In the spring of 2020, amid skirmishes over mask mandates and church closures, a much larger battle was brewing over what’s taught in public schools.
By sending students home, COVID-19 made parents newly aware of their children’s assignments — and newly distrustful of what educators were up to.
“Parents became more skeptical about whether the public school system actually had their children’s best interests as a priority,” said Melissa Moschella, a philosophy professor at the University of Notre Dame.
Their skepticism deepened after the Black Lives Matter protests in the summer of 2020 sparked debates over how to teach kids about slavery and racism.
Suddenly, school boards across the country were weighing concepts like critical race theory, and state lawmakers were facing calls to expand school choice programs.
Nearly five years after the pandemic began, tension remains high between parents and teachers, and it’s still growing, in part because conflict over issues like gender identity and diversity is ramping up.
Against this backdrop, there’s been a surge in interest in a pair of century-old Supreme Court cases on education — and new pressure on the current justices to clarify the reach of parental rights.
The Supreme Court and parental rights
The Supreme Court first recognized parental rights in a case about a German-speaking tutor.
In Meyer v. Nebraska in 1923, the justices considered a Nebraska law requiring school lessons to be conducted in English.
They ruled the policy was unconstitutional, in part because it interfered with parents’ ability to direct the education of their children.
“They said that, in our scheme of government, parents have primary child-rearing authority, not the state,” Moschella said.
The court drove that point home two years later in Pierce v. Society of Sisters, a case about whether Oregon could force all children of a certain age to attend public school.
The justices once again said that state lawmakers were interfering with parental rights. In this case, it was because they were barring families from choosing religious education.
“Typically, Meyer and Pierce are read together. Together, they establish the right of parents to direct the education and upbringing of their children,” Moschella said.
Both cases locate that right in the 14th Amendment’s due process clause, arguing that parental rights, though not explicitly listed in the Constitution, are guaranteed by the clause’s general promise of liberty for all.
“These cases remain the key cases cited whenever a parental rights claim is raised before the court,” Moschella said.
Lingering confusion in courts
As Moschella noted, Meyer and Pierce play a big role in today’s legal battles over public education, despite the fact that they’re around 100 years old.
The rulings clearly establish that parents should have a say in what happens in classrooms. The problem, at least according to some legal scholars, is that they don’t articulate a way for judges to balance parents’ interests against the interests of schools.
“Because of the confusion, lower courts have tended to downplay or weaken parental rights claims,” Moschella argued, adding that, in one case, a circuit court justified its ruling against parents by saying that they were free to transfer to a private school.
Moschella is among those who want the Supreme Court to revisit Pierce and Meyer to clarify how to determine whether a policy respects parental rights.
Their hope is that the justices would require the use of what’s called strict scrutiny, a legal standard under which the government must prove that a policy is narrowly tailored to serve a compelling state interest, and that an effort has been made to reduce the policy’s interference with fundamental rights.
But a new Supreme Court case on parental rights would come with some risks.
For one thing, some of the current justices have recently criticized their predecessors’ use of the 14th Amendment and called for a reconsideration of what’s guaranteed by the due process clause.
For another, a new ruling on parental rights would likely lead to a flood of new cases, potentially creating more confusion, rather than reducing the confusion that already exists.
Future of parental rights
Perhaps because of that second possible outcome, the Supreme Court recently turned down an opportunity to consider the scope of parental rights. Six of the nine justices voted not to hear Parents Protecting Our Children v. Eau Claire Area School District, leaving it one vote shy of being taken up.
Although the case was focused on whether the parents involved had legal standing, it raised questions about whether educators’ violate parental rights by keeping a student’s gender identity private.
Justice Samuel Alito wrote a dissent about his colleagues’ decision not to hear it, arguing that courts are using the issue of standing to avoid contentious debates.
In January, the justices will have another chance to take up the issue. That’s when they’re expected to decide whether or not to hear Mahmoud v. Taylor, a case brought by religious parents who want to be able to opt their kids out of reading books about gender transitioning and some other LGBTQ issues.
The case involves a free exercise claim, not a claim about parental rights. But Eric Baxter, who is representing the parents, said it wouldn’t be surprising for the 14th Amendment to come up if the court hears the case.
“The court has leeway to look across both areas of law to reach a decision,” said Baxter, a vice president and senior counsel for Becket.
Assuming the Supreme Court does revisit parental rights sometime soon, legal experts generally predict that the justices will confirm and even build on what’s laid out in Meyer and Pierce.
But they don’t think such a ruling will necessarily turn down the temperature of ongoing debates.
Frederick Gedicks, who retired in 2024 after more than 30 years as a law professor at BYU, described recent education battles as both legal and cultural. You can’t fully resolve them as long as some families feel teachers have turned their backs on important values, including faith.
”If you were a Protestant in New Jersey where I grew up in the 1950s and early 1960s, you could send your kids off to school and not worry at all about what would happen there because everything that happened there would be consistent with Protestantism,” he said. In recent years, “there’s been a removal of that kind of implicit cultural privilege,” which feels to some like an attack.
You also can’t fully resolve the tension between parents and schools without building a shared understanding about what schools are meant to teach, Moschella said.
So long as disagreement over who should control conversations about issues like race, sexuality and gender, there’s going to be conflict over parental rights.