The Pre-Political Origins of Parental Rights

This essay is excerpted and adapted, with permission, from Melissa Moschella, “Defending the Fundamental Rights of Parents: A Response to Recent Attacks,” 37 Notre Dame Journal of Law, Ethics, and Public Policy 397 (2023).

There is growing skepticism about parental rights among many prominent legal scholars who are arguing for changes in the law that would significantly restrict those rights or even call the very notion of parental rights into question. For example, Anne Dailey and Laura Rosenbury have proposed a total restructuring of law related to children, giving less deference to parents and broadly empowering the state to enforce decisions about what it takes to be in the child’s best interests even when fit parents disagree.[1] Their view implies significant limitations on parental rights in all areas, including education, administration of discipline, medical decision-making (particularly in areas related to reproduction, sexuality and gender), and non-parental visitation. In the educational arena, Elizabeth Bartholet’s 2020 article calling for a presumptive ban on homeschooling received significant public attention.[2] Earlier work by Martha Fineman and George Shepherd goes even further, seeking to ban almost all private schooling.[3] Jeffrey Shulman has similarly argued for severe restrictions on parental rights in education.[4]

These parental rights’ critics base their arguments on two sets of concerns: (1) concerns about promoting the well-being of children as they understand it; and (2) concerns about educating children for citizenship in a pluralistic democratic society. Some of their concerns about children’s well-being are legitimate, such as concerns about cases in which serious abuse or neglect go undetected because parents claim to be homeschooling them. However, there is no good evidence showing that homeschooled children are abused at higher rates than others—or that children are at greater risk of abuse at home than in school—and, as the Supreme Court noted in Parham v. J.R. “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Other concerns are based on highly contestable views about children’s interests, such as Shulman’s worry that children’s autonomy is harmed when parents educate them in a particular religion without exposing them to other options.

More fundamentally, all of these arguments are flawed because they fail to recognize that parents’ rights are grounded in their natural, pre-political authority, authority which the state has the obligation to recognize, but which is not derived from the state. Instead, these authors explicitly see parental rights and authority as conferred by the state. According to Dailey and Rosenbury, “the law’s allocation of control to parents is a choice, not a natural state of affairs.”[5] Similarly, Shulman states: “All parental power is a function delegated by the state” and “revocable by the state without a showing of parental misconduct.”[6] James Dwyer briefly sums up this statist view with his claim that “the law creates the family.”[7]

Yet what these and other parental rights critics fail to understand is that family law merely recognizes and regulates the pre-existing institution of the family; it doesn’t create that institution. As Garnett pithily explains in response to Dwyer: “The law no more ‘creates’ the family than the Rule Against Perpetuities ‘creates’ dirt.”[8] And I would add that the law no more creates parental authority than birth certificates create children. My primary aim in this essay is to further develop this point, showing why, despite what these authors claim, parental rights are natural and pre-political, not derived from the state.

1. Parental Rights as Grounded in Pre-Political Parental Authority

Parental rights are essentially a recognition of parents’ authority to make decisions on behalf of or affecting their children, even when others (including state authorities) may disagree with those decisions. This authority is pre-political because it flows from the very nature of the parent-child relationship, which exists as a biological and moral reality that is normatively prior to and independent of political authority and positive law. Note that I do not use the term “pre-political” to suggest that the parent-child relationship is temporally prior to the existence of the political community or that there ever was a “state of nature” in which human beings lived together without being part of a larger authoritative community beyond the nuclear family. My claim, rather, is that the authority of parents is normatively prior to and independent of political authority and positive law, by which I mean that parental authority over children is both original – not derived in any way from political authority or positive law – and primary. By contrast, state authority over children is secondary and subsidiary to that of parents. The basis of parental authority is that, as I will explain shortly in greater detail, the parent-child relationship generates weighty special obligations – obligations which are in some respects non-transferable – for parents to provide for the overall well-being of their children. Because children lack the maturity necessary to make reasonable decisions about what is in their own best interests, fulfilling the obligation to promote children’s well-being requires making decisions on their behalf. In other words, parental authority flows from parents’ pre-political moral obligation to care for their children by, among other things, making decisions about how best to promote the flourishing of their children and of the family community as a whole, the flourishing of which both includes and redounds to the flourishing of the children.

