Parental Rights and Religious Liberty: Examining New Conflicts Between Parents and the State

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Chayila Kleist:  Hello, and welcome to The Federalist Society's webinar call. Today, December 14, 2022, we discuss parental rights and religious liberty, examining new conflicts between parents and the state. My name is Chayila Kleist, and I'm Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, as The Federalist Society takes no position on particular legal or public policy issues. 

 

Today, we are fortunate to have with us as our moderator, Professor Richard Garnett, who is the Paul J. Schierl/Fort Howard Corporation Professor of Law, and Concurrent Professor of Political Science at the University of Notre Dame. Additionally, he's the founding director of Notre Dame's program on Church, State, and Society. Professor Garnett teaches and writes about the freedoms of speech, association, and religion, and constitutional law, more generally. 

 

He is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society. And he has published widely on these matters and is an author of dozens of law review articles and book chapters. I'll leave it to him to introduce us to our panel.

 

      As a housekeeping note, throughout the panel, if you have any questions, please submit them through the question-and-answer feature so that our speakers will have access to them when we get to that portion of today's webinar. With that, thank you all for being with us today. Professor Garnett, the floor is yours.

 

Prof. Richard W. Garnett:  Thank you so much. It's my pleasure to introduce our two experts for today's discussion. Following the natural law of alphabetical order, I'll start with Ryan Bangert, who is the Senior Vice President for Strategic Initiatives and Special Counsel to the President at the Alliance Defending Freedom. Before joining ADF, Bangert served in the offices of both the Texas and the Missouri attorneys general. And, before that, he was a litigation partner at Baker Botts, where he was a member of the firm's commercial litigation and appellate practice sections. Bangert earned his J.D. from Southern Methodist University, and he clerked for the Honorable Patrick E. Higginbotham on the Fifth Circuit Court of Appeals.

 

      We're also joined by Professor James Dwyer, who is the Arthur B. Hanson Professor of Law at William & Mary.  He taught previously at Chicago-Kent, and at the University of Wyoming. And before entering the academy, Professor Dwyer practiced with the Sutherland-Asbill, and the Coudert Brothers law firms in Washington D.C. Professor Dwyer earned a PhD from Stanford and his law degree from Yale Law School. He teaches and is widely and very prominently published in the areas of family law, education law, constitutional law, and law and religion, and probably other fields that I'm forgetting.

 

      So we'll start today with Ryan Bangert. And, again, for all of you who are on the webinar, please do feel free to submit your questions through the Q&A function on Zoom. Ryan, take it away.

 

Ryan Bangert:  Thank you so much, Professor Garnett. And Professor Dwyer, it's a pleasure to be with you. And, Chayila, thank you for hosting this webinar today on a very important and current topic. Parental rights have taken a leading role in today's legal and political conversation, driven, in large part, by the confluence of COVID lockdowns and the introduction of controversial critical theory concepts to K-12 classrooms. And these challenges, I would posit, are forcing a renewed focus on the scope and application of parental rights and the law. 

 

      Now, the prerogative of parents to control the upbringing, education, and formation of their children has long been recognized within the common law tradition. And building on that tradition, the U.S. Supreme Court has, for a century, found that parental rights are among the fundamental rights protected by the U.S. Constitution. And among the contexts in which the Court has made those holdings include the ability of parents to select private versus public education, presumptions of parental fitness for custody. Parental rights determine who has access to children and the right to direct medical care.

 

      Now, these precedents, while venerable, are decades old. And new turf battles between state power and traditional notions of criminal authority have been erupting in plain sight. One need look no further than President Biden's recent pronouncement earlier this year, while honoring the 2022 national and state teachers of the year, in which he stated that "they're all our children. They're not somebody else's children. They're like yours when they're in the classroom."

 

      Or take the statement by Terry McAuliffe during his September 2021 debate against Glenn Youngkin during the Virginia gubernatorial race, in which he said, "I'm not going to let parents come into schools and actually take books out and make their own decisions. I don't think parents should be telling schools what they should teach."

 

      Now I want to talk briefly about this turf battle, and some of the specific issues raised that, in my view, can and should be resolved by application and reaffirmation of a robust doctrine of parental rights. And the lineage of this turf battle goes back about a decade. Since 2010, the rise of pervasive social media has led to decreased mental health on the part of teens, as documented extensively by Dr. Jean Twenge. And a symptom of that social media consumption has been documented by Lisa Littman and Abigail Shrier as rapid-onset gender dysphoria, which has entered the lexicon as teenagers — in particular, females — began identifying as transgender, in ways that departed from historical patterns.

 

      Now these trends collided in 2020 with the COVID lockdowns. School closures forced by COVID forced schooling into homes via virtual education, and parents saw — for the first time, in many cases — what was being taught to their children. And what they found was, in many cases, horrifying to them.  They saw critical theory being espoused in K-12 education. They saw policies around social transition of kids, locker room policies. All of these things came to a head and precipitated what many commentators now call the 2021 parents' revolt: parents becoming extremely active and engaged with their school boards over these and other policies. 

