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Do We Want to Turn Our Parental Rights and Responsibilities Over to the Government?
(This essay, by Larry and Susan Kaseman, was originally published in their Taking Charge political action column in the January-February 1996 issue of Home Education Magazine.)
The rights and responsibilities of parents to raise their children need to be respected and protected so that families can continue their role as the foundation of our society. Respect and protection for parents' rights and responsibilities is not easy to secure, partly because it has to be balanced with the need to protect children from abuse and neglect. However, families are being undermined by recent attempts to protect children by increasing the power and authority of the state, particularly in the areas of education and social services. Increasingly parents feel the need to protect their parental rights and responsibilities.
It is tempting to think that parental rights and responsibilities could be simply and securely protected by laws and/or constitutional amendments. However, this will not work. First of all, parents' relationships with and responsibilities to their children are too fundamental, too broad, too basic to human existence to be effectively contained within a simple legal statement. But perhaps even more basic, there is no way to gain legal protection from the government without first surrendering basic liberties and rights to the government. Our parental rights and responsibilities will be far stronger and more secure if we work to maintain them in ways that are independent of the state rather than turning to the state to protect them.
Unfortunately, an attempt to legislate parental rights is currently before the U. S. Congress, H. R. 1946, the "Parental Rights and Responsibilities Act of 1995," and its companion bill in the Senate, S. 984. (For the sake of simplicity, this column will discuss H. R. 1946, however, the concerns raised here also apply to S. 984.) H. R. 1946 is a short, easy to read, and very sobering document. If passed, it would have far-reaching effects on our ability to homeschool without undue government interference, our ability to choose our children's medical care, and other aspects of parental rights and responsibilities. The authors and supporters of this legislation are right in thinking that parental rights and responsibilities need to be respected and maintained. But this legislation is a serious mistake that will not only fail to protect parental rights and responsibilities but will also cost parents and families an enormous amount of freedom and contribute to the current erosion of the legal, social, and moral position families have in our society. It would require that parents conform to standards and requirements chosen by those in power and enforced by the government in education, health care, and other areas.
This column will discuss both substantive and procedural issues raised by this legislation. Suggestions will then be offered for what we can do to counter this legislation and to act positively to maintain parental rights and responsibilities.
How this Bill Decreases Parental Rights by Increasing Requirements Imposed on Parents by the State
One serious problem with this bill is that in its attempt to protect parental rights and responsibilities, it dramatically increases the power and authority the state has over parents in the areas of education, health care, and abuse and neglect. Perhaps the authors of this bill felt that in order to gain support for a law to protect parental rights, they first had to impose legal requirements on parents. Or perhaps the authors felt that logically, rights could only be protected after requirements were imposed. Or perhaps they made a serious mistake. In any case, if this bill passes, it could have serious and far reaching effects on families.
Let us consider the increased requirements in the areas of education, health care, and abuse and neglect.
Decreases in Parental Rights in Education
First, if passed, this legislation would at best blur the very important distinction between compulsory school attendance and education. At worst, it could become the basis for greatly increased government interference in families' decisions about their children's educations, especially for homeschoolers.
The bill would bring about a major and very significant change by requiring that children be "educated, for the purposes of literacy and self-sufficiency." (p. 3) This is very different from current compulsory school attendance laws that require that children of certain ages attend school but do not require that they become educated and achieve specific outcomes. Compulsory attendance is much safer, more reasonable, and consistent with basic liberties than is compulsory education. If a bill such as H. R. 1946 instituted compulsory education, it would seriously interfere with our freedom of thought and freedom of ideas. How can people think freely if they have been subjected to compulsory education? How can ideas exist freely if they cannot be included in curriculums because of the restrictions of compulsory education?
In addition, and perhaps even more serious, H. R. 1946 puts the requirement that children be educated squarely on the shoulders of parents. It states that, "The purposes of this Act are...while protecting the rights of parents, to acknowledge that the rights involve responsibilities and specifically that parents have the responsibility to see that their children are educated, for the purposes of literacy and self-sufficiency." (p. 3) To be sure, education should be a parental responsibility.
However, there are two major reasons to oppose including in a law a statement such as "parents have the responsibility to see that their children are educated." First, parents have this responsibility prior to and independent of anything done by the government. Parental responsibility in education does not originate in any law or government decree. It is part and parcel of the very process of being a parent. This fact is based on common sense, and it is commonly agreed upon. It is a natural or God-given right that will only be weakened if parents ask the government to validate or protect it. We do not need the government to grant parents the responsibility for their children's education, and we only stand to lose if the government tries to do this.
