Parental Rights in Black & White
From the July/August 2006 Court Report Cover Story

A Dangerous Path: Has America Abandoned Parental Rights?

By Michael P. Farris

I litigated the case that history may judge to be a turning point in parents’ rights. Mozert v. Hawkins County Public Schools (1987) was touted by the media as the “Scopes II” trial. Not only was Mozert tried in Tennessee, but it involved evolution, religion, and a cloud of media onlookers. Attorney Timothy Dyk, now a federal judge appointed by Bill Clinton, was hired by People for the American Way to defend the school district. Beverly LaHaye’s Concerned Women for America employed me as their general counsel to represent the parents whose children had been expelled from the Hawkins County Public Schools.

Why were these children expelled? They refused to read a series of reading books that violated their religious beliefs.

The purpose of the lawsuit was to seek to restore the right of these students to attend public school and be given an alternative reading assignment.

The central issue in the case was: Do parents and children who have sincere religious objections to public school curriculum have the right to alternative instruction for the objectionable material?

The U.S. Supreme Court denied review of the Mozert case, effectively upholding an anti-parent bias in the federal court.

The answer given by the Sixth Circuit Court of Appeals was clear: Parents have no such right. Once a child has been submitted to the public schools for his education, parents lose all ability to control the course of instruction.

The Mozert case was so widely publicized that it merited two full-page editorials in USA Today. It was on the front page of nearly every major paper in America at some point. It was covered by all national networks. Yet the Supreme Court of the United States did not think the legal issues in Mozert merited its attention, so the petition for review by the Court was denied. The denial of review was reported on the front page of the Washington Post and widely covered elsewhere.

At the time, I thought that the decision in this case represented a growing trend of anti-Christian bias in the federal courts. So many other decisions had been made allowing public school students to opt out of religiously objectionable material that the only way to explain the disparity seemed to be bias against conservative Christians.

For instance, the Eighth Circuit Court of Appeals had considered a case in 1980 involving public school instruction and announced the general principle, “Forcing any person to participate in an activity that offends his religious or non-religious beliefs will generally contravene the Free Exercise Clause.”1

Additionally, the Sixth Circuit (the same court that decided Mozert) had previously decided another case involving religious beliefs and public school curriculum. In Spence v. Bailey (1972), the court held that it was a violation of the Free Exercise Clause to force a student with conscientious objections to war to attend Reserve Officers’ Training Corps (ROTC) as a condition of attending the public schools. It was constitutionally unacceptable, the court ruled, to force a student to engage in “training contrary to his religious beliefs, or to give up his public education.”

But eventually I realized that what Mozert actually represented was a growing trend of anti-parent bias in the federal courts.

The Mozert court held that there was no “burden” on religious freedom or parents’ rights when the schools forced children to read religiously offensive books as a condition of attending public schools.

Understanding the burden test is very important.

In First Amendment and related cases (including parental rights cases), according to the current Supreme Court, there are a series of questions that are supposed to be answered in the proper order. Think of the process like a series of hurdles. If a parent fails to clear the first hurdle in the case, the case ends right there.

The first hurdle is the “burden” test. This test is essentially designed to answer the question: Are the plaintiffs’ rights even arguably violated? A claim can be considered so remote or insubstantial that it fails on this threshold issue. If your rights are not “burdened,” your case is over immediately without any need to consider the remaining hurdles.

If a parent does clear the “burden hurdle” there remains the compelling interest test—which is a balancing test designed to determine how important your rights are in this situation compared to the importance of the government’s goals and purposes. But if the parent does not clear that initial barrier of demonstrating that his rights are arguably violated, the court never reaches the balancing test.

The implication of failing to clear this first hurdle signals that the government’s power is essentially absolute in the particular area. If the court holds that a parent’s rights are not burdened when a public school forces a child into a sex education course without the parent’s permission, this establishes a very broad rule. It means that no matter how egregious the sex education program may be, parents’ rights are not implicated at all. The court will only balance the importance of the particular program against the parents’ claims of right after the parents have proven that their rights have been burdened.

Thus, if a court says that parents’ rights are not burdened when the public schools force children to take instruction that is contrary to their religious faith, that is a categorical ruling. It does not matter whether the public school’s program is tangential or central to the curriculum. It does not make a difference if the religious objections are numerous or few. It certainly does not matter if the parents believe that the school has invaded their religious convictions as opposed to their religious preference. If there is no burden on parents’ rights or religious freedom when the schools force children to learn secular material that violates the parents’ faith, this ruling is absolute for all parents of all faiths.