 

Loudoun County, Virginia, famously, was ground zero for the parents' revolt, precipitating a letter from Attorney General Garland, in which he famously insinuated that parents are domestic terrorists. Many political commentators fretted the parents' revolt and driving the upset victory of Glenn Youngkin in the governor's race in Virginia. And even carrying forward to last month, in the 2022 midterm elections, one of the underreported stories is the surprising resonance and success of parents' rights groups like Moms for Liberty, which achieved a greater than 50 percent win rate in over 500 school board races in which they endorsed parents' rights candidates just last month.

 

Now this clash between claims of parental authority and claims of state power to override or ignore parents' wishes has set the table for this reinvigorated discussion that we're having today. And I want to briefly examine the roots of criminal rights claims in common law and American constitutional law before I turn to these current issues.

 

And I think, looking at the common law, and the Court's adoption of that common law, is warranted by the logic applied by the Court just last term in Dobbs, where it confirmed that, with respect to non-enumerated fundamental rights, the Court will look for some grounding in history. In the words of the Court, "non-enumerated rights must be deeply rooted in our history and tradition and essential to our nation's scheme of ordered liberty."

 

And I think parental rights passed that test. They have been long recognized at English common law. For instance, John Locke, in his second treatise, noted that "The power, then, the parents have over their children arises from the duty which is incumbent on them to take care of their offspring during the imperfect state of childhood."

 

Similarly, Blackstone viewed the duty of parents toward their children to encompass the maintenance, protection, and education of their children. Echoing Locke and Blackstone, modern legal scholar Melissa Moschella has pointed out that the authority of parents is "natural and original, not conventional or derivative of the authority of the state. It arises from the intimate relationship between parents and children, which gives parents, in her words, "the most direct and immediate special obligation to care for and exercise parental authority over their children."

 

And parents' rights arise from and echo this special obligation. Parents' rights exist to empower parents to discharge that obligation well, and satisfy the dictates of their conscience in doing so. And Moschella also notes that parental rights are a distinct sphere of authority and sovereignty that do have overlapping features with state power and authority. But they're different.  They're different in that parents have an obligation to promote the direct good of their children, while states have the broader obligation to promote the common good of society. And when it comes to promoting the direct good of parents, states should superintend that only in situations of genuine abuse and neglect. 

 

Now, I also want to talk a little bit about this concept of the family unit as an institution in society, much like government and the church, with its own sphere of sovereignty or authority. This concept too, has a pedigree in the common law. In the phrase of Edmund Burke, the family is "the origin of the little platoon we belong to in society, and the germ of public affections."

 

And this concept of separate but overlapping spheres of authority — institutional authority — is not foreign to the U.S. law. Under the church autonomy doctrine, for instance, courts already recognize differing spheres of authority held by the church and the state, and enforce that, as a matter of law.

 

Moreover, there's an intensely practical reason to respect parental rights, namely, parents are, in the vast majority of cases, the most heavily invested in the well-being of their own children, and best positioned to know how best to meet their own children's unique needs. Chris Tollefson has connected this practical principle to the principle of subsidiarity, as explained by Pope John Paul II: the larger social institutions of society — in this case, the state — should not take over functions that could be better performed by individuals or smaller social realities.

 

Now, these concepts and the common law find their place in the U.S. Supreme Court's adjudication and jurisprudence on parental rights in four different ways. And I want to outline those very briefly. First, the U.S. Supreme Court has crafted a century-old line of cases that affirm the fundamental nature of parental rights. In Troxel, the Court found that the liberty interest of parents, and the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Court.

 

In Santosky v. Kramer, in which the Court found that a clear and convincing evidence burden of proof applies in child removal proceedings, the Court found that, "the freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." But beyond simply finding that parental rights are a matter of fundamental importance under the Constitution, the Court has leaned into and affirmed the pre-political nature of those rights. For instance, in J.R v. Parham, which involved the ability of parents to civilly commit kids, the Court found, "Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children."

 

And in the famous case of Wisconsin v. Yoder, the Supreme Court found, "the history and culture of Western civilization reflect a strong tradition of parental concerns for the nurture and upbringing of their children." This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. And, third, the U.S. Supreme Court has recognized that the connection between parental duties toward children echoes parental rights and reinforces those rights.

 

For instance, in Meyer v Nebraska — a very early case decided by the U.S. Supreme Court finding that parents do have a right to have their parochial schools teach foreign languages to children in Nebraska — the Courts wrote "Corresponding to the right of control, it is the natural duty of the parent to give his children or her children education suitable to their station in life." And nearly all the states, including Nebraska, enforce this obligation by compulsory laws, again, drawing a line between the right of parents to control education, and their corresponding duty to provide that education. 

 

Likewise, in Yoder, the Court pointed to Meyer, noting that the duty of parents to prepare children for adult obligation must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship, and that duty echoed and reinforced a right, in this case, in Yoder, of parents to remove their children from school prior to the age at which the state said children had to be educated through.

