Defending Parental Rights in the Modern Age: Pierce v. Society of Sisters at 100

Editors’ Note: In recognition of the 100th anniversary of Pierce v. Society of Sisters, this article is published as the second in a three-part series on religious freedom. 

Should children’s parents or should the government shape the beliefs and values of children? Natural law theorists argue that parents have a responsibility, and therefore possess the prima facie authority, to direct the upbringing and education of their children. This, according to natural law theory, is no mere matter of cultural convention but is an objective moral truth. Children are born to parents—a mother and a father—and are therefore theirs (and, as St. Thomas Aquinas says, in a certain sense a part of them), though not in any sense that would reduce children to the status of their parents’ property. Indeed, parents’ rights to direct the upbringing and education of their children are rooted in their duty to bring up their children properly and educate them well. 

On this account, government has no free-standing or independent decision-making right or authority with respect to children. Children do not belong to the state in the way they belong to their parents. In extreme circumstances, government may intervene to protect children from parental abuse or neglect, but such interventions are only legitimate where parents actually abuse or neglect their children, forfeiting their rights by defaulting on their responsibilities. 

Contemporary progressives, by contrast, view the state as having what amounts to a quasi-parental role. It is true that progressives, at least for the most part, do not seek to entirely replace parents with the state—theirs is not, for example, Plato’s famous stipulation in the Republic that children ought to be held “in common” under the state’s supervision and care, such that “neither will a parent know his own offspring, nor a child his parent.” But they do view the state as having a measure of direct authority over children that rivals, and at times may even supersede, the authority of parents. They typically hold that authority over children is shared between the state and the parents. 

Perhaps the most influential proponent of the progressive position is my friend and former Princeton colleague, Dr. Amy Gutmann. Over the course of a distinguished scholarly career that included nearly two decades as President of the University of Pennsylvania, Dr. Gutmann has mounted vigorous defenses of the state’s right and duty to shape, even independently of parental wishes, the moral character and fundamental beliefs of children. For the sake of forming adult citizens committed to what she describes as the “secular standards” of modern liberal democracies and who are left “free to choose their own [version of] the good life,” she argues that public schools or other governmental institutions “cannot escape looking after children’s souls in many significant and subtle ways.” Between parents and the state, Gutmann maintains, “we have no a priori reason to favor one paternalistic agent over another.”  

A more blunt—to put it politely—expression of the progressive view comes from Harvard Law School professor Elizabeth Bartholet, who argues that practices such as homeschooling have been abused by parents who are “ideologically committed . . . to isolating their children from the majority culture and indoctrinating them in views and values that are in serious conflict with that culture.” (The subtext, of course, is that such “ideologically committed” parents are those who are committed to living lives and raising families in conformity with traditional religious and moral values.) Criticizing what she identifies as “absolutist” views of parental rights, Bartholet said in a 2020 interview that: 

Many homeschooling parents are extreme ideologues, committed to raising their children within their belief systems isolated from any societal influence. Some believe that black people are inferior to white people and others that women should be subject to men and not educated for careers but instead raised to serve their fathers first and then their husbands. The danger is both to these children and to society. The children may not have the chance to choose for themselves whether to exit these ideological communities; society may not have the chance to teach them values important to the larger community, such as tolerance of other people’s views and values. 

In truth, the natural law view of parental rights is far from absolutist—and is neither rooted in nor designed to abet prejudice or bigotry. As I’ve noted, the natural law view’s prima facie parental authority over children’s upbringing and formation is not an exceptionless claim—parental authority can be forfeited and government may, in cases of child abuse or neglect, intervene to protect children from demonstrable harm. In cases of genuine abuse or neglect, such as when parents are harming or abjectly failing to protect their children’s physical health, parental rights can be overridden. The state, acting on its duty to advance and protect the common good, could legitimately step in to remove the child from an objectively harmful or dangerous situation by, for example, temporarily placing the child with a relative or in a foster home until the child’s parents are able (if they indeed become able) to fulfill their parental responsibilities again. 

