“Keep these words that I am commanding you today in your heart,” Moses said of God’s law, and “[r]ecite them to your children and talk about them when you are at home and when you are away, when you lie down and when you rise.”1 This teaching is “for our lasting good, so as to keep us alive,” and “[i]f we diligently observe” it, “we will be in the right.”2 “Train children in the right way,” Solomon later echoed, “and when old, they will not stray.”3 These words from the Jewish and Christian traditions reflect a common understanding among religious believers about the most fundamental purposes of education. Education has many functions, all would agree. It prepares children to live with others in society, succeed in the economy, and govern together in a shared polity, as today’s scholars frequently emphasize. It also enables children to develop into independent adults capable of making their own decisions and taking responsibility for their own lives, others highlight. Its content has inherent value, increasing human understanding, developing human excellences, and driving human progress, others observe. From a religious perspective, however, the purposes of education go deeper and require more. Human flourishing has moral and spiritual components, and to teach a child well requires a broader perspective that embraces the full range of human goods. Education is, moreover, formative. It initiates each new generation into traditions of thought and practice that carry insights about right living, truths about human nature and ends, and the promise of connection to the divine source of all of these. Indeed, life itself, in all of its dimensions, depends upon these insights and connections, and parents bear the primary responsibility to ensure the transmission of this wisdom.
For a century American constitutional law has recognized robust parental rights to direct the education and upbringing of their children, especially their religious education, but this framework has come under deepening attack. Scholars have argued that the requirements of civic education in a democracy place significant restrictions on these rights when parents make educational
In this chapter, I engage some of these critiques in light of John Witte’s important historical work on the family in Western thought. The family, Witte has argued, can be conceived of as a multidimensional sphere, with natural goods and functions at one pole; social, economic, communicative, and contractual dimensions in the middle; and spiritual aspirations and ideals at the other pole, binding the rest together.4 Children’s interests and rights have had an important place in Western constructions of the family sphere, as have civic concerns, but these have also been integrated with other important concepts. These include parental duties that complement parental rights, and reciprocal rights and duties of children. Likewise, the health of human society depends upon the protection of the family and its mutually supportive relationships from state encroachment, even as families also depend upon the aid of other institutions, including both church and state.
Critics of America’s constitutional framework frequently argue that expansive parental rights subsume children, hiding their needs and interests in a mythical private family unit and turning them into instruments of parental desires and objectives. They view their work as recovering the child and their rights. Witte’s scholarship affirms the importance of children’s rights, but it uncovers much more nuance from the Western tradition. Parents and children share interlocking rights and duties, and they form parts of multiple communities that must respect human autonomy while also making room for the capacity and desire of human persons to seek the truth, live rightly, and reach for the source of these human goods. There must be limits on parental rights where they compromise essential needs of children and vital interests
1 Parental Rights under Current Constitutional Law
A century ago, in Meyer v. Nebraska, the Supreme Court recognized a constitutional right of parents to direct the education of their children and tied this right to a “corresponding” “natural duty.”5 The Meyer Court struck down a state law that prohibited the teaching of foreign languages to children in schools before they had graduated from the eighth grade. The Court recognized that the state may “do much” to promote the intellectual, moral, and civic education of children, including adopting reasonable regulations for all schools,6 but this law was “arbitrary and without reasonable relation” to any legitimate goals.7 Education in a foreign language is not harmful to children, and the state had other ways to promote the assimilation of immigrants into American society.8 The Court contrasted the Constitution’s protection for parental rights to Plato’s ideal commonwealth, where children were held in common to “submerge the individual and develop ideal citizens.”9 Two years later, in Pierce v. Society of Sisters, the Court struck down a state law requiring all students between the ages of eight and sixteen to attend a public school.10 The Court repeated that parents have a constitutional right “to direct the upbringing and education of children under their control,”11 and while the state may reasonably regulate all schools,12 it may not seek to “standardize its children by forcing them to accept instruction from public teachers only.”13 “The child is not the mere creature of the State,” the Court said famously, and “those who nurture him and direct his
Almost fifty years later, in Wisconsin v. Yoder,15 the Court drew on Pierce to articulate especially strong protections where state regulation would interfere with the religious upbringing and education of children. Pierce “stands as a charter of the rights of parents to direct the religious upbringing of their children,” the Court stated.16 The Constitution protects the “primary role of the parents in the upbringing of their children,”17 and “when the interests of parenthood” are combined with a burden on religious exercise, more than a reasonable exercise of state power is required to justify state interference.18 Heightened scrutiny applies instead, and the state must show that its restrictions are necessary to achieve “interests of the highest order.”19 The Yoder Court held that Wisconsin may not require Amish parents to send their children to school beyond the eighth grade. The Amish have their own traditions for preparing adolescents for the community’s simple life of farming and related work,20 and replacing two years of high school with this informal vocational education would not endanger the physical or mental health of Amish children,21 threaten the public peace, safety, or order,22 impede the ability of Amish youth to develop into responsible democratic citizens,23 or prevent them from becoming self-reliant members of society, even if they choose to leave the Amish community in the future.24 On the other hand, forcing Amish children to attend high school would undermine their integration into the Amish community and expose them to competing “worldly influences,”25 with the effect of “influenc[ing], if not determin[ing], the[ir] religious future”26 and potentially destroying the community’s way of life.27
In each of these cases, the Court tied parental rights to direct the education of children to corresponding duties. Yoder echoed Pierce that parents have “the right, coupled with the high duty, to recognize and prepare [children] for additional obligations.”35 In additional cases addressing parental rights more broadly, the Court has repeated time and again that “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”36 The Court in Yoder recognized that these additional obligations “must … include the inculcation of moral standards[] [and] religious beliefs,”37 and the heightened protection it afforded for religious education reflects the value that the First Amendment places on religious pursuits.