 

And fourth, and very importantly, the Court has consistently rejected the view that children are mere wards or creatures of the state. Again, in Meyer, echoing back and harkening back to the age of the Greeks and the tradition of Sparta to remove children from the home at the age of seven and encamp them in barracks for teaching and training by the state, the Court noted that our tradition in the United States touches on the relation between individuals and states which are wholly different from those -- I'm sorry, the tradition of Sparta touches on a relation between the individual and the state, which are wholly different from those upon which our Western institutions rest.

 

And, again, in Pierce v. Society of Sisters, the Court found 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 — again, echoing the connection between rights and duties — to recognize and prepare him for additional obligations in society.

 

So let's fast-forward to today. Where are parental rights under threat? Where do parental rights make a difference? Well, the parents' revolt, I think, gives us a roadmap. The parents' revolt was taken in response to a handful of things, a number of things that have happened in the public school system, areas where ADF, my firm, has been directly involved. I want to give you an example from Harrisonburg School District.

 

Harrisonburg, Virginia is a rural school district that has adopted a policy concerning the social transition of minor students that we have seen replicated all across the country. And I'm going to attempt to share my screen now, so you can see first-hand exactly what that policy entails.

So this is a slide that we have taken from our litigation with Harrisonburg. This is a slide that was shown to teachers during their teacher training, and how they were to treat and deal with students who presented at school desiring to identify as a gender different than their biological sex.

 

Teachers were instructed that if the student in this situation presents himself or herself on day one -- on day one the teachers are directed always to utilize the student's preferred name and pronouns, to respect the student's choice in privacy, and to share that information confidentially with the student's assigned counselor.  But it went beyond this. And the policy then directly spoke to parents' rights. And here's what it had to say. "Parent communication: a students' gender transition should be considered confidential, even with respect to parents."

 

If teachers are unaware whether a student's parent or guardian is in support of a name change or pronoun change, they're not directed to talk to the parents. They're directed to connect with the school's counselor. And if the student has not shared their new gender identity with the parent guardian, teachers are specifically told it is not appropriate to take the lead on sharing this information or to contact the parent or guardian to ask permission to utilize the preferred name. 

 

Moreover, if the parent guardian is not aware, teachers should not utilize the student's preferred name -- should use the student's preferred name at school, but not in communication with parents or guardians. They are to be treated differently under this policy. Now, I believe, and I would argue, that this policy directly contravenes our tradition of parental rights in a variety of ways. For instance, parents have a fundamental right to direct the health care of their children. This policy puts teachers in the position of directing children's health care.

 

Parents have a fundamental right to direct the spiritual formation and education of their children. This policy undermines those aspects of parental rights, as well. It also goes beyond that. The policy assumes a conflict between parents and children on the question of gender identity. It also assumes that parents who are non-affirming of social transition are somehow unfit to even know about, much less make decisions about these transition decisions.

 

Finally, the policy presumes to place teachers in the position of making decisions in the place of parents about the appropriate response to a child's expression of gender discomfort. Now we've already litigated this question in one case, Ricard v. Geary County School Board, in Kansas, which adopted a very similar policy. We recently, at ADF, sued the school district in

Geary County on behalf of a teacher named Pam Ricard.

 

The district had a policy very similar to Harrisonburg, in which the school was directed to keep "two books," one book, internal facing, where the student's new, preferred identity was recorded, and an external-facing book, which was the side of the house, the side of the schoolbook where parents had access. That side of the book, parents would only be presented with the student's biological and given name.

 

Now, we argued that this requirement that teachers treat students differently violated their fundamental free exercise right under the First Amendment. The school retorted and said, "No, there's actually a compelling government interest to force teachers to treat children differently in these circumstances, and that is parents may not be affirming. The school has an obligation to cut those non-affirming parents out of the equation."

 

Now, the Court rejected that argument, and held that teachers did properly have a free exercise right not to follow this policy. But in so doing, the Court rejected the district's argument that a compelling interest existed to cut parents out. And here's what the Court said, "Presumably, the district may be concerned that some parents are unsupportive of their child's desire to be referred to by a name other than a legal name, or the district may be concerned that some parents will be unsupportive, if not contest the use of pronouns for their child that the parent views as discordant with the child's biological sex. 

 

But this merely proves the point that the district's claimed interest is an impermissible one, because it is intended to interfere with the parents' exercise of a constitutional right to raise their children as they see fit. And whether the district likes it or not, that constitutional right includes the right of a parent to have an opinion and to have a say in what a minor child is called, and by what pronouns they are referred.

 

Professor Garnett, I believe I am out of time, and I will yield the floor to my colleague, James Dwyer.

 

Prof. Richard W. Garnett:  Ryan, thanks very much. Jim, the floor is yours.

 

Prof James Dwyer:  Thank you. Hi, everyone. I'm going to offer up for discussion some sociological observations and some jurisprudential clarifications, and, lastly, some historical corrections. So with respect to sociological observations, I would say that the issues Ryan has identified that youth are dealing with are complex and challenging ones for them and for families. And I think we could and maybe should find common ground on some objectives and addressing these situations.