A. The Foundations of Parental Authority

Understanding the importance of the biological parent-child relationship is crucial for understanding the pre-political origins of parental rights and responsibilities. The biological parent-child relationship is, in itself, a genuine personal relationship that is uniquely intimate and enduring especially from the child’s perspective. For it is the only human relationship that literally defines one’s identity at a biological level. And while one’s identity as a human person is not reducible to one’s biological identity, one’s biological identity as a specific human organism is arguably the basis of one’s overall personal identity both at any one time and over time. Thus, no other relationship affects one’s identity in a way that is as profound and permanent as a child’s relationship to his or her biological parents.

At least initially, therefore, a child’s closest human relationship is her relationship to her biological parents. This point is important for understanding why the authority of parents over their children is natural, because it is the basis for the claim that biological parents are, by nature, the ones with the strongest and most direct obligation to care for their children (at least initially). Having started the task of bringing a new human person into the world, the biological parents are also the ones naturally charged with the responsibility for bringing that task to completion by raising that child to maturity (a maturity which is not just biological, but also psychological, social, spiritual, moral and intellectual).

Here I am presuming the commonsense view that the nature, weight and content of our obligations to others depend in large part on the nature of our relationship with them. On this view the weight of our obligations is proportionate to the closeness of the relationship and the degree of need. This commonsense view explains, for instance, why we assume that it is right to use a much greater proportion of our time, energy and resources to benefit those who are near and dear to us than to benefit strangers, yet why we nonetheless understand that the dire need of a stranger may at times have a greater claim on us than the minor need of a family member. This commonsense view also explains why we think that some of our obligations to others must be fulfilled personally—such as the obligation to listen sympathetically to a friend in distress—while others—like a teacher’s obligation to grade a set of multiple-choice exams—may be delegated to any competent third party or even to a machine. In general, an obligation is non-transferable—i.e., it must be fulfilled personally—when one party in the relationship is personally dependent on the other for the fulfillment of the need in question.

Respecting the fundamental rights of parents in law requires a deferential approach to parental decision-making in which fit parents are presumed to know better than the state what is in their children’s best interests.

How does this apply to the relationship between parents and children? While many of a child’s needs could certainly be fulfilled by people other than the child’s biological parents, there is one need that only the biological parents can fulfill, and that is the need for their parental love, understood not primarily as an emotion but as a high-priority commitment to the well-being of the child. Even when adoptive parents or others love a child, that love can never truly replace the love of the child’s biological parents. Similarly, when a widow remarries, her new husband, however loving he may be, can never truly replace the love of her previous husband. (Note that this is true even if her new husband is more loving, and even if she loves him more than her old husband; my point here is not about the quality or intensity of a particular person’s love, but about its irreplaceability.) There is a sense, of course, in which the love of any person is irreplaceable to every other person. Yet we are not harmed by the absence of a stranger’s love because the stranger has no significant relationship to us and therefore no obligation to love us (beyond a basic obligation of respect and concern for us as fellow human beings). By contrast, as already argued, a child does have a relationship to her biological parents—even to biological parents she has never seen—a relationship that makes the absence of adequate love on the part of her biological parents harmful, even if she is well-loved by others, and even if (as may often be the case with adoption, which I will discuss further in a moment) others love and care for her better than her biological parents would have.

Given the weight of biological parents’ natural obligation to provide for their children’s needs, and the extreme dependence of children upon their parents at all levels, usually the only way for biological parents to fulfill their strictly non-transferable obligation to love their children is for them to raise those children themselves. The only exception is when strong child-centered reasons tell in favor of allowing others to raise the child—reasons of the sort that would later enable the child to understand that his biological parents’ decision not to raise him themselves did not reflect a lack of love, but was actually an expression of their love. Indeed, one of the benefits of open adoption is that it sometimes enables children to learn that their biological parents’ decision to place them for adoption was not an act of abandonment but rather a loving act to give them the opportunity for a better life.