2
While the Court has consistently upheld strong protections for parental rights, particularly where the religious upbringing and education of children is involved, scholarly attacks on the Court’s precedents have increased and deepened. While these attacks are varied, a number of common critiques have emerged. Some of these would entail the dramatic curtailment of parental rights or even their abandonment altogether.
One long-running critique focuses on the state’s interest in civic education. The Court’s decisions have consistently left room for governments to require at least a minimum of civic education for all children. The state may “do much” to “improve the quality of its citizens,” the Court stated in Meyer,47 and in Pierce, the Court allowed for reasonable regulation of all schools, including requiring “studies plainly essential to good citizenship.”48 While the Free Exercise Clause may limit the state’s regulatory reach when religious education is involved, the Yoder Court recognized that states have pressing interests in preparing students to be responsible, law-abiding and self-sufficient adults capable of participating effectively in democratic self-government.49 According to the Court, the objection of Amish parents to formal schooling after the eighth grade did not endanger these interests: “[t]he independence and successful social functioning of the Amish community” has a track record in the United States of more than two centuries, the Court observed.50
Scholars who have emphasized the importance of civic education in a democracy have disagreed about how extensive this education must be and what it entails. For some scholars, the self-sufficiency, respect for the law, and willingness to coexist peacefully with others that the Amish demonstrated is enough.51 However, other scholars would require more than what the Yoder Court envisioned. Citizenship in a liberal democracy requires toleration, mutual respect, and the ability to deliberate thoughtfully about public affairs, they argue, and cultivating these virtues in each new generation is not possible
A variation on this child-centered perspective emphasizes the interest of children in exercising their agency in the present. Even while they are still dependent on adults, children have a growing capacity for expressing their own ideas, developing their own values and identities, and engaging with the
Those who emphasize the autonomy and agency interests of children tend to be the strongest critics of robust parental rights. Today’s constitutional framework instrumentalizes children and treats them like a form of property that parents have a right to control and use for their own purposes, including their own religious purposes, a number of scholars have argued.75 The Court’s decisions in Meyer and Pierce and the framework built upon them have roots in a patriarchal property-based understanding of the parent-child relationship that couples autonomy rights of adults with possession of children.76 Scholars
3 What These Critiques Uncover and What They Miss
In his scholarship on the family, Witte develops a model of the family as a multidimensional sphere or globe with natural, social, economic, communicative, contractual, and spiritual dimensions.84 The relationship between parents and children spans these dimensions, and like other aspects of the family, it
At the bottom of the family sphere, Witte explains, is the natural pole that anchors the family in the natural goods of family life as well as the natural inclinations, instincts, and affections that underlie the family form.89 These natural inclinations include the strong natural attachments and affections of parents for their children that the Court has cited as a basis for recognizing the primary role of parents in the upbringing of their children. The natural pole also includes the natural law reasoning that Western theorists have long used to develop ideals and rules for the family based on human nature, conscience, experience, rational reflection, custom, and tradition.90 Children are born fragile and dependent, and the parents who have given them life and have a natural affection for them have duties to care for them, assist their growth and development over time, and prepare them for independent lives as adults.91 These parental duties give rise to parental rights, the Western tradition has long taught,92 and beginning in the Middle Ages, the church also recognized children’s rights corresponding to the duties held by parents and, in their absence,
Critics of the Court’s protections for parental rights generally envision these rights as autonomy rights that serve the interests of parents but often only incidentally the interests of their children.100 Religious education, in particular, becomes an exercise or expression of the parents’ faith and, as such, something that can come at the expense of children who may have different views or no opportunities to develop their own. For many critics, natural attachments also become suspect. The intuition that our children belong to us or are, in some way, an extension of ourselves is fundamentally egotistical.101 Children are treated like property and instrumentalized for their parents’ own purposes.