 

One is that we should listen to youth who are going through these experiences. Also to adults who went through the experiences as children and try to learn from them. We should respond to youth with compassion and understanding, as best we can. And we should try to keep the political temperature surrounding these situations as low as we can. And my sense is that talk of parents' rights is antithetical to all three of these objectives.

 

First of all, it shifts attention from youth to parents, and parents' interests. I think it encourages parents to focus on their own interests, their own position — are they being respected? — and to dismiss views of other people as impertinent. They will tend to view their situation, not so much as one of responsibility as one of entitlement and ownership. And I think it makes a child's struggles the site of ideological warfare. It communicates the message that parents' values should win some kind of battle, and anyone who disagrees with them should be silenced. And I think all of that just makes the situation more difficult for families and for children.

 

And I think a lot of the clamor for parents' rights comes not from parents who are, themselves, in these situations, and, to some extent, yes. But a lot of it, I think, is just from people who are incensed that someone else's values are driving public policy and legislation. They don't want those values to be embodied in law. And so, in that sense, it is a sight of ideological warfare instead of a child-centered effort to do the best we can for kids in this situation.

 

And the same would be true about talk of state's rights. I don't think that's very helpful either. I think it would misplace attention that the state has some kind of interest at stake that it should be controlling. It would encourage a focus on the state instead of on children's needs. And it would stoke ideological fires.

 

With respect to jurisprudential clarifications, I think that before talking about parents' rights, one ought to have a clear understanding of what rights are, how they function, what plausible normative bases there are for ascribing them, as well as some legal concepts that correlate with rights. So a right is a legal advantage and entitlement that entails duties on the part of other people, owed to the right-holder. So the claim that parents have certain rights against the state means that the state owes duties to parents in that role.

 

Duties are owed to persons because of interests those persons have. So if the empirical basis for a claim of right is some individual's interests that are said to be very important, then the right would be ascribed to that person. So those who proclaim parental rights are effectively asserting that parents themselves have some interest that is of such importance in these situations, that it warrants imposition on states of a duty to those parents for their sake, to do something or to refrain from doing something.

 

And then thirdly, the content of the duty, in the context of children's schooling, medical care, their counseling situation, or their identification in school records, whatever -- the duty that is suggested by claim of parental rights is that the state ought to enact laws that confer on parents legal powers to control those situations, to control decision-making, to dictate in that realm, how a child's life should go.

 

So that's an extraordinary demand to make, based on one's own interests, that I have an entitlement to control, not my life, but that of some other person who I happen to be in a close relationship with. And that's a unique demand in our society, and that's not so because the parent-child relationship is unique.

 

In fact, there are analogous relationships: guardianship for incompetent adults, adults who have mental disability, mental illness, are losing their faculties because of age. Rights, with respect to those care-giver relationships -- the law and social discourse would treat any claim of entitlement as anathema. You don't have a right to be in the relationship. You don't have a right to control, to have authority over the other person's life. Any rights that exist against inappropriate state action belong to the person whose interests are central to the wards, to the dependent person.

 

So there's several things about a claim of parental constitutional right that presumably don't sit well with members of The Federalist Society. First, it's another federal imposition on states. And it's in an area that historically was left to the states. It's a claim of positive rights, not negative rights. And we, generally -- most people suppose our federal Constitution is a charter of negative rights, so it's a claim that the states must give something to parents. It must enact legal rules that gives them legal powers.

 

Thirdly, it has no clear textual basis in the Constitution. There's certainly no reference to family or parents in our federal Constitution. And only a tortured and dangerous rendering of the word "liberty" could encompass a power to control another person's life. So liberty generally means either an absence of physical restraint — that's probably what was mostly in the mind of the founders — or a Hohfeldian privilege, that is, an absence of duty. And, not being under a duty is quite a different thing from owning a power to control someone else's life. And there's no evidence of any original intent that ratification of the federal Constitution would entail a surrender of state authority over child-rearing to the federal judiciary.

 

Lastly, a couple of points about history. So the idea that parenthood is a position of entitlement is actually the opposite of the view that prevailed before the 20^th century in this country. So in the 18^th and 19^th century, the prevailing view was instead that parenthood was an entrustment from the state, pursuant to its parents' patriate authority, an entrustment that entailed important responsibilities, but not any entitlement for the sake of the parent.

 

The responsibility, the duties, were viewed as owed to both the state and to the child. And I'm not endorsing the first of those, by any means. But, as to the idea that parents owe duties to children, and that's why they have this authority or this role, that seems appropriate to me, and consistent with how we treat incompetent adults. In fact, John Locke, whom Ryan cited, expressly disavowed the idea that parenthood is some kind of entitlement, and, instead, characterized it as a privilege.

