Parental Rights at the Supreme Court: Protecting Children from Government Orthodoxy
Throughout the last century, different cultural elites sought to leverage compulsory education to conform children to their ideologies. Families from diverse religious, ethnic, and linguistic backgrounds found themselves on the wrong side of political and cultural orthodoxies. The Supreme Court repeatedly protected the rights of parents to shield children from public schools’ attempts to mold them according to the government’s worldview.
The Supreme Court now has an opportunity to protect the rights of all parents to help children form identities according to their own beliefs (religious or otherwise). Foote v. Ludlow School Committee is a parental rights challenge to a Massachusetts school district’s secret “transition” of an eleven-year-old girl to a male identity. It presents the Court with a chance to resolve a split among federal courts.
Affirmation of broad parental rights to direct the care, education, and upbringing of children is urgently needed because more than 1,000 public school districts are experimenting with students’ identities based on gender ideology. These schools keep parents in the dark as they socially “transition” students by addressing them with new names and pronouns and allow them to use private facilities with the opposite sex. This endangers children’s minds and bodies. The Court would do well to hear this case. All children need their parents’ guidance, and the Constitution protects the rights of parents (not the government) to make these decisions for children.
Parents As Primary Educators and Moral Authorities
Schools that defy parental decision-making authority clash with the West’s history and tradition of parental rights. Anglo-American jurisprudence has protected the rights of parents because it enables them to fulfill their duties. English jurist William Blackstone observed that the “natural affection” of parents spurs them (even more than the law) to maintain, protect, and educate their children.
A parent who knows and loves her child becomes the greatest expert on the child’s needs. In the 1979 case Parham v. J. R., the Supreme Court articulated the “parental presumption” that, absent a finding of abuse or neglect, courts must presume that parents make the best decisions for their children, even when the child disagrees.
Early American courts recognized that parents are their children’s primary educators. Parents delegate their authority to schools but retain ultimate decision-making authority. In the nineteenth and early twentieth centuries, state courts allowed parents to opt children out of a wide variety of subjects, from geography to dancing.
But a shift took place in the latter half of the twentieth century. Some courts failed to respect parental rights as fundamental rights the Constitution protects. In turn, schools denied parents the right to decide if children would be taught controversial topics or surveyed on sensitive subjects. After the COVID-19 pandemic, parents saw how thoroughly radical ideologies have permeated curricula. They sought to hold educators accountable at school board meetings, in legislatures, and in courts.
In conflicts between parents and the state, the Supreme Court has repeatedly prevented “standardization” of children according to dominant ideologies. Parents won legal victories against government indoctrination in anti-religious, anti-immigrant, and anti-pacifist beliefs.
In the 1920s, the Court upheld parents’ rights to direct their children’s education by overturning nativist laws and policies in three states. After World War I, Nebraska passed a law to assimilate German-speaking immigrants by banning instruction in foreign languages. In 1923, the Court in Meyer v. Nebraska ruled that the prohibition against teaching German violated a parent’s “natural duty . . . to give his children education suitable to their station in life.”
In 1925, the Court overturned a ballot initiative that required all children to attend public schools. The mandate, spurred on by the KKK and anti-Catholic sentiment, would have eliminated parochial and private schools. In Pierce v. Society of Sisters, the Court warned that efforts to “standardize” children contradicted America’s “fundamental theory of liberty.” The Court recognized that “the child is not the mere creature of the State” and reminded government officials that “those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
In 1927, the Court struck down Hawaii’s efforts to impose burdensome regulations on foreign language schools through fees and permits. At the time, Hawaii’s governor warned that a growing Japanese population would replace white Hawaiians. In Farrington v. Tokushige, the Court held that the Constitution protects the right of “the Japanese parent . . . to direct the education of his own child without unreasonable restrictions.”
During World War II, anti-pacifist groups targeted Jehovah’s Witnesses with violence because of their conscientious objections to military service. When states began mandating patriotic ceremonies, Jehovah’s Witness students declined to salute the flag because they believed it was worship of a graven image. After schools expelled them, some children were treated as delinquents, taken from their families, and placed in institutions.
In 1943, after two Jehovah’s Witness sisters in West Virginia refused to salute, their father challenged their expulsion from school. Under the law, he faced the threat of criminal prosecution. In West Virginia v. Barnette, the Court was clear that “no official . . . can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
Resisting Indoctrination
Despite Barnette’s clear holding, public schools have continued to pressure students to adopt government orthodoxies and reject their own families’ beliefs. In 2022, the Montgomery County school district in Maryland adopted an LGBT curriculum and teacher training to “disrupt” students’ “heteronormativity” and “cisnormativity.” After initially honoring parents’ rights to opt children out, it then denied them. During oral argument at the Supreme Court in Mahmoud v. Taylor, Justice Brett Kavanaugh asked why the county would oppose the wishes of thousands of parents by forcing LGBT instruction on children in kindergarten to fifth grade.
