Curricular Control and Parental Rights: Balancing the Rights of Educators and Parents in American Public Schools

In 1925, in Pierce v. Society of the Sisters, the United States Supreme Court acknowledged that “[t]he 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.” In reasoning that parents in the case had the right to send their children to a religiously affiliated non-public school and to a private military academy as a means of satisfying Oregon’s compulsory attendance statute, rather than the State’s secular schools, the Court emphasized that the State, acting in an through local school boards, may not “unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control.” The Constitution protects “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Insofar as “the custody, care and nurture of the child reside first in the parents,” there is a parental right to withdraw children from the States’ education system. In furtherance of their well-established rights to direct the educational upbringing of their children, parents may choose to send their offspring to non-public schools (regardless of whether they are religiously affiliated), to educate their children at home, or to withdraw their older children from schools altogether.As important as the parental right to direct the upbringing of their children, which includes the ability to withdraw their offspring from State educational systems, is, lower federal courts have sent a different message in this regard once parents permit their offspring to attend State schools. Indeed, as recent decisions from the United States Circuit Courts of Appeals for the First, Third, and Ninth Circuits demonstrate, parents may well have little or no say in issues concerning sexuality education in State schools. As the Sixth Circuit noted, “[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.” Without a doubt, State and local school officials have broad discretion to set curricular content. Yet, legitimate questions can be raised about the extent to which parents should have a say directing the education of their children and/or when they should be free to have their children excused from courses or other activities that the parents deem objectionable. Given the growing tension between the parental right to direct the education of their children and the authority of the States, qua local school boards, to decide curricular matters for all students in their schools, especially when these actions conflict with legitimate parental desires, this article seeks to illuminate issues while highlighting considerations which may be relevant to policy makers in the United States as well as in Australia, New Zealand, and other places. In addressing the tension between the duty of educators in State to control curricular content and rights of parents to direct the educational upbringing of their children this article is divided into two sections. The first part reviews the cases while the second section reflects on the implications of this tension for educational policy makers and parents as they seek to work together to provide quality educational programs for all children. This article does not seek to prescribe a solution for Australia, New Zealand, or any other Nation. Just as the United States must look to its own unique constitutional heritage and political culture in order to fashion solutions to its problems, each Nation must draw on its experience. Nevertheless, the American experiences, in light of our shared heritage of British common law, may be able to provide a catalyst for uniquely Australian and/or New Zealand responses. Further, to the extent that educational issues that deal with such basic concerns as curricular content have a way of appearing in different locations throughout the world, in the event that such a controversy rears its head in Australia and/or New Zealand, perhaps lawyers and other interested parties may look to this manuscript for a source of potential guidance. Additionally, the authors believe that the experiences of Australian and New Zealand can also inform and influence American responses.Given the growing tension between the parental right to direct the education of their children and the authority of the States, qua local school boards, to decide curricular matters for all students in their schools, especially when these actions conflict with legitimate parental desires, this article seeks to illuminate issues while highlighting considerations which may be relevant to policy makers in the United States as well as in Australia, New Zealand, and other places. In addressing the tension between the duty of educators in State to control curricular content and rights of parents to direct the educational upbringing of their children this article is divided into two sections. The first part reviews the cases while the second section reflects on the implications of this tension for educational policy makers and parents as they seek to work together to provide quality educational programs for all children.