A property-based view of parental rights also misses the context of these rights in a larger constellation of parental duties and children’s rights. The Court has never envisioned parental rights in isolation. In Meyer, Pierce, and Yoder and numerous other cases, the Court has tied parental freedoms to parental responsibilities. Parents have duties that match their natural affections, and their love and care for their children lead them to understand their children and their needs best. Parents are not perfect and will often fall short of their best intentions, and multiple supportive institutions have long played an assisting role in child-rearing. However, it is too simplistic to see parental rights as ownership rights, and foolish to minimize the value of parents’ strong interests in their children. It is also too simplistic to see parental rights as a form of coverture that silences the voices of children and subsumes them into the mythical private family unit. Parental rights correspond to parental duties to help children develop their own voices over time and to grow into independent and responsible adults. Very few parents want slavish children or stunted adults. Indeed, parents are usually best positioned to defend their child’s voice when others, including well-meaning bureaucracies, cannot hear it. The privacy that the law affords families is designed to strengthen the ability
Critics of strong parental rights also often reject the idea of natural law and natural rights. The claim that parental rights have a basis in natural rights is just a naked assertion, a form of fiat without justification, some have suggested.106 The Court’s rules do not correspond to anything essential about the world or human realities, others have argued.107 They are just the creations of positive law. However, these dismissals are again too facile. The Court’s embrace of parental rights and the related natural rights tradition draws upon centuries of reasoning about human nature and experience, and the Court’s opinions participate in this reasoning and extend it. Critics are correct that Western history also includes the concepts of patriarchy and coverture, but Witte argues convincingly that these concepts “obscured the[] ideals” of Western teaching rather than represented them.108 Reciprocal rights and duties between parents and children is a very different concept than paternal ownership and dominion. Authority is for the benefit of the child, not at their expense.
Of course, the law must not ignore the imperfections of parents and their more serious failures, and it never has. As Witte explains, the social dimension of the family includes the many institutions that have long supported the family and stepped in where parents abandon, neglect, or abuse their children.109 The family is both multidimensional and multi-institutional.110 Religious communities have long played this supportive role, including through the operation of religious schools and other programs designed to benefit children and the family more broadly.111 So have other voluntary associations and charities, neighborhoods and informal social networks, and professions of many kinds.112 The state also has a vital role, but Witte cautions that its role must be to aid parents and other institutions, not supplant them.113 The state cannot replace parental love and the unique perspectives that parents have about
The strongest critics of expansive parental rights tend to pit the interests of parents and children against one another and assume that the state will often be the better judge of what is best for the child. The state becomes the guarantor of the child’s future autonomy and the protector of the child’s present agency, voice, and diverse interests and values. Disputes between parents and children become battles where parents naturally, but problematically, seek to align their children’s views with their own, while children seek to define their own lives. But this is a caricature. Parents are not so inclined to stifle their children’s individuality that they cannot be trusted with broad authority over their children’s education and upbringing. Most parents listen to their children’s developing voices and perspectives, although, as the Court has recognized, generally “parents possess what a child lacks in maturity, experience, and capacity for judgment.”115 Critics are particularly troubled by the decisions of conservative religious parents to seek educational environments that limit their children’s exposure to conflicting value systems in order to ensure that they remain within the parents’ faith communities. Of course, these parents do not necessarily seek to control other aspects of their children’s lives or developing interests, but there is also little risk that they will be able to fully seal their children’s religious world off from the larger culture, unless they also imprison them within the home (and take away their electronics). Children will see and meet others in a variety of contexts, including in the marketplace and on the playground. There is also no danger that parents can prevent adolescents from questioning their beliefs and values, or from leaving the community when they become adults. On the other hand, if parents are prevented from educating their children in tight-knit, cohesive religious settings, the thick normative worlds that open up to children in these contexts may no longer be an option for them to consider. As the Court noted in Yoder, requiring Amish children to attend high school “influence[s], if not determine[s], the religious future of the child”116 and, indeed, the options available for others to consider. Moreover, deep grounding in a particular belief system may enhance the depth of later engagement with other ideas and open up lines of thought one might not otherwise develop.
