May-June 2008 Selected Content
Taking Charge - Larry and Susan Kaseman
Can a Constitutional Amendment Protect Parental Rights?
Parental rights are being challenged these days, and we need to work to act in ways that will maintain them. At first glance, adding a parental rights amendment to the U S Constitution might seem like a good way to make these rights more secure. In fact, some well-known homeschoolers are promoting such an amendment. However, an amendment would not protect our rights and, in fact, would actually undermine them. Fortunately, there are other, better, more effective ways to maintain our rights. This column will discuss problems with a constitutional amendment and suggest actions we can take to maintain our parental rights.
Why a Constitutional Amendment Would Undermine Rather Than Protect Our Rights
• Parents' relationships with and responsibilities for their children are too fundamental, too broad, too basic to human existence to be effectively contained within a simple legal statement. Attempts to describe these relationships and responsibilities will limit them unnecessarily, distorting the ways in which the legal system views and governs parents and families.
• Parental rights exist prior to and are independent of anything done by the government. They are part of being a parent, are based on common sense, and are commonly agreed on. They are natural or God-given rights. We do not need the government to grant parents responsibility for their children's upbringing and education. As homeschoolers, we have successfully claimed and maintained our freedom to homeschool in part on the basis of the fact that parents have the right to educate their children according to their principles and beliefs.
• Asking the government to protect or guarantee parental rights inevitably gives the government the power to define them and to hold parents accountable in ways that the government would not be able do if it had not been asked to guarantee these rights.
For example, if there were an amendment stating that parents have the right to educate their children, the government would then define specifically what "to educate" means so it could decide whether parents can claim that they have responsibility for a certain activity because it is part of "education." More seriously, such an amendment would give the government the right to decide when parents are not meeting the responsibilities that go with the right to educate their children. In other words, this would give the government the power to decide what parents must do to "educate" their children, forcing parents to comply with whatever standards the state sets for education.
• A constitutional amendment that states that parents have the right to educate their children would undermine rights parents now have. Because the U S Constitution does not currently include education, the federal government cannot pass laws that directly govern education. (Federal laws related to education, such as No Child Left Behind, say that state will or will not get federal funds for education based on what they do or do not do. They do not require states to comply with federal statutes governing education.)
Even more important, many states do not have laws that govern education. Every state has a compulsory school attendance law, but those require that students attend school. They do not require that they become educated while attending. It is very important that we prevent the government from being able to institute compulsory education. An amendment stating that parents have the right to educate their children would open the door for such action by the government.
• Freedoms in education (and other freedoms) are currently protected by amendments to the Constitution, including the ninth amendment. It states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, people have many rights that are not explicitly enumerated in the Constitution.
• Any right carries with it responsibilities and restrictions. For example, the right to free speech does not allow someone to attack another person in a way that is libelous or shout "Fire" in a crowded theater. The more emphasis that is put on parental rights, the more will also be put on parental responsibilities. If a parental rights amendment were introduced, many people would want to add lists of parental responsibilities, which would give the government increased power and authority over parents in many areas, including education, health care, and child care. Our parental rights are much more secure if we do not have to meet the government's specific enumeration of such requirements.
• People who do not agree with all or most of the values of the dominant culture are at greater risk from state enumeration of rights and responsibilities than those who agree. In principle, everyone should be concerned about preserving rights. But in practice, people who are willing to comply with the government's standards and requirements (which reflect the attitudes and values of the dominant culture) will not be limited or even inconvenienced by requirements that they surrender their rights. For example, many people are willing to send their children to public schools and agree with their values, approaches to learning, and subject matter. They subscribe to so-called experts' theories of child development. They are happy to have their children screened for educational and/or mental disabilities, labeled, and treated. On a practical level, these people may not care whether the government requires that they do such things. In fact, they may be so convinced that public schooling and other aspects of raising children are correct that they support the idea of the government requiring such actions of all parents. Some of them would undoubtedly object to the loss of rights in theory, perhaps because they realize that if the government can set the standards and requirements, it could also change them to something they did not agree with.
But it is people who value their freedom and those who want to be able to apply their own principles and beliefs in education, health care, and other areas, who are most likely to be upset by government enumeration of parental rights. In addition, it is often difficult for people who want the right to choose something different from what the dominant culture offers to find enough support to protect those rights in the face of attempts by the government to require that people comply with government stipulations.
