Constitutional Protection for Parental Rights

Constitutional Protection for Parental Rights The Meyer-Pierce Legacy Robert P. George and Jana V.T. Baldwin June, 1994 [T]he custody, care and nurture of the child [should] reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.1 The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.2 For the last several decades, a significant amount of social and legal commentary has focused on the relationship of parent to child and the family to the state. As the economic and political life of America has changed profoundly over the years, family law has correspondingly undergone a host of changes. Today, as a result of the crisis confronting the American family, a scholarly, legal and public debate rages over family policy.3 "Children's Rights" advocates argue that children should have, and the state should recognize, greater autonomy from their parents in deciding how to live. Indeed, some scholars and activists argue for the liberation of children from their parents control as part of a larger attack on the institution of the nuclear family.4 Against this backdrop, the Constitution limits the use of state power to diminish parental rights and undermine the family. Although the Constitution does not deal explicitly with parental authority, the Supreme Court has specifically recognized parental rights of custody and control. In the landmark decision of Meyer v. Nebraska,5 closely followed by Pierce v. Society of Sisters,6 the Court stated that parents have a substantive due process right to "bring up children."7 Although these cases were handed down in the 1920s they are no mere archaisms, but rather have withstood the test of time. Indeed, Justice Brennan has remarked of Meyer and its progeny: "I think I am safe in saying that no one doubts the wisdom or validity of those decisions."8 The precedents Meyer and Pierce generated have further solidified the principle that parents should have the predominant role in raising their children. In Meyer,9 the Supreme Court held that the right of parents to raise their children free from unreasonable state interferences is one of the unwritten "liberties" protected by the Due Process Clause of the Fourteenth Amendment.10 The Court invalidated a state statute prohibiting foreign language instruction to school children, recognizing the right of German-speaking parents to have their children taught German. The Court found that the state's interest in encouraging American ideals by prohibiting the teaching of foreign languages is not great enough to permit infringement of the rights of parents to raise their children as they see fit.11 The Court rested its opinion in large part on the rights of parents to control the activities of their children,12 concluding that the statute was an interference "...with the power of parents to control the education of their own."13 Two years after Meyer, the Supreme Court in Pierce14 invalidated an Oregon statute requiring parents to send their children to public school, holding that the statute "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."15 Pierce made clear that the constitutional rights of a parent are not limited to physical custody, but that parents possess the right to direct their child's "destiny."16 The principle enunciated by Meyer and Pierce, that parents have the right to direct the upbringing and education of their children, has survived the many turbulent changes of the last several decades. A line of decisions following Meyer and Pierce further cemented the rights of parents to exercise their own best judgment in raising their children. For example, twenty years after Pierce, the Supreme Court in Prince v. Massachusetts17 stated that "[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."18 Meyer also helped undergird the Supreme Court's decision in Parham v. J.R.19 In Parham, the Supreme Court deferred to parents' wishes to place their child in a mental hospital, stating that "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.20 The Court emphasized that simply "because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state."21 More recently, in the prominent case of Santosky v. Kramer,22 the Supreme Court acknowledged that "freedom of personal choice in matters of family life is a fundamental liberty" and stated that natural parents have a "fundamental liberty interest...in the care, custody, and management of their child."23 Similarly, in Bowen v. American Hospital Ass'n,24 the Supreme Court recognized "a presumption...that parents are the appropriate decisionmaker for their infants."25 The constitutional protection of parental rights recognized by the federal courts has been affirmed and enforced by state courts.26 The recent case of Alfonso v. Fernandez27 illustrates that the parental rights doctrine, while viable, is under attack today. In Alfonso, parents of New York high school students challenged the New York School Board's condom distribution program, arguing, among other things, that the program unconstitutionally denied parents the right to opt their children out of the distribution program. On December 30, 1993, a New York appeals court held that the New York Board of Education's condom distribution program was illegal and unconstitutional absent a parental opt-out provision. Citing Meyer and Pierce, the court recognized that the petitioners enjoy a "well-recognized liberty interest in rearing and educating their children in accord with their own views..." including "the right to regulate their children's sexual behavior as best they can..."28 The court determined that "no matter how laudable its purpose, by excluding parental involvement, the condom availability component of the program impermissibly trespasse[d] on the petitioners' parents rights" by substituting the School Board's judgment for the petitioners' judgment without a compelling necessity.29 Alfonso demonstrates that the Constitution still stands as a staunch defender of parental rights. Alfonso and its parental rights predecessors such as Meyer and Pierce are rooted in the recognition that parents possess the right "to direct the upbringing and education of children under theircontrol."30 Despite the firm constitutional basis for parental rights, traditional concepts of parental authority are under attack from private and public groups seeking to give the state greater control of the upbringing of children, as evidenced by the appeals in the Alfonso case. Opponents of