 

So when Justice McReynolds, who authored Meyer and Pierce -- when McReynolds invented parental constitutional rights in the 1920s, he cited no prior authority for that proposition. And, in fact, the individual who was opposing the state in Meyer v. Nebraska, a schoolteacher, did not even think to invoke parental constitutional rights, because they didn't exist, and no one thought that that would be a thing.

 

Instead, he asserted his own economic substantive due process right to pursue an occupation, and McReynolds, in dictum, gratuitously threw in this idea of parental rights, didn't even say it was a constitutional right, just invoked the notion of a parental right. And then, in Pierce, two years later, he cited himself. He just cited his own dictum in Meyer as authority for parental entitlement. .

 

And, in fact, the Supreme Court has never held that parents have a fundamental constitutional right to control their children's upbringing. The word "fundamental" does not appear in Meyer or Pierce. The plurality in Troxel, decades later, did characterize it that way, but that was a plurality decision and it was not clearly a holding.

 

So we've done a 180 in our collective conception of parenthood.  And I think we can't imagine the counterfactual in which we'd adhere to the original traditional understanding of parenthood in this country as a trust, as an entrustment. So this is just speculation on my part, but I would suggest that children today might be better off if we had retained that original conception of parenthood as a responsibility and an entrustment, while also perhaps better developing doctrines of children's rights along the way.

 

Prof. Richard W. Garnett:  Jim, thanks a lot. And, again, to all of you who have joined us — there's a lot of you — please do feel free to use the Q&A function. But I’ll start off with a few thoughts. Jim, starting with you, you suggested that an interest in parental rights might seem kind of anomalous for Federalist Society members, given the classical liberal thinking about rights that many Federalist Society members presumably hold.

 

Say more about your claim that the parental rights argument is an argument for positive rights. It would have struck me that it's an argument — like a lot of other rights-based arguments — a non-interference argument, a negative right. That is, the claim of parents' rights is a right to not have the state superintend, rather than a sort of classical European-style positive right, like a right to a vacation. Can you say more about that?

 

Prof James Dwyer:  Yeah, sure, a good question. So what parents are demanding when they say, "We have a constitutional right to control this aspect of our children's lives," they're not saying, "Leave us alone." They are saying, "We want the states -- we insist that the state confer on us certain legal powers, such that our preferences are legally effective, will result in some change in our children's lives, and we can exclude other people from our children's situation, so that we can tell teachers they may not speak to our children in a certain way or the school must keep records in a certain way, or the school must inform us." That is not being left alone.

 

      So if the state were to just leave parents alone, that would mean we wouldn't have any special legal rules for parents, no special legal state rights for parents. It would mean that parenthood is not a legal role. You can just be another individual who happens to know a child. And so, in that sense, parents are asking for something more. They're insisting that the state give them something, enact some laws that create a special position for them, with attendant powers over another person's life.

 

Prof. Richard W. Garnett:  Thanks Jim. Ryan, a question for you.  In your remarks you made mention of some of the controversies going on with respect to gender identity and pronouns and transitions and such. For someone like you, who's committed to parental rights, are you in an awkward position when some states or some politicians propose that parents ought not to be permitted to pursue various forms of gender transition for their children? I'm thinking of a few states where it's been proposed that such transitions ought not to be permitted for minor children. Is that an interference with parents' rights, in your view? And if not, why not?

 

Ryan Bangert:  Yeah. That's a fantastic question. And I think it goes to the notion that parental rights are fundamental but they're not unlimited or absolute. Like George Will once famously quipped, the most important words in politics are "up to a point." And I think Dr. Moschella has a very good way of conceptualizing this, in that the family and the state are separate institutions with separate spheres of authority and sovereignty, but that do overlap in many instances.

 

      And this gets to, I think, Jim's point, which is that parenthood is an entrustment, but it's not necessarily an entrustment by the state. The state doesn't create the family. The family is pre-political, and pre-exists the state. In fact, the state would not exist without the family. It's a necessary condition for the state to exist. And so there are separate spheres of authority, but they do overlap. And, in many cases, the state will, in instances of clear harm, neglect, or abuse to children, have to superintend the parental role in that area.

 

And I think that what you're talking about, state rules or laws that prohibit, at least for minors — I don't believe there are any laws that I have seen yet on the books that would actually prohibit gender transition all the way up through adulthood, but certainly with respect to minors — you could look at those laws as fitting in that exception for clear harm or abuse to minors. And I believe that's how most of the states that have passed those laws have pitched them, as an exception to the parental right in cases where the state has made a determination that there's such clear evidence of harm or abuse that the state has to step in.

 

And beyond that, I think there's a secondary argument, which is, the state has the right to control and govern the practice of healthcare, which is a market-based enterprise. It is a commercial activity. The state can take certain things out of the market and refuse to allow those things to be sold to individuals. And in the case of parental rights, a parental right cannot generate a right to a commercial product that is otherwise unavailable. So I think those are two ways of conceptualizing why those laws don't necessarily infringe on a fundamental parental right.