This background helps place an incredibly alarming decision made in 2005 by the Ninth Circuit Court of Appeals in its proper context.

In 2001, the Palmdale School District in California decided to give a survey to students in its elementary schools. Included in this psychological survey were a number of sex-related questions. These included inquiries into touching one’s private parts and thinking about doing so with others, among other fairly explicit questions.

Parents were outraged that this survey was conducted without a proper disclosure to the parents. But the court’s decision did not rest upon the district’s previous superficial disclosure to parents.

The Ninth Circuit held:

Although the parents are legitimately concerned with the subject of sexuality, there is no constitutional reason to distinguish that concern from any of the countless moral, religious, or philosophical objections that parents might have to other decisions of the School District—whether those objections regard information concerning guns, violence, the military, gay marriage, racial equality, slavery, the dissection of animals, or the teaching of scientifically-validated theories of the origins of life. Schools cannot be expected to accommodate the personal, moral or religious concerns of every parent. Such an obligation would not only contravene the educational mission of the public schools, but also would be impossible to satisfy.

The court went on to make it entirely explicit that once children are left at the public school’s front door, all parental control over the child’s education ceases.

In sum, we affirm that the Meyer-Pierce3 right does not extend beyond the threshold of the school door. The parents’ asserted right “to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs,” by which they mean the right to limit what public schools or other state actors may tell their children regarding sexual matters, is not encompassed within the Meyer-Pierce right to control their children’s upbringing and education.

The Ninth Circuit has a reputation for being the most liberal in the nation. In this instance, it simply sided with the vast majority of recent federal court decisions.

The First Circuit Court of Appeals made a similar outlandish ruling in Brown v. Hot, Sexy and Safer Productions, Inc. (1995). This case involved a mandatory, school-wide assembly that contained offensive and suggestive sexual material. The First Circuit said that while parents have the right to choose alternative forms of schooling, they have no constitutional right to direct their child’s education inside the public school. Consider how broadly the First Circuit characterized these rights:

The first instance involves the state proscribing parents from educating their children, while the second involves parents prescribing what the state shall teach their children.

The court did not use the term prescribe correctly in this case. Parents were not prescribing what the public schools had to teach their children. They were seeking to proscribe the kind of instruction they wanted left out of their children’s public school education: they just wanted to opt out of sexually explicit material.

So, if we correct the use of this term, what the First Circuit said was this: Parents cannot be told by the state to stop teaching their children, but parents cannot stop the state from teaching those children just because the parents do not like what is being taught. None of the cases just described were decided with a balancing test. Every case held that parents’ rights had not been burdened or implicated at all. In fact, according to the courts, parents’ rights to control the education of their children completely stop at the schoolhouse door.

What is the implication for homeschoolers?

First, we should be very glad that we have decided to homeschool our children. If any parents still believe that they have a constitutional right to direct their children’s education inside a public school, these cases demonstrate that such a view is a fantasy. It should not be this way. Parents of public school students should be able to decide to remove their children from sex surveys and assemblies, but according to the federal courts, they have no such right.

Second, saying that the state can force children to learn explicit sex education material if they are enrolled in public schools is a short step from saying that the state can force all children to receive such instruction. If we do not take alarm when other parents’ rights are treated so badly, we should not be surprised when our own rights are invaded. Note in particular the wording used by the First Circuit: “Parents may not prescribe what the state may teach their children.” Although the context of this case was in a public school, the actual wording used is a very broad claim of state power over the minds of all children.

In fact, the 2002 decision of a Texas federal district court in Barrow v. Greenville Independent School District shows how close these cases come to invading the freedom of homeschoolers. In Barrow, a public school teacher sought a promotion to the rank of assistant principal. She was denied this promotion solely because her children were enrolled in a Christian school. The federal court held that neither her religious freedom nor her parental rights were at stake. Public employees who are denied promotion because they refuse to participate in government education for their own children are being given a choice of losing a job or losing a constitutional right to control the education of their children.

This case suggests that we are on a very dangerous path.

Unless parents’ rights are treated on a par with other fundamental rights, the government will continue to demand more and more authority over our children. It is time to put parents’ rights into the text of the United States Constitution.

Endnotes

1Florey v. Sioux Falls School Dist., 49-5, 619 F.2d 1311 (8th Cir. 1980).

2Fields v. Palmdale School Dist., 427 F.3d 1197 (9th Cir. 2005).

3In two significant cases, Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), the U.S. Supreme Court recognized that the Due Process Clause does protect the right of parents to control the upbringing of their children.