• Because parental rights are being challenged in a variety of ways that have little or nothing to do with the legal system, we cannot rely on legal means such as a constitutional amendment to protect them. For example, professionals undermine parental rights by claiming that parents are incapable of raising their children without the assistance of professionals and their associations. Newborn, preschool, and mental health screenings undermine confidence, label as problems things that children would outgrow given the opportunity to follow their own timetables, and become self-fulfilling prophecies that create problems. To increase enrollment and revenues, public schools are trying to convince parents that children need to begin their formal education by age 4, or 3, or even earlier. Advocates for children's rights sometimes see parents as "the enemy" and work to limit parents' rights. Factors such as these, which are not primarily legal, need to be countered by approaches such as those outlined below rather than by a constitutional amendment, especially since it would limit parental rights rather than protecting them.
• In addition, although laws are important, what they can accomplish is limited. Focusing exclusively or even primarily on laws can distract us from more important ways of maintaining our rights. For example, the main reason relatively few things are stolen is not that we have laws making theft a crime. The main reason is that most people think that it is wrong to take what belongs to someone else. Were this not the case, there is no way our current police force could protect private property. Similarly, the more strongly the general public agrees with the idea that parents are responsible for raising their children, the more secure our rights are. It makes more sense to educate people about the importance of parental rights and help parents increase their confidence so they are prepared to exercise their rights.
• A parental rights amendment would also backfire by giving parents a false sense of security. Some might act less carefully, comply with requests from officials that exceed their legal authority, worry less about setting precedents that would infringe on their rights and the rights of others, etc. Such a relaxed, even sloppy, approach is a serious problem because they open the door for increased state regulation of families. In addition, major ways in which we can protect our parental rights include acting responsibly, refusing to comply with demands from officials that exceed their legal authority, being careful not to set precedents, etc.
An Ill-Advised Proposed Parental Rights Amendment
Unfortunately, Michael Farris and others are campaigning for a parental rights amendment to the U S Constitution. Farris is one of the founders and Chairman of the Homeschool Legal Defense Association (HSLDA), a national homeschooling organization founded and led by lawyers. Farris is also President of ParentalRights.org which is working on passage of an amendment which includes the statement that, "The liberty of parents to direct the upbringing and education of their children is a fundamental right." ParentalRights.org is encouraging people to sign a petition calling for the amendment. Based on the reasons discussed above, it is important not to sign this petition. People who have already signed and have changed their minds can request that their names be removed from the petition.
Farris has claimed that the February 28, 2008 appellate court ruling that mentions homeschooling in California is evidence that a parental rights amendment is needed. However, a parental rights amendment would not have prevented this court decision. The California case began as a charge of abuse and neglect brought against one family. There is no reasonable way to avoid child abuse and neglect laws which in turn can spawn expanded rulings such as this one. In fact, the amendment proposed by ParentalRights.org could make such cases even worse. The judges could claim that their ruling met the test of compelling interest as required by the amendment. Also, because the proposed amendment links upbringing and education, judges would have a stronger basis for addressing homeschooling as an issue in cases such as child abuse and neglect.
What We Can Do
• We can be aware of the challenges to parental rights, keep up to date, and watch for developments that require response. We can inform others through informal conversations, support group meetings, letters to the editor, etc.
• We can continue to homeschool our children and exercise our rights in other ways, including taking responsibility for decisions involving our children's growth and development, health care, and moral and spiritual development. By actions such as these, we increase our confidence and ability to take responsibility for our families and our lives. We set an example for other parents and help them understand what options they have and how capable they are. We also set an example for our children.
• We can object when our parental rights are challenged and insist that they be respected, whether it be officials implying that we are legally required to bring our children in for preschool screening, school officials demanding to review and approve our homeschooling curriculum in states that do not require this, medical personal asking personal questions not required by law during a routine check up or an emergency room visit, or other such situations. We can avoid setting precedents that will cause problems for other parents and possibly for us in the future by not voluntarily complying with requests or demands from officials that exceed their authority under the law. When an official tells us that we must do something, we can ask for a copy of the statute that requires such action.
• We can avoid turning to professionals except in very obvious situations. Instead we can pay careful attention to our children, talk with other parents, do research in the library and on the Internet, choose a lifestyle that promotes health, keep records of our children's growth and development to give us long-range perspective, etc.
• We can participate in grassroots organizations of parents supporting each other, such as local and state-wide homeschooling organizations and other organizations of parents. When we share our experiences and insights with each other and support and encourage each other, we increase our abilities and our confidence and reduce our need for professionals for most situations.
• We can decide not to sign petitions calling for constitutional amendments on parental rights and encourage others not to sign. If we have already signed the petition from ParentalRights.org, we can ask the organization to remove our names.
Parental rights are very important and are being challenged. A parental rights amendment to the US Constitution would weaken our rights rather than protecting them. We can refuse to sign petitions supporting a parental rights amendment and instead work in more effective ways to strengthen and maintain these rights.
© 2008, Larry and Susan Kaseman