parental rights understand perfectly well the significance of Meyer and Pierce as obstacles to their agenda, and the need to undermine these precedents in order to achieve their goals.31 In accordance with the court's decision in Alfonso, the New York Board of Education voted to revise the condom distribution policy to permit parents or guardians of unemancipated students to opt their children out of the distribution component of the program. The New York Civil Liberties Union ("NYCLU"), however, moved to intervene in the action for the purposes of filing an appeal and People About Changing Education ("PACE") and the Coalition For the Homeless moved for leave to appear as amici curiae to argue in favor of reversing the court's ruling. These groups argued that affording "parents or guardians an `absolute veto' over unemancipated minors [ability] to receive condoms [in school] impermissibly infringes on New York City public school students' [constitutional] rights."32 The court denied NYCLU's motion to intervene, and the NYCLU lost a subsequent appeal of that denial. The New York Bar Association and the New York State Attorney General had also moved to appear as amici curiae in favor of the NYCLU's motion to intervene and in opposition to the court's ruling. The relentless zeal with which the NYCLU (and even the State of New York, as represented by the New York Attorney General), sought to overturn the court's ruling in Alfonso makes clear that the right of parents to make substantive choices regarding their children's education and moral upbringing remains in jeopardy. In short, the protection of parental rights should not have to be achieved on a piecemeal basis through unpredictable and expensive court challenges. The constitutional mandate articulated by Meyer and its progeny is clear: The right of parents to direct the upbringing and education of their children shall not be infringed. Robert P. George is an Associate Professor of Politics at Princeton University, and a Presidential Appointee to the U.S. Commission on Civil Rights. He is the author of Making Men Moral: Civil Liberties and Public Morality (Oxford University Press, 1993). Jana V.T. Baldwin was counsel for plaintiffs in Alfonso v. Fernandez, the December, 1993 decision which overturned New York City's condom distribution policy. The views expressed in this memo are those of the authors, and do not necessarily reflect the views of other organizations with whom they are affiliated. Endnotes 1. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). 2. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). 3. For commentary discussing the difficulties facing today's family, see generally, Giving Children a Chance: The Case for More Effective National Policies, (George Miller ed., 1989); Sylvia Hewlett, When the Bough Breaks: The Cost of Neglecting Our Children (1991); Rebuilding the Nest: A New Commitment to the American Family (David Blankenhorn et al. eds., 1990). 4. See generally, Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's Rights, 14 Cardozo L. Rev. 1747 (1993) (arguing that parents' rights, "as currently understood, undermine values of responsibility and mutuality necessary to children's welfare"); Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879, 882 (1984) (challenging "the law's adherence to the exclusive view of parenthood when the premise of the nuclear family has failed"). 5. 262 U.S. 390 (1923). 6. 268 U.S. 510 (1925). 7. Meyer, 262 U.S. at 399. 8. Michael H. v. Gerald D., 491 U.S. 110, 142 (Brennan, J. dissenting). 9. 262 U.S. 399 (1923). 10. Id. at 399 ("[T]he liberty [guaranteed by the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to...marry, establish a home and bring up children"). Conservative critics of the notion of substantive due process have observed that Meyer (and Pierce) is defensible even if the substantive due process doctrine on which the Court relied is not. See, eg., Robert H. Bork, The Tempting of America (New York: Free Press, 1990), pp. 47-49. 11. Id. at 400-01. 12. Id. 13. Id. at 401. 14. 268 U.S. 510 (1925). 15. 268 U.S. at 534-35. 16. Id. 17. 321 U.S. 158 (1944). 18. Id. at 166. 19. 442 U.S. 584 (1979). 20. Id. at 602. 21. Id. at 603. 22. 455 U.S. 745 (1982). 23. Id. at 753. 24. 476 U.S. 610 (1986) (plurality opinion). 25. Id. at 628 n.13 (quoting President's Comm'n for the Study of Ethical problems in Medicine and Biomedical Behavior Research, Report, at 212-214 (1983)). 26. See, e.g., Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993) ("the reasoning of federal constitutional cases convince[s] us that parental rights constitute a fundamental liberty interest" under the Tennessee Constitution); Bailey v. Menzie, 542 N.E.2d 1015, 1019 (Ind. Ct. App. 1989) ("we are fully cognizant of parents' well settled right under the Fourteenth Amendment to raise their families generally as they see fit"); Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984) ("the parenting right is a fundamental liberty interest that is protected against unwarranted state intrusion"); People v. Sheppard, 429 N.E.2d 1049, 1052 (N.Y. 1981) (it "is well settled that parents generally have a right under the Fourteenth Amendment to raise their families as they see fit"). 27. 606 N.Y.S.2d 259 (N.Y. App. Div. 1993). 28. Id. at 265. 29. Id. 30. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Meyer, 262 U.S. 390, 401 (1923). 31. See, e.g., Barbara Bennett Woodhouse, "Who Owns the Child? Meyer and Pierce and the Child as Property" 33 William and Mary Law Review, 995 (1992) 32. Brief Amici Curiae of People About Changing Education (PACE) and the Coalition for the Homeless at p. 13. . For commentary discussing the difficulties facing today's family, see generally, Giving Children a Chance: The Case for More Effective National Policies, (George Miller ed., 1989); Sylvia Hewlett, When the Bough Breaks: The Cost of Neglecting Our Children (1991); Rebuilding the Nest: A New Commitment to the American Family (David Blankenhorn et al. eds., 1990). . See generally, Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's Rights, 14 Cardozo L. Rev. 1747 (1993) (arguing that parents' rights, "as currently understood, undermine values of responsibility and mutuality necessary to children's welfare"); Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879, 882 (1984) (challenging "the law's adherence to the exclusive view of parenthood when the premise of the nuclear family has failed"). . 262 U.S. 390 (1923).