Janice Kapp Perry

The U.S. Constitution is understood to protect the ability of parents to direct the upbringing of their children, free from state interference. That formulation derives from a pair of cases from the 1920s involving disputes over education.

In Meyer v. Nebraska, the Supreme Court invalidated a Nebraska law that prohibited instruction in schools from being provided in German. Among other reasons, the U.S. Supreme Court said the law interfered with parents’ right to choose the way their children were educated.

Then, two years later, the Court struck down an Oregon ballot initiative (inspired by nativist groups who wanted to ensure social uniformity) that required all children to attend public schools (Pierce v. Society of Sisters).

These decisions include the most important legal treatments of the idea of parents’ rights.

The Meyer decision noted: “Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.” The court contrasted ancient ideas of a far different nature:

For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: “That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.

The Pierce Court neatly explained the alternative understanding of liberty that prevailed in the United States:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. 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.

To the Meyer and Pierce courts, rights and responsibility are integrated in the very nature of things. They are “coupled.” These decisions imply that parental rights can be lost if parents act in a way so at odds with their “high duty” to their children that they become unfit to exercise their rights and their children are at risk of grave harm.*

In stark contrast, more recent twin cases in the First Circuit stand for the principle that parents’ constitutional rights are not implicated when public schools expose the children to sexually explicit material [warning: graphic descriptions] or promote alternative family forms in the earliest grades, contrary to the parents’ wishes.

What explains this dramatic shift? One possibility is that the very conception of coupled rights and responsibilities has been severely eroded. It’s quickly apparent how at odds the Meyer/Pierce analysis is from modern rights claims, like the Court’s 1973 decision that Congress cannot exclude “hippie communes” from food stamp eligibility. Such a formulation treats entitlements as rights to which questions of responsibility must necessarily be excluded.

More to the point, the law increasingly allows children to be treated as commodities who can be acquired (even directly purchased, in some instances) in order to facilitate adult self-definitions. This is the case where the laws assign parental rights to those who acquire children through surrogacy or sperm donation by (1) preventing one or both biological parents from any claim to rights and (2) excusing them from any responsibilities for the children they help create.

As rights and responsibilities have become dis-integrated, rights seem anachronistic and can be made to more easily yield. Why? Because the fulfillment of responsibilities that the exercise of rights secured are no longer expected (or often even aspired to), so the rights seem less important. They can then be reformulated as mere idiosyncratic choices, protected (to the degree they are) only in the name of tolerating individual whims or to the degree they advance ideological goals like the equal satisfaction of desires.

This is why Alexander Solzhenitsyn’s Harvard commencement address includes this statement: “It is time, in the West, to defend not so much human rights as human responsibilities.”

It’s an insight worth injecting in our current family policy debates.

*Interestingly, it did not take long for this robust understanding of parents’ roles to begin to weaken. In 1944, the court stressed the state’s authority in regards to child labor laws to sustain the conviction of a child’s guardian for letting the child distribute religious tracts on the street. Current Supreme Court precedent seems to treat parental rights as a mere right of first refusal in disputes with non-parents.


William C. Duncan is director of Sutherland Institute’s Center for Family and Society.