Who Decides What Students Learn? Examining the Scope of Parental Rights in Public Education

by Sarah Jana, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

On November 2, 2020, then-President Trump signed Executive Order 13958, promising changes to American education and more decision-making power at the local level.¹ “Parents and local school boards,” the order read, “must be empowered to achieve greater choice and variety in curriculum at the State and local levels.”²

This quickly became a rallying cry for parents and conservative activist groups.³ Across the country, local school board meetings have become packed with parents and activists demanding a say in what students learn in school,⁴ particularly as it relates to “divisive” topics involving Critical Race Theory⁵ and the LGBTQ+ community.⁶

This article discusses the scope of parental rights in choosing public school curriculum and argues that those rights are not fundamental.⁷ Part II of this article will outline the history of the Supreme Court’s view of parental rights and a split that has developed in the circuit courts. Part III will then discuss why a narrow view of parental rights is necessary for practical and policy reasons. Part IV will conclude.

II. Background

A. Supreme Court Precedent

The Supreme Court first touched on the topic of parental rights in education in Meyer v. Nebraska.⁸ There, a state law prohibited the instruction of any languages other than English in public schools.⁹ The Court held that the law violated the Due Process Clause of the Fourteenth Amendment because it interfered with parents’ rights to “bring up” their children.¹⁰ Thus, Meyer suggested that parents do have some constitutional rights when it comes to public education.¹¹ Due to the limited nature of the case, however, the full extent of those rights was not discussed.¹²

Two years later, the Court reaffirmed the notion of parental rights in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary.¹³ In that case, a state law required all parents to send their children to public school from ages eight to sixteen.¹⁴ Like Meyer, the Court found the law violated the Fourteenth Amendment and interfered with “the liberty of parents and guardians to direct the upbringing and education of children under their control.”¹⁵ But again, like Meyer, the Court failed to define the parameters of parental rights.¹⁶

Decades later, the Court considered in Wisconsin v. Yoder whether Amish parents have the right to pull their children from school at age sixteen.¹⁷ Again, the Court found that parents had rights under the Fourteenth Amendment to “direct the upbringing and education” of children and held that the parents did have the right to pull their children from public school.¹⁸ Notably, however, the Court focused much of its opinion on the religious beliefs of Amish parents and their rights to free exercise, suggesting that its holding may be limited to parents who assert sincerely held religious beliefs.¹⁹

Finally, in 2000, the Court again addressed the issue of parental rights in Troxel v. Granville.²⁰ Unlike the cases described above, Troxel had nothing to do with schools or education and instead involved a custody dispute.²¹ Still, the Court referred to the Meyer-Pierce-Yoder line of cases in its discussion of parental rights, ultimately affirming the right of the mother in the case.²² Critically, the Court included strong language upholding the rights of parents, declaring: “It cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”²³

Since Troxel, circuit courts have split over how to treat parental rights in public education.²⁴ The following section details how different circuits define the scope of parental rights when it comes to public school curriculum.

B. The Circuit Split

In 1987, the Sixth Circuit became the first to address the issue of parental rights in school curriculum.²⁵ In Mozert v. Hawkins County Board of Education, a group of parents brought suit challenging a school district’s use of a specific series of textbooks.²⁶ The Court found that the curriculum did not interfere with the parents’ constitutional rights, noting parents could “either send their children to church school or private schools . . . or teach them at home” if they found public school curriculum offensive.²⁷

Since Mozert, other courts have followed the Sixth Circuit’s logic and have found that parental rights are not fundamental when it comes to school curriculum.²⁸ At this point, this limited view of parental rights in public school curriculum has also been established in the Second,²⁹ Fourth,³⁰ Ninth,³¹ and Tenth Circuits.³²

