Parental rights: Existing law and established boundaries
A review of current law amid proposed federal legislation
a young girl wearing a plaid backpack smiles up at a woman with whom she is holding hands

On March 1, 2023, the Parents Bill of Rights Act was introduced in the United States House of Representatives. The rationale, as stated in the bill’s fact sheet, is to “make clear to parents what their rights are and [make] clear to schools what their duties to parents are” as “many school districts have been ignoring the wishes of parents while special interest groups try to criminalize free speech.” The bill, H.R. 5, would amend the Elementary and Secondary Education Act of 1965 (ESEA), and comes amid ongoing political debates about the appropriate role and rights of parents in public schools. The bill proposes to add in the ESEA five specific rights for parents while their children receive a public education:

  • To know what children are being taught
  • To be heard
  • To see school budgets and spending
  • To protect their children’s privacy
  • To keep their children safe

If passed by Congress and signed into law by President Joe Biden, H.R. 5 would add to existing parental rights as they are defined in various federal court cases that set the contours for the exercise of parental influence and involvement when a child is enrolled in public school.

Civic engagement through voting and participation at the board and legislative level afford parents a direct opportunity for involvement in this process.
Current law
Both federal and California law provide parents with rights, but those rights are not unlimited. Rather, they underscore the need for parents to be involved and engaged in their child’s education. Beginning in the 1920s, federal courts have considered numerous parental rights questions and the decisions in those cases have created a longstanding framework for educators and parents to rely on. In the cases of Meyer v. Nebraska (262 US 390 (1923)) and Pierce v. Society of Sister (269 US 510 (1925)) the U.S. Supreme Court first established the basic principle that under the Fourteenth Amendment’s substantive due process rights, parents have the right to direct their children’s upbringing and education. This Meyers-Pierce right, as it is sometimes referred to, was further explained and relied on in cases such as Wisconsin v. Yoder (406 US 205 (1972)), when the Court found that a state cannot compel parents to send their children to school when they hold a legitimate religious belief that prevents them from doing so. Similarly, in Troxel v. Granville (520 US 57 (2000)) the Court held that parents have a fundamental right to make decisions “concerning the care, custody, and control of their children.”

This broad parental right under the Fourteenth Amendment is not without limits. Not long after the Meyer-Pierce right was established, the Court decided in Prince v. Massachusetts (321 US 159 (1944)) that the “family itself is not beyond regulation in the public interest,” reeling in the right and establishing a boundary that allows courts to regulate the treatment of children when it is in their best interest. Based on that boundary, courts have further clarified that although parents may opt to send their children to public school, their parental rights do “not extend beyond the threshold of the school door.” (Fields v. Palmdale School District, 427 F.3d 1197 (9thCir. 2005).)

More specifically, parents “do not have a due process right to interfere with curriculum, discipline, hours of instruction, or the nature of other curricular or extracurricular activities.” (Cal. Parents for the Equalization of Educ. Materials v. Torlakson, 973 F.3d 1010, 1020 (9th Cir. 2020).) This limit also applies to parents who wish to influence school policies. In Parents for Privacy v. Barr (949 F.3d 1210 (Ninth Cir. 2020)), a case related to school policies for bathroom use by transgender students, the court held that parents “have a right to remove their children” from public schools, but not to dictate school policy.

California law aligns with these parental rights principles described by federal judges. Education Code sections 51100–51102 describe the need for parental involvement in a child’s education and states that it is “essential to our democratic form of government that parents and guardians of school age children attending public schools and other citizens participate in improving public education institutions.” (Education Code 51100.) As a result, “the parents and guardians of pupils enrolled in public schools have the right and should have the opportunity, as mutually supportive and respectful partners in the education of their children … to be informed by the school and to participate in the education of their children…”.” (Education Code 51101.) This includes the right to observe and examine the curriculum in classroom(s) where their children are enrolled and receive information about the academic performance standards, proficiencies or skills their child is expected to accomplish. (Id.) Education Code section 51101 also includes the ways in which parents can contribute to their student’s learning environment by “volunteering in their children’s classrooms, or for other activities at the school,” and “working with their children at home in learning activities that extend learning in the classroom.” (Id.)

These state and federal rights may change over time through legislative action, like the Parents Bill of Rights Act, or through judicial decisions at the state or federal level. Any such changes will require adaptation and implementation by school district and county office of education boards as well as understanding from parents as to the rights they have and how they can be involved in the education of their children. Civic engagement through voting and participation at the board and legislative level afford parents a direct opportunity for involvement in this process.