Still, under the natural law view, the state plays a purely supportive and subsidiary role in the child’s upbringing, moral formation, and overall well-being. When, in extreme situations, the state justly moves to intervene on behalf of the child, the state’s intervention is still in a sense supplementary to the parents’ fundamental role—never subsuming the parental right, and always moving towards the ultimate goal of restoring the child to his core family unit (though, of course, sometimes this will ultimately be impossible). 

Furthermore—and contrary to Bartholet’s caricature—the natural law view of parental rights does not promote, endorse, or sanction indoctrination. Parents are charged with the grave responsibility of forming their children, to the best of their ability, to be good people and to lead good lives. 

Formation includes the inculcation of certain values, to be sure; all parents should teach their children to conduct themselves honorably and with integrity. Indeed, any notion of strictly-neutralist parenting is absurd; when parents, no matter their fundamental commitments, teach their children that stealing is wrong, that they shouldn’t cheat on exams, that they should keep their promises, and that they should sit with the fellow student who always eats lunch alone, they are acting on normative judgments to inculcate the virtues and values their children need in order to lead good lives.  

But proper formation is not indoctrination. Forming one’s children to be sophists or sycophants, unable to formulate, articulate, and defend their own views in an intellectually robust fashion, is one thing; raising them in accordance with certain religious or moral precepts is something else, and something that all parents inevitably must do. Proper formation encourages the development of an authentic sense of agency and freedom—the freedom to engage in morally worthy choosing—that indoctrination not only fails to impart but actually destroys. 

The critic would point out the cases, and they will always exist, in which parents fail to raise their children in accordance with sound moral values. Perhaps a parent will teach a child that stealing can be good, that you should only keep your promises if it benefits you to do so, or that you should cheat on exams if it helps you to get ahead. And I have no doubt, as the critic would point out, that there are parents who seek to indoctrinate their children, rather than authentically form them to be independent and critical thinkers. But the truth is that the state must be willing to tolerate some abuses of parental rights lest the efforts to prevent the abuses undermine the rights themselves. 

The same is true of other rights—for example, the right to freedom of speech. We rightly tolerate abuses of the right to speak freely, lest our efforts to prevent abuses (by licensing government to engage in censorship) undermine the right. Of course, we draw certain lines. For example, we tolerate the abstract advocacy of violence, but we draw the line at deliberately inciting people to imminent violence. (This distinction is expressly drawn by the Supreme Court in the 1969 case of Brandenburg v. Ohio, which remains the leading precedent on the subject.) Similarly, we tolerate a misguided parent’s teaching his child that stealing is good, but we punish the parent who is convicted of sending his child to rob the local convenience store. 

The progressive approach’s concrete implications—and perhaps indicative of the true intentions all along of some of those seeking to curtail parental rights—can be observed in recent efforts by progressive activists to erode parents’ control over children’s education in order to convert their children to social progressivism. Consider, for example, the recently argued US Supreme Court case Mahmoud v. Taylor, in which progressive activists asked the Court to uphold a decision by Montgomery County, Maryland’s public school system banning parents from opting their children out of programs promoting LGBTQ ideology at the pre-K and elementary school level.  

Montgomery County’s case for subjecting young children to overtly pro-LGBTQ materials hinged fundamentally on this same progressive paternalistic conception of the state’s role in child rearing—the view that the state has an independently-grounded, non-subsidiary role to play in making normative judgments about the sorts of ideas that ought to guide a child’s moral and intellectual upbringing. Defending the policy, the county’s lawyer told the Supreme Court that allowing parents to opt their children out of pro-LGBTQ lessons would risk “exposing students who believe the storybooks represent them and their families to social stigma and isolation.” To be frank, the local government’s argument in Mahmoud was that the state has a legitimate role to play in ideologically influencing the moral formation of children enrolled in public schools, at least in part because not doing so would allegedly have a negative impact on other children whose parents seek to raise them with socially liberal moral commitments. (Of course, they are utterly unconcerned with how students whose families hold traditional values are subjected to “stigma and isolation” when they resist pressure to believe that such values are backward or bigoted.) 

