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Congress Can Fulfill the Constitution’s Promise to America’s Parents

The U.S. Supreme Court has repeatedly affirmed that the U.S. Constitution protects the fundamental rights of parents.
Emilie Kao
Written by
The U.S. Capitol

Congress has a new opportunity to fulfill the Constitution’s promise to America’s parents by protecting families from harmful federal policies.

The U.S. Supreme Court has repeatedly affirmed that the U.S. Constitution protects the fundamental rights of parents. In a landmark 1925 case, the Court reiterated that “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.” That means that the duty-bearers, parents, are to be the primary decisionmakers for their children in education, health care, and custody. “This primary role of now established beyond debate as an enduring American tradition,” explained the Court in a subsequent decision.

But for too long, the government has usurped the rights of parents, and courts have allowed it. In 1995, Congress proposed a solution: the Parental Rights and Responsibilities Act. Back then, parents reported that schools gave psychological counseling to their children without permission and forced them to watch sexually explicit presentations. Some lower courts made the situation worse by failing to apply the same legal standard to parental rights as other top-tier rights like freedom of speech and religion. Instead they treated parental rights as non-fundamental and placed the burden of proof on parents to show that the government was misusing its authority.

Congress didn’t pass the Parental Rights and Responsibilities Act. This failure emboldened courts and states to ignore parental rights. In one case, a federal court sided with a Head Start program that administered full-body examinations, including of the genitals, of preschoolers without parental consent. Because the law did not strongly protect parental involvement and decisionmaking, children were deprived of their fiercest protectors.

Today, schools are taking more control over children and blatantly excluding parents. Schools in KansasIndiana, and Virginia have adopted policies that require staff to address students using names and pronouns that don’t align with the student’s legal name or sex—without telling parents or getting their approval.

In Wisconsin, a school planned to address a 12-year-old girl with male pronouns over her parents’ explicit objections. Parents Defending Education discovered that 18,000 schools “openly state that district personnel can or should keep a student’s transgender status hidden from parents.”

The good news is that parents are acting. They helped pass legislation in 17 states to secure the highest level of legal protection for the parent-child relationship. This will safeguard the rights of parents from state policies that exclude them from crucial decisions involving their children.

The bad news is that the White House has announced a federal policy that could gravely intrude upon parental rights in all 50 states and U.S. territories.

The Department of Education's new interpretation of the landmark Title IX law extends the definition of “sex” to include a person’s internal feelings about gender. That change will allow any school official to encourage a child to adopt a transgender or non-binary identity without notifying the child's parents. Such an official will simply claim that sharing that information discriminates against a student based on “sex.”

Education Secretary Miguel Cardona has dodged questions about parental rights. But the Education Department’s guidance already tells schools to use students’ “preferred” names or pronouns rather than their legal names. And it refers schools to California and Nevada policies that make parent communication wholly dependent on the student’s wishes.

Parents fear that if schools hide their child’s condition from them, they won’t be able to choose the best mental and emotional health care. Rather than standing with families, the federal government is driving a wedge between parents and kids.

There is hope, however. Congress can ensure that when a federal policy or action burdens parental rights, judges must apply the “strict scrutiny” standard. This requires the government to demonstrate it has a “compelling interest” that necessitates the burden on parents.

Sens. Tim Scott (R-S.C.) and James Lankford (R-Okla.) and Rep. Virginia Foxx (R-N.C.) have just introduced the Families’ Rights and Responsibilities Act, which would do just that. If enacted, this bill would ensure that courts respect parental rights as fundamental. The bill also contains a private right of action so parents can file a legal claim when they believe that their rights have been violated. This will make it harder for federal policymakers to treat parents as an afterthought. If the bill passes, it will be tougher for the Biden administration to continue enacting policies that split up families.

Parents know and love their children best. When schools exclude or even deceive parents, children suffer. Now, a broad coalition of Jewish, Muslim, and Christian parents from different ethnic and political backgrounds are asking Congress to restore the American tradition of respect for the family. By acting, Congress can ensure that courts fulfill the Constitution’s promise to America’s parents.

Emilie Kao
Emilie Kao
Senior Counsel, Vice President of Advocacy Strategy
Emilie Kao serves as senior counsel and vice president of advocacy strategy for Alliance Defending Freedom.