The Third Circuit, on the other hand, has taken a different approach.³³ In Gruenke v. Seip, a school guidance counselor and swim coach asked a high school student to take a pregnancy test without the consent of her mother.³⁴ The court held that the school interfered with the mother’s rights, finding that when school policies conflict with parental rights, “the primacy of the parents’ authority must be recognized and should yield only where the school’s action is tied to a compelling interest.”³⁵

Notably, however, Gruenke addressed a pregnancy test—an issue also involving bodily autonomy and privacy—and did not directly discuss how the court would rule on the broader issues related to parental beliefs and school curriculum.³⁶ In C.N. v. Ridgewood Board of Education, for example, the court revisited the issue and found that public schools giving students a survey eliciting personal information did not interfere with parental authority.³⁷ The disparity between these cases leaves as an open question how the Third Circuit would rule in a case directly involving curriculum.³⁸

The next section argues that for both practical and policy reasons, the Sixth Circuit’s approach is the correct one.³⁹ Courts should take a narrow view of parental rights and hold that parents do not have the constitutional right to dictate what children learn in public schools.⁴⁰

III. Discussion

Circuits have come to two conclusions on parental rights in public education.⁴¹ Most have held that parental rights do not extend to choices in school curriculum.⁴² The Third Circuit has suggested a more expansive view, finding that where parental rights and school interests collide, parents should prevail.⁴³ For both practical and policy reasons, courts should follow the majority of circuits and find that parental rights to determine public school curriculum are not fundamental.⁴⁴ Because of the importance of public education to millions of American students, courts should limit the amount of control parents have to determine school curriculum.⁴⁵

First, it is difficult to understand how an expansive view of parental rights in school curriculum would work in the first place.⁴⁶ As the First Circuit pointed out, “If all parents had a fundamental constitutional right to dictate individually what schools teach their children, the school would be forced to cater a curriculum for each student.”⁴⁷ Such considerations would place school officials in the impossible position of balancing the rights of dozens to hundreds of parents—a burden on top of the already difficult job of running a school.⁴⁸

Second, an expansive view of parental rights in school curriculum would ignore the fact that students also have constitutional rights in the classroom.⁴⁹ While the Supreme Court has never directly ruled that education is a fundamental right for students under the Fourteenth Amendment, it has noted that the “right to receive information” is protected by the First Amendment.⁵⁰ The Court has extended this right to public schools, noting that “access [to ideas] prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”⁵¹ In short, students have the right to receive information and ideas in public schools, even if others—including their parents—may disagree.⁵²

Notably, this doesn’t mean that parents have no say in what their children learn.⁵³ Parents remain free to discuss ideas and information with their children in the home environment, including ideas that may conflict with what students learn in school.⁵⁴ Parents have the right to explain to their children why they disagree with specific topics or materials and to raise their children in accordance with their own moral or religious beliefs.⁵⁵ And if parents reach the point where they feel that their moral tensions with the curriculum cannot be resolved, they retain the right to pull their students from public school and educate them at home or at private school.⁵⁶ Nonetheless, what parents do not have the right to do is demand changes to school curriculum in the public schools where they have made the decision to send their children.⁵⁷

Finally, courts should take a narrow view of parental rights in public education for the good of the American democratic system.⁵⁸ The Supreme Court has always found that free speech—including speech that may spread unpopular or controversial ideas—is a vital part of American schools.⁵⁹ Schools are the “marketplace of ideas” where students learn to tolerate differing viewpoints.⁶⁰ Public education is the “very foundation of good citizenship.”⁶¹

To recognize a parental right in public school curriculum would result in an unworkable and undemocratic restriction of ideas.⁶² State and local school boards have an undeniable interest in creating curriculum that will prepare students to be the best participants in society that they can be.⁶³ To allow parents the right to pick and choose what students learn cuts against the very function of public education and democratic society.⁶⁴ As James Madison recognized, “Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”⁶⁵