These scholars also miss the connection between strong family relationships of trust and mutual support and the civic interests that they value. The family benefits from state support, but stable, flourishing families are also essential to the health of societies. The family is “the foundation of society,” “a kind of school of deeper humanity,” the Catholic Church has taught, as Witte has observed.120 For early modern Protestants, Enlightenment theorists, and common law jurists alike, Witte explains, the family was “the first school of love and justice, nurture and education, charity and citizenship, discipline and production.”121 Protecting the privacy of the family and minimizing intrusions into its relationships is designed, in part, to strengthen the bonds of care and trust that nourish not only the child but also the society more broadly. Scholars who argue that parental rights must yield to hefty demands of civic education often fail to consider the ways in which these demands might erode as well as advance civic interests. Indeed, significant intrusion into the educational choices of parents, especially when religious interests are impinged, is likely to generate civic distrust and undermine civic stability rather than strengthen tolerance and mutual respect.
It is, however, the spiritual dimension of the family that critics of expansive parental rights both miss and misunderstand the most. Descriptions of parental rights as liberty interests that pose potential risks to the state and
Thus, the religious beliefs of parents and children alike are more than simply personal preferences or choices. They reflect the capacity and desire of humans to seek the truth, live rightly, and reach for the divine source of all human goods. It is natural for parents to want to pass on what they understand about these matters to their children and to view this education as among the most important of their children’s present and future interests. Critics of expansive parental rights seek to highlight and elevate the interests of children, but this spiritual interest is often missing and, with it, the value of religious education. Of course, not everyone has religious beliefs or assigns value to religious education, but the First Amendment protects the views and practices of those who do and the many different paths they choose.
4 The Multi-institutional Family
As with all rights, there must be limits on parental rights. Parents should be given the primary responsibility for the care and education of their children, but their authority cannot be absolute. These limits, however, must be
Certainly parents must not be allowed to abuse or neglect their children.132 Some critics of homeschooling have argued that homeschooling has been used as a haven for parents who neglect or abuse their children, and there is evidence that this occurs.133 However, the extensive restrictions or prohibitions that some have advocated are not necessary to address this problem. More narrowly tailored rules directed at known or suspected abusers can protect children’s interests while respecting the desire of many parents to homeschool. Where homeschooling is a religious choice as it often is, sweeping restrictions also do not respect the free-exercise concerns at stake. Where general parental rights are combined with an infringement on religious exercise, the Yoder Court made clear that heightened scrutiny applies.134 While the Court no longer applies strict scrutiny whenever the government substantially burdens religious exercise, as it once did, it has reaffirmed its decision in Yoder.135 Protecting children from abuse and neglect is surely a compelling state interest, but the government must show a tight connection between this objective and its rules. A ban or extensive restrictions would not even pass a much lower standard of review.
The Court has also recognized that governments can act to ensure that the educational choices of parents provide children with basic knowledge and skills and sufficient training to prepare them to function as independent, self-sufficient adults capable of engaging effectively in democratic self-government.136 These requirements might include, for example, studies on U.S. history and government.137 However, the hefty requirements for civic education that many scholars propose go beyond what is necessary to meet these basic goals. Exposure to and consideration of alternative belief systems in a school setting is not necessary to cultivate tolerance and mutual respect for one’s fellow citizens or to exercise political judgment in a democratic polity. America’s experience before the advent of compulsory education belies these
Limits would also be appropriate where the educational choices of parents truly risk stunting their children’s intellectual or emotional development so that their ability to make their own independent decisions as adults is compromised. A commitment to religious freedom means protecting the right of all citizens to make their own religious decisions, and the Yoder Court has also appropriately allowed for state intervention to protect the physical and mental health of children.138 However, critics overstate the risks associated with the separatist choices of America’s religious conservatives. Homeschooled children are not generally sealed off from the larger world. They go to churches and stores, and they encounter other children on playgrounds, sports teams, and other clubs and extracurricular activities. Likewise, Amish children are not unaware of different ways of life in the world around them. It is possible to imagine forms of education that would stunt the normal development of children, or parents who would try to lock their children away from the modern world altogether. However, broad prohibitions or restrictions based on sweeping assumptions without specific evidence of an actual problem are not justified. Broad restrictions would also require more than the assumption made by some scholars that homeschooling parents will not abide by less restrictive rules.139 Proposals for presumptive bans on homeschooling that would make exceptions for secular but not religious needs are especially problematic because they would discriminate against religion in violation of the Free Exercise Clause.140
While critics of strong parental rights often highlight what they believe to be the most egregious forms of parental misconduct, they also describe many lesser shortcomings, including a number that most parents will recognize in themselves. Parents want what is best for their children, but they act with imperfect information. They are tempted to assume that their desires match their children’s needs even if they do not, and while they usually listen to their children’s voices, they may have trouble fully understanding what they have to say. They also face challenges that confound us all, even experts they may go to for help and guidance. None of this means that courts should abandon the presumption that parents act in the best interests of their children or that governments should substitute their own judgments for those of parents. Nor does this mean that governments should intervene to give effect to the child’s voice when children disagree with parents who are well-intentioned and doing their best to act in their children’s interests. State actors are imperfect too, and generally they do not love and know the child as well.
