Seeking court clarity on parental rights

Serena Wailes couldn’t believe her fifth grade daughter was assigned to share a bed with a male student on a school trip. Her daughter had called her from the restroom, unsure what to do. “I thought, maybe I’m not hearing you right,” Wailes said. “I thought, ‘There’s no way that the district, or that anybody, would hide this from us, because you’re talking about 11-year-old kids.’”

Jefferson County Public Schools in Colorado had told Serena and her husband, Joseph, that their daughter would room with three other girls, not disclosing that school policy made exceptions for students who identified as the opposite sex. As WORLD reported last year, officials eventually moved her daughter to another room only after repeated requests from Serena, who had traveled along on the trip. “It was resolved that evening, but to me, the damage had already been done,” she said.

Joseph and Serena, along with several other parents, sued the school district, contending that its policy violated parents’ fundamental right to make decisions about the upbringing and education of their children.

The Supreme Court has clearly established this right, said Noel Sterrett, an attorney for Alliance Defending Freedom, which represents the families. Multiple Supreme Court cases indicate that the government shouldn’t be able to make decisions about who a child shares a bed with without receiving permission from the parents, he said.

“They have a right to be involved in all the consequential decisions that are made at school about their kids,” Sterrett recently told WORLD. “This is really important for kids to have their parents be the main voice in directing their care, their education, their upbringing.”

But current U.S. law and Supreme Court precedent haven’t yet clearly defined the extent of parents’ constitutional rights, allowing legal challenges like the Waileses’ lawsuit to fester in school districts across America. While a lower court dismissed the Waileses’ case last November, the 10th U.S. Circuit Court of Appeals heard their appeal in May. A ruling remains pending.

Cases going back more than 100 years provide direction on religious liberty questions but don’t fully settle other parental rights questions. Some legal experts argue that the Founding Fathers recognized parents’ rights to make decisions about their children’s upbringing—a recognition rooted in a common understanding about nature and creation. They say parents and U.S. schools will keep litigating this question until the Supreme Court clarifies how to weigh parents’ rights against government interests. Meanwhile, state laws addressing such matters are mixed.

In the Supreme Court’s 2000 ruling in Troxel v. Granville, six justices ruled unconstitutional a Washington state law that allowed courts to override parental input when deciding child visitation rights. “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,” wrote Justice Sandra Day O’Connor for a four-justice plurality.

But only one of the six justices, Clarence Thomas, articulated a test for determining when a government agency or official violates that parental right. He called for strict scrutiny—the most stringent review of governmental action. Strict scrutiny, also required in free speech or religious liberty cases, mandates that the government show a compelling interest and use the least intrusive means before overriding a fundamental right.

“Here, the State of Washington lacks even a legitimate governmental interest—to say nothing of a compelling one—in second-guessing a fit parent’s decision regarding visitation with third parties,” wrote Thomas.

Since Troxel, the court has turned down at least four opportunities to review lower court rulings on parental rights. Each case concerned conflict between parents and schools over school policies that facilitated a child’s so-called gender transition without notifying or involving the parents.

Last September, Jeffrey and January Littlejohn asked the Supreme Court to review an appeals court ruling that denied them relief when Leon County, Fla., school officials began referring to their 13-year-old daughter as nonbinary. On April 27, the court denied the petition without any written dissent.

The court has also declined to review challenges to school policies in Maine, Massachusetts, and Wisconsin. When the court turned down the Wisconsin case, Justice Clarence Thomas joined a dissent from Justice Samuel Alito that said the case “presents a question of great and growing national importance.”

In March, the court finally did address that question. In Mirabelli v. Bonta, the court issued an emergency ruling dealing with California’s school gender policy. A federal judge in 2023 blocked the state policy, which he called a “trifecta of harm” against students, parents, and teachers because it banned teachers from informing parents about their children’s attempts to identify as another gender while at school. The judge later broadened the order, extending it to all school districts in the state.

A federal appeals court temporarily put a hold on the order during the appeals process. But in the high court’s March emergency action, it set aside that stay, allowing the order to go into effect and prevent enforcement of California’s policy. In an unsigned opinion, the court simply reaffirmed parents’ “primary authority with respect to ‘the upbringing and education of children,’ including “the right not to be shut out of participation in decisions regarding their children’s mental health.”

Ernie Walton, a constitutional law scholar and dean of Regent Law School, acknowledged the Supreme Court’s lack of clarity in Troxel but expressed hope that the current court will eventually articulate a clear test for governmental violations of parental rights. He said the Mirabelli case—should it make its way back to the high court—may give a court majority an opportunity to reaffirm the fundamental nature of parental rights and the need for strict scrutiny of governmental attempts to override those rights.

