The 9th US Circuit Court of Appeals (or more appropriately the “Circus Court of Appeals”) has decided that parents do not have any rights over their children that are not superceded by the government’s authority over them. In other words, your children are not your own, they belong to the “village.”
Unfortunately, the whole Talking about Touching episode in the Archdiocese of Boston, as well as the Kettelkamp memo from the US bishops’ conference, have shown us that certain leaders in the Church have more in common with the 9th US Circuit Court than they do with Pope John Paul II and millennia-old Church teaching.
In this majority opinion of the court (PDF download), we are told:
��there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, we hold that the defendants� actions were rationally related to a legitimate state purpose.
[�]In summary, we hold that there is no free-standing fundamental right of parents �to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs� and that the asserted right is not encompassed by any other fundamental right. In doing so, we do not quarrel with the parents� right to inform and advise their children about the subject of sex as they see fit. We conclude only that the parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select.�
I guess we must have fallen asleep and awakened in the Soviet Union! And here the bishops are operatives of the state church.
Homeschool your kids.
We need more originalist judges, a constitutional amendment, etc.
Carrie,
When I was a kid, we were told at school we were lucky not to be in the Soviet Bloc, where kids had no freedom, and their futures were determined by standardzied tests. Now we have NCLB, and state programs like VA Standards of Learning.
This ruling is horrifying.
Why hasn’t anyone else said anything about this?
Simple solution, make sure your child never steps foot inside a public school.
In my family’s case, Catholic grammer school the whole way.
As to the comment that we need more originalist judges: most intellectually honest orginalists would agree with this decision. Nowhere in the Constitution is there reference to the right of parents to direct the upbringing of their children.
Regarding the court’s statement, I wonder if Homeschool Legal Defense Association has heard of this?
Given the way these things are going, I highly recommend homeschooling your kids through high school, and also taking yearly membership in HSLDA for legal protection.
Catholic Grammer School? What’s the difference between this ruling and the TaT program installed and enforced in the Archdiocese of Boston grammer schools?
Colleen, touche (sad to say)…
<I>As to the comment that we need more originalist judges: most intellectually honest orginalists would agree with this decision. Nowhere in the Constitution is there reference to the right of parents to direct the upbringing of their children.
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Originalists are not literalists. A strict originalist knows that the Constitution does not dole out rights, it enumerates the limits on government. And all rights not specifically given to government in the Constitution cannot be arrogated by it.
From my experience, taking my kidlet out of Catholic school because of the awful values clarification program the school was using was the best decision I could have made. The public school was also using a values clarification program, but it was given far less emphasis than the Catholic school, and it was much easier to refute by claiming that the secular people believe it, but the Catholics believe something else. Plus, there was proportionally more emphasis on abstinence in the public school than the Catholic school provided. This was in the 80s, and the experience admittedly may be dated.
Originalists are not literalists. A strict originalist knows that the Constitution does not dole out rights, it enumerates the limits on government. And all rights not specifically given to government in the Constitution cannot be arrogated by it.
This might be a relevant point if it was the federal government’s powers being invoked as against the parents here. However, it is the state, with its plenary police powers, that, through non-sovereign corporate municipalities, operates and sets policy for government-funded and operated schools. Thus, in order to hold that the federal constitution protects the parents’ natural law right (and obligation) to direct the upbringing of their children in this specific way, the court would have to conclude that the parents possess some constitutional rights upon which the state government cannot intrude. In the absence of such a right, the state through its legislature, can do what it likes.
An orginialist or textualist (like Justice Scalia) would find no such right in the 14th Amendment or otherwise so limiting the power of the state governments because someone with that view generally does not believe in substantive due process.
What is ironic here is that while Judge Reinhardt is being more or less faithful to the Supreme Court’s holdings on these matters and comes out the same way an originalist would, he is not being consistent with his own views as he takes a rather, ahem, expansive view of the rights provided by the federal Constitution. .
In other words, “we have the right to indoctrinate your children any way we wish, and you can just shut the ^$&% up”.
If there were ever a need for home schooling, this is it.
I’m all for a campaign of civil disobedience by parents over this and other matters. If you break the rules en masse, the rules become unenforceable.
Then again, some school districts might react in a manner that makes Tianenman Square pale by comparison…
On the way MTM ends his last note:
Exactly. This decision might have some merit if this judge and this Circuit didn’t practically write the book on “finding” rights in the emanations and penumbras of the phlogiston from the eye of newt and tongue of bat. For example, I believe it was the 9th Circuit that found that a man who fathered a child by another man’s wife had visitation and custody rights (i.e., the right to break up the family).
What it exposes naked is the plain moral vision of the jurist class and how any reasoning will be embraced in service of that end. If the court wanted to, there is plenty of precedent for the notion that parenthood and the parent-child relationship is a liberty interest under the 14th Amendment.
Why would homeschooling or parochial school provide protection from this holding? Pierce and Yoder were both predicated on the fundamental right to direct the upbringing and education of one’s children; a right that the 9th Circuit holds NOT to encompass a right to be free of the state providing information to your children. IOW, sure you can homeschool them; but the state can supplement that education if it wishes.
Well, not if they can’t get their hands on them. What happens in a school building is one thing but how are they going to make you do it at home? The point here is that *in the school building* they will do as they please. That’s because you sent the kids there. At home you aren’t directing your kid’s education you are accomplishing it so to speak… or the kids are.