The argument thus far can be summarized as follows. Given that (1) special obligations for others’ well-being flow from the nature and closeness of our relationships with others and on the extent to which others are personally dependent upon us for the fulfillment of their needs; (2) parents are by nature the ones with whom children initially have the closest relationship; and (3) children are personally dependent on their parents to meet important needs, it follows that parents are the ones with the strongest and most direct obligation to promote the well-being of their children in all respects, an obligation which in some respects is non-transferable. Concretely, this means that parents have an absolute and non-transferable obligation to love their children (i.e., to have a high-priority commitment to the well-being of their children), which translates into a strong prima facie obligation to raise their children, because this is the only way for parents to appropriately love their children absent strong child-centered countervailing reasons. Thus, given that (1) parents (unless they are incompetent) can only fulfill their obligation to their children by raising those children themselves, and (2) caring for children requires making decisions on their behalf, it follows that parents by nature have the authority to direct the education and upbringing of their children, which includes the authority to make controversial child-rearing decisions. While parents may of course enlist the help of third parties—family, friends, teachers, doctors, pastors, etc.—to carry out their responsibilities, the task of directing their child’s upbringing is their personal responsibility which cannot rightly be entirely delegated to others (except in cases of incompetence, as already discussed).

What about adoptive parenthood? As noted, when biological parents are unable to care for their child, placing the child for adoption may be the best way to fulfill their obligations. Once parents have adopted a child, they have the same responsibilities and authority as biological parents, and of course adoptive parents usually form enduring psychological bonds with their children, and profoundly shape their children’s identity. Nothing that I say here should be taken to denigrate adoptive parenthood or imply that it is not “true” parenthood. (Indeed, my husband and I are prospective adoptive parents, and we have many friends with adopted children.) My reason for emphasizing biological parenthood is that, as the focal case of parenthood (without which there would be no children to parent), it enables us to understand the essential moral features of the parent-child relationship and to establish that the origin of parental authority is natural and pre-political. For, as already explained, I understand parental authority as grounded on parents’ special obligations to care for their children, and I understand special obligations as flowing from the nature of our relationships. Thus, in order to show why parental authority is natural, it is necessary to explain why, at least initially (i.e., when the child begins to exist) the biological parents are the ones with whom the child has the most intimate and comprehensive relationship—a relationship that is the biological cause of the child’s very existence and identity.

By contrast with biological parenthood, adoptive parenthood originates by convention, through the commitment of the adoptive parents to take on the responsibilities that biological parents have by nature—a commitment that, like the natural responsibilities of biological parents, is in principle permanent and unconditional. This commitment is, at least initially, the source of the adoptive parents’ obligations. Thus, in the case of adoption, the commitment and resulting obligations generally precede the development of a relationship with the child, whereas in the case of biological parenthood, it is the existence of the biological relationship that generates the obligation and calls for the further development of the already-existing relationship.

Also, by contrast with biological parenthood, the process of adoption is generally (and reasonably) regulated by the political community, which vets prospective adoptive parents to ensure their competence and grants them the legal rights of parents. Thus, the exception in a sense proves the rule. Precisely because the authority of biological parents is not in any way derived from the authority of the state, the vast majority of people would reasonably recoil at the prospect of parent-licensing schemes which would effectively treat all parents like adoptive parents. Although the state (via state-licensed adoption agencies) reasonably steps in to ensure that children have someone suitable to care for them when biological parents cannot or will not fulfill their responsibility, in the normal case, the state simply recognizes and respects the natural childrearing responsibilities and corresponding authority of biological parents that flow from the already-existing relationship between parent and child.

