Give parents this simple solution to take back their rights in education

Parents were shocked when a public high school in Candler, North Carolina, invited a local abortion clinic to lecture a sophomore biology class on sex education and contraception without the consent of parents. 

"Right away, the home was forgotten. All authority of parents was dismembered. The child became a business customer for the abortion clinic," said one enraged father who attended the lecture. "The woman speaking regarded the home as nonexistent. Father and mother were dead, as far as respect to us."

The year? It was 1984, but it could just as easily have been 2023.

Parents of Generation Z, meet parents of Generation X. Today’s parents’ rights movement demonstrates that little has changed in the public school wars since the days of Ronald Reagan. Like the angry father from 1984, parents still feel powerless, ignored and stymied. School systems see parents as irritants at best and domestic terrorists at worst, and they continue to resist informing parents about what is happening in classrooms.

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Why does the public education establishment feel so comfortable ignoring the interests of parents? The answer is simple: It’s because they can.

For years, parents’ rights activists have pointed to two U.S. Supreme Court cases, Meyer v. Nebraska (1923) and Pierce v. Society of the Sisters (1925), for the principle that parents have the constitutional right to direct the upbringing and education of their children.

In Meyer, Chief Justice William Howard Taft’s Supreme Court considered the case of a Lutheran school teacher who was convicted of violating a Nebraska law that prohibited public and private schools from instructing students in any language other than English. Passed in a frenzy of anti-German sentiment during World War I, the law was ruled unconstitutional, with the court determining that the private school teacher and the parents had a powerful liberty interest vested in the 14th Amendment. Two years later, the court strengthened Meyer in Pierce, ruling unconstitutional an Oregon law requiring attendance at public schools: "The child is not the mere creature of the State."  

Unfortunately for supporters of parents’ rights, none other than Antonin Scalia has questioned the precedential value of these cases. 

In Troxel v. Granville (2000), the U.S. Supreme Court struck down a Washington state law that allowed grandparents to petition state courts for child visitation rights over parental objections. Although the court found Meyer and Pierce controlling, the case resulted in a plurality opinion, two concurrences, and three dissents, revealing a fractured court. 

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In his dissent, Justice Scalia cast doubt on the viability of Meyer and Pierce and a later case, Wisconsin v. Yoder (1972): "The sheer diversity of today's opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection." The cases present a very high bar for parents.

Even more frustrating for parents is that federal legislation meant to promote parental rights, such as the Protection of Pupil Rights Amendment (PPRA), has been ineffective. Passed over the hysterical objections of the National Education Association (the nation’s largest teachers union), the PPRA requires federally funded schools to allow requesting parents to review "any instructional material" taught in classrooms and to opt out of surveys that explore a student’s political beliefs, sexual behaviors or attitudes, mental health, religious beliefs, or other sensitive issues.

In 1984, the Great Communicator, usually a severe critic of federal regulations, himself announced the publication of the PPRA’s implementing rules in a speech to the national Eagle Forum Conference: "Like you, I believe that parents’ rights in education must be respected." Any Republican politician would say the same today.

Like the theory of substantive parental rights, however, the PPRA has not withstood very well the test of time. Often with the active support of school boards and administrators, well-documented efforts to indoctrinate students in radical concepts like gender identity and critical race theory and the use of academically inferior curricula like the 1619 Project have created a critical mass of outraged parents who simply no longer trust their schools. The schoolhouse door remains shut to parents despite the Gipper-endorsed PPRA.  

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One reason for this is that the public education establishment knows that parents can’t enforce their rights under the PPRA against local school districts. The PPRA’s recourse is for the parent to file a complaint with the Education Department, which must then investigate and resolve the complaint – a process that can take months and even years. Barring compliance, the department may withhold or terminate a school’s federal funding, something which has never happened in the agency’s history. This suits school districts and their unions just fine.

The irony is that Republicans have been content for decades to let parents rely on the very bureaucracy that many want to abolish: the Education Department. This policy not only contradicts the interests of married couples with school-age children (a key GOP constituency) but also betrays the party’s well-learned historical skepticism of public sector bureaucracies. Republicans should understand that federal bureaucratic enforcement of parents’ rights laws is simply insufficient and will never correct the power imbalance that exists today in favor of school districts.

There is a simple solution: Let parents sue. Congress should create an express right of action allowing parents (and guardians) to sue school districts in federal court to enforce not only PPRA rights but any other rights that Congress may codify for parents. To avoid abuse, Congress could permit only declaratory and injunctive relief and awards of attorneys’ fees and costs – no monetary or compensatory damages.

Faced with litigation expenses and potential liability for fees and costs, the public education establishment would finally start listening to parents and take their concerns seriously. Allowing enforcement in the courts would also reconcile two contradictory policy goals for conservatives – dismantlement of the Education Department bureaucracy and helping parents who seek accountability from their local school systems. For once, conservatives would also benefit from the ingenuity of the trial attorney bar.

As usual, states are taking the lead. Arizona, for example, allows parents to enforce statutory rights, but it’s highly unlikely that union-dominated states like California, New York and Illinois would pass meaningful parents’ rights bills, much less ones that grant rights to sue. Parents in blue states cannot be left behind. A federal private right of action is the answer.

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The House of Representatives has responded to the loss of confidence in public schools by passing the GOP’s Parents Bill of Rights Act (PBRA). In any sane world, this bill would swiftly fly through Congress with the support of the president, but in contemporary America it will almost certainly die in the Senate. President Biden won't even have the opportunity to pay tribute to his political masters at the National Education Association and American Federation of Teachers by vetoing the bill. Although the PBRA drastically expands federal rights for parents, it does not include a parents’ private right of action against school districts.

If Democrats succeed in burying the PBRA this year, parents should take advantage of that party’s mindless obstructionism, plan carefully for 2025, and demand that the next administration and Congress let them sue. Otherwise, for parents seeking answers from public schools, it’ll be back to the future.

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