Will Parental Rights Finally Receive Proper Constitutional Protection?
Is it a violation of parental rights for public schools to facilitate a child’s gender transition at school without parents’ knowledge or consent, and regardless of parents’ stated wishes?
This is not a theoretical question, but a pressing practical concern for families throughout the United States. Thousands of schools around the country have adopted policies instructing school officials to hide a child’s transgender identification from parents unless the child gives permission for parents to be informed. Such policies, commonly referred to as “secret gender transition” policies, also instruct school officials to unquestioningly affirm and support a child’s expressed gender identity, requiring that children be called by their preferred name and pronouns, be allowed to use bathrooms and locker rooms of the gender with which they identify, etc.
Children and families around the country have already suffered serious harm as a result of these secret gender transition policies, resulting in almost forty current lawsuits, according to Justice Kagan. One such case, Mirabelli v. Bonta, was recently decided on the Supreme Court’s emergency docket, sometimes referred to as the “shadow docket.” The Court decided in favor of the parents, holding that California’s secret gender transition policy probably violated their religious freedom and their right to direct the education of their children. I say “probably” here because, given that this is an emergency docket case that did not go through the full briefing and oral argument process, the Court’s “assessment is preliminary,” as Justice Barrett notes in her concurring opinion.
So what does the ruling actually accomplish, and what are its broader implications with regard to parental rights?
In the first place, the decision means that the earlier ruling in favor of the parents by the District Court—which had issued a permanent injunction ending California’s secret gender transition policies—has now been restored, despite the Ninth Circuit ruling blocking that injunction pending appeal by the state. It was this Ninth Circuit ruling that led to the parents’ appeal to the Supreme Court for emergency relief on the basis that they and their children were at risk of irreparable harm if those policies were allowed to remain in effect until the case could fully work its way through the courts following the standard judicial appeals process. This process can take months or even years.
This concern about irreparable harm is no exaggeration, particularly given that—as noted in Justice Barrett’s concurring opinion—one set of parents in the case had “learned of their child’s transition at school only after the child attempted suicide.” Yet “even after this tragic event, school administrators continued to withhold information about the student’s gender identification.”
The emergency docket exists precisely for such cases in which the need for relief is urgent because delay could result in irreversible harm. Thus, the accusation made by dissenting judges and other critics that the majority rushed matters to achieve their desired outcome is unfounded. Indeed, as Georgetown law professor Stephanie Barclay explains in an excellent article addressing this concern, the dissenters themselves have repeatedly promoted and supported similar emergency interventions by the Supreme Court in numerous other cases.
This ruling, which includes a much more extensive justification than is typical of such emergency cases, is significant not only for the California parents who directly benefit from it, but also because it gives us a window into how a majority of the justices thinks about this issue, and how they will probably rule when they finally do take a case of this sort that has gone through the standard process. There are two aspects of the court’s argument that I think are particularly noteworthy.
First, the court corrects the Ninth Circuit’s reasoning, which “brushed aside Mahmoud v. Taylor … as ‘a narrow decision focused on uniquely coercive “curricular requirements.”’” Mahmoud v. Taylor was a recent victory for parental rights, in which the Supreme Court held that schools violated parents’ religious free exercise rights by refusing to allow them to opt their children out of controversial lessons on sexuality and gender. Making it clear that Mahmoud applies broadly to public school policies that undermine parents’ ability to raise their children in line with their religious beliefs is extremely important. Before Mahmoud, the last Supreme Court case dealing with a conflict between religious parents and public schools was Wisconsin v. Yoder (1972), brought by Amish parents who wanted their children to be exempt from compulsory education laws after the eighth grade so that they could educate them at home in the Amish way of life. Although Yoder was decided in favor of the Amish parents, many lower courts in subsequent decades repeatedly dismissed the relevance of the ruling to other cases regarding parental rights in education. Mirabelli makes it clear that the current Supreme Court will not allow lower courts to similarly narrow and weaken the impact of Mahmoud.
Second, the Supreme Court in Mirabelli actually goes a step further than it did in Mahmoud, addressing what I believe to be one of Mahmoud’s deficiencies by explicitly reaffirming the rights of non-religious parents in disputes with public schools, and thus resurrecting Pierce v. Society of Sisters and Meyer v. Nebraska (landmark parental rights cases from the 1920s) as live precedents with broad application to such disputes (as I had urged the Court to do in the amicus brief I filed in Mahmoud). Prior attempts by parents to rely on Pierce and Meyer in a variety of conflicts with the public schools over the past half century—arguing that some aspect of the public schools’ policies or curriculum undermined their constitutional right to direct their children’s education—were dismissed by most federal courts. As I argue at length in a recent law review article, these courts erroneously narrowed and weakened the Pierce ruling, claiming that it merely prohibits the state from requiring all children to attend public schools (which was the specific issue in the case), and ignoring the broader precedential value of Pierce’s declaration (following Meyer) that the right of parents to direct the education and upbringing of their children is among the liberties protected by the Fourteenth Amendment’s due process clause.
It is true that many—not only the dissenting judges in Mirabelli, but also conservative legal scholars—are legitimately wary of relying on “substantive due process” claims (that is, claims that the Fourteenth Amendment’s due process clause implicitly protects certain fundamental rights that are not explicitly enumerated in the Constitution). One of the main arguments in Dobbs v. Jackson (overturning Roe v. Wade) was precisely that the purported constitutional right to abortion—which the majority in Roe declared to be implicit in the due process clause—was not a real constitutional right, lacking any basis in the constitutional text or in our nation’s history and tradition. Is it not hypocritical, then, for the same justices who expressed their skepticism of substantive due process rights in Dobbs to now rely on a different substantive due process right in Mirabelli?
The dissenting justices raise this criticism, but it is an unfair one. The majority in Dobbs did not reject the possibility of unenumerated constitutional rights entirely. Rather, they argued that to avoid judicial activism, a strict test should be used to identity these rights: such rights must—as the majority states in both Dobbs and Mirabelli—be “deeply rooted in history and tradition” and “implicit in the concept of ordered liberty.”
No right seems to pass this test as clearly and easily as parents’ right to direct the education and upbringing of their children. This right is fundamental to the very nature of limited, democratic government. As NYU law professor Martin Guggenheim has argued, the “ideal of government serving the people’s will” is meaningless if government can mold the next generation’s beliefs by controlling education. Limited government presumes that families have authority to direct their own affairs relatively free from government intrusion, and that this authority is natural and pre-political, based on the very nature of the parent–child relationship, not derived from the authority of the state. This view of parental rights as natural rights that the government has an obligation to respect has deep roots both in the Anglo-American common law tradition and in statutory law and court rulings throughout our nation’s history. William Blackstone, for instance, wrote in his influential Commentaries on the Laws of England that parents have duties to maintain, protect, and educate their children, duties “laid on them not only by nature herself, but by their own proper act in bringing them into the world.” And he argued that the authority of parents is likewise natural, flowing from these natural duties.
Mirabelli’s reaffirmation of parental rights as genuine constitutional rights is therefore not hypocritical; nor does it open the door to judicial activism. On the contrary, it’s an important and much-needed corrective to erroneous and historically inaccurate interpretations of Pierce that read it so weakly and narrowly that they render it practically impotent as precedent. Careful historical analysis indicates that Pierce stands for much more than the right to send one’s child to a private school at one’s own expense.
If I am right that Mirabelli signals the current Supreme Court’s willingness to adopt this strong and broad interpretation of Pierce, and draw on it in future cases, parental rights may finally receive the constitutional protection that they deserve.