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The purpose of this Article is two-fold. First, the Article argues that the parent’s right to educate his or her children is strictly circumscribed by the parent’s duty to ensure that children learn habits of critical reasoning and reflection. The law has long recognized that the state’s duty to educate children is superior to any parental right. Indeed, the “parentalist” position to the contrary rests on an inflation of rights that is, in fact, a radical departure from longstanding legal norms. Indeed, at common law the parent had “a sacred right” to the custody of his child, and the parent’s right to control the upbringing of the child was “almost absolute.” The great legal authorities—William Blackstone, James Kent, and their scholarly successors—are cited to this effect. Nevertheless, this reading of the law is sorely anachronistic—less history than advocacy on behalf of parental rights. If “fundamental” describes rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among fundamental rights. What is deeply rooted in our nation’s history is the notion that the state entrusts the parent with custody of the child only so long as the parent meets his duty to take proper care of the child. Whether this authority is called a power or a right, it has always been contingent on the welfare of the child and the needs of the state. It has always been “in the nature of a trust, reposed in [the parent] by the State . . . , which may be extended or contracted as the public welfare may require.”

Second, the Article suggests that this trust principle—the notion that the parent’s educational authority is bound by the parent’s pedagogical duty—may, first, help us better understand the doctrinal modesty of the Court’s seminal “right to parent” cases, and, second, help the courts approach some difficult types of cases in a more principled way, especially cases involving the allocation of educational authority in the public schools. If the courts were to apply the principle that no authority, public or private, may deny children exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person’s education, they would more consistently and correctly sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. Part II of this Article argues that at common law and, for most of the nation’s history, under state statutory regimes, the authority of the parent to direct the child’s upbringing was a matter of duty, not right. Chief among parental obligations was the duty to provide the child with a suitable education. Indeed, it was the child who possessed “a perfect right”: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from the primary familial culture. The scope of the parent’s authority to direct the child’s education has always been limited, determined by the best interests of the child and the legitimate needs of the state. In the United States, custody courts created a composite system that allowed the state as parens patriae to regulate family relations, but as a general matter entrusted parents with the task of providing the child a proper education.

Part III looks at the Supreme Court’s seminal cases establishing a parent’s right to educate: Meyer v. Nebraska and Pierce v. Society of Sisters of the Holy Names of Jesus and Mary. Commonly read to state broad claims about the fundamental nature of parental rights, these cases stand for a much more modest proposition: the state does not have exclusive authority over the child’s education and, more particularly, the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Fearful that the state was claiming exclusive power to educate children, the seminal Supreme Court parenting cases sought to restore the composite character of educational authority over the child. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights.

Part IV considers several types of cases that involve the allocation of educational authority within the public schools. While a full treatment of these cases lies outside the scope of the Article, this Part suggests that courts should look with skepticism at any educational program—whether imposed by the parent or by the state—that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience.

In Meyer v. Nebraska, Arthur Mullen stood before the Supreme Court to argue against the power of the state “to take the child from the parent.” He denounced “the principle of the soviet” that made the state superior to the family. No state, Mullen argued, should “prescribe the mental bill of fare” that the child will follow. He would not accept, and neither would the Court, that the child is not the parent’s to begin with, and certainly not the mere recipient of whatever mental bill of fare is prescribed by the parent. Yet, surprisingly, the law of parent-relations, as developed by the American courts, did understand that, in the words of John Locke, the child must “grow up to the use of reason” and that if he is not the mere creature of the state, he is more than a placid reflection of the parental image. In short, the history of custody cases testifies to the enduring belief that the child is born to intellectual and moral freedom.

Publication Citation

89 Neb. L. Rev. 290 (2010)