A Parental Right to Control Curriculum?
In part I was drawn to book challenges out of a desire to avoid studying case doctrine. I wanted to understand how regular people conceptualized understandings of rights and governmental power. This cannot ignore doctrine completely, however, because the decisions of courts structure how we argue about rights and power. Thus, I will from time to time explore particular legal battles. Here, I take a look at Parker v. Hurley (2008), a parental rights dispute decided by the First Circuit. I will focus only on the Parkers’ story as the key one, though another couple were joined to the suit.
According to their legal complaint, the dispute began when their kindergartner was given a “diversity book bag” including Who’s in a Family by Robert Skutch and, in the next year, his classroom library also had Molly’s Family by Nancy Garden. (They also had a second child starting school as well.) As both depicted gay and lesbian couples with children, the Parkers objected strongly because their faith held
that marriage is … a union between a man and a woman, and that labeling marriage to be otherwise is immoral. The notion of the acceptable interchangeability of male and female within the marriage construct and within a personal identity dictated by nature is not consistent with the Parkers’ sincerely-held religious beliefs, nor is the sexual acting out of same-sex attraction (homosexuality).
While they had to admit that same-sex marriage was legal in Massachusetts, the Parkers did not wish to discuss it with their child. After being informed that the school would allow children access to the knowledge that gay and lesbian couples existed, the Parkers interpreted this as the school intending to “indoctrinate young children into the concept that homosexuality and marriage between same-sex partners is moral and accepted, and that those who hold a faith … are incorrect in their beliefs.”
Initially, the Parkers demanded a total ban on any adult providing materials or discussing homosexuality around their children. When the school refused to adopt this rule and then expanded its options of gay friendly children’s books in libraries, the Parkers issued a formal demand
to be notified when there are plans to discuss/present homosexuality, transgenderism, or gay relationships/marriage in our son’s presence. When “spontaneous” adult discussion arises with the intent to affirm, validate, celebrate, and/or normalize homosexuality transgenderism, or gay relationships/marriage—we request that our child be removed from this discussion. … We also request to view any materials within the school pertaining to the aforementioned topics within the reach of our child.
The scare quotes around spontaneous is telling. The Parkers simply did not accept that any such spontaneous discussion could occur—what young child would possibly ask about gay people!?—instead it was obviously part of the indoctrination. The Parkers thus demanded that any mention of gay people, at least anything that did not condemn homosexuality as a sin, must result in removal of their child from the classroom or, presumably, any other place children might ask questions. Further, they demanded the right to inspect all materials within the school that relates to the fact that gay people exist. The school, reasonably, concluded that it would be impossible to tailor a single students education to such an extent that the very existence of gay people would not be mentioned to them. They felt so strongly that the husband refused to leave the school after their proposal was rejected and he was arrested. Complaining that this had led to severed emotional distress, the Parkers sued along with another couple who’s second grader was read King and King.
The Parkers’ legal theory centered on parental rights as a liberty interest. The Supreme Court has, from time to time, relied upon an implied parental right to raise their children. The most significant examples involved invalidations of a ban on the teaching of languages other than English, the prohibition of private school education, and a state law that allowed third parties to win visitation rights with children over parental objections. So there is no doubt that at some level the Supreme Court recognizes a concept of parental rights to “be free from unnecessary governmental intrusion in the rearing of their children.” While the school argued that they were attempting to control the curriculum of the public school, the Parkers’ framed their request as a simple one of “notice that sensitive topics are being discussed” and an “opt out of a singular activity.” They stressed, in particular, the young age of elementary students as support for their claim that the school was engaged in indoctrination of students. Framing education as indoctrination, they apparently hoped, would shift the case away from the legion of precedent that rejected parental demands to control curriculum decisions. This then implicates aspects of the right to privacy because "the “State is seeking to teach the children that their core private family belief system is wrong, and they are doing it behind the parents’ backs.” Finally, the Parkers threw in a free exercise claim that was little more than a rehash of the parental rights issues. (I don’t want to get into the doctrine too much but the gist of this is that in 1990 the Court severely limited the protections offered by free exercise leaving only a weird little theory that free exercise may matter sometimes when it runs with another right but that other right was argued separately here and thus this didn’t matter a whole lot.)
This theory proved too tenuous and the District Court dismissed the Parkers’ complaint—this meant that the court accepted that all of the facts alleged by the Parkers were true but still did not rise to a constitutional violation. The court held that “public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy” and one method of doing so can be through instruction about mutual respect and diversity in life. Requiring a school as a matter of constitutional principle to remove a child from any subject that the parent objects to them learning about would lead to chaos and an unworkable school system. The First Circuit took the legal claims more seriously than the District Court but ultimately agreed that even taken as true, the Parkers’ complaint failed to show any constitutional injury. The First Circuit was willing to consider that the age of the children may strengthen the parental rights claim and even adopted their understanding of free exercise but still concluded that no constitutional violation occurred because “[e]xposure to the materials in dispute here will not automatically and irreversibly prevent the parents from raising [their children] in the religious belief that gay marriage is immoral.” In other words, there “is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations.” The attempt to ground the issue in indoctrination failed because there was no evidence that the children were compelled to affirm a belief in anything or punished for their religious beliefs. Providing lessons designed to increase knowledge of the world and tolerance of the people in it is a reasonable goal for educators. “[W]hile parents can choose between public and private schools, they do not have a constitutional right to ‘direct how a public school teaches their child.’”
What began as a dispute over access to certain books escalated into a constitutional struggle between the authority of schools to manage their curriculum and parental rights over the upbringing of their children. Ultimately, and correctly, the courts here concluded that the state’s instruction had no effect on parental rights. An unrestricted right to keep their children ignorant of certain social realities is incompatible with the constitutional duty of the state to provide a public education. To force a school to remove any student from classrooms for such idiosyncratic reasons would make the educational system impractical if not unworkable. Both courts noted that there were remedies for the Parkers. They could decide to move their children to a private school or home school where they could select the curriculum that matched their religious objections to certain people. They could also resort to political change, altering the school board and then amending the curriculum. From time to time, parents utilize all of these methods to avoid information they are uncomfortable with their children learning. The courts simply refused to provide a shortcut and shift all curricular decisions to the hands of parents.