Second, if we allow the government to include in a law the statement that parents are responsible for their children's education, it appears that the government has legal grounds for claiming that it has granted this responsibility. It then follows that the government has the responsibility, or at least the right, to ensure that parents meet their responsibility. In other words, the government then can and should check on families to make sure that parents are seeing that their children are educated. To do this, of course, the government has to decide what it means to be educated and how parents can prove that their children are educated. Presto, the government has control over the education that parents are now required to provide their children. In other words, if the government does appear to grant that responsibility, then the government can also hold parents accountable and judge whether we have seen to it that our children are educated according to the government's standards. The government can also act to "correct" the situation if we have not seen to our children's education, either by forcing us to send our children to a conventional school or by removing our children from our homes. In short, it simply is too complicated and too risky (in addition to being unnecessary) to rely on laws or to try to get the government to protect parental rights.
If the first amendment to the U. S. Constitution can effectively protect freedom of religion, speech, the press, assembly, and petition, as it has done for over 200 years, why can't we pass a law that would protect parental rights in education? The first amendment deals with topics and concepts that were central to the history of this country's struggle for independence, all of which are stated in terms of their public expression. For example, with regard to religion, the first amendment deals not with individuals' personal beliefs but with the establishment and exercise of religion. With regard to speech, the freedom has to do with public expression, not with personal conversation. The equivalent public expression of the private process of education is generally accepted to be school attendance, which is currently required in all states through compulsory school attendance laws. In the same way that the U. S. Constitution does not even mention personal conversation, it should not even mention education because education is a personal and private process by which citizens think, learn, explore ideas, etc.
In addition, freedoms in education (and other freedoms) are protected by amendments to the Constitution, including the ninth amendment which states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
H. R. 1946 would affect all families, but homeschoolers would be especially vulnerable. How would the government ensure that homeschooling children were being educated "for the purposes of literacy and self-sufficiency?" Would all homeschoolers be required to take government-mandated reading and writing tests? At what ages? Would homeschoolers who failed these tests be required to attend a conventional school? Although the general public's acceptance of homeschooling has increased in recent years, most people would no doubt assume that homeschooling children who failed such tests should be required to attend conventional schools. How and by whom would homeschooled children's self-sufficiency be measured and assessed? What would be done to families whose children failed to meet these requirements?
For children attending conventional schools, requiring education for "self-sufficiency" would open the doors for much broader curriculums that included character and moral development, job skills, etc. Also, the statement in H. R. 1946 that "parents have the responsibility to see that their children are educated" would also be used to blame parents rather than schools when children were determined to be lacking in education. Schools could say even more strongly than they are saying now that it is parents' fault when children are not educated.
(Important note: Supporters of the bill may respond to these concerns by pointing out that the statement quoted above is part of the "Purposes" section of the bill and not part of the main body. They may claim that the statement would be explanatory but not legally binding. However, material in sections like "Purposes" records the intent of the legislation and is given serious consideration when laws are enforced and court decisions are made. Therefore, this statement would have a strong effect on the way the bill is interpreted and enforced even though it technically would not be written into the statutes.)
Another problem raised by the language in this bill is that it shifts the balance of power that now exists between the federal government and the states, including local communities. At present the vast majority of laws that govern education are state laws, not federal laws. This makes it much easier for citizens to influence educational policy on the state and local level. A federal law like H. R. 1946 would shift the balance of power toward the federal government and make it more difficult for individuals and local communities to shape educational policy.
Decreases in Parental Rights in Health Care
A second way in which H. R. 1946 sacrifices parental rights is by increasing the power and authority of the government to intervene in families' health care decisions. H. R. 1946 states: "The term 'right of a parent to direct the upbringing of a child' includes but is not limited to a right of a parent regarding....(ii) making a health care decision for the child, except as provided in subparagraph (B)." Subparagraph B states, "The term 'right of a parent to direct the upbringing of a child' shall not include a right of a parent to make a decision on health care for the child that, by neglect or refusal, will result in danger to the life of the child or in serious physical injury to the child." (p. 6)
This language does not protect basic parental (and human) rights; it surrenders them. It gives the government much clearer and stronger grounds than it has had before for intervening in health care decisions made by parents. The bill also assumes that it is obvious which health care options parents should choose, when in actual fact, many such decisions are controversial.
Consider a fairly simple example: the question of immunizations. Many people consider immunizations a safe way to protect children from potentially life-threatening illnesses. For these people, a parent's refusing or delaying immunizations could be seen as a "decision...that, by neglect or refusal, will result in danger to the life of the child." However, other people point to documented cases of children who have died or suffered serious permanent damage as a result of immunizations. Some express concern about long-term effects of immunization. From their perspective, immunizations themselves are potentially life-threatening.
