Parental Rights in the Balance – Part 1

Parental rights are a particular target in the moral revolution which is being attempted in the twenty-first century. But a strong defense of parental rights in America has been the Pierce v. Society of Sisters of the Holy Names of Jesus and Mary decision (1925), which said that the state cannot require secular, public education for all children, and recognized parents’ primary role in the education and discipline of children. On the 100^th anniversary of the Pierce decision, parental rights are being challenged by the public school system of Montgomery County, Maryland, which is requiring children at the pre-K and elementary levels to be instructed from pro-LGBT story books, with no opt-outs by parents allowed. This has resulted a lawsuit from parents, Mahmoud v. Taylor, now before the U.S. Supreme Court, with a decision expected by the end of June.

The Heritage Foundation conducted two panel discussions about the case on May 29, preceded with remarks by Robert George, McCormick Professor of Jurisprudence and Director of the James Madison Institute in American Ideals and Institutions at Princeton University.

George asked the basic question, “should children’s parents, or should the government direct the moral and religious formation of children?” He observed that “children are born to parents, a mother and a father, and are therefore theirs.” This is “no mere matter of cultural convention, but an objective moral truth.” Parents have a duty to ensure the education and moral formation of their children. The role of the state in raising children is strictly subsidiary to that of parents. This is the judgment of natural law, affirmed by the Supreme Court in the Pierce decision, through the use of a “substantive due process” interpretation of the Fourteenth Amendment, which permits courts to pass judgments on laws according to whether or not they are just.

But he said that contemporary progressives “view the state as having what amounts to a quasi-parental role.” They claim that the expertise of professional educators is equal to or superior to that of parents. He referred to the work of Amy Gutmann, formerly President of the University of Pennsylvania, who maintains, in George’s words, that the state has a duty “to shape, even independently of parental wishes, the moral character and fundamental beliefs of children.” The state should address the “souls” of children to make citizens “free to choose their own version of the good life.” She has said that is “no a priori” reason to choose parents over the state in the education of children.

Even more direct, George said, is Elizabeth Bartholet of Harvard Law School, who has said the many homeschooling parents are “extreme ideologues” who train children in beliefs and values “in serious conflict” with the wider culture. The “subtext” of this criticism, George maintained, “is that such ‘ideologically committed’ parents are those who are committed to living lives and raising families in conformity with traditional religious and moral values, as Christians or Jews, for example.” Essentially, she pleads for intolerance in the name of tolerance. This spring has seen several state level legislative attacks on homeschooling, which seem to spring from viewpoints such as Bartholet’s.

But George said there is no value-free education. Parents may and must teach values – those of the natural law, in addition to any religious faith of which they are convinced. Such precepts as “stealing is wrong,” not cheating on tests, and keeping promises are universal values all parents should inculcate. Children may certainly be removed from “objectively harmful” situations. But in that case the doctrine of parental authority does not change, and the state’s objective is to restore children to the family unit, if this becomes possible. Bad parents do not mean that parental authority should not be primary in raising children. There are also “bad schools,” “bad teachers,” and “bad counselors.” The state’s role is always “subordinate and subsidiary” to that of parents.

The Mahmoud v. Taylor Case

Mahmoud v. Taylor is basically about an attempt to erode parents’ rights by requiring public school students to be indoctrinated in pro-LGBT curricula at the pre-K and elementary school levels. The state claims, George observed, “an independently grounded, non-subsidiary role to play – sharing role – in making normative judgments about the sort of ideas that ought to guide a child’s moral and intellectual upbringing.” Not requiring pro-LGBT lessons for all students, Montgomery County claimed, would expose children who think the pro-LGBT curricula “represent them and their families to social stigma and isolation.”

The county thus claims a right. George said, to engage in “ideologically influencing the moral formation of children enrolled public schools at least in part because not doing so would allegedly have a negative impact on other children whose parents seek to raise them with socially liberal moral commitments.” Essentially, “for the sake of the supposed comfort of their socially liberal peers, the government – the county – claimed an interest in encouraging all students to adopt views normatively favorable of and disposed toward same-sex marriage, transgenderism, sexual liberation, and hotly contested conceptions of sexuality and gender identity, and claimed that parents had no right to stop their children from being subjected to what truly was indoctrination.” He said that in Mahmoud, the reason leftists want to “share and eventually override” the authority of parents in child rearing becomes apparent.

George believes that the Supreme Court will side with the parents in this case. That would protect the free exercise rights of students, but also “the fundamental rights of parents to direct the upbringing and education of their children.” This outcome will be a result of United States having “a long tradition” of upholding the natural law account of parents in directing the upbringing of their children. Starting with Pierce v. Society of Sisters, there is an essentially “unbroken line of efforts” upholding the natural law account of the rights of parents against “myriad efforts to undermine it.”

Pierce v. Society of Sisters

The Pierce decision concerned an Oregon law that required all children to attend public schools, even those who had attended state recognized private schools. The principal objective of the law was to close Catholic schools. The Supreme Court, however, declared that the Oregon law was an unreasonable interference with the right of parents to direct the upbringing of their children, and in a memorable phrase, said that “the child is not the mere creature of the state.” But the court also defended a broader conception of parental rights “that does not stop at the schoolhouse door.” Children are persons who participate “in a unique and timeless person-to-person relationship.” This relationship “is replete with duties on the part of parents.” Yet George said that “parental rights are defeasible, not absolute.”

Parental rights are “deeply rooted in our nation’s constitutional order.” Defending parental rights “is not a doctrinally sectarian or even explicitly religious or theistic position.” Therefore, “a substantively robust reason-based account of parental rights, regardless of how it’s undermined or slandered in the public square, must be defended for all Americans of all shades … of belief.” This, he said, includes atheists, who “have as much right to direct the upbringing and education of their children as devout Jews do, or devout Christians, or others.”

George insisted that we must “be courageous defenders” of parental rights, because they “are not rights conferred by any merely human authority.” Also, “they are not subject to the whims of such an authority.” He said, “there’s a name for rights that we have that are not merely conventional, they are natural rights.”

Panel discussions regarding the Pierce and Mahmoud cases will be reviewed in subsequent articles.

It can be viewed here.