Walton said a Supreme Court ruling is long overdue that both reaffirms parental rights and gives them the same protection accorded to other fundamental rights. He noted that parental rights originated in both common law and in creation—meaning they precede the U.S. Constitution and politics itself. He pointed to English jurist William Blackstone, who called the parent-child relationship “the most universal relation in nature.”

Jewish and Christian scholars root this natural right or creation ordinance in our being made in the image of God—Himself a parent. In a May 2024 white paper, the Ethics and Religious Liberty Commission called the family the “foundational societal structure” and pointed to Scriptures that show the importance of parents and their responsibility for raising their children.

“Family is fundamental to the Christian story and to proper Christian living in the world,” wrote the ERLC, the public policy arm of the Southern Baptist Convention. “The government oversteps its authority when it intervenes between parent and child to usurp an area of moral instruction that rightly lies within the parents’ authority and responsibility.”

But while early American leaders may have assumed this right, courts did not recognize it until states sought to enforce compulsory education laws.

In Meyer v. Nebraska, decided in 1923, the Supreme Court sided with a teacher convicted for teaching in German despite a state law that mandated English-only instruction through eighth grade. 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 court concluded.

The court’s 1925 ruling in Pierce v. Society of Sisters found that Oregon could not force parents to choose public school instruction over other schooling options. Pointing to parents, it noted that “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.”

Nearly half a century later, in its 1972 Wisconsin v. Yoder decision, the court ruled that a state law requiring compulsory high school education could not be enforced against Amish families, finding it violated the Amish parents’ free exercise of religion. The court also referenced Pierce and said that, when it comes to parents’ free exercise of religion claims, the government must show “more than merely a ‘reasonable relation to some purpose within the competency of the State.’”

And last year, in the court’s ruling in Mahmoud v. Taylor, justices again sided with religious parents who sought to opt their children out of LGBTQ storybooks in Montgomery County, Md., classes. As in Yoder, the court grounded its holding in the First Amendment’s free exercise clause, not in parental rights.

Walton said courts will likely continue relying on religious rights instead of parental rights when parents’ legal challenges are religiously based, as courts have a well-developed body of case law and a clear test for deciding when the right has been violated.

But that will leave out some parental rights cases. In Indiana, Whitley County school officials barred Nicole Graves from communicating with teachers or other school officials about her daughter. Graves legally recorded a meeting with the school principal over her seventh grade daughter’s complaint that a bus driver removed his belt and walked up and down the bus aisle, slapping the belt against his hand in a threatening manner.

In her lawsuit, Goldwater Institute attorney Adam Shelton contends that the school’s no-recording policy violates both free speech and parental rights. He told WORLD that individuals have a general right to record government officials when they are in public and on the job—provided the people recording are not being disruptive.

“She just recorded the meeting on her phone, and then afterwards posted it online, because … she wanted to make sure that the public knew what was going on in the school district,” said Shelton. “The parent-child relationship is a fundamental relationship [that] stands on its own as its own right but also … [makes] the First Amendment right in this case even more important,” he emphasized.

Case law emphasizes that the standard for parental rights is that the government can’t harm the relationship between parents and children, said Ilya Shapiro, the director of constitutional studies at the Manhattan Institute. But the previous Supreme Court decisions lack a clear definition of harm.

“It’s never been spelled out, even though parental rights have always been strongly felt,” Shapiro said. “I think the Court needs to underline the long tradition of very strong parental rights that the government authorities can’t override unless there’s this very compelling interest.”

Earlier this year, Republicans introduced a bill to protect parental rights in both the U.S. House of Representatives and U.S. Senate. While the Families’ Rights and Responsibilities Act remains mired in committees, where other attempts died, many states aren’t waiting around.

Sixteen states—including Texas and Florida—have enacted strong protection for parental rights, reports the Parental Rights Foundation. In 2025, Texas voters also amended the state constitution to recognize that parents have the right to “make decisions concerning the child’s upbringing.” Opponents of the amendment argued it invalidated child abuse laws by making parental rights unlimited.

Many other states have only partial protection. Fourteen—including New York and California—and the District of Columbia have little to no clear protection, according to the foundation.

Serena Wailes said she wants parents to know they can fight for clear rights to protect their children’s upbringing.

“It’s hard. Parents are busy these days, and I think that’s why the school districts have been able to take some of this and hide it from us,” Wailes said. “But now it’s time to take it back. They’re not the ones in charge of our kids.”