States like Wisconsin currently allow parents to decide about children's immunizations. Wisconsin statutes state that "The immunization requirement is waived if the student, if an adult, or the student's parent, guardian or legal custodian submits a written statement to the school objecting to the immunization for reasons of health, religion or personal conviction." [Wis. Stats.140.05 (16) (c)] However, Federal legislation like H. R. 1946 would threaten such reasonable laws.
If a question like immunizations could lead to problems, think what would happen in more controversial cases involving children born very prematurely or with life-threatening illnesses or severe injuries. Think of the extent to which the government could intervene in daily family decisions, many of which (such as not using the right kind of play equipment, eating sugar, not taking vitamins) could be construed to "result in danger to the life of the child or in serious physical injury to the child." Think too of what might happen to families who refuse a specific conventional medical treatment because they prefer to rely on alternative approaches to health care such as going to chiropractors, turning to the power of prayer, and using other alternatives. Legislation like H. R. 1946 would make it much more difficult for parents to choose alternatives to conventional medical practice. But think of how many times in the past widely accepted medical practice has been shown to be harmful. It does not seem wise or consistent with a democratic society to require that parents choose health care sanctioned by the government.
Increases in Charges of Abuse and Neglect
The third area in which H. R. 1946 sacrifices parental rights is abuse and neglect. The bill states that: "disciplining the child, including reasonable corporal discipline, except as provided in subparagraph (C)." (C) states that "The term 'right of the parent to direct the upbringing of a child' shall not include a right of a parent to act or refrain from acting in a manner that constitutes abuse or neglect of a child, as the terms have traditionally been defined." (p. 7) Certainly child abuse and neglect should be prevented and stopped whenever possible. However, legislation like this would not end the tragedy of child abuse and neglect, which are complicated problems that require much more extensive responses. Instead, this legislation would increase the ability of the government to intervene through social services in the lives of families. In addition, in some states, traditional definitions of abuse and neglect include things like "educational neglect" and "emotional damage," while in other states parents and others have worked hard to prevent these terms from being included. A Federal bill like H. R. 1946 could override these efforts and give the government additional grounds for prosecuting parents.
It is worth noting that the fourth area in which H. R. 1946 attempts to protect parental rights ("directing and providing for the religious teaching of the child" [p. 6]) has already been covered by the Religious Freedom Restoration Act of 1993-Public Law 103-141-Nov. 16, 1993. Also, as with the other areas addressed by H. R. 1946, the extent to which parental rights in religion can be protected by law is limited. Since H. R. 1946 does not require that parents instruct their children in religion, parental rights in religion are not diminished by this bill, as they are in the areas of education, health care, and abuse and neglect.
Procedures that Would Require Parents to Prove their Innocence
In addition to these substantive concerns, H. R. 1946 also raises procedural concerns. For reasons that are not clear, this bill would require that in court cases concerning parental rights, parents would first be required to demonstrate that "(i) the action in question arises from the right of the parent to direct the upbringing of a child; and (ii) a government has interfered with or usurped the right." (p. 4) This puts the burden of proof on parents, despite the fact that logically a bill that protects parental rights should put the burden of proof on the government and not on parents.
To be sure, the bill then "shifts the burdens of production and persuasion to the government to demonstrate that-(i) the interference or usurpation is essential to accomplish a compelling governmental interest; and (ii) the method of intervention or usurpation used by the government is the least restrictive means of accomplishing the compelling interest." (pp. 4-5) The principles of "compelling interest" and "least restrictive means" are important, but this legislation would be of limited usefulness since it surrenders so much to the government unnecessarily and adds requirements, and since parents would have to prove that their rights had been interfered with or usurped before these legal principles could be applied.
If the Government Cannot Guarantee Parental Rights, Why Does the First Amendment Work So Well?
For one thing, the First Amendment does not grant rights or state what people's responsibilities are. Instead, it forbids Congress to make any laws that reduce rights and freedoms. ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.") By contrast, H. R. 1946 would be a law that says what a parent's rights are and are not and describes parental rights and responsibilities.
In addition, parental rights are much more complicated than the rights of free speech and assembly. None of these rights is absolute. (Parents obviously do not have the right to treat their children in any way they please. Free speech does not give people the right to shout "Fire!" in a crowded theater or to spread libelous rumors about people.) However, the process of parenting is much more complicated than the process of public speaking. Public speakers have quite limited relationships with their listeners, but the relationship between a parent and child lasts a lifetime and has an enormous impact on both of them.
Parental rights are accompanied by much more serious responsibilities than is the right to free speech. It is possible to have a law that states that freedom of speech should be protected without listing the responsibilities that public speakers have. However, it would be difficult if not impossible to pass a law protecting parental rights without also discussing parental responsibilities. Once parental responsibilities are written into law, they give the government a basis for interfering with family life in ways that can be inappropriate and harmful to families.
