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Remember in the not-so-distant past when kids went to school to learn reading, writing, and arithmetic? As parents across the country shockingly discovered during the COVID-19 pandemic, these foundational skills are no longer a priority in many public schools. Instead, some teachers have been using classroom time to indoctrinate, not teach, our precious youth.
As a result of these troubling public school trends, parents are now much more engaged in their local school board meetings. This is so despite the way in which these concerned parents have been wrongfully portrayed. In a September 29, 2021, National School Boards Association (NSBA) letter to President Biden, for example, the NSBA shamefully compared parents who shared their concerns at school board meetings to domestic terrorists. And on October 4, 2021, the United States Department of Justice issued a similarly offensive memo.
We as parents must not be intimidated by these outrageous tactics. Generally speaking, public school board meetings are viewed as limited public forums. This means that “the state may restrict expression so long as the restriction (a) does not discriminate against speech on the basis of viewpoint and (b) is reasonable in light of the purpose served by the forum.” McBreairty v. Sch. Bd. of RSU22, 2022 U.S. Dist. LEXIS 128353, at *16 (D. Md. July 20, 2022) (emphasis added) (internal citation omitted).
In McBreairty, for example, Mr. McBreairty spoke at several school board meetings because he was concerned about numerous school-related issues, including inappropriate books in the school library. Id. at *5. Following his school board appearances, Mr. McBreairty received a letter from the school board counsel explaining that he was temporarily prohibited from entering school property for purposes of attending any school-related meeting or function. Id. at *9. In response, Mr. McBreairty filed a complaint “along with his emergency motion for a temporary restraining order and preliminary injunction.” Id. at *11. Here, the district court ruled in Mr. McBreairty’s favor and determined, in part, that he had a “fair likelihood of success on his as-applied challenge that the School Board’s restrictions violate[d] his First Amendment right to free speech.” Id. at *28-29. Although this ruling is just one initial step in the litigation process, it demonstrates that parents do have a voice and cannot be silenced merely because of their particular viewpoint.
Importantly, the ACLJ has written a legal memo which provides a general overview of parental rights in education. In fact, the ACLJ has been involved in this area of law for decades and has handled many cases involving public school-related constitutional matters.
In this regard, our memo notes that the Supreme Court of the United States affirmed, almost a century ago, that parents have a fundamental liberty interest in the care, upbringing, control, and education of their children. The Court later emphasized this in Wisconsin v. Yoder, 406 U.S. 205, 232 (1972): “The history and culture of Western civilization reflects a strong tradition of parental concern for the nurture and upbringing of their children.”
the Supreme Court of the United States affirmed, almost a century ago, that parents have a fundamental liberty interest in the care, upbringing, control, and education of their children. The Court later emphasized this in Wisconsin v. Yoder, 406 U.S. 205, 232 (1972): “The history and culture of Western civilization reflects a strong tradition of parental concern for the nurture and upbringing of their children.”
Marshall Goldman, ACLJ Legal counsel
Despite these bedrock principles, we point out in our memo: There has been a century long battle between parents’ right to direct their child’s upbringing and education, and public schools’ right to determine curricula in the best interest of the children they serve. While today’s parents still have a fundamental right to the “custody, care, and nurture of their child,” the courts have increasingly upheld that it is the schools’, not the parents’, right and responsibility to determine curricula and other school matters.
This essentially means that parents can choose the school in which to enroll their children, but once public school is selected, parents have very little say in curricular decisions. In Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 699 (10th Cir. 1998), the court, for example, stated that, “parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject.”
We further explain that: A school’s choice of curriculum does not violate parental rights despite parental objections if the curriculum is reasonably related to a legitimate educational purpose. . . . Rather, details such as the school curriculum, school hours, discipline, exam schedules, the hiring and dismissal of teachers, the availability of extracurricular activities, school dress codes, and so forth, are generally under the control of state and local authorities.
We also point out that court decisions “addressing religious liberty challenges to public school curriculum materials have been unfavorable where the parents claim that the materials violate their religious beliefs.” For example, in Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), the court wrote, “[p]ublic schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas.”
Despite such rulings, we note in our memo that, where students are coerced “into verbally affirming the truth of something that violates the student’s religious convictions, a First Amendment claim may be successful.” In Wood v. Bd. of Educ., No. GJH-16-00239, 2016 U.S. Dist. LEXIS 136512 (D. Md. Sep. 30, 2016), for example, the court held that the Plaintiff stated a First Amendment claim where she alleged that the school required her daughter to profess the five pillars of Islam and to write out faith statements of the religion.
We also explain the greater the coercion on students to profess beliefs that violate the student’s conscience, the greater the likelihood that the offending school requirement could be successfully challenged in court. By contrast, situations involving mere exposure to offensive materials would be better handled by initiating and maintaining an open dialogue with school administrators on the issue.
We also briefly discuss the Protection of Pupil Rights Amendment, 20 U.S.C. § 1232h, which is a federal law, and which reinforces the parental right to know and be informed about their children’s education by giving parents the authority to inspect all instructional material.
We conclude by noting that parents currently have no constitutional right to remove their child from objectionable classes, even if the parents’ objections stem from their religious beliefs. However, many states have enacted “opt-out” laws that permit parents to remove their children from various kinds of public school classes.
Please also keep in mind that parents can serve as grassroots catalysts for educational reform and should consider running for school board and becoming involved in school policy decision-making. After all, every parent has a constitutional right to “petition the Government for a redress of grievances,” and therefore active participation and even zealous advocacy before school boards is not only allowed but encouraged in our constitutional republic. We must stay engaged for the sake of our children.
Marshall H. Goldman serves as Senior Litigation Counsel with the American Center for Law and Justice where he works on both domestic and international matters. We are dedicated to defending your constitutional rights and have been providing assistance and legal representation, at no cost or charge, for decades. If your rights are being violated in this area, please contact us at ACLJ.org/HELP.
