The right of parents to educate their children is constitutional

A great debate is raging in the United States. At issue is who controls the education of children in grades K-12? The federal government? The state? Local school boards? The teachers and their unions? Or the parents?

Can teachers and/or school boards withhold from parents, information as to what is being taught in the schools relative to sex and gender orientation?

Over the last century, the U.S. Supreme Court has spoken on the issue of the rights of parents to raise and educate their children. And also, when the state, its welfare agencies, and its teachers may interfere with those parental rights. Just two examples:

In November of 1922, the voters of Oregon, by “initiative” approved a Compulsory Education Act, the manifest purpose of which was “to compel general attendance at public schools by normal children, between 8 and 16, who have not completed the eighth grade.”

The Society of Sisters was an Oregon Catholic Religious Corporation organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools.

In its primary schools, its students were taught the subjects usually pursued in Oregon public schools during the first eight years. Additionally, systematic religious instruction and moral training, according to the tenets of the Roman Catholic Church, was also regularly provided.

The Society sued, alleging, among other things, Oregon’s Compulsory Education Act conflicted with the right of parents to choose schools where their children will receive appropriate mental and religious training.

In ruling for the Society of Sisters — and the parents who chose to educate their children with the Sisters — the court said, 

“No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”

The court, however, noted, 

“The inevitable practical result of enforcing the Act under consideration would be destruction of appellees' primary schools — and perhaps all other private primary schools for normal children within the state of Oregon.

“These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly, there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the state.

“Under the doctrine of Meyer vs. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.

“As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state.

“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.”

But can the state ever deprive the parent of the right to raise or educate his child? Of course. But not without a judicial finding of parental “unfitness.”

In Staley vs. Illinois, the Supreme Court set out the rule:

“(This) Court has frequently emphasized the importance of the family.

“The rights to conceive and to raise one's children have been deemed "essential … "basic civil rights of man," … and "rights far more precious ... than property rights" [Citations omitted].

"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."

The court then concluded, saying,

“All Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.

When Stanley is read in conjunction with Pierce, I think the following rules clearly emerge:


1. “The fundamental theory of liberty upon which all governments in this Union repose, excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.

2. The rights to conceive and to raise one's children have been deemed “essential” and “basic civil rights of man.”

3. The 14th Amendment guarantees the “liberty of parents to direct the upbringing and education of children under their control.”

4. “All parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody — or before they lose the right to control their child’s education.

Bottom line: Parental rights are constitutionally protected. School boards, administrators and teachers who trample parental rights, under color of law, open themselves to be sued under statutes designed to protect 14th Amendment rights.

First Published in the Moline Dispatch and Rock Island Argus on July 9, 2023. 

Copyright 2023, John Donald O'Shea