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No. 6

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by Michael P. Farris
Between the Lines: Parental Rights in Jonathan L.

My assignment from our editor was to write about the long-range implications of the California decision, In re Jonathan L. (formerly In re Rachel L.). I said, “Sure, I can do that.”

This required me to go back and carefully reread the decision as I would do in my capacity as a Constitutional Law professor. There is far more to a case than who wins and who loses. If we really want to know the long-range implications of a decision, we have to study the court’s discussion of the relevant legal principles and the legal “rules” that the court announces. In my classroom’s lingo, we have to know both the “reasoning” and the “rule.”

Mike Farris
Michael P. Farris, Chairman of the Board, Home School Legal Defense Association

While this case gave us a tremendous outcome based on the Second District Court of Appeal's reading of the California statutes, the court's discussion of the constitutional rights of parents does not lead to the conclusion that parental rights are highly valued and protected by our judicial system.

Symptoms of Confusion: Recent Parental Rights Decisions

This decision contained an essentially accurate review of the state of the law regarding the constitutional rights of parents in both the federal and California courts. The judges noted that a number of California appellate decisions treated parental rights as a fundamental right subject to the highest level of judicial protection (strict scrutiny). These California cases had been based on a generous and fair reading of the older decisions on parental rights from the United States Supreme Court. However, the Jonathan L. opinion also noted that in the U.S. Supreme Court’s “recent authority,” “the level of scrutiny to which alleged violations of the parental liberty interest in directing the education of one's children are subject is not clearly established.”

Unfortunately, the California court was plausibly correct in this conclusion. The most recent case on parental rights before the Supreme Court (Troxel v. Granville in 2000), produced six separate opinions. Only Justice Clarence Thomas ruled that parental rights are subject to the highest level of judicial protection. The plurality opinion by four justices (who ruled in favor of parental rights in the case in front of them) ducked the larger question of whether parental rights deserve strict judicial scrutiny or some lower level of protection.

Thus, the California appeal court’s opinion in Jonathan L. would be properly summarized in this fashion:

  • California’s legislature has made it clear that homeschools can be legally organized as private schools in California.
  • California’s decisions on parental rights have in the past employed the highest level of protection for parental rights.
  • These California decisions were based on older U.S. Supreme Court cases.
  • The U.S. Supreme Court’s current doctrine is unclear without a clear majority in favor of the old rule that parental rights are a fundamental right deserving the highest legal protection.
  • It is uncertain whether California courts will follow their own decisions on parental rights in the future or will erode this protection in the wake of erosions at the Supreme Court level.

The Jonathan L. opinion is not alone in noting the confusion among the nation’s courts on the correct legal standards to be applied to parental rights.

U.S. Supreme Court
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Because the United States Supreme Court’s view of parental rights has been gradually eroding, HSLDA supports a parental rights amendment to the U.S. Constitution that will also help protect homeschooling freedom.

On August 21, 2008, in a homeschooling case from Pennsylvania, the Third Circuit Court of Appeals rejected the idea that parental rights are a fundamental right leading to the highest level of constitutional protection. HSLDA member families claimed that it was a violation of both religious freedom and parental rights to subject their families to a process where local superintendents exercised unfettered discretion to approve or disapprove their families’ homeschooling for the second and all subsequent years of home instruction.

We are in the process of asking the Supreme Court of the United States to review this decision. If the Court takes the case, the focus will be religious freedom blended with parental rights and not a straight-on discussion of the parental rights doctrine. Not only are the courts failing to embrace a strong theory of parental rights, law reviews and other legal literature contain a dangerous assortment of views on the relevant constitutional doctrine.

A review of the legal literature demonstrates that legal scholars are willing to put more and more restrictions on the doctrine of parental rights. And these scholars are masters of reading the relevant court decisions to bolster their radical views.

The trend is to embrace restrictions on parents’ child-raising abilities that are utterly inconsistent with the idea that parental rights are a “fundamental right.”

In part, this is because of the continuing rise of the “children’s rights theory.” Of course, children’s rights theory is little more than good marketing for a statist theory of family life that is long on socialism and very short on liberty.

Children’s Rights: The Wrong Solution

One of the world’s leading experts on children’s rights, Geraldine Van Bueren, professor of human rights at the University of London, reveals the real “victor” in a battle between parental rights and children’s rights:

Children’s rights theory “provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.”1

Mike Farris’ reaction to Jonathan L.

The California Jonathan L. decision took me by surprise. I tend to be incredibly (perhaps, overly) optimistic about our chances in appellate cases. But I walked out of the oral argument on June 23 convinced that some form of a bad decision would be forthcoming.

Seven weeks later, on the evening of August 7, we were notified that the Second District Court of Appeal’s website would publish the revised appellate ruling the following morning by 9:30 a.m. (Pacific time). By noon on August 8, here in Virginia, I had a draft press release ready to go in anticipation of the decision. I only wrote one version—an announcement that we would appeal and fight on before the California Supreme Court.

When the opinion was posted, I thought I was misreading the text and that there must be a big “HOWEVER” coming at some point in the decision. But it soon became obvious that we had won! The celebration was instantaneous and full of rejoicing and praise to God. We are convinced that this was a miracle from God—no other explanation suffices.