However, the imperfections of both parents and state authorities alike do mean that there is great benefit from cooperative relationships that combine the unique concern and perspectives of parents with the resources and expertise that governmental officials can offer. As Witte observes, parents already benefit from the support of many different types of formal and informal associations and relationships, including religious communities, neighborhoods, civic groups, and professionals of all sorts. Governments, in particular, play a substantial role in supporting the educational responsibilities of parents, including through the operation of public schools and the provision of
As America’s culture wars grind on, it can seem like productive partnerships are unrealistic. In the public-school setting, school officials and parents have increasingly battled over issues like racial justice and the treatment of children exploring their sexual orientations and gender identities. There is also significant suspicion among outsiders about the agendas and educational adequacy of the private educational choices of America’s most conservative religious communities. In return, these groups are naturally suspicious of government intervention. However, most parents and educational officials still share important basic norms, including the value of each child and their educational development and emotional health. Productive partnerships can start with shared concerns and transparent efforts to provide parents with information and resources that may be of benefit to them and their children. Parents should be free to act upon this information as they see best. Combining the expertise of state actors with the unique experience of parents in a way that respects America’s different faith traditions will lead to better outcomes for children. It also leaves room for our knowledge about what is beneficial for children to grow and develop. Additionally, truly cooperative partnerships can help to diffuse tensions over time and make it possible to address challenges that involve deeply divisive issues.
In the context of homeschooling, in particular, there is significant room for partnerships that would advance the interests of children, address many of the concerns of critics, and respect the concerns of parents. Critics argue that homeschooled children are isolated socially and intellectually, cut off from other children and ways of life. In reality, most homeschooled children meet other children in a variety of contexts, such as at church, in homeschooling
5 Conclusion
Critics of robust constitutional protections for parental rights often pit these rights against the interests and rights of children and the demands of liberal democracy. Parental rights certainly have limits, but critics tend to overlook the many ways that they complement and vindicate the rights of children and strengthen the larger civic community. Both parental rights and children’s rights have been essential features of Western constructions of the family, Witte has argued, and they are related. So have mutually supportive relationships between families and the communities and institutions around them. The greatest promise for improving the lives and education of children involves the cooperation of all these entities in ways that recognize the primary role of parents in raising their children, the inherent pluralism of free societies, and the expertise that state officials and other professionals can offer.
Deuteronomy 6:6–7 (New Revised Standard Version).
Deuteronomy 6:24–25.
Proverbs 22:6.
John Witte, Jr., Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties (Cambridge: Cambridge University Press, 2019), 14–15, 186.
262 U.S. 390, 400 (1923).
Ibid., 401–02.
Ibid., 403.
Ibid.
Ibid., 402.
268 U.S. 510, 530, 536 (1925).
Ibid., 534–35.
Ibid., 534.
Ibid., 535.
Ibid.
406 U.S. 205 (1972).
Ibid., 233.
Ibid., 232.
Ibid., 233.
Ibid., 215.
Ibid., 211–12, 222–24.
Ibid., 230.
Ibid.
Ibid., 221–27.
Ibid., 221–25.
Ibid., 210–12, 217–18.
Ibid., 232.
Ibid., 218–19.
Ibid., 242, 244–46 (Douglas, J., dissenting).
Ibid., 231 (majority opinion).
Ibid.
Ibid., 245–46 (Douglas, J., dissenting).
Ibid., 240 (White, J., with Brennan and Stewart, J.J, concurring).
Ibid., 226 (majority opinion).
Ibid., 223–24.
Ibid., 233 (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925)).
Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (plurality opinion) (quoting Prince); Bellotti v. Baird, 443 U.S. 622, 638 (1979) (quoting Prince); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (quoting Prince); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (quoting Prince); Ginsberg v. New York, 390 U.S. 629, 639 (1968) (quoting Prince).
Yoder, 406 U.S. at 233.
Ibid., 231–32.
Parham v. J.R., 442 U.S. 584, 602 (1979). The Court cited, in support, William Blackstone’s Commentaries on the Laws of England and James Kent’s Commentaries on American Law. See also Troxel, 530 U.S., 68 (quoting Parham).
