Parental rights

Last month, the Supreme Court turned down an appeal from a group of Colorado parents who argued that a school district interfered with their parental rights when it left them out of discussions about their children’s gender identity. Three justices wrote that although they agreed with the decision not to take up the parents’ appeal, the question at the center of the case was one of “great and growing national importance.” On Friday, the justices will consider a new request to weigh in on parental rights in public schools, this time brought by a Massachusetts couple who contend that school officials not only socially transitioned their middle-school-aged child over their objections but also hid that fact from them. 

The parents in the case, Stephen Foote and Marissa Silvestri, brought a federal civil rights lawsuit in 2022. They contended that a protocol adopted by the Ludlow School Committee – the local equivalent of the school board – that instructed school staff to use a student’s preferred name and pronouns without notifying the parents violated their parental rights under the Constitution, including both their right to direct their child’s upbringing and education and their right to make medical and mental health decisions for their child. 

Defending the protocol, the committee said that the protocol was needed to ensure the safety and inclusivity of the learning environment. A federal judge threw out the parents’ case, and the U.S. Court of Appeals for the 1st Circuit upheld that ruling. The unsigned opinion first explained that the judges were “unconvinced that merely alleging Ludlow’s use of gender-affirming pronouns or a gender-affirming name suffices to state a claim that the school provided medical treatment to the” couple’s child. Moreover, it continued, “[t]he measures the Parents cite … all involve decisions by Ludlow’s staff about how to reasonably meet diverse student needs within the school setting. The Supreme Court has never suggested,” the 1st Circuit wrote, “that parents have the right to control a school’s curricular or administrative decisions.” 

The parents came to the Supreme Court in July, asking the justices to take up their case, calling the question at the center of the case “urgent.” “More than 1,000 public school districts have adopted secret transition policies,” they wrote, “resulting in dozens of lawsuits and harming countless children. The fact that parents reject gender ideology for non-religious reasons,” as in their case, “does not leave them without constitutional protection,” they concluded. 

Foote and Silvestri are relying on a line of Supreme Court cases, starting more than a century ago, holding that parents have a right to control the upbringing of their children. 

In Meyer v. Nebraska, decided in 1923, the court struck down a Nebraska law that barred the teaching of modern languages – such as French, German, and Spanish – to children before the 9th grade. The challenge was brought by a teacher who was convicted of teaching German to a 10-year-old student. The court recognized a parental right to oversee a child’s education, ruling that the teacher’s “right thus to teach and the right of parents to engage him so to instruct their children … are within the liberty” protected by the 14th Amendment’s due process clause. 

The Supreme Court acknowledged that, particularly in the wake of World War I, “[t]he desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate.” But prohibiting foreign language instruction for young children, the court concluded, went too far. “No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed.” 

Two years later, in Pierce v. Society of Sisters, the court reaffirmed the right of parents to oversee their children’s education in a case that barred Oregon from enforcing a state law that required parents to send their children to public schools (and made it a misdemeanor to fail to do so). A group of nuns that ran orphanages and parochial schools challenged the law, arguing that it violated the group’s rights under the 14th Amendment to due process. 

The Supreme Court unanimously agreed, deeming it “entirely plain” that the law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” “The child,” the court continued, “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.” 

Nearly 50 years after its decision in Pierce, the court struck down another compulsory-education law – this time a Wisconsin law that required parents to send their children to school (either private or public) until they turned 16. In Wisconsin v. Yoder, two Amish parents argued that the law violated their right to freely exercise their religion by having their children “learn[] by doing” rather than attend a formal school. A majority of the court agreed, reasoning that “[t]he impact of the compulsory-attendance law on” the parents’ “practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” And referring back to the court’s decision in Pierce, the majority emphasized that “[t]he duty to prepare the child for ‘additional obligations’ … must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship.” 

The question of parental rights also came to the fore in the 2000 case of Troxel v. Granville, in which the court agreed with the Washington Supreme Court that a state law allowing courts to grant visitation rights to individuals who are not a child’s parents whenever doing so would “serve the best interest of the child” violated the due process clause of the 14th Amendment. 

The question came to the court in a case filed by a couple seeking visitation with their granddaughters – the children of their son, who had died two years before. Justice Sandra Day O’Connor observed that “[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The state trial court’s ruling, O’Connor noted, “was not founded on any special factors that might justify the State’s interference with Granville’s fundamental right to make decisions concerning the rearing of her two daughters.” Indeed, O’Connor added, “so long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” 

And in June, in Mahmoud v. Taylor, the court ruled, by a vote of 6-3, that a group of parents have a right to opt their children out of instruction that uses LGBTQ+ themes. Citing Yoder, Justice Samuel Alito wrote that “[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.”

In Meyer, Pierce, and Troxel, the court grounded the parental rights at issue in a doctrine known as substantive due process – the somewhat amorphous idea that the 14th Amendment’s due process clause protects some fundamental (though unenumerated) rights from government interference unless the government can show sufficient justification to infringe these. However, the court’s conservative justices have long been skeptical of the doctrine. In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, overturning the court’s recognition of a constitutional right to an abortion, Justice Clarence Thomas, for example, reiterated his view that “the Due Process Clause at most guarantees process.” The phrase “‘substantive due process,’” Thomas suggested, “is an oxymoron that ‘lack[s] any basis in the Constitution.’” 

In their petition for review, Foote and Silvestri emphasized that they were “seek[ing] refuge” in the court’s earlier decisions that had “safeguarded parents’ right to make key decisions about their children’s upbringing, education, and healthcare.” They state that, while the justices in Mahmoud provided “critical legal protection” for religious parents, the decision “is grounded in parents’ free-exercise rights and their ability to parent their children consistent with their religious beliefs. Applying similar principles to fundamental parental rights,” they wrote, “is the next logical step to protect parents who object to gender ideology for moral and scientific reasons rather than religious ones.” 

The Ludlow School Committee urged the court to deny review. It contended that although the lower courts had assumed, for procedural reasons, that the protocol instructing school staff to use a student’s preferred name and pronouns without notifying the parents exists, it actually does not. Therefore, the committee argued, the case was not a good one in which to decide the question posed by the parents’ petition for review. Rather than taking up the parents’ case, the committee suggested, the court should wait for one of the other cases “that involve actual school district policies and that present the issue of the scope of parental rights.” 

If the court opts not to hear Foote and Silvestri’s case, it will have another opportunity to consider the matter presented in their petition soon. Late last month, the justices directed a Florida school district to respond to a petition filed by a couple who – like Foote and Silvestri – contend that the school secretly transitioned their child. The court will likely decide sometime early next year whether to weigh in. Regardless of whether it does so, the issue and extent of parental rights will remain a matter of profound constitutional significance.