The term parental rights has taken on a new and potentially disruptive meaning in the lexicon of public school change and improvement these days. For a long time, parents exercised their rights around the collective good of the public school as well as the needs of individuals. When tension existed between public pursuit and individual wants, many communities employed the democratic process to reconcile differences, using such means as PTAs, school-site councils, school board advisory committees, and civic organizations such as the League of Women Voters and the Rotary Club. The public believed that parents and schools, working together at the local level closest to the needs of the child, made the best decisions for all of the children and that public institutions existed to support parents in their primary role as caregivers, educators, health providers, nurturers, disciplinarians, and character builders.
Did this system work perfectly? Did every school district allow the public full participation in school decision making? Have schools always made special efforts to accommodate, whenever possible, the needs of individual parents? Did parents always take advantage of opportunities for involvement? Certainly not. But the common school has been the essential vehicle for meeting the needs of the public. It was understood to transcend the views of any one of us, protecting what we collectively agreed should be preserved for ourselves and our children. The common school was a unifying concept, providing social and educational bonds between the various members of the community.
A tenuous balance has evolved over the years between the public's interest to educate its children and the school's (in many cases reluctant) entry into areas that were traditionally the purview of parents. Some parents believe that schools and other government agencies have breached this balance and have become an unwarranted intrusion in their lives. Fair enough. They may or may not have a legitimate grievance. But instead of working collaboratively with other parents in the community to address their concerns and differences, they would like to have the "right" to use the courts and sue if they don't get their way. One parent's right to have the school provide a particular school program such as sex education or a service such as school-based health clinics has become another parent's intrusion.
Likely Effects: More Court Actions
Casting issues in the take-no-prisoners language of parental rights bills discourages both debate and social accommodation by granting state and federal courts much more authority over local school decision making. These words or various permutations have been introduced in 26 state legislatures and the U.S. Congress since l994: "The right of parents to direct the upbringing and education of their children shall not be infringed" and "The legislature shall have the power to enforce, by appropriate legislation, the provisions of this article." A proposed amendment to the Colorado Constitution placed on the November l996 ballot specified that parents had the right "to direct and control the upbringing, education, values, and discipline of their children." Although the amendment was defeated by 57-43 percent, both sides spent thousands of dollars on an intensive and often venomous campaign. The same was true in Virginia, where a parental rights bill was also defeated, but only after much rancor.
A 1995 congressional proposal stated,"No federal, state or local government, or any official of such government acting under color of law, shall interfere with or usurp the right of a parent to direct the upbringing of the child of the parent." This measure would include areas of education, discipline, religious teaching, and health. If the federal bill becomes law, schools will have to meet a tough new standard imposed not by state code but by federal law. They will have to prove that curriculums and regulations with which parents disagree are "essential to meet a compelling government interest" and are the "least restrictive means" of accomplishing that interest. This test is usually reserved for First Amendment issues and is practically impossible to meet. Currently, school districts have to prove that rules and programs are "reasonable" or serve a "legitimate pedagogical" purpose.
The language of the proposed legislation would affect many public institutions that serve children. But school districts, and educators in particular, would likely become targets caught in the squeeze between education policymakers at all levels and parents who could resort to the parental rights law if they believed their rights to bring up their children had been abridged.
Proponents of parental rights claim that, although parental rights have long been established in case law, various government authorities, including the schools, have made many decisions eroding those rights. The parents could sue the school district, including employees, or they could intimidate the school district into conforming to their views by the mere threat of a lawsuit. In essence, every parent's grievance could turn into grounds for suing, and every lawsuit would become a state or federal issue. In addition, under the "compelling state interest test," the burden to prove that a particular issue is not an infringement of parents' rights would rest with the school district. As an example, consider the following possibility.
A school district plans to adopt a new reading series at the elementary level that meets the educational standards stipulated by the state. A community committee, including parents, reviews the various programs and makes a recommendation that the board of education accepts and approves. Several parents who later move into the district believe that some of the content in the basal readers offends their religious beliefs, and they object to their children's use of the books. They want the school board to adopt books that more closely align with their religious values but that do not come as close to meeting the state education standards. The school district refuses their demands, and the parents claim that the school district is interfering with their right to bring up their children by using a text that is anathema to their religious beliefs. The parents sue under the state's newly passed parental rights bill. The school district spends thousands of dollars in lawyers' fees and ultimately loses the case because it has to prove, under the compelling state interest test standard, that literally no other basal program can meet state standards. Because of the court ruling, the district must now allow children to opt out of the reading program, and it must establish an alternative reading program for the children of the parents who sued. The costs of the lawsuit and of finding and establishing an alternative reading program come from the instructional budget. If the district finds a replacement program, it is likely that other parents will sue because they supported the first program.
Other contentious issues that could substitute for the example above include student dress codes, no pass/no play regulations, prayers at graduation ceremonies, grading decisions, condom distribution, and sex and family life education programs. The broad wording of the various parental rights proposals assures a flood of lawsuits to determine how far the rights extend. If parental rights legislation is passed, however, one area that is likely to be greatly affected is school policy and curriculum development.
Implications for Educators
The proposed parental rights legislation has a number of implications that persons involved in school policy and curriculum development will want to consider. First, parental viewpoints about programs, curriculums, and academic expectations for their children are not issues of right or wrong. In fact, school districts must encourage parental participation and involvement. One can sympathize entirely with parents who become upset with school districts that are unresponsive to parental differences. The issue, however, is the means that parents use to gain leverage over other parents as they pursue their own self-interest and the ability of public schools to meet the varying needs of all parents.