 

Prof. Richard W. Garnett:  Yeah, thanks. Jim, let me ask you -- this is a question I'm borrowing from one of our participants. You used the word, I think several times, "confer" or "entrust" when you were discussing the relationship between parents and children. And I guess, can you talk a little bit more about maybe your theory of rights? Do you believe that there are rights that are, in a sense, pre-political or not conferred or concessed [sic] by the state, but rather, pre-exist in normative priority of the state?

 

Prof James Dwyer:  I would characterize this as a distinction between legal rights and moral rights. Some people might refer to natural rights instead of moral rights. But, yeah, I think we can critique existing legal rules, based on the moral rights we think people have. But to talk about the family being pre-political, or pre-existing the state as an abstraction, that sounds foreign to someone who teaches and has practiced in family law, who has been in family law courts and seen people fighting over on whom the state is going to confer legal status, as a parent, and who's seen these constitutional attempts to force states to enact certain laws that are protective of parental authority.

 

So, on the ground, to actually have a practical, social relationship with a child, and to have effective authority over aspects of their lives, you need laws. And, sorry to state the obvious, but laws come from the state. So, in that sense, state law creates the basis for family life, generally, which is not to say that no relationships ever rise without that legal basis. But that's what prevents anyone from just coming up and grabbing a child and saying, "Well, I'm going to raise this child instead of you."

 

The legal parent can say, "No, I've got state-conferred status, and I can call the police and have them come and stop you from doing what you're trying to do." And we can discuss what the legal rules ought to be. And, in that context, invoke natural rights, or moral rights, and try to persuade legislators that they ought to adopt one view or the other. But that doesn't change the fact that, in practice, what we need are legal rules to designate people as parents, and to identify what authority they have, relative to what authority state employees have, and relative to what children should be able to decide for themselves.

 

Prof. Richard W. Garnett:  Thanks a lot. Ryan, I've got one for you, also from the Q&A, from Professor Gillis, Steven Gillis, with whose work you're probably familiar. He asks, "If Professor Dwyer's right about the historical view that the state decides what rights and duties parents shall have, then doesn't Dobbs suggest that parental rights are up for reexamination?"

 

Ryan Bangert:  Well I would preface my remarks by saying that I disagree that the family and parenthood are mere creations of the state, and that parental rights, in no form or shape whatsoever, pre-existed the Meyer decision in 1922. I don't think that's a fair characterization of the state of play. And, obviously, Dobbs did require, and stated very clearly, that when examining non-enumerated rights, rights that are not expressly stated in the U.S. Constitution, that the Court would look to history and to tradition.

 

      And I don't think you can separate that statement from the fact that throughout the history of the United States, the government has not exercised a heavy hand, with respect to the relationships between parents and their children. We don't have an exceptionally well-developed state in many of the Western states of the U.S., which came along after the fact. You simply don't have a historical record of the government intervening in a substantial way. And, I think, the history, historically, will bear that out.

 

      And so I just fundamentally, [inaudible 00:40:38] prior to 1920 [inaudible 00:40:41 - 00:41:11]

 

Prof. Richard W. Garnett:  -- leave decisions about their lives and well-being up to them, it's going to put the decision in the hands of some adult or another. And I guess, why ought we to think that state officials, whether they're teachers, or student, social workers or judges — why ought we to think that they would be typically better at making decisions on children's behalf, then -- let's assume fit parents — but why would they be better than fit parents?

 

Prof James Dwyer:  I don't think they are. I haven't suggested that. It's often said that parents know best, about what's good for children. And it's worth noting that that's actually a self-contradictory assertion. To make that kind of assessment that parents know best, the person who says it would, themselves, have to know what's best for children, and evaluate parental decision-making, relative to their perfect wisdom about what's best for children. But to say, "I know best, therefore I can judge that parents know best," is obviously self-contradictory.

 

      We don't know who is best. We can guess, based on certain structural aspects of decisions that need to be made, who might be in the best position to make that call, or maybe some kind of cooperative decision-making is called for. So Ryan noted that parents are the most invested in their children, in general, certainly true. Parents also have individualized knowledge about individualized aspects of their children's character and experiences.

 

And in contrast, other people, not parents, generally have expertise on matters that are subject to scientific research, so they're experts in education and medical care. We wouldn't say that parents know best, therefore they should decide if a child needs surgery, because there are people who study medicine and are trained to make these calls. And so, giving a medical decision might involve cooperative decision-making, in which the parent says, "Well, this is what I know about my child, based on living with my child. And I want to make sure that my child gets the best care, the best treatment, because I love my child, and you don’t."

 

And doctors can say, "Well, okay, and based on the medical literature, I can tell you this and this and this." And together we have reached some kind of decision about what is the right thing to do for the child. So it's not an either/or thing. It's not something as to which anyone should pretend to be omniscient. We're only guessing who is the best decision-maker, but likely what is best for children, in general, is that there be some separation of powers, so to speak, some division of decision-making authority, or some shared responsibility for helping children navigate difficult situations.

