Conservatives are Wrong about Parental Rights

With public schools poised to reopen for the 2021-2022 academic year, South Carolina faces the challenges of dealing with another wave of a Covid variant, a challenge made more complicated because of political theater by Republicans.

Columbia (SC) Mayor Steve Benjamin issued a mask requirement for students in the city, and immediately Governor Henry McMaster responded: “’This is another attempt to force children to wear masks in schools without a bit of consideration for a parent’s right to make that decision,’” said Brian Symmes, McMaster’s spokesman.”

The political theater of invoking “parental rights” by Republicans and conservatives falls apart at several levels.

First, if parents do have the right to demand that their children not wear masks (see below), those parents do not have the right to endanger other people—and the mask mandate in schools is primarily about community safety.

“Freedom” in this case is once again not license; parents choosing to keep their children unmasked must also address the consequences of that decision. Those parents then are obligated to provide their children proper education since the unmasking means those children cannot attend K-12 public schooling.

Just as adults are free to drink alcohol, but restricted from driving while impaired (a mandate that addresses community safety), parents and their children may remain unmasked but that means there are restrictions on where they can go and what they can do.

Choice has consequences.

But, there is a much larger issue here about parental rights and how that impacts the rights of children.

Republicans such as McMaster either are unaware of the law or are intentionally dishonest with their “parental rights” rhetoric.

In The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?, Jeffrey Shulman details that parental rights and the education of their children are in many ways “circumscribed,” restricted or limited.

Broadly, Shulman explains:

What role should the state play in the transmission of values? What values can the state successfully transmit? How can it do so? To approach these questions, this Article begins with principles laid down by the Supreme Court. It is the state’s duty to ensure that all schools, public or private, inculcate habits of critical reasoning and re- flection, a way of thinking that implies a tolerance of and respect for other points of views. In pursuit of this lofty goal, the state need not make public schooling compulsory. However, the state must see that all children are provided an education that is, in the fullest sense, public—a schooling that gives children the tools they will need to think for themselves, a schooling that exposes children to other points of view and to other sources of meaning and value than those they bring from home. This effort may well divide child from parent, not because socialist educators want to indoctrinate children, but because learning to think for oneself is what children do. It is one facet of the overall movement toward the individuation and autonomy that is “growing up” and is, perhaps, the most natural and vital part of healthy maturation.

The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

There is, then, a long legal history in the U.S. that simply doesn’t recognize parental rights as monolithic, or even sacred.

One way parental rights are limited is directly embedded in the commitment to universal public education:

The state as educator, then, is no ideologically neutral actor. The philosophical foundations supporting a truly public education are the liberal biases of our nation’s intellectual forbearers, biases in favor of a non-authoritarian approach to truth, of free argument and debate (what Jefferson called truth’s “natural weapons”), and of a healthy sense of human fallibility—the foundation, in other words, of our nation’s governmental blueprint. Unless children are to live under “a perpetual childhood of prescription,” they must be exposed—intellectually, morally, and spiritually—to the dust and heat of the race. Whether one considers the formation of moral commitments a matter of choice or duty, of reflective self-directedness or cultural embeddedness, the child must not be denied the type of education that will allow him, as an adult, to choose whether (and in what way and to what degree) to honor those commitments. A public education is the engine by which children are exposed to “the great sphere” that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future.

The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

The great irony here is that the courts have recognized that public education, the state, has the obligation to protect the individual intellectually freedom of children, even when that conflicts with parental wants or demands that are framed in rugged individualism rhetoric.

That legal recognition creates a tension that is rarely voiced in public discussions:

We are cautioned by family law historian Barbara Bennett Woodhouse that “[s]tamped on the reverse side of this coinage of family privacy and parental rights are the child’s voicelessness, objectification, and isolation from the community.” It is often assumed that state control of education “disserve[s] the values of pluralism and experimentation,” but public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Public education can physically and intellectually transport the child across the boundaries of home and community. Of course, this transportation comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority—and to the possibility that a choice must be made among them.

The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

And thus, the masking debate exposes a couple elements of legal obligations to the community, to children, and to parents since the requirement (or not) to mask impacts children’s opportunities to learn in contexts where academic freedom is protected and where all the people involved are safe as reasonably possible from infectious disease.

However, ultimately, the rights of children must be protected:

No one would suggest that parents may not introduce their children to personal sources of moral or religious meaning. However, to those parents who want their children untouched by other points of view, the state must say that the rights of parents, while profound, are circumscribed—contingent, as the Supreme Court has always noted, on preparing the young for the additional obligations they will take on as members of a pluralistic society. “In a democracy,” political theorist William Galston writes, “parents are entitled to introduce their children to what they regard as vital sources of meaning and value, and to hope that their children will come to share this orientation.” Yet, children have freestanding intellectual and moral claims of their own, claims that Galston goes on to remind us, “imply enforce- able rights of exit from the boundaries of community defined by their parents.” If children are granted this right of exit, they must be able to exercise it freely. They must not be disempowered from making their own intellectual and moral claims in the first place. The state has a duty to make sure they are not disempowered, and one of its best resources to that end is public schooling.

The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

The state is charged with protecting children intellectually and physically when parents do not share that goal (risking the child’s health by refusing to mask, indoctrinating the child in singular beliefs by restricting that child’s access to knowledge and critical thinking):

The full capacity for individual choice is the presupposition of First Amendment freedoms. It is for this reason that the state has a strong obligation to see that free choice is not strangled at its source. The state may not sponsor particular religious or political beliefs, but that is not enough; it must protect children from being forced to adopt particular religious or political beliefs. The state must work to protect the moral and intellectual autonomy of all children. Further, if the state has the obligation to ensure the child’s opportunity to become autonomous, that obligation, as educational theorist Harry Brighouse has pointed out, “cuts against the differential regulation of public and private schools with respect to religious instruction.” Children are owed this obligation “regardless of whether it is the state, their parents, or a religious foundation that pays for their education, and regardless of whether they attend privately-run or government-run schools.” The constitutional freedom to choose is not guaranteed only to be so circumscribed that it exists in principle but not in fact.

The Parent as (Mere) Educational Trustee: Whose Education Is It, Anyway?

The Republican political theater of “parental rights” rhetoric exposes that conservatives are intellectually and legally bankrupt, but it also exposes the essential need for the state to protect children, who have essentially no political power.

McMaster and other Republican governors are clearly speaking to the adults who are likely to vote for them, and not in any way addressing the education and health of children.

The continuing political theater surrounding Covid and public schooling is too often ignoring the children at the center of that storm.

Since children have no political authority or autonomy, the state must function in ways that support parents who honor their children’s intellectual freedom and personal health and safety but also protect children when their parents have motives not in the interest of their children’s ability to think critically and live safely.