It is not just the legal scholars who are advocating the rise of the nanny-state in the name of children’s rights. In the Supreme Court’s most recent parental rights decision, Justice Stevens embraces the children’s rights theory and taunts the judges who favored parental rights for their treatment of children as “chattel property.”2

One of the scholars who has attacked the traditional theory of parental rights has taken particular aim at homeschooling. Rob Reich, professor of political science at Stanford, claims not to be opposed to homeschooling, but he’s against homeschooling freedom. In the book Home Schooling in Full View: A Reader, Reich has written a chapter entitled “Why Home Schooling Should Be Regulated,” which contains a fascinating insight into the mind of the statist thinking that dominates the left-tilting world of American academia.

He begins with the premise, “Home schooling should be a permissible educational option, but it must be strictly regulated.”3

Why? Well, it seems that Reich is uncomfortable with the idea of too much parental involvement in the lives of children.

“Home schooling therefore represents the apogee of parental authority over schooling. Unregulated home schooling is nothing less than total and complete parental authority over schooling. The theoretical arguments for regulating home schooling begin from this point, questioning whether the schooling of children should ever be under the total and complete control of parents.”4

Again, it is fair to ask Reich: What is wrong with this kind of parental control? His answer is that he believes that homeschooling leads children to grow up to be adults that are “civically disabled” and “ethically servile.”

Reich contends that, to avoid civic disability, children need to have some rudimentary knowledge of American history, the way our government operates, and some of the basic rules of political participation. He also wants “children [to] become self-sufficient, productively employed citizens, not relying on the state—that is, on the taxes of other citizens—for support.”5

There is nothing wrong with any of these goals. It is good for children to have this kind of knowledge of America’s history and government. It is also good to grow up with the idea of personal responsibility rather than reliance on the taxpayers.

What is remarkable is that Reich thinks that the way to teach children to avoid reliance on the taxpayers is to put children into schools for 13 years that are reliant on the taxpayers for every dime of support. It is equally illogical for Reich to believe that homeschooling—which is paid for by parents—has the tendency to teach children to rely on tax money.

Apparently there is no logic exam required for admission to the faculty at Stanford. If Reich is truly concerned about civic literacy, he should focus on public schools, which teach environmental socialism at the expense of more traditional subjects like the philosophy of the Founding Fathers.

But it is the “ethic servility” idea that is at the heart of Reich’s argument. He labels this his “freedom argument.”

“Thus, the freedom argument is at bottom about ensuring that children acquire the capacity to lead the lives they wish, to believe what they want to, and to be free, when they become adults, from the domination of other people and institutions (from their own parents as well as from the state).”6
“Such an education, I believe, requires exposure and engagement with value pluralism, the very social diversity that is produced in a liberal democratic state which protects individual freedom.”7

The irony of arguing that we need to have the government regulate home education to advance freedom of choice seems lost on Professor Reich.

But this last quotation reveals, I believe, the core of Reich’s motivation. His concern reaches its highest point when he considers the fact that homeschooling allows so many children to be raised with a distinctively Christian worldview. He does not want children to be raised to believe that there are absolute values. He rejects the idea that children should be taught that there is such a thing as absolute truth. He wants children to be taught that all values are equal. There are no absolutes. Truth is a shifting and difficult concept depending entirely on one’s perspective.

Of course, people like Reich and institutions like Stanford University don’t really believe in values pluralism. If they did, you would see equal value being placed on competing views on subjects like the teaching of evolution. (If Reich and Stanford say that evolution is science and creationism is religion and therefore cannot be taught—a position that I reject—they still reveal that they do not believe in values pluralism. In a truly pluralistic model, religious views would be weighted equally with scientific views. One is not better than the other, and both deserve consideration.)

Simply put, Reich is among those who simply cannot stand the fact that parents have the ability to raise children to believe in God, absolute truth, and other principles that he despises. Parents should be regulated lest they exercise their rights to raise children in a manner different from that approved by Reich.

Protecting Freedom for the Future

The decision of Jonathan L. was absolutely accurate when it said that the state of the law on parental rights is not clearly established. If we rely on the older decisions, all is well. But if we look to the future, there are many clouds.

I have written more than once in this magazine about the need for a parental rights amendment to the United States Constitution because of the gradual erosion of the doctrine of parental rights. The Jonathan L. case reinforces my conviction that the days of a strong and robust theory of parental rights are numbered. If you want to fight to preserve the traditional understanding of parental rights, please go to www.parentalrights.org, sign the petition, and learn how you can get involved.

Amending the Constitution of the United States may seem like an impossible task. But getting the California court of appeal to reverse its February 28, 2008, decision seemed impossible also. God gave us favor. There is no doubt about that. There is every reason to believe that God will again give us favor when we try to put the principle of parental rights into the Constitution of the United States.

The California case did us a big favor. It woke up the homeschooling community to the reality that our freedom is a fragile thing that requires our constant vigilance. But the outcome also reinforced the clear record of God’s protection for the homeschooling movement. This is the basis for real hope for the future.


1. Geraldine Van Bueren, International Rights of the Child, Section D (London: University of London, 2006), 46.

2. Troxel v. Granville, 530 U.S. 57, 89 (2000).

3. Bruce S. Cooper, ed., Home Schooling in Full View: A Reader (Greenwich: Information Age Publishing, 2005), 110.

4. Ibid., 111.

5. Ibid., 112.

6. Ibid., 113.

7. Ibid., 113-114.