 

Prof. Richard W. Garnett:  Thanks. Here's one. I'd like to hear from both of you on this. And Ryan, you can go first. Again, taking from the Q&A here. A lot of these [inaudible 00:44:22 - 00:44:38] if all curricula decisions had to be unanimously approved by public school parents. So, just as a matter of kind of designing the rules — and, again, Ryan, we'll start with you — what should be the rule that tells us to what extent parents have a say in the curricular content of government-run schools?

 

Ryan Bangert:  It's a great question, Rick. And I do want to harken back to something Jim said, where he talked about the difference between expertise and responsibility. And I think those are two different concepts: obligation, responsibility, and expertise. You can be responsible as a parent, ultimately responsible for the care, upbringing and education of your child, but rely on the expertise of others to help you discharge that obligation or responsibility. And this is a very common concept in our society, where the person or the place where the responsibility or obligation is ultimately located — that person or that institution — will ultimately rely on expertise to help them discharge that obligation. And I think, in that sense, parental rights are a negative right against the state interfering with the discharge by parents of those obligations. And here's where I want to map that onto your question: with respect to education.

 

      Now, I do agree with you that no school could function if every curricular decision had to be made by a majority vote -- or not a majority vote, but a unanimous vote of every parent who had a stake in that school. And that's not where I think parental rights affect the curricular decision-making. I think, rather, you can take some of the examples that we have seen, in cases that we've been involved with or have assisted with, to point up where those distinctions lie.

 

For instance, in Nevada, we worked with a young man who was required to take a course, prior to graduation, in which he had to identify every area in his life where he experienced privilege. And then he had to label those areas: race, gender, religion, sex, on down the line. He had to label those places, and then he had to explain to his classmates whether he was a member of the oppressed or a member of the oppressor group, with respect to those characteristics.

 

Now, I would argue — and I think that Jim Ho, by the way, and his Oliver concurrence in the Fifth Circuit would agree — that that constitutes a form of indoctrination. That counts as a form of compelled speech, where students are being not just educated in concepts, but compelled to accept and imbibe and internalize very controversial views of human nature. And those views, in very many cases, will conflict with the ability and the power and authority of parents to engage in the formation of their children.

 

I think when you deal with curriculum decisions that don't just teach subject matter, but indoctrinate, that require students to affirm an idea that is controversial, and in many cases goes contrary to parents' views of how best to raise their children, that's a place where not just the First Amendment, but also parental rights, may have a say, and I think should have a say. So that's a very concrete example, I believe, of how parental rights can intersect with our current moment in our public schools.

 

Prof. Richard W. Garnett:  Jim, how about you?

 

Prof James Dwyer:  Well, that's a realm in which I think talk of rights is not very helpful to children. And I would note a couple of things. First is, the concern is state control over children's minds. It's worth noting that even if a child attends public school, parents will have exclusive control over more than 80 percent of the child's awake life. If you do the math, and figure out the number of hours a child spends in school per year, over the course of 18 years, it's less than 20 percent. So if parents cannot, in that other 80 percent of the child's awake time, communicate their views, discuss them with the child, explain why they, as parents, think differently, and engage the child's own thinking about that, then I wonder what's going on in the family.

 

      My concern when I heard Ryan talk about this exercise was just whether this is upsetting for a child, in a way that's unhealthy or unproductive. And so that's the conversation I would rather have with school officials. "Have you some sense of how children are reacting to this? Is this demeaning to them? Is this hurtful to them in some way? Or does it end up being a good learning experience for them?" You shouldn't be doing things, forcing them to do things just for ideological reasons. It should be a pedagogical choice that's being made, and one that is evidence-based that turns out to be a good experience for them.

 

Prof. Richard W. Garnett:  So, sticking with you, and I'm thinking back to work that you've done over the years on the regulation of religious schools, in particular. The previous discussion was about curricular decisions about public institutions or government-run schools. Where does your thinking about the nexus of child, parent, and state take you, when it comes to the independence that religious schools should, or, perhaps, should not have in determining their own curricula, regardless of what the state schools are doing?

 

Prof James Dwyer:  I've written more recently about homeschooling, which is perhaps in the same basket, just with more parental control than choosing which private school your children might go to. And I support the notion of school choice and having a marketplace of schools from which parents can choose, motivated by their concern for their child's welfare. I value different styles of learning. Homeschooling certainly presents some advantages, in terms of flexibility, and child-driven learning, and so forth.

 

But any reasonable person, I think, would have to concede that giving any persons monopoly control over the lives of very vulnerable dependent people is problematic, and that we certainly recognize that with adults who are under a guardianship. Guardians typically have to check in with a court and report how the ward is doing. And so we should have some more oversight, some more accountability, some more check — again, this idea of shared responsibility — to make sure children are doing okay educationally, and, perhaps even more compellingly, physically, because homeschooling, in particular, creates opportunity for parents who are not able to care for their children well to disguise that, to conceal that from anyone who could help children.

 

So I think we've gone too far in the direction of de-regulation. Now there's virtually no meaningful oversight or accountability with private forms of education. So that's where I stand today, which is the same as where I was a quarter-century ago, when I started writing about children's education.