Parham, 442 U.S., 602; Troxel, 530 U.S., 68 (quoting Parham).
Parham, 442 U.S., 604; Troxel, 530 U.S., 68.
Parham, 442 U.S., 602–03.
Ibid., 606–07. The Court has also struck down notice and consent rules unduly burdening a minor’s then-protected right to an abortion. See Bellotti v. Baird, 443 U.S. 622 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
See Bellotti, 443 U.S., 638–39.
Parham, 442 U.S., 602.
Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Troxel, 530 U.S., 68–69 (stating that “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”).
Meyer v. Nebraska, 262 U.S. 390, 401 (1923).
Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925).
Wisconsin v. Yoder, 406 U.S. 205, 221–27 (1972).
Ibid., 226–27.
See William Galston, “Civic Education in the Liberal State,” in Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Cambridge, MA: Harvard University Press, 1989), 89, 98–99.
Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, MA: Harvard University Press, 2000), 160, 201; Amy Gutmann, “Civic Education and Social Diversity,” Ethics 105 (1995): 557–79, at 561; see also Martha Albertson Fineman and George Shepherd, “Homeschooling: Choosing Parental Rights Over Children’s Interests,” University of Baltimore Law Review 46 (2016): 57–106, at 74.
Macedo, Diversity and Distrust, 239–40; Gutmann, “Civic Education and Social Diversity,” 573–74, 575, 578; see also Amy Gutmann, Democratic Education (Princeton: Princeton University Press, 1987), 39–40, 44.
Macedo, Diversity and Distrust, 11, 169–72; Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 55–57. This is the requirement of public reason articulated most famously by John Rawls. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 212–54; id., Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 89–94; and id., “The Idea of Public Reason Revisited,” University of Chicago Law Review 64 (1997): 765–807. For Rawls, this requirement applies only to public debate and decision-making about constitutional essentials and matters of basic justice, but for others, the demands of public reason extend to public debate and decision-making more broadly.
Macedo, Diversity and Distrust, 208; Stephen Macedo, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?,” Ethics 105 (1995): 468–96, at 488; and Gutmann, “Civic Education and Social Diversity,” 570.
Fineman and Shepherd, “Homeschooling: Choosing Parental Rights Over Children’s Interests,” 98.
Macedo, Diversity and Distrust, 201–02; and Gutmann, “Civic Education and Social Diversity,” 571–72.
Macedo, Diversity and Distrust, 101, 237, 241–42, 244–45; Gutmann, Democratic Education, 43; and Gutmann, “Civic Education and Social Diversity,” 575.
Macedo, Diversity and Distrust, 244; Gutmann, “Civic Education and Social Diversity,” 575; see also Fineman and Shepherd, “Homeschooling,” 106 (arguing for the prohibition of homeschooling, which pits parental “expressive” rights against the interests of both children and the state).
Elizabeth Bartholet, “Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection,” Arizona Law Review 62 (2020): 1–80, at 6, 57; and James G. Dwyer, “The Liberal State’s Response to Religious Visions of Education,” Journal of Catholic Legal Studies 44 (2005): 195–231, at 211–12.
Bartholet, “Homeschooling,” 6, 57; Dwyer, “The Liberal State’s Response,” 212; see also Fineman and Shepherd, “Homeschooling,” 98 (arguing for a prohibition on homeschooling because children need exposure to alternate views so that they have “the ability as adults to assess and eventually choose for themselves among competing values”).
Bartholet, “Homeschooling,” 3–4, 14, 57; and Fineman and Shepherd, “Homeschooling,” 63.
James G. Dwyer, “Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights,” California Law Review 82 (1994): 1371–1447, at 1386; and Fineman and Shepherd, “Homeschooling,” 91.
Bartholet, “Homeschooling,” 6; and Fineman and Shepherd, “Homeschooling,” 98, 106.
Bartholet, “Homeschooling,” 78; James G. Dwyer, “Changing the Conversation about Children’s Education,” in Moral and Political Education: Nomos XLIII, ed. Stephen Macedo and Yael Tamir (New York: New York University Press, 2002), 314–56, at 336.
Bartholet, “Homeschooling,” 58, 80; see also Dwyer, “Parents’ Religion and Children’s Welfare,” 1374–77.
Barbara Bennett Woodhouse, Hidden in Plain Sight: The Tragedy of Children’s Rights from Ben Franklin to Lionel Tate (Princeton: Princeton University Press, 2008), 35–36; Anne C. Dailey and Laura A. Rosenbury, “The New Law of the Child,” Yale Law Journal 127 (2018): 1448–1537, at 1451; and Anne C. Dailey and Laura A. Rosenbury, “The New Parental Rights,” Duke Law Journal 71 (2021): 75–165, at 100–01.
