What the Law Says About Parents’ Rights Over Schooling

What the Law Says About Parents’ Rights Over Schooling

Why would we let adults take away students’ freedom to learn to treat each
other as equals?

Joshua Weishart is a law professor at West Virginia University. He studies
education rights with an emphasis on state constitutional demands of equality,
freedom, and democracy in public education. His article, “Separate But Free,”
forthcoming in the Florida Law Review, examines constitutional protections
against segregative school policies and practices.

It is the rallying cry heard in supermajority-controlled statehouses,
contentious school board meetings, and the run-up to Virginia’s recent
election of a Republican governor: parental freedom! A freedom that credulous,
grievance-fueled parents claim they can exert in schools over the curriculum,
the books in the library, even health measures during a deadly pandemic.

It’s a ruse. In our constitutional order, children’s freedoms take priority
over parental freedoms. Given the overriding importance of schooling to
democracy, our laws elevate and protect the rights of all children to learn
and to grow as citizens.

That perspective has been lost amid the sound and fury of the education
culture war over parental rights. Politicians and activists instead play to
the fear that demands for equality and an honest reckoning of our nation’s
past threaten parental freedom. We’ve heard that before.

Remember that the demand for equal educational opportunity crystallized in the
U.S. Supreme Court’s Brown v. Board of Education decision, which then sparked
opponents’ cries for parental freedom. Many saw then and see now that parental
freedom meant the freedom to preserve a racist structure of schooling.

Segregation indeed remains our most disgraceful yet enduring sacrifice on the
altar of parental freedom. Time and again, the Supreme Court has revered the
residential and private school choices of parents even as they have
exacerbated segregation and widened school funding disparities, leaving far
too many of our schools separate and unequal—essentially upending Brown’s
declaration that both segregation and unequal educational opportunities
subvert the equal protection of the laws.

For all its lore, Brown was not the first landmark decision to outlaw school
segregation. That honor goes to Clark v. Board of Directors, decided by the
Iowa supreme court under the Iowa constitution 86 years before Brown. The
Clark decision offered a stern rebuke to the notion that law protects the
choice to segregate in public school settings.

Underlying the court’s reasoning was the notion that segregation denies
children the freedom to learn through a unifying school experience open to
all, one meant to cultivate a core of shared values, sense of community, and
mutual understanding essential for the common good in a democratic society.

Segregation, the court thus concluded, deprived all children, Black and white
alike, of “the privileges and benefits of our common schools,” guaranteed to
them under the state constitution.

Variations on the freedom-to-learn theme remained a constant for progressives
for the better part of the next century, featured in the educational writings
of John Dewey and W.E.B. Du Bois and put to practice in “freedom schools” and
by Southern Black teachers during the civil rights era.

Unbounded, parental freedom serves only to stratify students, divide
communities, and undercut the mission of public schools.

But somewhere along the way, progressives forgot about education as freedom
for all children and allowed conservatives to own the term “freedom.” Now, all
the oxygen in the room is consumed by a negative conception of parental
freedom, a “freedom from” something—from public schools, health mandates,
anti-racism curriculum. Fear and uncertainty, abundant in these times, drive
us to such isolating, individualized forms of freedom.

Yet unbounded, parental freedom serves only to stratify students, divide
communities, and undercut the mission of public schools. And perhaps
dismantling public education is ultimately the point. Experience has indeed
shown that school choice practices that prioritize or cater to parental
freedoms perpetuate segregation along the lines of race and ethnicity,
disability, class, and other intersecting disadvantages.

Refusing to sing these discordant hymns of liberty, we must reclaim and
advance a positive vision of educational freedom—a “freedom to” be an equal
among equals. For children, that demands not merely a future-tense freedom to
become an equal someday but a present-tense freedom to learn how to treat each
other as equals today. Such freedoms to become and to learn can be cultivated
in schools that bring together children of different backgrounds and are
designed to serve the common good.

Fortunately, state constitutional law largely embraces educational freedoms to
become and to learn, either explicitly in their education clauses or in
precedents, like Clark, applying those clauses in ways that orient
schoolchildren’s freedoms toward democratic equality.

Those equality-enhancing freedoms can thrive in well-resourced, safe
classrooms, led by high-quality teachers with professional autonomy to employ
a culturally responsive curriculum and encourage positive relationships.

To be sure, supportive parents can be highly influential in a child’s
educational success as well. But to the extent that the law empowers parents
in public schooling, it does so to complement—not displace—their children’s
educational freedoms.

Parents, of course, retain the privilege, under the U.S. Constitution, to
decide whether their children will receive a public or private education and,
in a more general sense, control their children’s education.

But that “control” has always been subject to reasonable state regulation and
must yield to state compelling interests in a democratically educated
citizenry. In no case does it secure parents the right to dictate the
curriculum, restrict the flow of information from the school, or jeopardize
the health and well-being of other children.

What’s more, parents’ freedom to select a publicly subsidized school of their
choice enjoys no constitutional protection whatsoever.

Public education law, therefore, reflects the priority of children’s freedoms
to become and to learn over parental freedoms of choice and control.

The constitutional interests at stake are important, but freedom talk only
takes us so far. At bottom, most parents’ strongest impulse is to want what’s
best for their children, even if that means sacrifice for parents. Those
tradeoffs, including relinquishing some choice and control, are more
acceptable to parents when they trust their schools. That is why the rhetoric
that fetishizes parental freedom starts from a place of distrust and doubt.
Such a mindset, once indulged, easily gives way to paralyzing fear that
further inhibits trust and impairs thinking.

The law, for all its force, cannot guarantee us freedom from fear. We must
liberate ourselves and each other from fear. Those of us who, therefore, see
our children’s current and future freedom bound to the democratizing mission
of public schools owe it our children to speak up. We must convince parents
that if they want what’s best for their own child, they must want what’s best
for all children. We must convince parents that if they want their own child
to enjoy the blessings of liberty, all children must be free.