B. The Family as a Natural Authoritative Community

Thus far, I have conceptualized the rights of parents as grounded in the natural authority of parents to make decisions about what is in the best interests of their children and of the family community as a whole. On this view, the family community is a natural authoritative community—i.e., a natural community with authority to direct its own internal affairs, including, centrally, the education and upbringing of children—relatively free from the coercive interference of the larger political community. Thomas Aquinas presents a helpful metaphor for understanding the family as a natural community with its own sphere of authority. Aquinas argues that it is just as natural for a child to be raised to maturity within the “spiritual womb” of her biological family as it is for a child to be gestated in the physical womb of her biological mother. And my argument above, showing how being raised within the “spiritual womb” of one’s biological family corresponds to children’s deep need to know that they are loved by those who brought them into existence, explains in part why this is the case.

While children are members not only of their families but also of the larger political community, their membership in the larger political community is indirect, mediated through their membership in the family. We can think of this as a nesting-doll model of authority, which can be understood by analogy with international relations. While as a citizen of the United States I am a member not only of the nation but also of the larger global community (of which the United Nations serves as a quasi-government), my membership in the global community is mediated through my United States citizenship, and the dictates or recommendations of the United Nations generally affect me only indirectly, through their influence on United States law and policy (influence which usually is and ought to be non-coercive). The relationship between the family and the state is in some respects analogous to the relationship between the state and the international community. Because the state has the authority to direct its own internal affairs, it is a widely agreed-upon principle of international relations that the international community ought not to coercively interfere with the internal affairs of a sovereign state, even if the international community reasonably judges that the state could better serve the interests of its citizens by enacting different policies. The exceptions to this are cases in which a government is engaging in egregious human rights abuses or acting in ways that seriously and directly threaten the peace and safety of other nations. Similarly, the state ought to respect parents’ authority to direct the internal affairs of the family—including parents’ childrearing decisions—unless parents are guilty of genuine abuse or neglect, non-ideologically defined, or are raising their children in a way that directly and seriously threatens the public order (e.g., training children to be criminals).

C. Limited Government and Respect for the Family as a Mediating Institution

Recognizing and respecting that the family (as well as other communities such as churches, civic associations, etc.) is an authoritative community with the right to direct its own internal affairs is an essential and crucial feature of limited government. Indeed, as Hannah Arendt famously pointed out in her seminal work, The Origins of Totalitarianism, a hallmark of totalitarianism is the effective elimination of all mediating institutions between the individual and the state. The family is arguably the original and most crucial of these mediating institutions. In Meyer v. Nebraska, the Supreme Court clearly recognizes the essential connection between the protection of parental rights and core principles of limited government. Referencing Plato’s famous proposal in The Republic for the abolition of the family and direct state control over children, as well as Sparta’s removal of males from their families at age seven to be raised and trained by official guardians, the Court notes: “Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.” Clearly, the Nebraska law at issue, which prohibited the teaching of foreign languages up through the eighth grade, hardly even approaches the level of restriction on parental educational control envisioned in Plato’s Republic or practiced in ancient Sparta. Yet the Court makes these seemingly extreme comparisons because the fundamental principle at stake is the same: the law at issue in the case, just like Plato’s proposal or Sparta’s educational practices, was inimical to the principles of limited government because it usurped the pre-political authority of parents to direct the internal affairs of the family—particularly the education and upbringing of children—without sufficient justification (i.e., abuse, neglect or serious threat to the public order).

It is true (as Meyer also clearly notes) that the state does have a direct and serious interest in the education of future citizens as required for the survival of the social and political order—a key part of what John Rawls refers to as the “ordered reproduction of society over time”—and therefore that it has the authority to establish reasonable educational regulations for that purpose. However, such regulations are not (or at least ought not to be) a denial of the primacy of parental educational authority. On the contrary, as the court in Meyer explicitly states, compulsory education laws are simply enforcing and supporting “the natural duty of the parent to give children education suitable to their station in life.” Thus such laws do not call into question but actually presuppose the natural authority of parents to direct their children’s education. This is why the means chosen by the state to promote the legitimate goal of ensuring that children receive an education that will enable them to be law-abiding, productive and responsible citizens must be respectful of parents’ rights to direct their children’s education.

