970)

Bendiberg v. Dempsey
The United States District Court held that a father’s rights were not violated when a county department of family and children services removed a son from his care, without prior notice or opportunity for a hearing, after the father refused consent to the insertion of a catheter for the administration of prescribed medication. The court found that the parent’s rights to make medical decisions for the child had not been violated even though the attending physician indicated that the patient’s condition did not constitute a medical emergency.

Cite: 707 F.Supp. 1318 (N.D.Ga. 1989)

In re Sampson
Kevin, age fifteen, had “elephant man disease,” which caused a large fold of skin to grow over the right side of his face. Kevin’s mother wanted to wait until Kevin turned twenty-one before permitting any surgery. The doctors testified that the surgery was very risky, and offered no cure, and that waiting would decrease, not increase the risk. Even so, the judge overruled the mother’s objections, declared Kevin a “neglected child,” and ordered the series of operations.

Cite: 65 Misc.2d 658, 317 N.Y.S.2d 641 (Fam.Ct. 1970), (aff’d. 377 App.Div.2d 668, 323 N.Y.S.2d 253 (1971), aff’d. 29 N.Y.S.2d 900, 278 N.E.2d 918, 328 N.Y.S.2d 686 (1972)).

Bailey v. Menzie
This is an example of a case in which a state court explicitly acknowledged that parental rights were a fundamental liberty deriving from the 14th Amendment, but incorrectly applied a reasonable relationship test rather than the compelling interest test to the state action. The court merely gave “lip service” to parental rights as fundamental.

Cite: Ind. App. 542 N.E.2d 1015 (1989)

Care of Protection of Charles
In this case the Supreme Judicial Court of Massachusetts upheld a law requiring an “approval process” for home schools, ruling against parents asserting violation of their 14th Amendment parental rights. The Court did not require the state to prove, with evidence, that the approval process was the least restrictive means as required by the compelling interest standard.

Cite: 504 N.E.2d 592 (1987)

Maine v. McDonough
The Supreme Judicial Court of Maine ruled against the parents who asserted that their 14th Amendment parental rights were being violated by the onerous homeschool regulations. The Court did not apply a strict scrutiny standard. Instead, they evaluated the regulations by a reasonableness standard.

Cite: 468 A. 2d. 977 (1983)

Clonlara v. Runkel and Hanson v. Cushman
In both of these cases, the U.S. District Courts ruled that the parents’ right to direct the education of their children was not a fundamental right. Therefore, the plaintiff parents, in both of these cases, were not entitled to the protection of the compelling interest standard. Their parental rights had to submit to “reasonable government regulations.”

Cite: Clonlara, 722 F.Supp. 1442 (E.D. Mich. 1989); Hanson, 490 F.Supp. 109 (1980)

United Nations Convention on the Rights of the Child (CRC)

In 1995, President Clinton signed the CRC. The treaty would give children fundamental rights which could be legally enforceable against parents. Because the U.S. Constitution declares treaties to be a source of supreme law, the treaty would undermine the rights of parents to direct the education and religious training of their children, make medical decisions for their children, or to use reasonable corporal discipline.

The U.N. Committee on Children, which officially interprets the meaning of this treaty, has ruled that it requires Britain to outlaw corporal punishment, conduct public educational campaigns to cause society to accept the prohibition of corporal punishment, limit the rights of parents to withdraw their children from sex education classes, and change laws to increase the ability of children to participate in their parents decisions concerning them.1

At this point, the U.S. Senate has not ratified this dangerous treaty. Also, the Bush Administration recently sent a letter to HSLDA with assurances that it has no plans to pursue ratification of this flawed treaty.

Cite: Concluding Observations of the Committee on the Rights of the Child: United Kingdom, CRC/C/15/Add.34 (Jan. 1995).

States Must Act!

The above contains a sampling of reported cases over the past two decades where courts have usurped the traditional role and fundamental rights of parents. Our parental liberty is guaranteed by the 14th Amendment; yet many lower courts continue to erode the U.S. Supreme Court’s decisions in this area.

There is a parental rights movement across the states which is advancing the cause of parental freedom and stopping the progress of the anti-family/child’s rights movement. We have included model language to be used when seeking to pass a parental rights act in a state legislature or a constitutional amendment to a state constitution. We have also added examples of three states, Kansas, Michigan, and Texas that have formally passed parental rights acts. We are working to pass acts or amendments in more states.

Model Language

Constitutional Amendment (Act of the Legislature) —A resolution to amend the Constitution of the State (Code of the State), by adding the following Section, relating to parental rights.

SEC. ____. Fundamental Right of Parents to Direct Upbringing of Children.

(a) Every parent has a fundamental right to control the care and custody of his or her minor children, including, but not limited to, control over the education, discipline, religious and moral instruction, health, medical care, welfare, place of habitation, counseling, and psychological and emotional well-being of those minor children. No state action may abridge or hinder this fundamental right absent a showing that the state’s action is essential to further a compelling state interest and is the least restrictive means of furthering that interest.

(b) It is recognized that the state has a compelling interest in prohibiting the abuse or neglect of minor children.

(c) This section does not apply to any dispute between parents with respect to issues affecting their children or to such a dispute between a parent and his or her child’s legal custodian, including any custody dispute.

(d) Nothing in this section shall be construed to hinder any state or local agency in its enforcement of juvenile court law, unless that law is violative of the rights of parents herein specified.

(e) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

States That Have Passed Parental Rights Acts

Michigan

M.C.L.A. § 380.10. It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children.

Kansas

K.S.A. § 38-141. (b) It shall be the public policy of this state that parents shall retain the fundamental right to exercise primary control over the care and upbringing of their children in their charge. It is further the public policy of this state that children shall have the right to protection from abuse and neglect.

(d) Any parent may maintain a cause of action in state court or in any court of competent jurisdiction for claims arising under the principles established in subsection (b). Any person authorized by law to act on behalf of a child may maintain a cause of action in the name of such child in any court of competent jurisdiction for claims arising under the principles established in subsection (b).


Texas

Tex. Gen. Laws 102 (1997), mandates that the Child Protective Services “shall not contradict the fundamental rights of parents to direct the education and upbringing of their children.”

Tex. Gen. Laws 1225 (1997): “No state agency may adopt rules or policies or take any other action which violates the fundamental right and duty of parents to direct the upbringing of the parents’ child.”

Copyright 2004 Home School Legal Defense Association. Permission is granted to reproduce this report in its entirety. This report is an excerpt from The Right to Home School, by Christopher J. Klicka. For more information, contact the National Center for Home Education, P.O. Box 3000, Purcellville, VA 20134; (540) 338-7600.

1 Cite: Concluding Observations of the Committee on the Rights of the Child: United Kingdom, CRC/C/15/Add.34 (Jan. 1995).