Another reason questions surrounding parental rights are so complicated is that we need to find a balance in our attempts to protect children from two different and sometimes contradictory threats. On one hand, child abuse and neglect should certainly be prevented and stopped whenever possible. But if the government has too much power to intervene in families' lives so it can supposedly stop abuse and neglect, the government's actions themselves can endanger children by separating them inappropriately from their families and in other ways. Part of the problem is that a large, centralized, and impersonal institution like the government is very limited in the support it can provide to families in distress.
Other important points about H. R. 1946
*This bill is fundamentally flawed and simply will not work. We would lose far more than we would gain if we tried to have the government pass laws to protect our parental rights and responsibilities. This column discusses specific provisions in the bill to make clear the problems involved. However, this bill cannot be fixed by changing the specifics of these provisions. Rights as fundamental and as basic to human existence as parental rights simply cannot be legislated or protected by the government without giving the government greater control over those rights in the process.
*One of the important lessons of this bill is that it is virtually impossible to write a law that protects parental rights in an area that is considered fundamental, such as education and health care, without first requiring that parents assume responsibility in these areas in ways that are consistent with the standards of those in power.
*A law that supposedly protected parental rights and responsibilities could also easily backfire by giving parents a false sense of security. Some people might become less careful about their actions if they thought that they no longer needed to act in ways that would maintain their parental rights because a law had guaranteed their rights for them. They might be more willing to comply with requests from officials that exceeded the officials' legal authority. They might worry less about setting precedents that would infringe on their rights and the rights of other parents. Such behavior is risky. As Jefferson said, "Eternal vigilance is the price of freedom."
*This bill has been called a "lawyer's bill" in the sense that it is designed to provide in statute language and procedures that would make it easier for lawyers to argue cases in court, at the expense of the lives and liberty of the rest of us who are trying to raise children.
What We Can Do
*Get a copy of H. R. 1946 and S. 984. Although the major points of H. R. 1946 are discussed here, it is important to see the whole bill in its official form, to read it for ourselves, and to draw our own conclusions about it. To receive a copy of a House bill, ask your federal representative or call the House Documents Room at 1-202-225-3456. Senate bills are available through U. S. senators.
For additional information, we can request copies of testimony from hearings on these bills. The House Judiciary Committee's Subcommittee on the Constitution held hearings on October 26, 1995,-(202-226-7680). As of this writing, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts has scheduled hearings for December 5, 1995,-(202-224-6736).
(Note: Names, addresses, phone numbers, and committee assignments may be obtained by calling the Clerk of the House at 1-202-225-7000 and the Secretary of the Senate at 1-202-224-3622. For bill numbers, information about the status of a bill, etc., call Legislative Information: 1-202-225-1772.)
*Communicate our concerns with our federal representatives. Generally it is most effective to communicate with the two Senators from our state and the representative from our district, since members of congress tend to be most responsive to their own constituents. However, as of this writing, both H. R. 1946 and S. 984 are still in subcommittee. Therefore, in this case it makes most sense to share our ideas with members of the subcommittees, listed below. (It is especially important that we communicate with them if we happen to live in the state or district represented by one or more of the subcommittee members.)
Republicans on the House subcommittee are: Charles Canady - FL (Chair) - 202-225-1252; Henry Hyde - IL (also chair of the full Judiciary committee) - 202-225-4561; Bob Inglis - SC - 202-225-6030; Michael Flanagan - IL - 202-225-4061; James Sensenbrenner, Jr. - WI - 202-225-5101; Martin Hoke - OH - 202-225-5871; Lamar Smith - TX - 202-225-4236; Bob Goodlatee - VA - 202-225-5431. Democrats are Barney Frank - MA - 202-225-5931; Melvin Watt - NC - 202-225-1510; Jose Serrano - NY - 202-225-4361; John Conyers, Jr. - MI - 202-225-5126; Patricia Schroeder - CO - 202-225-4431.
Republican members of the Senate subcommittee are: Charles E. Grassley - IA (Chair) - 202-224-3744; Strom Thurmond - SC - 202-224-5972; Hank Brown - CO - 202-224-5941; Mike DeWine - OH - 202-224-2315. Democrats are Howell Heflin - AL - 202-224-4124; Herb Kohl - WI - 202-224-5653; Russell Feingold - WI - 202-224-5323.
*Inform other parents and organizations about this legislation and encourage them to act.
Parental rights cannot be protected by legislation. Attempts to do so can easily lead to increasing government intervention in family life and requirements that parents comply with government standards in education, health care, and other areas. - Copyright 1996 Larry and Susan Kaseman
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