D. A Brief Note on Parental Rights as Fundamental Constitutional Rights

While my argument here has presented parental rights primarily as fundamental moral rights that the state has the obligation to respect as a matter of basic justice rather than as a matter of positive law, I also believe that the Constitution, interpreted in light of the common-law tradition, recognizes parental rights as fundamental rights. While not explicitly enumerated in the text of the Constitution, the right of parents to direct the education and upbringing of their children is clearly among those rights that the framers of the Constitution would have understood to be “of the very essence of a scheme of ordered liberty,” rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental” because they “lie at the base of all our civil and political institutions.” The right is clearly also “deeply rooted in [the] Nation’s history and tradition,” having been affirmed countless times in our history on the basis of common law prior to being articulated explicitly as a constitutional right in Meyer v. Nebraska and Pierce v. Society of Sisters.[9]

II. Requirements of Respect for Parental Authority: Educational Policy Implications

Now I want to briefly discuss some of the concrete policy implications of my view of parental educational authority as primary and pre-political, and of parental rights as protecting that authority. Note that I present these policy implications primarily as requirements of justice, rather than as requirements of any existing positive law, constitutional or statutory. These requirements should therefore be taken into account first and foremost by legislators, school officials and other policy-makers in order to ensure that they craft policies that are respectful of parental rights. Nonetheless, as noted above, I also believe that a strong case can be made for the recognition of parental rights as fundamental constitutional rights, and if that is correct, then my arguments are also directly relevant to judicial decisions.

A. Strict Scrutiny, Exemptions, and Accommodations

Most generally, what respect for parental rights requires as a matter of justice is effectively captured by what is referred to in constitutional law as the strict scrutiny standard, according to which laws infringing on a fundamental right are only justifiable if they serve a compelling state interest by the least restrictive means possible. Thus, laws regulating education, even when aimed at the legitimate state interest of preparing children for responsible citizenship, should avoid interfering with parents’ authority to direct their children’s education to the extent possible. Where reasonable regulations in pursuit of a compelling state interest (such as reasonable compulsory education laws seeking to facilitate the ordered reproduction of society over time) do conflict with parents’ educational authority, parental rights may only be overridden when there is no less restrictive means by which the state can achieve its goal. For example, in Wisconsin v. Yoder—a case in which Amish parents sought an exemption from the state’s compulsory education law so that they could educate their children at home in the Amish way of life after the eighth grade—a less restrictive means to the state’s interest of preparing children to be law-abiding, self-sufficient adults was available. The state did not need to force Amish children to receive a standard education until age 16 in order to achieve its interest, given the Amish community’s long history of law-abidingness and self-sufficiency. Accordingly, the Supreme Court ruled that the state had an obligation to grant the exemption in order to avoid violating the Amish parents’ rights (and religious freedom).

My account of parental rights also implies that public schools in general ought to avoid promoting controversial viewpoints particularly on sensitive moral and religious issues (such as, for instance, issues related to sexuality and gender) in order to respect the primacy of parental educational authority and make it less likely that the school will be undermining the values parents are trying to teach at home. Given that value-neutral education is impossible, however, the school should be transparent about its curriculum (notifying parents in advance when sensitive issues are going to be raised and showing them the proposed content of the lessons), and exemptions and accommodations should be granted to the extent possible when educational regulations or content prevent parents from raising and educating their children as they think best.

