The Conflict Between Parental Rights and Public Schools

Schools across the country have decided to expose children in elementary school and middle school to mature information and concepts. This includes books depicting sexual acts in great detail, discussing sexual concepts related to gender theory and sexual orientation, telling children to keep their parents uninformed about discussions teachers have with them regarding gender identity, and encouragement of young children to change their gender.  This has, not surprisingly, sparked outrage by many parents and is prompting lawsuits in which parents are claiming that such conduct violates their fundamental right to control the upbringing of their children.

A young child will spend extended periods of time in school, which gives schools and teachers the ability to play a role in the intellectual and emotional growth of a child.  There have always been disputes between parents, teachers and school districts about what is being taught and said to children.  For example, many freedom of speech and freedom of religion cases grew out of claims that schools were violating the First Amendment rights of students.  For example, one of the most important compelled speech cases was decided in 1943 by the U.S. Supreme Court (West Virginia State Board of Education v. Barnette), which involved a state requirement that school children salute the American Flag and recite the Pledge of Allegiance.  When Barnette was decided, the U.S. was in the middle of World War II.  The Supreme Court nonetheless held that under the First Amendment a public school district could not compel children to recite the Pledge of Allegiance.

With respect to parental rights, in 1925, the Supreme Court held in Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), that a law preventing parents from sending their children to private school was unconstitutional.  The Supreme Court held that the law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”  The Supreme Court made the following famous statement: “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.”  While this language is broad, the Court’s actual decision was narrow.  Since Pierce, the Supreme Court has not delineated the contours of the right with respect to school curriculum and instruction.  As a result, lower federal courts have defined this right differently.

One reason for this lack of clear guidance is that the need for significant guidance did not exist in the past.  Some degree of tension always existed between what a school district taught and the fundamental values parents wanted to instill in their children.  The risk of such tension leading to lawsuits, however, was mitigated by school districts giving parents notice that sensitive topics were going to get discussed and giving parents the right to opt out of such instruction.  This basic framework is now being swept away by the intrusion of modern gender theory into schools.  Today, conflict between schools and parents has a variety of elements: (a) individual teachers discussing sexual orientation and gender identity with young children, (b) school districts implementing policies that keep gender identity and gender transitioning secret from parents, and (c) curriculum changes that expose children to sexual content and sexual discussions at early ages without giving parents the right to have their children removed from those discussions.

In many school districts, teachers are discussing topics such as sexual orientation, gender identity and transgender issues with children in elementary school.  These topics directly conflict with some parents’ deeply held views.  In more extreme cases, some teachers are actively working with children to change their gender identity, and are telling those children to keep this secret from their parents.

The Supreme Court’s failure to decide many parental rights cases has left this right somewhat undefined.  When schools were limiting their curriculum to basic academic topics, the risk of conflict between schools and parents was limited.  When issues did arise concerning religion, compelled speech and freedom of speech, those cases were resolved under the First Amendment.  The First Amendment can still resolve many issues that arise between parents and school districts.  The free exercise of religion clause in the First Amendment will place some limits on the ability of a school to teach children about sexual orientation and gender identity.  The free exercise clause of the First Amendment, however, has certain limitations, and may not provide parents with the level of protection they want.  The 14^th Amendment may provide parents with the protection they need to protect their children from teachers and school districts that want to discuss sexual orientation and gender identity with their children.  This is a developing area of the law, and cases are making their way through the courts.

One such case is Carmilla Tatel v. Mt. Lebanon School District (“Tatel”).  In Tatel, a federal district court for the western district of Pennsylvania recently denied a motion to dismiss a complaint brought by parents because a teacher, with the support of the school district, was “(1) instructing the children in her first-grade class that their parents might be wrong about their children’s gender; (2) telling a student that the child could dress like a different gender and be like the teacher’s transgender child (who was also in the first grade in a different school); (3) telling a student that she, the teacher, would never lie (implying that the parents may lie about their child’s gender identity); and (4) instructing students not to tell their parents about the transgender discussions.”  The teacher allegedly focused on one child for “repeated approaches about gender dysphoria.”  The parents allege that the teacher had private conversations with the child “discussing with him the similarities between the boy and her transgender child again suggesting that the boy might want to wear a dress, at other times commenting to him how the boy and her transgender child had similar interest[s] and the same favorite color, and telling the child that he could be like her transgender child.”

When the parents learned about this conduct, they complained to the school board and wanted the teacher to stop discussing transgender issues with their son.  The school district refused their request, and “adopted a de facto policy that the teacher’s conduct could continue in the future without notice or opt out rights for the Parents on transgender topics.”  The parents alleged that the school district’s policy was “in derogation of the District’s published parental rights policy” that allowed parents to have their children removed from discussions on a number of different topics, including, but not limited to, “reproductive education [and] sex education.”

The district court stated that a public school’s ability to care for children during the school day does not give schools the right to displace parents, and that “parents, not schools have the primary responsibility to inculcate moral standards, religious beliefs, and elements or good citizenship.” (Emphasis original).  Further, “[p]arent’s fundamental constitutional rights have been recognized as superior to the interests of a public school.”

The parents needed to allege facts showing that the teacher’s actions and the school district’s policy “implicated a matter of great importance with respect to parental authority.”  The district court held that the plaintiffs alleged facts were sufficient to show a violation of their 14^th Amendment right to control the upbringing of their children.  The district court stated that the plaintiffs’ allegations involved “not merely instruction to influence tolerance of other children or families, but efforts to inculcate a teacher’s beliefs about transgender topics in Plaintiffs’ own children.”  (Emphasis original).  Further, the teacher “allegedly encouraged her first-grade students that they might be a different gender than their own parents told them.  In other words, it was the children’s own family and their own gender identity that [the teacher] targeted.”  (Emphasis original).

The district court also held that the plaintiffs had adequately alleged that the teacher and school district had violated their right to family privacy.  The district court focused on the allegations that the teacher had “an agenda to encourage young children to believe their parents could be wrong about their gender and in intrusion by [the teacher], with permission of the District, into the values being conveyed within the family (particularly with respect to the ‘grooming’ allegations and the instruction that children not tell their parents about the gender identity discussions).”

The fact pattern alleged in Tatel is, unfortunately, all too familiar.  A key aspect to the decision in Tatel is that the school district refused to let parents opt their children out of any gender identity discussions by the teacher.  The parental rights doctrine does not necessarily prevent schools from teaching controversial topics in school.  With respect to certain topics, however, the parental rights doctrine under the 14^th Amendment may give parents the right to force schools to give them notice of instruction or discussions of sensitive topics such as sexual orientation and gender identity and the right to opt their children out of such instruction or discussion.

The right of parental control, however, is not well defined, and courts have reached different conclusions with respect to the scope of this right.  Given the increasing number of cases addressing parental rights, the contours of this right should start to get delineated with greater precision.  Hopefully, the Supreme Court will take one of these cases and provide much needed clarity and direction.

Education has the power to shape minds and build a better society. However, a parent’s right to dictate the upbringing of their child should not be violated. If you have concerns about controversial topics in your child’s school, enlist the help of an experienced Chicago civil rights attorney. Schedule a consultation with The Law Offices of George M. Sanders today.