Why Our Federal and State Constitutions Protect Children’s Rights over Parents’ Rights

As fall moves into winter, far-right ideologues continue to argue for the protection of parents’ rights. Organized parents have been mobbing school board meetings to demand the right to screen the curriculum, control the books their children check out of the school library, and prescribe the topics that their children will be allowed to discuss in history and civics classes.

In the past month, Republicans in Congress have been trying to protect parents rights through legislation.  In the U.S. House of Representatives, Virginia Fox (R-NC), Kevin McCarthy (R-CA), and several colleagues introduced a Parents Bill of Rights.  And Josh Hawley (R-MO) introduced a  companion bill in the U.S. Senate.

As the blogger Peter Greene explains, these bills mostly seem to want to protect the rights parents already have in the the vast majority of public school districts: “The bullet point version of the (House) bill lists five rights—the right to know what’s being taught, the right to be heard, the right to see the school budget and spending, the right to protect their child’s privacy, and the right to be updated on any violent activity at school.  Most of which seems… kind of redundant, giving parents rights they already have.”

But there are indications that this debate has emerged because some parents—and the ideologues who are organizing parents—fear that some deeper and more complicated kind of parental control is threatened. Theorists are now speaking to the constitutional issues around protection of parents’ and children’s rights.

In late October, in a Wall Street Journal editorial, an extreme libertarian professor of law at Columbia University and the president of the New Civil Liberties Alliance, Philip Hamburger made the bizarre, First Amendment argument that public education itself violates parents’ freedom of speech: “Education consists mostly in speech to and with children. Parents enjoy freedom of speech in educating their children, whether at home or through private schooling.” “Although the exact nature of this parental freedom is much disputed, it is grounded in the First Amendment…. (T)he freedom of parents in educating their children belongs to all parents… The public school system, by design, pressures parents to substitute government educational speech for their own. Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling… (P)arents are… being pushed into accepting government speech for their children in place of their own… For most parents, the economic pressure to accept this educational speech in place of their own is nearly irresistible.” (The hotlink is to Diane Ravitch’s blog, where the article is reprinted; the original is paywalled.)

Like many on the far-right, Hamburger prefers to substitute the word “government” for the word “public,” and he seems to believe government is trying to brainwash children with “education” their parents don’t want them to know about.

On Monday, a professor of law at West Virginia University, Joshua Weishart published a profound response to the controversy about parents’ rights—an explanation that identifies what it is at school that has frightened so many parents. Weishart doesn’t worry so much about parents’ rights, because, he explains: “In our constitutional order, children’s freedoms take priority over parental freedoms. Given the overriding importance of schooling to democracy, our laws elevate and protect the rights of all children to learn and grow as citizens.”

Weishart believes today’s frenzy about parents’ rights can be traced back, as controversy about civil rights often is, to America’s oldest problem—racism: “Remember that the demand for equal educational opportunity crystallized in the U.S. Supreme Court’s Brown v. Board of Education decision, which then sparked opponents’ cries for parental freedom. Many saw then and see now that parental freedom meant the freedom to preserve a racist structure of schooling. Segregation indeed remains our most disgraceful yet enduring sacrifice on the alter of parental freedom. Time and again, the Supreme Court has revered the residential and private school choices of parents even as they have exacerbated segregation and widened school funding disparities, leaving far too many of our schools separate and unequal—essentially upending Brown‘s declaration that both segregation and unequal educational opportunities subvert the equal protection of the laws.”

But some of the state supreme courts have more carefully protected the rights of children to learn from their experiences in diverse common schools. Weishart reviews the Clark v. Board of Directors case decided by the Iowa Supreme Court soon after the end of the Civil War: “The Clark decision offered a stern rebuke to the notion that the law protects the choice to segregate in public school settings. Underlying the court’s reasoning was the notion that segregation denies children the freedom to learn through a unifying school experience open to all, one meant to cultivate a core of shared values, sense of community, and mutual understanding essential for the common good in a democratic society. Segregation, the court thus concluded, deprived all children, Black and white alike, of ‘the privileges and benefits of our common schools,’ guaranteed to them under the state constitution.”

Weishart concludes: “Unbounded parental freedom serves only to stratify students, divide communities, and undercut the mission of public schools.” He adds: “Parents, of course, retain the privilege, under the U.S. Constitution, to decide whether their children will receive a public or private education and, in a more general sense, control their children’s education. But that ‘control’ has always been subject to reasonable state regulation and must yield to state compelling interests in a democratically educated citizenry. In no case does it secure parents the right to dictate the curriculum, restrict the flow of information from the school, or jeopardize the health and well-being of other children. What’s more, parents’ freedom to select a publicly subsidized school of their choice enjoys no constitutional protection whatsoever.”

The American philosopher of education and the father of progressive education, John Dewey believed that children learn not so much from what they are taught but from their experience of society as it is embedded in the school community. The purpose of public schooling is, according to Dewey (in 1897), to provide the social experiences children need to prepare them for American citizenship:

“I believe that much of present education fails because it neglects this fundamental principle of the school as a form of community life. It conceives the school as a place where certain information is to be given, where certain lessons are to be learned.” “I believe that the only true education comes through the stimulation of the child’s powers by the demands of the social situations in which he finds himself. Through those demands he is stimulated to act as a member of a unity, to emerge from his original narrowness of action and feeling and to conceive of himself from the standpoint of the welfare of the group to which he belongs. Through the responses which others make to his own activities he comes to know what these mean in social terms.”

Dewey would advise today’s American parents to encourage their children to participate freely in the school community without fear, for the public school is the microcosm of our society.

2 thoughts on “Why Our Federal and State Constitutions Protect Children’s Rights over Parents’ Rights

  1. Jonathan Kozol wrote in Savage Inequalities: “”The ones I pity are the ones who never stick out their neck for something they believe, never know the taste of moral struggle, and never have the thrill of victory.” Thanks to you, Jan, and Diane Ravitch, Jack Schneider, Jennifer Berkshire, and Derek Black, you all have given me the information and, therefore, courage to “stick out my neck” for this moral struggle to preserve the aims of public education, but the “thrill of victory” seems to be waning for those who agree with John Dewey, Horace Mann, et. al. I am beginning to feel the way Jonathan Kozol expressed it a number of years ago when he said, and I am paraphrasing, “I used to think I could make a difference (in the moral struggle to preserve and improve public education for all our children, especially the poor), but now I just have to stand by and watch.”

  2. Pingback: Jan Resseger Tackles the Issue of Parent Rights and Children’s Right to Learn | Diane Ravitch's blog

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