One frequently discussed case in this regard is Mozert v. Hawkins. In Mozert, the Sixth Circuit court denied the parents’ request that their children be exempted from a public school reading curriculum that they believed undermined the religious faith that they wanted to pass on to their children. The parents complained, among other things, that the readers were biased and unbalanced, completely lacking positive portrayals of Protestant Christianity, while sympathetically presenting relativistic and non-Christian viewpoints and lifestyles. The school district did not dispute that the readers were offensive to the families’ beliefs but argued that the children should be forced to read them anyway. The Sixth Circuit ultimately held that “mere exposure” to diverse viewpoints did not violate the students’ or parents’ religious free exercise rights, or the parents’ right to direct their children’s upbringing. My view would imply that the parents’ request for an exemption should have been granted, in line with the decision of the Tennessee District Court (whose ruling was reversed by the Sixth Circuit). The District Court rightly judged that failing to provide the accommodation would violate the parents’ rights, because the parents believed that the content of the textbooks could harm their children by undermining their religious faith, and therefore that without an accommodation they would not be able to fulfill their responsibility to protect the spiritual well-being of their children without foregoing the benefit of free public education. Further, as the District Court noted, although the state has a compelling interest in educating children to be responsible citizens, that interest could be served without requiring every student to use the same textbook, and allowing the children in the case to use an alternative textbook would be practically feasible.

B. School Choice

At times—and this is particularly true today as school curricula become increasingly ideological—parents’ objections to the public school curriculum may not be limited to a discrete text, program or event, but may involve concerns with the overall atmosphere or pedagogical approach of the school, or with viewpoints conveyed to students across the curriculum (as was the case in Yoder). In cases like these, the only way that parents can fulfill their obligation to direct their children’s education (and exercise their corresponding right) is to send their children to a different school or homeschool them. Yet, for parents with limited means, these are often not real options. And even for those who can afford these options, the cost is a significant burden.

This problem points to the fundamental injustice of a system in which government-run schools have a monopoly on public educational funding. Given that there is no such thing as a neutral education, the public schools’ monopoly on public educational funding means that the default is for children to be taught the viewpoints favored by the government, using the pedagogical methods favored by the government. Yet there is no reason why the views and methods favored by the government should be privileged in this way. On the contrary, if we take the primacy of parental educational authority seriously, the default should be for children to be educated in line with the views and methods favored by their parents, particularly on controversial matters.[10] Because the education of future citizens is crucial for the common good, providing public funding to facilitate this goal is reasonable, especially given that without it some parents would lack the resources to provide their children with a solid education. Yet, respect for the primacy of parental educational authority would indicate that public educational funding should be channeled through parental choice to schools of parents’ choosing (or to subsidize the cost of homeschooling), as long as the education being provided meets certain minimal standards—i.e., as long as the basic public purpose of education is being served. Recent laws in many states establishing education savings accounts or tax credit programs are a great example of this.[11] Private schools, homeschools and charter schools sometimes significantly outperform public schools particularly in the most underprivileged neighborhoods, not only with regard to academic learning, but also with regard civic educational goals, thus fulfilling the public purpose of education more effectively than many public schools.[12] Therefore, limiting public educational funding to government-run school makes no sense, and sends the false message that the formal education of children is primarily the responsibility of the state rather than parents. However, even if private schools, homeschools or charter schools do not outperform public schools academically, that does not mean that school choice programs are a failure. For ensuring that all parents have genuine choices about how and where to educate their children is independently valuable, as it respects the primacy of parental educational authority—making school accountable to parents, rather than the government—and enabling parents to choose schools in which the social and moral environment are more in line with the values that they want to pass on to their children.

Genuine school choice is not only a matter of protecting parental rights, but also of promoting children’s well-being by avoiding the confusion and stress that result from conflicts between the values taught at school and at home, and of offering a truly liberal solution to the public goal of ensuring that all children have access to an education while respecting diversity and preventing the state from imposing a single ideology on all children. Indeed, John Stuart Mill was strongly opposed to state provision of education or even state direction of education, arguing that “a general State education is a mere contrivance for moulding people to be exactly like one another.”[13] Mill believes that, at most, state-controlled education should be “one among many competing experiments, carried on for the purpose of example and stimulus, to keep the others up to a certain standard of excellence.”[14]

