The Home School Court Report
VOLUME XI, NUMBER 2
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1995
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The Parental Rights Act: Establishing a Standard of Liberty

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C O V E R   S T O R Y

The Parental Rights Act: Establishing a Standard of Liberty

By Michael P. Farris

The right of a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court. Court of Appeals of New York, Portnoy v. Strasser, 104 N.E.2d 895 (N.Y. 1952).

Although parental rights and family freedoms are firmly established as "fundamental and beyond the reach of any court," lower courts and agencies have not prevented wholesale invasions of homes and families. Parental rights are under attack, and families across the nation are being harmed by a legal system that refuses to protect their fundamental rights.

Senator Charles Grassley (R-IA) and Congressman Steve Largent (R-OK) have introduced legislation which will dramatically improve the right of parents to direct the upbringing of their children. The Parental Rights Act of 1995 is sponsored by these and numerous other original co-sponsors (see list).

The Parental Rights Act (PRA) does not manufacture a single new federal program or create a need for new bureaucrats at any level of government. Rather, it simply establishes the legal standard to be employed in cases involving "fundamental rights." Significantly lower levels of protections are provided to rights the Supreme Court has labeled "nonfundamental."

While friends of the family point to a number of Supreme Court cases which make it clear that the right of parents to direct the upbringing of their children is a fundamental right, lower courts have a very spotty record.

Home schoolers were thrilled by the excellent decision of the Supreme Court of Michigan in 1993 declaring that teacher's certification was unconstitutional as applied to religiously motivated home schooling parents. However, in a companion case decided the same day, the Michigan Supreme Court held that secular home schooling parents suffered no constitutional violation when forced to comply with the certification requirement. The difference between these two decisions was simple, but profound. The Michigan court held that religious freedom was a fundamental right whereas "parents' rights' were "nonfundamental" in nature.

In 1980, the Washington Supreme Court ruled in In re Sumey that removing a child from her family on the basis of her objections to her parents' rules which were reasonably enforced did not violate the parents' rights. The parents had grounded their daughter when they discovered drug use and improper sexual activity.

There are two constitutional texts which the Supreme Court has recognized as the source of parental rights protection. The provision of the Fourteenth Amendment which protects "life, liberty, and property" was the basis of the 1925 decision of Pierce v. Society of Sisters, which held that parental liberties were violated by an Oregon law which banned private schools. The Ninth Amendment declares that the failure to enumerate specific rights of the people does not mean that the rights are lost. This constitutional presumption in favor of the traditional rights of citizens was recognized and in place at the time of the adoption of the Bill of Rights. Parental rights have long been recognized as "implicit in the concept of ordered liberty."

But traditional values and concepts are under constant attack. Social workers constantly tell parents that it is illegal to spank children. They're wrong, but such social workers can make the lives of innocent parents miserable in the process. School officials routinely invade the sanctity of the family with highly personal surveys and therapeutic programs based on relativistic values and anti-parent philosophies. Children are often told, "Nothing we say in this program should ever be shared outside this room."

The Parental Rights Act draws a line in the sand. It declares that the right of parents to direct the upbringing of their children is a fundamental right. The PRA contains several answers to the hottest issues facing parents:

  • When government officials claim that modest, reasonable spanking is illegal, parents can point to the PRA to demonstrate that they have the right to lovingly administer reasonable physical discipline to their children.
  • When social workers claim superior rights to make routine (non life-threatening) medical decision for children, parents can point to the PRA as support for the right of parents to choose among the available options.
  • When school officials claim the right to trump the choices of parents in education, the PRA provides the legal framework for parents to fight back.

The PRA does not mean that parents will win all cases, nor does it dictate the outcome in specific fact patterns. Rather, it enacts a specific legal standard which guarantees that courts will give parental rights the highest level of judicial deference.

The PRA gives a statutory, civil rights language protection which is absolutely consistent with the traditional understanding of the Constitution.

Some conservatives have asked a good question: Why should Congress deal with the issue of parents' rights?

The proper answer to that question must come from the text of the Constitution itself. Many of us believe that Congress has become drunk with power in the last forty years and the last thing we want is Congressional intervention in an area for which Congress has no constitutional authority. Simply put, Congress should stop doing things for which there is no constitutional mandate, and should do a good job at those few issues which are clearly enumerated in the Constitution.

