Parental Rights in Education on Trial in Back-to-Back Showdowns at the Supreme Court

By Daniel Schmid

The ideological war over parental rights in education and the battle for the minds of future generations faced off at the United States Supreme Court this term in two cases — one of which has already been decided, and another that will be by the end of this month. In Mahmoud v. Taylor and Oklahoma Statewide Charter School Board v. Drummond, Liberty Counsel filed amicus briefs with the Supreme Court to reinforce the fundamental right of parents over their children’s education.

This shouldn’t even be a conversation since the U.S. Supreme Court has recognized this obvious reality and upheld parental authority in multiple cases throughout U.S. history.

In 2000, the Court wrote in Troxel v. Granville, “The interest of parents in the care, custody, and control of their children is the oldest of the fundamental liberty interests recognized by this Court.”

That decision echoed the High Court’s opinion exactly a century ago when it affirmed that parents and guardians have the right “to direct the upbringing and education of children” (Pierce v. Society of Sisters of the Holy Names of Jesus and Mary (1925).

In other words, “The child is not a 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.”

This fundamental right of the parents to guide their child’s education and upbringing has been both respected and implied for generations. But as of late, this right is floundering as the state seeks to usurp the parents’ rightful authority in this area.

That Time Catholics and Muslims Agreed

Mahmoud v. Taylor is a case study that shines a spotlight on how the constitutional issue of parental rights transcends political, cultural, and religious differences. At its core, the case is about the constitutional obligation to protect the right to direct and protect one’s offspring from destructive and harmful influences and ideologies, even if those decisions conflict with a state’s chosen messages.

At the center of the case is a group of Maryland parents from diverse religious backgrounds (including Islamic, Roman Catholic, and Ukrainian Orthodox) that challenged the policy of Montgomery County Public Schools prohibiting parents from opting their children out of obscene and sexual content for kids aged pre-K (as young as three!) through middle school. And, if barring parents from opting their three-year-olds out of sexually explicit materials were not shocking enough, the school district poured salt in the parents’ constitutional wounds by adopting a policy that muzzled teachers from even notifying the parents that sexually explicit material would be taught to their pre-K to middle school-aged students.

The parents argued this instruction interferes with their religious beliefs on gender and sexuality as well as their constitutional right to direct the upbringing and education of their children. It does.

The content in question included more than “22 LGBTQ+-inclusive” storybooks infused with radical gender ideology, such as the false idea of “gender transitions,” “pride” parades, and same-sex romances between minors. Montgomery County has replaced the heroic tales of Odysseus and Achilles with “Pride Puppy,” who valiantly went around the pride parade looking for leather bondage materials. Classical education, it is not.

And it was the tale of this bondage-seeking dog that Montgomery County prohibited parents from rejecting. Yet the same school district permits opt-outs for a whole host of school activities but enacted a policy that prohibits opt-outs and parental notice for this one curriculum on LGBTQ garbage. Homer’s out and homosexual bondage in for Montgomery County’s school children.

Neither students nor parents surrender their constitutional rights at the schoolhouse gate. The Free Exercise Clause prohibits the government from subjecting minor children to grossly inappropriate sexual material about which their parents have sincere religious objections. This means that the government cannot prohibit parents from opting their children out of material hostile to their religious beliefs and then conceal their efforts with a policy that keeps teachers from even notifying them.

The fact that public schools are willing to go to the Supreme Court to assert their “dominance” over the parents’ relationship with their children says a lot. For Montgomery County Public Schools, it is no longer instruction but indoctrination. The First Amendment prohibits that, which is why the Supreme Court must reject this radical reversal of the oldest fundamental right in the Republic.

Catholic-Run Public Charter School Left Out of the School Choice Playground

It’s no secret that the American public school system is failing. By nearly every metric, public schools nationwide are underperforming, unaccountable, and increasingly out of touch with the families they purport to serve. Indeed, as Montgomery County proved above, public schools are attempting to force sexual and “transgender” ideologies into the minds of young children, over the objections of parents. In response, families are fleeing public schools in droves and turning to alternatives that better serve their children’s needs. They are wise to do so.

Here’s where the significance of Oklahoma Statewide Charter School Board v. Drummond comes in. School choice is non-negotiable, but the state of Oklahoma excluded a Catholic public charter school from receiving public funding due to its religious affiliation. On May 22, the Supreme Court deadlocked in a 4-4 vote (with Justice Barrett recusing herself) that allows the Oklahoma Supreme Court ruling to stand, prohibiting the Catholic public charter school from public funding.

As our amicus brief argued in this case, parents, not the government, bear the primary responsibility for directing their children’s education as has been affirmed by the High Court in multiple cases. Put simply: Once a state provides a benefit for private education, it cannot exclude religious institutions, according to Trinity Lutheran Church of Columbia Inc. v. Comer (2017) — or public institutions run by religious organizations. The Supreme Court will inevitably be asked to revisit the charter school funding issue in the near future, as that is not going away, and it should reaffirm the long line of precedent it neglected in Drummond.

In fact, the Supreme Court just recently rejected Maine’s similar prohibition on providing funding for parents who seek to send their children to private religious institutions when the state made that funding available for secular private schools.

To do so would plainly run afoul of the Establishment Clause and substantially burden the parent’s religious beliefs in violation of the Free Exercise Clause.

Parents, not the government, are the primary stakeholders in their children’s education. The Court must uphold this fundamental right. Nothing less than the Republic’s future hangs in the balance.

Originally published in The Stream.

Daniel Schmid is a constitutional attorney and the Associate Vice President of Legal Affairs at Liberty Counsel. Click HERE for more from Daniel Schmid.