C. Minimal Regulations on Private Schools and Homeschooling

Finally, it is already clear from the foregoing discussion that my account of parental rights also implies a right to send one’s children to private school or to homeschool them. It is important to add, however, that state regulations on private schooling and homeschooling ought to be minimal—narrowly tailored to the compelling state interest of facilitating the ordered reproduction of society over time by ensuring that children receive an education that will enable them to be law-abiding, productive, and responsible citizens. It could be acceptable, for instance, for the state to require that children demonstrate age-appropriate progress toward competence in core academic subjects such as math, reading, and writing, as well as basic knowledge about how our government works and about the rights responsibilities of citizens. This could be done in relatively non-intrusive ways, such as through periodic examinations. Note that my point here is not to suggest that states should adopt such regulations, only that they could be justified if necessary. For there are many reasons to think that such regulations may not be necessary and may actually do more harm than good. James Tooley argues that state examinations and state-imposed curricula often distort the educational process by, among other things, testing skills and knowledge that are not actually useful for future work, and by making education boring (leading many students to lose motivation and even drop out).[15] Evidence also indicates that private schools and homeschools generally perform at least as well on all measures (including civic educational measures) as public schools, and often significantly outperform public schools especially in disadvantaged communities. Further, even seemingly minimal government regulations may be overly burdensome in practice, wasting resources or interfering with schools’ ability to fulfill their educational mission.[16] Nonetheless, some regulations—such as basic academic requirements, or a basic civics requirement—could be justifiable if they were a necessary and effective means to ensure that children receive an education that at least minimally prepares them for responsible citizenship. As long as the state only requires a demonstration of basic academic progress in core subjects, or basic knowledge of our nation’s history and government, such regulations are, at least in principle, unlikely to violate parents’ right to educate their children as they think best, except in relatively rare cases like that of the Amish. And in such cases, as already argued, exemptions should be granted as long it would not seriously undermine the compelling state interest at stake.

Conclusion

In this essay I have articulated an account of parental rights as based on the pre-political authority of parents, authority which flows from the very nature of the parent-child relationship and the weighty special obligations that parents have to protect and promote their children’s well-being. This philosophical account is in line with the common-law tradition and the Supreme Court’s recognition of parental rights as fundamental in Meyer v. Nebraska and Pierce v. Society of Sisters. In general, respecting the fundamental rights of parents in law requires a deferential approach to parental decision-making in which fit parents are presumed to know better than the state what is in their children’s best interests, and to be acting with their child’s welfare in mind, unless there is clear evidence to the contrary and the parents’ actions constitute genuine abuse or neglect, non-ideologically defined. Specifically with regard to education, parental rights include the right to exemptions and accommodations in public schools when parents find activities or curricular elements objectionable, as well as the right to send one’s children to private school or homeschool them, and the right to genuine school choice—which requires putting an end to government-run schools’ monopoly on public educational funding through policies like voucher programs.

Although critics worry that robust protections for parental rights the rights and well-being of children or the state’s interest in an ensuring that children are prepared for responsible citizenship, these critics’ arguments are fundamentally flawed, because they fail to recognize the pre-political origins of parental rights, falsely presume that parental rights are inherently in conflict with children’s rights, and presume—contrary to evidence and common sense—that the state is more likely than parents to know what is in the best interests of a child and to be motivated to promote the child’s welfare.[17] While no parent is perfect, and some parents are incompetent or even malicious, the vast majority of parents love their children and do their best—often at the cost of great personal sacrifice—to promote their children’s well-being and prepare them for the future. Although more zealous state oversight of parenting and intrusion into family life may stop a few cases of abuse or neglect that would otherwise go undetected, it will only do so by inflicting irreparable harm on countless loving families and eroding the family intimacy and trust that is so important for children’s welfare. Further, evidence indicates that private and homeschools prepare children for citizenship at least as well as—and often better than—state-run schools. Protecting parents’ authority to raise their children in line with the dictates of their consciences is not only a matter of fundamental justice and constitutional rights but is also the best way to promote the well-being of children and the education of future citizens.