IV. Conclusion

Overall, while the exact scope of parental rights in determining public school curriculum remains to be seen, courts should take a narrow approach and declare that those rights are not fundamental.⁶⁶ Parents will always have the right to instill moral, religious, and cultural values in their children.⁶⁷ But once parents have made the choice to send their children to public schools, they have forfeited the right to determine exactly what their children will learn.⁶⁸ Public schools exist to prepare students for the future—a future that will undoubtedly include exposure to diverse and controversial ideas.⁶⁹ Allowing parents to demand that certain topics be removed from curriculum or that their child receive a tailored curriculum would contravene the very nature of public education.⁷⁰ For the good of students and the future of our democracy, parents should not have the right to control curriculum in public schools.⁷¹

Cover Photo by Rhondda on Flickr and licensed under CC BY-NC 2.0.

Sarah Jana

Sarah Jana is a 2L at the University of Cincinnati College of Law. Prior to law school, Sarah received her undergraduate degree in Public Affairs from The Ohio State University and a master's degree in Elementary Education from Lesley University. Sarah writes primarily on topics involving education and civil rights law and hopes to work in the public interest field in the future.

References

1
85 Fed. Reg. 70951 (Nov. 2, 2020). This order was later revoked by President Biden on his first day in office. Id.
2
Id.
3
Eric Petterson, The (White) Washing of America History, 17 Fla. A&M U. L. Rev. 1, 11 (2022).
4
See Hannah Natanson, Parent-Activists, Seeking Control Over Education, Are Taking Over School Boards, Wash. Post (Jan. 19, 2022), https://www.washingtonpost.com/education/2022/01/19/parents-school-boards-recall-takeover/ [https://perma.cc/K7FY-78RJ].
5
Critical Race Theory developed as a kind of academic scholarship and teaches that racism is a social construct and must be recognized as normal part of our society. Adrien K. Wing, Is There a Future for Critical Race Theory, 66 J. Legal Educ. 44, 47 (2016).
6
See Stephen Sawchuk, Beyond ‘Don’t Say Gay’: Other States Seek to Limit LGBTQ Youth Teaching, Educ. Week (Apr. 6, 2022), https://www.edweek.org/policy-politics/beyond-dont-say-gay-other-states-seek-to-limit-lgbtq-youth-teaching/2022/04 [https://perma.cc/QA7C-3J8K].
7
See discussion infra Part III.
8
262 U.S. 390 (1923).
9
Id. at 397.
10
Id. at 399.
11
Id.
12
Id. at 402 (“The power of the state to compel attendance at some school and to make reasonable regulations for all schools . . . is not questioned. Nor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy.”).
13
268 U.S. 510 (1925).
14
Id. at 529-30.
15
Id. at 534-35.
16
See id. at 534 (“No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”).
17
406 U.S. 205 (1972).
18
Id. at 232-234.
19
See id. at 239 (White, J., concurring) (stating that Pierce itself “lends no support to the contention that parents may replace state educational requirement with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society”).
20
530 U.S. 57 (2000).
21
Id. at 60-62.
22
Id. at 65-66.
23
Id. at 66.
24
See discussion infra Part II.B.
25
Mozert v. Hawkins Cty Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987).
26
Id. at 1060-63.
27
Id. at 1067. See also Blau v. Ft. Thomas Pub. Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005) (“The critical point is this: While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child.”).
28
See, e.g., Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525, 534 (1st Cir. 1995); Leebaert v. Harrington, 332 F.3d 134, 141 (2d Cir. 2003) (“Meyer, Pierce, and their progeny do not begin to suggest the existence of a fundamental right of every parent to tell a public school what his or her child will and will not be taught.”); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 461-62 (2d Cir. 1996) (finding a school district’s interest in educating its youth outweighed parents’ moral objections to a mandatory community-service program for high school students); Bailey v. Virginia High Sch. League, Inc., 488 Fed. App’x 714, 716 (4th Cir. 2012) (“The [parents’] right to control individual components of their son’s education . . . is not constitutionally protected . . . .”); Fields v. Palmdale Sch. Dist., 447 F.3d 1187, 1191 (9th Cir. 2006) (“[T]he right of parents ‘to control the upbringing of their children’ . . . does not entitle them to prohibit public schools from providing students with information that the schools deem to be educationally appropriate.”); Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699 (10th Cir. 1998) (“The case law in this area establishes that parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject.”).