Dailey and Rosenbury, “New Law of the Child,” 1451, 1493.
Woodhouse, Hidden in Plain Sight, 40–41; Samantha Godwin, “Against Parental Rights,” Columbia Human Rights Law Review 47 (2015): 1–83, at 36, 39, 52–53; see also Dailey and Rosenbury, “New Law of the Child,” 1451–52 (stating that “[o]ur approach takes seriously the idea of children as individuals in their own right, worthy of respect, even as they are dependent in varying ways upon the adults in their lives”).
Barbara Bennett Woodhouse, “Speaking Truth to Power: Challenging ‘The Power of Parents to Control the Education of their Own,’” Cornell Journal of Law and Public Policy 11 (2002): 481–501, at 488, 501; see also Woodhouse, Hidden in Plain Sight, 38.
Godwin, “Against Parental Rights,” 49–50.
Dailey and Rosenbury, “New Law of the Child,” 1453, 1522–23; and Dailey and Rosenbury, “New Parental Rights,” 128–35.
Dailey and Rosenbury, “New Law of the Child,” 1522.
Ibid., 1495–96.
Dwyer, “Parents’ Religion and Children’s Welfare,” 1405; Godwin, “Against Parental Rights,” 30, 38; Barbara Bennett Woodhouse, “‘Who Owns the Child?’: Meyer and Pierce and the Child as Property,” William & Mary Law Review 33 (1992): 995–1122, at 1114–15.
Woodhouse, “‘Who Owns the Child?,’” 997, 113–15; see also Barbara Bennett Woodhouse, “Hatching the Egg: A Child-Centered Perspective on Parents’ Rights,” Cardozo Law Review 14 (1993): 1747–1865, at 1809 (describing a “legal tradition of possessive individualism” that treats the child as a possession under parental control).
Dailey and Rosenbury, “New Parental Rights,” 90–96.
See Dwyer, “Changing the Conversation about Children’s Education,” 327, 329; and Dailey and Rosenbury, “New Parental Rights,” 77.
Bartholet, “Homeschooling,” 57; and Dailey and Rosenbury, “New Law of the Child,” 1452.
Barbara Bennett Woodhouse, “A Public Role in the Private Family: The Parental Rights and Responsibilities Act and the Politics of Child Protection and Education,” Ohio State Law Journal 57 (1996): 393–430, at 394–95; see also Godwin, “Against Parental Rights,” 82.
Dailey and Rosenbury, “New Parental Rights,” 85.
Barbara Bennett Woodhouse, “The Dark Side of Family Privacy,” George Washington Law Review 67 (1999): 1247–62, at 1256.
Dwyer, “Parents’ Religion and Children’s Welfare,” 1374.
Witte, Church, State, and Family, 14–15, 186.
Ibid., 9, 198–200, 226.
Witte defends the idea of children’s rights against conservative religious critics in chapter 8 of Church, State, and Family.
Ibid., 256–66.
The discussion below touches on just a few of these connections.
Witte, Church, State, and Family, 14, 186.
Ibid., 189, 196.
Ibid., 4–7.
Ibid., 44, 64–69, 220, 259–61.
Ibid., 220, 259–61.
Ibid., 6–7.
Ibid., 7, 261–65, and chap. 6.
Ibid., 261–66.
Ibid., 220–21, 265–66.
Ibid.
Ibid., 9, 14, 198–99, 220, 260–61, 354–55, 356–57.
Anne Dailey and Laura Rosenbury have put this point starkly: “Although parental rights may indirectly further children’s interests, they are a circuitous and unreliable means of doing so. Parental rights construct children predominantly as objects of control, rather than as people with values and interests of their own.” Dailey and Rosenbury, “New Law of the Child,” 1471.
See Dwyer, “Changing the Conversation about Children’s Education,” 325–27; and Godwin, “Against Parental Rights,” 30–31, 48–49.
Witte, Church, State, and Family, 55 (discussing the work of Aquinas).
Woodhouse, “‘Who Owns the Child?,’” 1102, quoting the brief written by William Dameron Guthrie. Guthrie also wrote an influential amicus brief in Meyer v. Nebraska, 262 U.S. 390 (1923). Ibid., 1077–79.
Ibid., 1102.
Ibid., 1103.
Dwyer, “The Liberal State’s Response to Religious Visions of Education,” 219; see also Fineman and Shepherd, “Homeschooling,” 91–92.
Dailey and Rosenbury, “New Law of the Child,” 1467, 1474; and Dailey and Rosenbury, “New Parental Rights,” 106.