[1] Anne C. Dailey and Laura A. Rosenbury, “The New Law of the Child,” 127 YALE L.J. 1448 (2018); Anne C. Dailey and Laura A. Rosenbury, “The New Parental Rights,” 71 DUKE L.J. 75 (2021).

[2] Elizabeth Bartholet, “Homeschooling: Parent Rights Absolutism vs. Child Rights to Education and Protection,” 62 ARIZ. L. REV. 1 (2020).

[3] Martha Albertson Fineman and George Shepherd, “Homeschooling: Choosing Parental Rights Over Children’s Interests,” 46 U. BALT. L. REV. 57, 103, 106 (2016).

[4] Jeffrey Shulman, The Constitutional Parent (2014); Jeffrey Shulman, “Who Owns the Soul of the Child? An Essay on Religious Parenting Rights and the Enfranchisement of the Child,” 6 CHARLESTON L. REV. 385 (2012); Jeffrey Shulman, “The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?” 89 NEB. L. REV. 290 (2010).

[5] Dailey and Rosenbury, “The New Parental Rights,” 106.

[6] Shulman, The Constitutional Parent, 58.

[7] James G. Dwyer, “Spiritual Treatment Exemptions to Child Medical Neglect Laws: What We Outsiders Should Think,” 76 NOTRE DAME L. REV. 147, 167 (2000).

[8] Richard W. Garnett, “Taking Pierce Seriously: The Family, Religious Education, and Harm to Children,” 76 NOTRE DAME L. REV. 109, 114 n.29 (2000).

[9] For more detailed constitutional arguments and an in-depth account of the common-law understanding of parental rights that underlies the Meyer and Pierce decisions, see Melissa Moschella, “Strict Scrutiny as the Appropriate Standard of Review in Parental Rights Cases: A Historical Argument,” Texas Review of Law and Politics 28 (2024): 771–85; and Melissa Moschella, “Do Parental Rights Extend Beyond the Schoolhouse Door? Correcting Misinterpretations of Pierce in Light of History and Tradition,” Notre Dame Law Review (forthcoming, Spring 2025).

[10] For more on these points, in the context of an argument that some form of genuine school choice is constitutionally required (primarily on religious free exercise grounds), see Melissa Moschella, “Carson v. Makin, Free Exercise, and the Selective Funding of State-Run Schools,” Journal of Religion, Culture, and Democracy (forthcoming, 2025).

[11] See, e.g., the Oklahoma Parental Choice Tax Credit Act.

[12] See, e.g., Patrick J. Wolf, “Civics Exam: Schools of Choice Boost Civic Values,” Education Next 7 (May 11, 2007); David E. Campbell, “The Civic Side of School Choice: An Empirical Analysis of Civic Education in Public and Private Schools,” BYU L. REV. 487, 510 (2008); Thomas Stewart and Patrick J. Wolf, “The School Choice Journey: Parents Experiencing More Than Improved Test Scores,” American Enterprise Institute (2015).

[13] J.S. Mill, On Liberty (Cambridge: Cambridge University Press, 1997), 106.

[14] Ibid.

[15] James Tooley, Really Good Schools: Global Lessons for High-Caliber, Low-Cost Education (Independent Institute, 2021), 166–67.

[16] See, e.g., E. Vance Randall, “Private Schools and State Regulation,” 24 URB. LAW. 341, 351 (1992).

[17] For more detailed responses to critics’ concerns, see the longer article from which this essay is adapted (Melissa Moschella, “Defending the Fundamental Rights of Parents: A Response to Recent Attacks,” Notre Dame Journal of Law, Ethics, and Public Policy 37 (2023): 397–443). See also, Melissa Moschella, To Whom Do Children Belong? Parental Rights, Civic Education, and Children’s Autonomy (New York: Cambridge University Press, 2016), ch.3–4; and Melissa Moschella, “Ordering Parental Rights, Children's Autonomy and Civic Education: A Philosophical Foundation for Public Policy,” Program for Research on Religion and Urban Civil Society (PRRUCS), University of Pennsylvania, vol. 1 (Spring 2020): 9–15.