The Fight for Parental Control of Public Education Continues

As the dust settled from the recent elections in Virginia and elsewhere, it became clear that education was a key issue. Recall elections against incumbent school board members reached record highs in light of parental dissatisfaction. Terry McAuliffe’s statement, “I don’t think parents should be telling schools what they should teach” became a defining moment in his campaign to become the Governor of Virginia. McAuliffe lost that election to Glenn Youngkin, who campaigned on the contrary platform to “put the power back in the hands of parents by providing them with the information they need to make the best decisions for their children.”

Beyond the specifics of what types of things should and should not be taught in public schools, how schools should handle concerns over COVID-19, etc. were much broader questions: Who should make these decisions? How much, if any, weight should public schools give to the voices of parents?

The most recent skirmish in the battle for control of public education brings to mind the admonition from Ecclesiastes that “[w]hat has been will be again, what has been done will be done again; there is nothing new under the sun.” Sixteen years ago, I wrote a law review article that explained that disputes over the purposes and control of the public education system – and significant threats to the right of parents to direct the education of their children – had occurred for centuries and were still ongoing at that time.

From the earliest days of colonial America, parents held near exclusive control over their children’s education and upbringing. While private schools have existed for many centuries, there were virtually no public schools in the United States at the time the Constitution was adopted (nor were there compulsory education laws).

A significant drawback of the colonial era system was the fact that many families lacked sufficient resources to provide their children with an adequate education. In light of this problem, a system of free public education became widespread by the 1820s and 1830s. Eventually, states enacted compulsory education laws that required parents to either send their children to a public school or provide for an alternate means of education, such as private or home schooling.

Many court decisions issued before World War I emphasized that parents did not forfeit their right to direct their children’s education by choosing to send them to a public school. For instance, the Wisconsin Supreme Court stated in 1874, “We do not really understand that there is any recognized principle of law, nor do we think there is any rule of morals or social usage, which gives the teacher an absolute right to prescribe and dictate what studies a child shall pursue, regardless of the wishes or views of the parent.” The Nebraska Supreme Court similarly stated in 1891 that “[t]he right of the parent . . . to determine what studies his child shall pursue, is paramount to that of the trustees or teacher.”

During and after World War I, however, a movement arose to have the government monopolize the educational system in order to effectively indoctrinate children against the perceived evils of the day. Some states banned private and home schooling altogether. In two important decisions, the Supreme Court of the United States rejected this attempt to allow public school administrators and teachers to usurp the right and responsibility of parents to direct a child’s education.

In Meyer v. Nebraska (1923), the Court characterized the parental interest in a child’s education as a “natural duty” and a “right of control.” The Court stated that the kind of standardized, communal raising and educating of children advocated by the Spartans and Plato was unconstitutional and un-American.

Similarly, in Pierce v. Society of Sisters (1925), the Court stated that “parents possess a natural and inherent right to the nurture, control, and tutorship of their offspring, that they may be brought up according to the parents’ conception of what is right and just, decent, and respectable,” which is “primordial and long-established.” The Court declared that “[t]he 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.”

The Supreme Court has repeatedly affirmed the importance of parental rights over the past century, including in the context of public schools. Nevertheless, as was the case after World War I, there remain those who seek to utilize the public school system as a way to indoctrinate students in a manner that conflicts with the beliefs and values of parents.

The recent elections illustrate that parents are not powerless when they are confronted with school boards or administrators who are not responsive to their concerns, or respectful of their critically important role in their children’s education. As history shows, however, those who support the critically important role that parents play in the public educational system must remain vigilant since the next attempt to usurp parental authority is, sadly, never too far away.

We’re witnessing just such an attempt with the release of a DOJ memo showing that parents are being “threat tag[ged]” for aggressively defending their children at school boards across the country. At the ACLJ, we are currently looking into this issue and are ready to take legal action if necessary to protect the rights of parents.