What rights and liberties do parents have over their children?
North Carolina Institute for Constitutional Law
April 27, 2012
“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Recent news reports about teachers or other government agents interfering with the rights of parents to pack school lunches for their preschool and school aged children have prompted outrage across North Carolina and, indeed, the nation. That outrage has naturally led to debate about the role of schools and the responsibility of parents in the upbringing of children. Often overlooked in the debate has been the constitutional right of parents to, well, parent their children. This memorandum discusses the origins and scope of the frequently overlooked fundamental right of parents to control the rearing of their children and concludes with an admonition to government to respect that constitutional right before litigation becomes necessary to enforce it.
The Fourteenth Amendment of the United States Constitution states that no State shall “deprive any person of life, liberty, or property, without due process of law.” Since it’s ratification in 1868 the Supreme Court has repeatedly ruled that this clause not only “guarantees more than fair process” but also “includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’”Under the Fourteenth Amendment, the fundamental rights and liberty interests courts have recognized are: a person’s right to marry or not marry, a women’s right to choose to terminate her pregnancy, a person’s right to accept or deny medical care, and pertinent in the issue at hand, a parent’s interest in the care, custody, and control of their children.
Almost 90 years ago in Meyer v. Nebraska, a schoolteacher was convicted under a state statute regulating the teaching of foreign languages in school when he was caught teaching German to a ten-year-old student. The Court ruled the statute unconstitutional and explained that the “liberty” protected by the Fourteenth Amendment includes the right of parents to “establish a home and bring up their children” and “to control the education of their own.”
Two years later in Pierce v. Society of Sisters, two private schools sued the State of Oregon over a statute requiring parents to send their children to public school. The court affirmed Meyer by ruling the Oregon statute unconstitutional, observing that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” Justice McReynolds went on to write, “the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
In 1944 in Prince v. Massachusetts, the Supreme Court again confirmed the existence of parent’s rights previously articulated in Meyer and Pierce. The Court explained, “it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” In Prince, however, the Court made it clear that the rights of parent’s are not beyond state control. “Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.” Since Prince the Court has repeatedly recognized the fundamental right of a parent to make decisions concerning the care, custody, and control of their children. However, the Supreme Court has not articulated a bright-line rule or standard of review for evaluating when the government may control or regulate parents’ rights.
One of the Court’s most recent affirmations of a parent’s interest in the “care, custody, and control” of their child was Troxel v. Granville in 2000. In Troxel the Supreme Court affirmed a Washington state supreme court decision invaliding a state statute allowing third parties to petition for visitation rights of a child and authorizing the court to grant visitation whenever it may serve the best interest of the child. The case was decided by a plurality with four judges joining the judgment, two concurring and three dissenting. In his concurrence, Justice Thomas argued that parent’s rights are fundamental and the appropriate standard of review for government interference with parent’s rights is strict scrutiny, the most difficult standard of review for the government to satisfy. Neither Justice O’Connor’s plurality opinion nor Justice Souter’s concurrence mentioned such a standard of review. Yet, even though Troxel left some questions, the existence of the right to parent is clear. As Justice O’Connor’s plurality opinion explained, “the liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
While Meyer and Pierce and its progeny have provided a constitutional foundation for some type of parental rights, the precise scope of those rights remains somewhat unclear. Nevertheless, the Supreme Court has shown that when a reasonable parenting decision is infringed upon by unreasonable state action, as in Meyer, Pierce, Yoder, and Troxel, the Court will uphold the parent’s right. In light of 90 years of Supreme Court precedent, the best course for North Carolina to take would be to defer to parents on the contents of school lunches. As frenzied parents rush to pack lunches for their children each morning, their focus is undoubtedly on their children. Government interference and the risk of being second guessed should not shift a parent’s focus from her child to the nanny state. Something as mundane as a turkey sandwich really ought not require a trip to the Supreme Court. But, if North Carolina continues to undermine parents’ decisions on the contents of a lunchbox, that may well be where this issue is headed.
 Troxel v. Granville, 530 U.S. 57, 65(2000) (quoting Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258, (1997))
 Loving v. Virginia, 388 U.S. 1 (1967).
 Roe v. Wade, 410 U.S. 113 (1973).
 Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 279 (1990).
 Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Troxel, 530 U.S. 57 (2000).
 Meyer, 262 U.S. at 399.
 Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).
 Pierce, 268 at 534-35.
 Id. 268 U.S. at 535.
 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
 See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements' ” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Washington v. Glucksberg, 521 U.S. 702, 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ [t] ... to direct the education and upbringing of one's children” (citing Meyer and Pierce)). Troxel,, 530 U.S. at 66 (”In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”).
 Troxel, 530 U.S. at 65.