 

Prof. Richard W. Garnett:  Yeah. Ryan, a variation on the theme here. This is actually the 50th anniversary of the Supreme Court's decision in Yoder. And Yoder is an interesting opinion in various ways, but it is often read to suggest that, at some point, parents do have some kind of autonomy when it comes to selecting their children's educational course. But for you, to what extent would you permit or welcome or authorize state regulation of programming in home schools and religious schools? Presumably, you would — I don't want to put words in your mouth — would support a right of parents to direct the upbringing of their children, the education of their children. But, presumably, you'd be open to some forms of regulation. So where would you find that line?

 

Ryan Bangert:  It's a great question, Rick. And I will tell you that, as with many things in the law, the question of parental rights, in one way, can be characterized as a question of who decides? Justice Gorsuch wrote that in his concurrence in the vaccine mandate cases about a year ago. That was in the context of federal regulatory power. Who decides? In that case, it was a question between the administrative state and Congress. And here, I think parental rights dictate the answer to that is that parents who have a fundamental right, an obligation to control and provide for the education of their kids, should be presumed to be the correct deciders of how to educate their children, and that would include whether that be homeschooling or private education.

 

      And so, from that perspective, the state should have a very minimal role in determining and governing the content and curriculum of those private educational choices. Now, obviously, there are allowances that have to be made. Everything up to a point, correct? If a parent is completely neglecting the education of his or her child, that is an area where, I think, on the outer boundary, the state may have something to say. But there's very little evidence that I have seen that, for the most part, homeschooling parents, and parents who commit their kids to religious curriculum educational institutions, are neglecting the education of their kids.

 

      Take the Yoder case, for example. The Amish community in Wisconsin completely removed their children from education after the eighth grade. And yet the court found that that was not an instance of parental neglect that required the state to step in and force those kids to attend school up to the age of 16. And I think that's an example of how the state should entrust parents with these decisions. And the presumption, the dial should be set in favor of parental decision-making in these instances.

 

Ryan Bangert:  We're getting short on time. I'm very grateful to both of you for this discussion. Jim, if I could give you one last question, pulling this from the participant's Q&A. What would you make of a proposal; would you think it was normatively attractive or constitutionally permissible for states to basically say that parents have to get renewable licenses in order to have custody and presumption of decision-making authority over decisions about their children? And this license presumably would be kind of renewable every couple of years with a certain standard of evidence, and so on. What would you think about that -- a licensing regime?

 

Prof James Dwyer:  On the whole, it sounds like a bad idea. If there's anything good about it, it's that it might make parents more cognizant of their responsibility, and think, "Oh, I should be trying to be better at this. I have an obligation to do that." Whereas, parents' rights thinking, I think, dispels that kind of notion, just "I have a right to do whatever I want, so why do I have to prove anything to anyone."

 

I also think the state ought to be more discerning up front, at the time of a child's birth, and not licensing that, in the sense -- not investigating every birth parent, but at least being more cautious about conferring legal parenthood on people with a history of maltreatment. And some five states now have taken a step toward -- by having something called "birth match" where birth records are matched against child maltreatment databases. So, philosophers have proposed licensing of parents, and perhaps renewable. But that's fantasy, and not a good fantasy, I don't think.

 

Prof. Richard W. Garnett:  Yeah.

 

Ryan Bangert:  Rick, I'll say that Jim and I agree. It's a bad idea.

 

Prof. Richard W. Garnett:  I figured you would. Really quickly Ryan, because I know we're short on time. There's a long tradition of folks in and around The Federalist Society being skeptical of unenumerated rights. Justice Scalia, in the Troxel case, pointed out that parents' rights aren't there any more than abortion rights are, at least in the text. So what's a sort of textualist to do about that uncomfortable reality?

 

Ryan Bangert:  Well I agree with the Dobbs majority. We're not seeking to undermine the notion that there can be rights reserved to the people, and even protected by the U.S. Constitution under the Fourteenth Amendment, that aren't expressly stated in the Constitution. And I understand that Justice Scalia had some issues with that. I understand that there are some current justices who don't see it that way as well.

 

But I think that if you give a fair -- and, again, we don't have time for this discussion right now, because this could be a webinar in and of itself, and probably should be. But I think it's fair to say that the Dobbs majority — at least with respect to how you evaluate and asses the existence of unenumerated rights — was pretty much right on in saying you have to look at the history and tradition of our nation and cabin those very carefully. It's not a freewheeling analysis, nor should it be.

 

Prof. Richard W. Garnett:  Great. Well, Ryan and Jim, I'm grateful to both of you. And I'm going to hand it back to Chayila now. And thanks to all of you for joining us on this webinar.

 

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society I want to thank our experts for the benefit of their valuable time today. I want to thank our audience for joining and participating. And we welcome listener feedback at [email protected]. And, as always, please keep an eye on our website and your emails for announcements about other upcoming virtual events. Thank you all for joining us today. We are adjourned.