The mandate catered to the wishes of teachers’ unions, LGBT advocacy groups, and corporations. The National Education Association and the American Association of School Librarians partner with the Human Rights Campaign to promote LGBT storybooks, including Uncle Bobby’s Wedding, one of the five books that parents in Montgomery County challenged. From 2022 to 2023, the year that the county implemented the LGBT storybook mandate, it also issued Guidelines for Student Gender Identity, which cite the American Civil Liberties Union; the Gay, Lesbian, and Straight Education Network; and HRC as sources of terms and definitions. Corporate America is part of the push, too; Wells Fargo partners with GLSEN to create K–5 resources and teacher training.
The NEA and the School Superintendents Association sided against parents in Mahmoud claiming that opt-outs would increase schools’ administrative work. As Justice Clarence Thomas observed, the solution could be as simple as containing controversial content and viewpoints within a single course or class rather than spreading it throughout the curriculum. Instead, these groups seek to diffuse ideology throughout subjects, making it impossible for students to avoid.
The county defended the mandate on the grounds that it promoted inclusion of students who identify as LGBT, but it conflated inclusion of people with inclusion of ideas. The curriculum and teacher training did not simply tell students to see all classmates as equally endowed with human dignity. Instead, the county pressured students to celebrate its viewpoints on sex, gender, and marriage. The county dialed up the pressure by characterizing dissent as “hurtful” and comparing dissenters to “bigots.”
Fortunately, the Muslim, Catholic, and Orthodox Christian parents who challenged Montgomery County won a 6–3 victory on Free Exercise grounds. The Mahmoud court held that when parents are forced to subject their children to instruction that is “hostile” to their beliefs, this constitutes an unconstitutional burden on religious freedom. Mahmoud was necessary, but it is not sufficient to protect all children from all LGBT ideology in schools. This is because Montgomery County (like a multitude of other school districts) plans to give students new identities (at odds with their sex) while keeping parents in the dark.
Protecting Vulnerable Bodies and Minds
Imagine if a school began giving a new food to all students without telling their parents. This would violate the rights of all parents and jeopardize the physical health of all children. Parents know a child’s body and food sensitivities better than any school employee and are best equipped to make important decisions about their diet.
Similarly, when a school experiments by giving a student a new identity without telling parents, it violates the rights of all parents and endangers the mental health of all children. Parents know a child’s mind and past experiences better than any school employee, and they are best equipped to make important decisions about treatment of mental and emotional distress.
Parents have filed dozens of lawsuits against secret “social transitions.” Next term, the Supreme Court can resolve a national crisis by hearing Foote v. Ludlow School Committee, now being litigated by the Child and Parental Rights Campaign and Alliance Defending Freedom, for whom I work.
In Foote, parents are challenging an unwritten policy on gender identity. After their daughter expressed common adolescent feelings of insecurity and depression, teachers, the school librarian, and a licensed counselor began to treat her as “genderqueer.” They addressed her by a male name and nonbinary pronouns (like ze/zir) and allowed her to use the boys’ bathroom. They also directed her to Translate Gender, an advocacy organization that pairs children with adult mentors. The counselor even encouraged her to question whether her parents “were providing [her] with appropriate care.”
The superintendent and a member of the school board deemed parental concerns about the policy “bigotry.” Now, her parents are asking the Court to protect their constitutional rights to direct their own child’s upbringing, education, and care.
LGBT advocates argue that children who feel uncomfortable with their bodies must immediately “transition.” Many LGBT groups assert that a child will become suicidal if they do not. This claim is unfounded. In fact, the best evidence shows that the symptoms of gender incongruence will disappear for the vast majority (85 percent) of pre-pubertal children when they go through puberty if there is no intervention. “Social transition” is an active psychotherapeutic intervention, as the United Kingdom’s National Health Services concluded in the Cass Report. This first step can increase the probability that a child’s emotional distress will continue. This, in turn, can lead to efforts to medically transition through experimental and harmful puberty blockers and cross sex-hormones, and even irreversible surgeries.
Dr. Erica Anderson warns that a school-facilitated “social transition” over parents’ objection “would drive a wedge between the parent and child,” violating a principle in psychotherapy never to create tension in the parent–child relationship. Anderson says, “Parents often have a critical perspective on the history and likely causes of a child’s or adolescent’s gender questioning feelings.”
The First Circuit Court of Appeals ruled against the parents. It sided with the school’s claim that students may be endangered by parents who do not support immediate transition; however, this inverts Parham’s presumption that parents generally act in the best interests of their children.
Parham was clear that the Constitution protects the rights of parents to make decisions for a child’s care. When parents want to take a more cautious approach to a child’s physical or emotional condition, a school may not usurp their rights because it thinks it can make a better decision. But in Foote, with no evidence of abuse or neglect, the school unlawfully took a life-changing matter into its own hands. This deprived a vulnerable child of her natural protectors and advocates.
The school argues that it used neither coercion nor restraint. But a child’s cooperation cannot justify a school’s deception. Courts have reprimanded schools that secretly encouraged students to take a pregnancy test or have an abortion. If schools can exclude parents from important decisions about a student’s mental and emotional health to advance ideological agendas, then constitutional protections become hollow.
The Supreme Court can reaffirm the authority of all parents in Foote v. Ludlow. The latest elite orthodoxy threatens children’s minds, bodies, and family relationships. It is time for the high court to clarify that parents—not the government, unions, or advocacy groups—are the primary decisionmakers for children’s education, upbringing, and care. All children need their parents because parents know and love their children best.
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