There is no grant of authority to Congress to legislate the details of family life. However, the Fourteenth Amendment grants Congress explicit authority to pass legislation which serves to protect the constitutional rights of citizens.

The problem with Congress is that oftentimes, its idea of protecting a right is to create yet another government program and subsidy. Such programs are normally a violation of the letter and spirit of the Constitution.

However, for over 70 years the Fourteenth Amendment has been properly interpreted to serve as a national bulwark protecting citizens when state governments intervene in the sphere of authority reserved to parents. Again, when Oregon attempted to force all children to attend public schools in the 1920s, the Supreme Court correctly applied the Fourteenth Amendment to override the state's decision which invaded the parental authority.

Under traditional constitutional doctrine, as well as the express language of the Fourteenth Amendment (Section 5), Congress has the responsibility and authority to protect the rights of citizens within these express areas. All early presidents and many founding fathers in Congress believed that all three branches of the federal government-not just the Supreme Court-have the authority to interpret the constitution. With that authority comes the responsibility to protect the constitutional rights of American citizens.

To put it in simple words, Congress has no authority to regulate family life, but has express authority to protect the liberty of parents. Congress should be in the business of protecting liberty, not regulating our lives.

Other major pro-family leaders and organizations have joined with HSLDA in promoting the Parental Rights Act including Beverly LaHaye of Concerned Women of America, Gary Bauer of Family Research Council, Dr. James Dobson of Focus on the Family, and Phyllis Schlafly of Eagle Forum. At the request of Senator Grassley, I have been the chief draftsman of this legislation.

Senator Grassley's aide, Shannon Royce, who is the point person for the senator on this issue, made the request for me to draft this legislation based on our prior work at Concerned Women for America. I was previously General Counsel for CWA and Royce helped direct CWA's legislative program.

Senator Grassley discussed the PRA with over 100 state home schooling leaders at a Capitol Hill briefing on March 13, sponsored by the National Center for Home Education (see page 42).

The PRA has strong possibilities for passing in this congressional session. It has received favorable comment from Henry Hyde, chairman of the House Judiciary Committee. Senator Orrin Hatch, the counterpart chairman in the Senate, is a well-known supporter of family rights and freedoms and is likely to support the Parental Rights Act.

However, the Children's Defense Fund and the National Education Association still wield a great deal of clout on Capitol Hill, and they can be expected to vigorously lobby to protect the legal prerogatives of bureaucrats. Using the pretense of "children's rights" these organizations will forcefully argue that government officials, and not parents, should have the ultimate authority to make decisions about the lives of children.

(Incidentally, when I worked for CWA, our office was in the same building as the Children's Defense Fund. Never did we observe a child in that office. It was always some adult "advocate for children" arguing that they knew better than parents—at least those parents who had a different philosophy of child rearing—in how to direct the lives of children.)

Accordingly, we urge every member of HSLDA to contact both of your United States Senators and your Representative and urge them to become co-sponsors of the Parental Rights Act.

No child can have a greater gift than a loving parent who is free to make responsible decisions without fear of unreasonable interference by the government.

Action:

Call and write your U.S. Senators and Representative. Urge them to become co-sponsors of the Parental Rights Act.

Capital Switchboard: 202-224-3121

The Honorable (Senator's Name)
United States Senate
Washington, D.C. 20510

The Honorable (Representative's Name)
U.S. House of Representatives
Washington, D.C. 20515

The following Representatives are already co-sponsoring the Parental Rights Act. (At the time of this writing we did not have access to the list of co-sponsoring Senators.)

U.S. Representatives:
Key Sponsor: Steve Largent (R-OK)

Richard Baker (R-LA)
Joe Barton (R-TX)
Helen Chenoweth (R-ID)
Jon Christensen (R-NE)
Wes Cooley (R-OR)
Jay Dickey (R-AR)
John Doolittle (R-CA)
Bob Dornan (R-CA)
John Duncan (R-TN)
Richard ("Doc") Hastings (R-WA)
Henry Hyde (R-IL)
Mike Parker (D-MS)
Andrea Seastrand (R-CA)
James Sensenbrenner (R-WI)
Linda Smith (R-WA)
Bill Thornberry (R-TX)
Roger Wicker (R-MS)