States throughout the country are targeting LGBTQ+ youth. Bills and regulations banning youth access to transgender medical care or forbidding discussion of LGBTQ+ issues in the classroom have been enacted or proposed in at least 25 states. Most often these bills are defended on the grounds that they protect “parental rights.”
The Florida House Judiciary Committee, for example, argued that HB 1557, the “Don’t Say Gay” Bill, protects “a parent’s fundamental right to make decisions regarding the care and upbringing of his or her child,” language echoed by Florida Gov. Ron DeSantis and Georgia Gov. Brian Kemp. Parental rights rhetoric has spread not only to other states but also to other right-wing causes. According to one Heritage Foundation report, parental rights require banning not just LGBTQ+ content but also “critical race theory” from the classroom.
The parental rights framing of these bills is likely effective. Who, after all, would deny that parents should be the primary decisionmakers when it comes their minor child’s upbringing? Certainly not the Supreme Court, which in the 1979 case Wisconsin v. Yoder declared that the “primary role of the parents in the upbringing of their children” was “established beyond debate as an enduring American tradition.” Indeed, parental rights are among the oldest fundamental rights still recognized by the contemporary court.
Herein lies another reason why the parental rights framing has gained so much traction: the foundational parental rights cases are now nearly a century old, and not well known to the general public. In its defense of HB 1557, the Florida House Judiciary Committee cited Meyer v. Nebraska and Pierce v. Society of Sisters, two canonical parental rights cases from 1925. Meyer, Pierce, and a similar case from 1927, Farrington v. Tokushige, are hugely significant in terms of Supreme Court doctrine, but they aren’t exactly a Roe, a Miranda, or an Obergefell in terms of public awareness. In other words, parental rights are an effective framing device because they’re something of a blank canvas: if you start with the general principle that parents have the right to control their child’s upbringing, then practically any assertion of control over a child’s upbringing—like forcing a kid to use a particular bathroom—can be portrayed as an extension of parental rights.
Yet there are two glaring flaws in this line of reasoning. First, it entirely ignores the historical context in which those early parental rights cases were decided. America in the 1920’s was riven by the same kinds of social and political anxieties—anxieties over race, ethnicity, and the inclusion of perceived outsiders—that have become fixtures of the contemporary far right. These anxieties were often expressed through state legislation dictating what children could and could not be exposed to.
The Meyer decision, for example, overturned a Nebraska law which forbad teaching non-English languages in public and private schools. The real target of the law was the local German population, a despised minority group in the aftermath of World War I. Similarly, in Tokushige the court stopped the Hawaiian government from effectively shutting down the many private language academies serving the island’s Chinese, Korean, and Japanese populations. Pierce struck down an Oregon law that would have shuttered local parochial schools, a measure targeting Catholics that was endorsed by the Oregon Ku Klux Klan.
In each case the court noted that the offending laws infringed upon parental rights. But in each case the court describes parental rights in admirably anti-forced assimilationist terms. In Meyer, the court noted that the “desire of the Legislature to foster a homogeneous people” is hardly a sufficient justification for requiring the children of German immigrants to study in English. In Tokushige, the court is even more forthright: “[t]he Japanese parent has the right to direct the education of his own child without unreasonable restrictions” the court observed, because “the Constitution protects him as well as those who speak another tongue.”
The court’s parental rights precedents speak clearly: all parents possess the right to direct their child’s upbringing, even—perhaps especially—families from stigmatized minority groups. This point is easy to lose sight of, given the ferocity with which right wing parents are now embracing parental rights rhetoric. But for every parent shouting down their local school board members over critical race theory, there are other parents who want their children to be educated about America’s history of racial injustice. Likewise, for every parent furious over “drag queen story hour,” there are other parents who are simply trying to find acceptance and appropriate care for their gender non-conforming teenager. The Constitution, as past courts have interpreted it, protects these parents no less than any others.
The second major problem for the parental rights argument is that while parents possess the general right to control their child’s upbringing, courts have repeatedly rejected the idea that parents possess the more specific right to control the content of public school curriculum. In fact, the early parental rights cases laid the groundwork for this distinction. In Meyer, for example, the court acknowledged that parental rights do not supersede “[t]he power of the State…to make reasonable regulations for all schools” or the power “to prescribe a curriculum” for public schools.
Appellate courts in the First, Second, Third, Sixth, Seventh, and Ninth Circuits have followed Meyer and Pierce in explicitly denying parents the right to dictate public school curriculum, even when public schools teach materials that some parents find controversial. As one court wrote, “[w]hile parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child.” This is true even when the content taught involves human sexuality: as the First Circuit concluded in Brown v. Hot, Sexy, and Safer, “Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.” So well established is this line of appellate decisions that, as one homeschool proponent lamented, “[i]t is almost impossible, in the absence of an obvious Establishment Clause violation, for parents to cause the complete removal of offensive materials from the public school curriculum.”
Parents who want to eliminate conversations about race, gender, and sexual orientation from the classroom are not just wrong about their rights, they are also out of step with the broader public. Public opinion polling consistently reveals that a clear majority of parents want their children educated, in an age appropriate fashion, about topics like systemic racism and gender identity. As is so often the case in American politics, this is less a fight over the meaning of a particular right and more a fight over whose rights ultimately matter. Conservative parents have the right to control their own child’s upbringing; they don’t have the right to control anyone else’s.