For the sake of the supposed comfort of their socially progressive peers, the government in Mahmoud claimed an interest in encouraging all students to adopt views normatively favorable to and disposed toward same-sex marriage, transgenderism, sexual liberation, and hotly-contested conceptions of sexuality and gender identity—and claimed that parents had no right to stop their children from being subjected to what truly was indoctrination. It is in cases like Mahmoud that we see the real reason that many progressives are so keen for organs and institutions of the state, at least when they are dominated by ideological allies of social and cultural progressivism, to “share”—and eventually override, as Montgomery County sought to do through banning opt-outs—parental authority with actual parents.  

The Supreme Court is, I believe, likely to side with the parents in Mahmoud and reaffirm that our Constitution protects not only the free-exercise rights of parents and their children, but also, and relatedly, the fundamental right of parents to direct the upbringing and education of their children. This is because the United States has a long tradition of articulating and upholding the natural law account of parental rights within our constitutional order. Indeed, beginning with the landmark case Pierce v. Society of Sisters, whose one-hundredth anniversary we celebrate this year, we can trace in our constitutional order an essentially unbroken line of efforts to uphold the natural law account of parental rights against myriad efforts to undermine it.  

Pierce concerned a statute enacted by Oregon that sought to compel all children, including those enrolled in what had been state-recognized private schools, to attend public schools. The bill was aggressively promoted by the Ku Klux Klan. Its principal targets were Catholic parochial schools—many supporters of the law, such as Oregon’s Democratic governor Walter Pierce, hoped to see Catholic schools shut down and the children who would have attended those schools, many of them immigrants themselves or from immigrant families, incorporated into the dominant Anglo-Protestant culture through compulsory public education. Writing for a unanimous court, Justice James Clark McReynolds held that the law “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children,” adding that “The child is not the mere creature of the State.” 

But as Professor Melissa Moschella, my brilliant former student, has argued, the Pierce ruling and its implications went beyond merely affirming that parents, and not the state, have the right to decide on their children’s education—e.g., about where to send them to school. The Court—in keeping with past common law precedents and lower court findings—also upheld a robust account of fundamental parental rights, concordant with the natural law view, that does not stop at the schoolhouse door.  

While critics, like University of Connecticut law professor Anne Dailey, have claimed that Pierce is an “ambiguous” ruling, and have (strictly speaking correctly) observed that the proclamation that the child is not the “mere creature of the State” does not mean that the child is the “mere creature of the parents either,” the natural law view of parental rights found in our tradition does not regard children as objects or wholly subservient creatures of anyone—including their parents. While it is true, as I have observed, that under the natural law view of parental rights children do belong to parents in a sense, it is in a very particular and narrowly-tailored sense. Children are neither pieces of parental property nor creatures that possess any less dignity or worth than full-grown adults; rather, they are participants in a unique and timeless person-to-person relationship between themselves and their parents that is replete with duties on the part of parents. And, as I have already noted, proponents of the natural law account freely acknowledge that parental rights are defeasible—not absolute, as someone’s rights might be over a piece of property or some other legitimately instrumentalized object. 

As Pierce illustrates, the fight to protect and preserve parents’ fundamental rights to direct their children’s education and shape their values is nothing new when it comes to the American story. But, as the case also demonstrates, the natural law-rooted conception of the relationship between child and parent is deeply rooted in our nation’s constitutional self-understanding. It is not a doctrinally sectarian or even an explicitly religious or theistic position. The natural law account of parental rights is a substantively robust and reason-based position—one that must be defended for all Americans of all faiths and shades of belief. As supporters of the natural law account confront the challenges of today—struggles such as that against Montgomery County’s LGBTQ indoctrination efforts—we must be courageous defenders of the truth of parental rights. These are not rights conferred by a merely human authority, and subject to the whims of such an authority. They are, rather, natural rights. 

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