The current lawsuit over the Utah Fits All Scholarship program is simply more of the protracted debate between parental rights and public education. Third District Court Judge Laura Scott chose the side of public education. Of course, she would. As she cites, the state legislature is in the public education business by edict of the state constitution. But she chose poorly.
Here is what she got wrong: Appropriations for private schooling and homeschooling are not investments in the public school system. There is a fundamental difference between the Utah legislature’s investment in “education” and its constitutional imperative on behalf of “public education.” The Utah legislature funds many things not involving the public school system. Giving a kid this scholarship to get an education has nothing to do with public education.
And here is the legal history Judge Scott either does not know or does not understand: Admission to the Union of the United States of America required the territorial government to establish a system of government or “public” schooling. Article X, Section 1 of the state constitution directs the state legislature to establish this system and specifically instructs that the system “be free from sectarian control.”
The state jurisdiction over education is, according to the state constitution, limited to public schooling. The state constitution does not address or concern private education including home education. That is, any claimed state jurisdiction over private or home education is a statutory claim and not a constitutional claim. Again, to be crystal clear, the constitutional mandate to provide a state system of government schooling does not extend to private or familial realms.
Just as the distinction between education and schooling offers a more accurate understanding of education public policy, so too does this distinction between statutory jurisdiction and constitutional jurisdiction. Again, the state constitution directs the legislature regarding public education only. Any laws or regulations imposed on private or home education exist at the whim and preference of citizens as voiced through their elected officials.
In other words, a constitutional directive providing for government schools and not private or home education only means that private and home education is a right reserved to and, a dominion of, the people.
The case of the Utah Fits All Scholarship program is a parental rights issue, not a public school system issue. The scholarship is a statutory claim, not a constitutional issue. And clearly, Judge Scott has no idea about parental rights, not at the level of the United States Supreme Court or state rulings. If she did, assuming she could even see parental rights in this lawsuit, she would see both federal legal rulings and state law prioritize parental rights over public education – in every precedent-setting case.
If she were to look at the U.S. Supreme Court, she would know two things: 1) There exists a fundamental constitutional prior right of parents to control the education of their children; and, 2) There does not exist a fundamental constitutional right to education.
To the first point, Judge Scott could refer to Meyer v. Nebraska, 262 U.S. 390, 1923,
Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.
Pierce v. Society of the Sisters, 268 U.S. 510, 1925,
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the duty, to recognize and prepare him for additional obligations.
Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 1944,
It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder…. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Wisconsin v. Yoder, 406 U.S. 205, 1972,
The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
And, Troxel v. Granville, Troxel et vir.v. Granville No. 99-138, 2000,
The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court … In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
To the second point, she could refer to San Antonio School District v. Rodriguez, 411 U.S. 1, 1973,
This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided…. [T]he key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing…. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected…. We have carefully considered each of the arguments supportive of the District Court’s finding that education is a fundamental right or liberty and have found those arguments unpersuasive.
Plyler v. Doe, 457 U.S. 202, 1982,
Public education is not a “right” granted individuals by the Constitution.
And, even Brown v. Board of Education, 347 U.S. 483 (1954),
In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state had undertaken to provide it, is a right, which must be made available to all on equal terms.
At the state level, high court and state legislature, Judge Scott would experience little difference. She could refer to the Utah Supreme Court ruling in Re: J.P., Utah, 648 P.2d 1364, authored by then-Justice Dallin H. Oaks.
At issue was new legislation, passed in 1980 and amended in 1981, granting broader authority for DFS (now the Department for Child and Family Services, or DCFS) to permanently terminate the rights of parents over their children. Repealed by the new legislation was the old statutory language allowing termination of rights on a finding that a parent was “unfit or incompetent by reason of conduct or condition seriously detrimental to the child.” The new statutory language read that “such termination will be in the child’s best interests.” The standard for termination shifted, or was lowered, from “seriously detrimental” to simply “the child’s best interests.” This change in standard was the sole question to be decided by the Court.
In finding the new statutory language and lower standard unconstitutional, Justice Oaks explains the legal and moral basis of parental rights for all Utahns. This case involving DCFS is particularly relevant to our text at hand regarding education and parental rights. The substantive issues are identical. Hence, this case provides the intellectual framework for clearly understanding the balance between parental rights and the state’s interest parens patriae. Several points in the case deserve highlighting. We go straight to the majority opinion:
First, parental rights are natural and inherent.
The rights inherent in family relationships – husband-wife, parent-child, and sibling – are the most obvious examples of rights retained by the people. They are “natural,” “intrinsic,” or “prior” in the sense that our Constitutions presuppose them, as they presuppose the right to own and dispose of property …
The integrity of the family and the parents’ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo-American culture, presupposed by all our social, political, and legal institutions. “To protect the [individual] in his constitutionally guaranteed right to form and preserve the family is one of the basic principles for which organized government is established. …” “The family is the basis of our society. …” “The family entity is the core element upon which modern civilization is founded. …”
This parental right transcends all property and economic rights. It is rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct.
Second, Utah law recognizes the fundamental rights of parents over their children.
We conclude that the right of a parent not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order that it ranks among those rights referred to in Article I, Section 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people….
We conclude that the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child under Article I, Section 7 and Section 25, and that the United States Constitution recognizes and protects the same right under the Ninth and Fourteenth Amendments.
Third, state interests do not automatically supercede parental rights.
We do not suggest that the Constitution relegates a child to the status of a mere chattel, to be treated or mistreated by his or her parents according to their pleasure. Consistent with all of the principles discussed above, a parent shown by clear and convincing evidence to be unfit, abandoning, or substantially neglectful can be permanently deprived of all parental rights …
We perceive no incompatibility between the parental rights defined in the present case and the principle that the child’s welfare is the “paramount consideration.” That principle does not imply that the child’s welfare is the sole consideration, to the exclusion of parental rights, nor that a parent’s interest is entitled only to the weight it may incidentally receive under the presumption that parental ties are beneficial to the child’s welfare. The principle that “the welfare of the child is the paramount consideration” means that parental rights, though inherent and retained, are not absolute; that the state, as parens patriae, has the authority and obligation to assume a parental role after the natural parent has been shown to be unfit or dysfunctional; and that parental prerogatives cannot, at that extreme point, frustrate the state in discharging its duties.
And, fourth, family autonomy is a prime bulwark against tyranny.
Family autonomy helps to assure the diversity characteristic of a free society. There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children. Much of the rich variety in American culture has been transmitted from generation to generation by determined parents who were acting against the best interest of their children, as defined by official dogma. Conversely, there is no surer way to threaten pluralism than to terminate the rights of parents who contradict officially approved values imposed by reformers empowered to determine what is in the “best interest” of someone else’s child.
Or she could refer to state code,
Parents have the primary responsibility for the education of their children and elect representatives in the Legislature and on state and local school boards to administer the state public education system, which provides extensive support and assistance. (53E-2-201)
Educating children outside of public education is beyond the purview of the state constitution. It is the right of parents and the people they elect to public office. This is why the Utah Fit for All Scholarship cannot possibly be unconstitutional and why Judge Scott is wrong.