Witte, Church, State, and Family, 371.
Ibid., 9, 14, 198–99, 220, 260–61, 354–55, 356–57.
Ibid., 9, 198–200, 226.
Ibid., 354–55.
Ibid., 9, 14–15, 197–200, 356–57.
Ibid., 356–57, 369.
Ibid., 358, 365.
Parham v. J.R., 442 U.S. 584, 602 (1979); and Troxel v. Granville, 530 U.S. 57, 68 (2000) (quoting Parham).
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
Witte, Church, State, and Family, 214–15.
Ibid., 14, 186.
This includes some of the strongest critics of expansive parental rights. See Dailey and Rosenbury, “New Parental Rights,” 81, 112–13; and Godwin, “Against Parental Rights,” 56–57.
Second Vatican Council, Gaudium et Spes: Pastoral Constitution on the Church in the Modern World (1965), sec. 52, discussed in Witte, Church, State, and Family, 224–25.
Witte, Church, State, and Family, 368.
Dailey and Rosenbury, “New Parental Rights,” 101.
Deuteronomy 6:24–25.
Malachi 2:15.
Ibid.
Witte, Church, State, and Family, 231.
Ibid., 258–59 (discussing Aquinas’s teaching and glossing Matthew 7:9–12).
Wisconsin v. Yoder, 406 U.S. 205, 233–34 (1972).
Bartholet, “Homeschooling,” 5; Dwyer, “Parents’ Religion and Children’s Welfare,” 1445; Martha L. A. Fineman, “Taking Children’s Interests Seriously,” in Child, Family, and State: Nomos XLIV, ed. Stephen Macedo and Iris Marion Young (New York: New York University Press, 2003), 234–242, at 240.
The recognition of homeschooling in most states is a relatively recent phenomenon, and the number of homeschooling families has grown dramatically in recent decades. See Bartholet, “Homeschooling,” 8–9, 37–38. See, generally, James G. Dwyer and Shawn F. Peters, Homeschooling: The History and Philosophy of a Controversial Practice (Chicago: University of Chicago Press, 2019).
Woodhouse, “‘Who Owns the Child?,’” 1102 (quoting William Dameron Guthrie’s brief for the Society of Sisters in Pierce v. Society of Sisters, 268 U.S. 510, 530 (1925)).
See Parham v. J.R., 442 U.S. 584, 602 (1979).
Bartholet, “Homeschooling,” 14–20; see also Woodhouse, “Speaking Truth to Power,” 488–90 (giving a deeply troubling example).
Wisconsin v. Yoder, 406 U.S. 205, 215, 233–34 (1972). See discussion supra notes 17–19 and accompanying text.
Employment Div. v. Smith, 494 U.S. 872, 881 (1990).
See discussion supra notes 6, 12, 21–24, 48 and accompanying text.
See supra note 48 and accompanying text.
See supra note 21 and accompanying text.
Bartholet, “Homeschooling,” 73–74; see also Fineman and Shepherd, “Homeschooling,” 98–99 (arguing that impracticable monitoring by government officials would be necessary to ensure compliance).
For such proposals, see Bartholet, “Homeschooling,” 72–73; Dailey and Rosenbury, “New Parental Rights,” 130. The Court has held that the government violates the Free Exercise Clause where it has established a mechanism for individualized exceptions to a rule but denies a religious exception without justifying its denial as the least restrictive means of achieving a compelling state interest. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877, 1881–82 (2021); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537–38 (1993); Employment Div. v. Smith, 494 U.S. 872, 884 (1990).
Witte, Church, State, and Family, 9, 198.
Beginning in the 1980s, the Court began loosening its Establishment Clause restrictions on aid to religious schools, and now under the Free Exercise Clause the Court is expanding the contexts in which aid must be available on an equal basis with secular schools. For the Court’s most recent decisions, see Carson v. Makin, 142 S. Ct. 1987 (2022) and Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246 (2020).
National Center for Education Statistics, “National Assessment of Educational Progress (NAEP) Long-Term Trend Assessment” (2023).
U.S. Surgeon General’s Advisory, “Social Media and Youth Mental Health” (2023).
Centers for Disease Control and Prevention, “Youth Risk Behavior Survey: Data Summary & Trends Report 2011–2021” (2023).
Macedo, Diversity and Distrust, 157–60, 201–02; Gutmann, “Civic Education and Social Diversity,” 570–72; see also Dailey and Rosenbury, “New Law of the Child,” 1496 (writing critically of laws that allow parents to withdraw their children from classes in sex education).
Wisconsin v. Yoder, 406 U.S. 205, 223–24 (1972).