Second, because the proposed legislation is so broadly written, it is not clear what issues parents may construe as being an infringement. As a result, school districts can expect to receive no guidance on this issue until an actual lawsuit is filed. Under a parental rights bill, parents could challenge literally everything in the school curriculum and instructional program.
Third, parental rights legislation encourages parents to resort to legal action rather than resolving issues through political and social processes. It would bring the courts deep into the business of school curriculum and programs. Judges many miles away would be making decisions that should be made by the school board, which represents local community needs and mores.
Fourth, parental rights laws would give parents the right to dictate their child's curriculum and would require schools to provide designer-made curriculums for individual students. For example, parents who oppose the teaching of evolution may demand a science curriculum that includes creationism. In reading, some may favor a phonics curriculum, while others insist on whole language. Alternatively, if a school district could not afford designer programs, the threat of litigation by one parent could intimidate the board of education into changing programs.
Fifth, the law would be extremely costly for school districts. If the federal bill as well as a state law were passed, parents could conceivably use both tribunals in a two-front war. If the school district did manage to avoid expensive legal battles, it would incur the costs of the additional personnel needed to provide the designer curriculums. If each school district added just one teacher per district, the additional costs would be $3.1 billion, approximately three-fourths of this year's federal allocation to subsidize special education.
Sixth, the law would pit parent against parent in an adversarial setting; rather than defending their position through debate in the local school district, parents would face off in the courtroom, armed with attorneys. In many instances, parents would be challenging programs and curriculums that other parents had supported and that, in their view, did not infringe on their rights to raise their children as they see fit. A parental rights law sets up a decision-making framework that gives parents little incentive to first seek common ground with other parents.
Seventh, parents don't need a parental rights law. They already can sue the school district—and have. In fact, certain laws, including those related to special education, enable parents to use the judicial process to resolve differences with the school district regarding instruction and placement. Those laws are more well defined than the proposed parental rights legislation, and they delineate due process procedures that are based not on the strict scrutiny test but on the reasonable application test, a legal test based on what would be reasonable under the circumstances. Parents have sued school districts for policies on sex education, school counseling, textbook adoptions, science curriculum and the teaching of evolution, and student placement, for example.
Eighth, schools are not the only entities threatened. School personnel could be taken to court under the federal proposal and may be personally liable for anything they supervise or teach. Those responsible for curriculum development and instructional implementation are likely targets. Caught in the middle of ideological battles over creationism, school counseling, reading programs, Goals 2000, state educational standards, and reproductive health courses, curriculum directors may find themselves implementing state or local policies that provoke the threat of a lawsuit from a parent alleging an infringement on their rights. The choice then would be between insubordination or litigation.
Other Concerns
The rights of parents to rear their children without government interference and the rights of a child to be in a nurturing and secure environment are not always compatible. This situation may place school officials in a difficult position. For instance, a couple in Toccoa, Georgia, recently alleged that a public school counselor and principal violated their parental rights by helping the couple's two daughters get pregnancy tests and contraceptives. According to an article in Education Week (Walsh l997), the school officials said that they were acting to protect the students, who said they feared their father's reaction if they got pregnant, and that the school principal was aware of past physical abuse of the children by the father. A federal district court judge allowed the parental rights case to go forward against the school counselor and principal as individuals, but not in their official capacities.
Obviously, parental rights bills could have broad consequences, enabling proponents to gain ideological leverage through the courts that they have not been able to get through the legislative process. For instance, in an Education Daily interview (Hoff 1996), Clint Bolick, litigation director of the Institute for Justice, said that with a parental rights bill, "you could win a private school voucher battle pretty swiftly." With a parental rights amendment, he said, it could be argued that the best way for parents to oversee their children's education is by spending money as they see fit at private or parochial schools.
On the other hand, the movement has struck a responsive chord with many parents who do not believe their public schools care about their concerns. Public school educators should not minimize or lightly dismiss the concerns of these parents over instructional and curriculum issues. Many parents take their parenting responsibilities seriously and do not want the school to undermine their efforts. Meaningful parental involvement in the schools requires a sensitive balance, providing ample opportunity for involvement while guarding against the imposition of the ideology of one group of parents on another group of parents. Involvement must not narrow the school's curriculum content and program but rather should provide opportunities for sharing values through discussion and interaction.
The Task for Educators
There are still too many schools that do not involve parents in school decisions, that are resistant to change, that are not restructuring to meet the needs of parents. And there are still too many schools that do not make the effort to find ways to accommodate the individual needs of parents within the framework of the public school system. Parents are not a monolithic block. They represent different values, beliefs, backgrounds, and experiences. They use different languages, are at different stages in their understanding about schools, and have different ideas about school reform. School leaders must take the initiative and begin encouraging community discussion and interaction around difficult issues.
School districts should be calling together their parents and other community members to discuss new and more compelling images of the human community, the positive effects of institutional change and collective action, and the benefits of bridging the gap between private interests and public responsibilities for education. The historic interconnection of the public school and the culture that brought it into being gives that culture the right to turn to us in uncertain times and ask, Where do we go from here?
We must all take on the hard task of restoring the commons. When it is impossible to recognize what we hold in common, then in the strictest sense of the term we have lost our "common sense." A parental rights bill is not common sense. It can be used to exploit the vulnerability of public education at its most basic core, calling into question our ability to hold fundamentally different beliefs and to find in one another common values and common purpose without warring in the courtrooms.