29
See Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996).
30
See Bailey v. Virginia High Sch. League, Inc., 488 Fed. App’x 714 (4^th Cir. 2012).
31
See Fields v. Palmdale Sch. Dist., 447 F.3d 1187 (9th Cir. 2006).
32
See Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998).
33
Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000).
34
Id. at 295.
35
Id. at 305.
36
C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005).
37
Id. at 185.
38
Ridgewood, 430 F.3d at 159; Gruenke, 225 F.3d at 290.
39
See discussion infra Part III.
40
Id.
41
Compare Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003), Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996), Bailey v. Virginia High Sch. League, Inc., 488 Fed. App’x 714 (4th Cir. 2012), Fields v. Palmdale Sch. Dist., 447 F.3d 1187 (9th Cir. 2006), and Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998) with C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005) and Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000).
42
See Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995); Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996); Bailey v. Virginia High Sch. League, Inc., 488 Fed. App’x 714 (4th Cir. 2012); Fields v. Palmdale Sch. Dist., 447 F.3d 1187 (9th Cir. 2006); Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998).
43
See Gruenke, 225 F.3d at 290.
44
See discussion infra Part III.
45
Id.
46
See Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 534 (1st Cir. 1995).
47
Id.
48
See Valerie Strauss, Imagine a Class with 25 Kids—And All of Their Parents Insist on Telling the Teacher What to Teach, Wash. Post (Oct. 28, 2021), https://www.washingtonpost.com/education/2021/10/28/parental-rights-in-schools-untenable/ [https://perma.cc/AY2B-TN5P].
49
See, e.g., Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 512 (1969) (holding that students’ rights to spread controversial opinions on the Vietnam War were protected by the First Amendment).
50
Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas . . . . This right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society.”).
51
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 868 (1982).
52
Stanley, 394 U.S. at 564; Pico, 457 U.S. at 868.
53
See discussion supra Part II.A.
54
Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1067 (6th Cir. 1987) (stating that parents who want their children to be excluded from exposure to offensive ideas in public school had the option to “either send their children to church schools or private schools . . . or teach them at home”).
55
Id.
56
Id.
57
See Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995); Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996); Bailey v. Virginia High Sch. League, Inc., 488 Fed. App’x 714 (4th Cir. 2012); Fields v. Palmdale Sch. Dist., 447 F.3d 1187 (9th Cir. 2006); Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998).
58
See Daniel Silver, Most Americans Think Parents Should Be Able to Opt Their Kids Out of Learning Things They Disagree With. That’s Terrifying, TIME (Nov. 4, 2022), https://time.com/6227537/opt-out-school-lessons/ [https://perma.cc/W3HF-39W3].
59
See Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 512 (1969) (holding that students’ rights to spread controversial opinions on the Vietnam War were protected by the First Amendment).
60
Id.
61
Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
62
See Silver, supra note 58.
63
See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (“We are therefore in full agreement with petitioners that local school boards must be permitted to establish and apply their curriculum in such a way as to transmit community values, and that there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”).
64
See Silver, supra note 58.
65
Pico, 457 U.S. at 867 (quoting 9 Writings of James Madison 103 (G. Hunt ed. 1910)).
66
See discussion supra Part III.
67
See discussion supra Part II.
68
See Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995); Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996); Bailey v. Virginia High Sch. League, Inc., 488 Fed. App’x 714 (4th Cir. 2012); Fields v. Palmdale Sch. Dist., 447 F.3d 1187 (9th Cir. 2006); Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998).
69
See Silver, supra note 58.
70
See discussion supra Part III.
71
Id.