Keeping parental rights in the public eye

Congress has considered a constitutional amendment that protects parental rights seven times before—and failed to adopt it each time. But that has not stopped Rep. Debbie Lesko, R-Ariz., from trying an eighth time.

Lesko introduced a resolution last week that would amend the U.S. Constitution to direct the upbringing, education, and care of their children as a fundamental right. That includes the right of parents not only to choose schools—public or private—but also to make reasonable choices within public schools for their children. Parents’ rights do not end at the school door, say supporters.

For the amendment to succeed, Congress must pass the resolution by a two-thirds vote of both houses. Then three-fourths of the states must ratify it. That makes it likely to fail again. Backers hope the resolution introduced Tuesday will keep the need for it before Congress and the public at a time when school board meetings are roiled by parents concerned over critical race theory and transgender ideology.

Making parental rights “fundamental” would also ensure that courts strictly scrutinize governmental restrictions on those rights. As with restrictions on free speech and religious liberty, educational administrators would have to demonstrate that the state has a compelling interest in infringing on those rights and is using the least restrictive way possible.

“This legislation amends the U.S. Constitution to guarantee the fundamental right of parents to choose an alternative to traditional public education and make reasonable choices within public schools for their children,” Lesko said. “It also ensures parental rights are not denied due to a disability of a parent. This legislation does not apply to a parental action or decision that would end life.”

That last provision ensures that, should the amendment become law, it will not be interpreted to grant a constitutional right for a parent to abort an unborn child.

Courts have always recognized that parents have a right to control the upbringing and education of their children. Parental rights are pre-constitutional, pre-political rights recognized by the Supreme Court as constitutional in nature, but not created by the government. For Christians, the right and responsibility to bear and rear children are evident from the earliest chapters of Genesis, when God directed Adam and Eve to be fruitful and multiply.

Yet the source and breadth of such rights are much less clear than that of free speech and free exercise of religion, said Ernie Walton, a law professor at Regent University School of Law.

Walton pointed to a 2000 Supreme Court case, Troxel v. Granville, in which the Supreme Court considered parental rights in the context of a Washington state law that gave grandparents and certain others stronger rights to petition family courts for visitation with a child. A majority of the court reaffirmed the right of parents to direct their children’s upbringing, yet parent advocates were alarmed by a dissent by conservative Justice Antonin Scalia questioning whether parental rights had any basis in the Constitution.

“The opinion … was extremely splintered,” said Walton. “How broad is this parental right to direct children’s upbringing, and how do we treat this right? Is it a fundamental right? And if so, can the state ever justify interfering with that right?” Yet despite mixed signals from court conservatives, Walton said parents have the absolute right to direct their children’s education.

States are not waiting for federal recognition of parental rights. According to a survey of state legislation by FutureEd, as of June, 84 bills in 26 states had been pre-filed or introduced in 2022 that seek to expand parents’ rights in schools. Sixty-four percent of states already require strict scrutiny of laws restricting parents’ rights, either by state statute or court rulings.

“It’s a marathon, not a sprint,” said Will Estrada, president of the Parental Rights Foundation. The organization has worked for 15 years to secure a constitutional amendment. Estrada admitted there was little hope that the amendment would make much progress in this Congress but said it “nationalizes the conversation” and keeps this important right in the public eye.

“I think this is a moment that we’ve not seen before with parental rights,” said Estrada. “Should bureaucrats be making decisions [about children] or is this a fundamental right of parents?”