Parental rights, the Supreme Court and California law

he subject of parental rights is making its way into school board meeting rooms, Congress and state legislatures, and federal and state courts. Parents are breaking new ground in schools as they make their voices heard on what students should read and are taught and what information about their children they should receive from school employees.

The constitutional contours of parental rights are being drawn by state and federal courts, which differ on the extent to which parents may control what information their children receive at school and what information parents may receive from school employees without the student’s consent. Because the courts are split on the breadth of the meaning of parental rights, lawmakers in many states are introducing legislation to define the rights of parents that concurrently will define the rights of students and school employees.

Historical context

A century ago, the U.S. Supreme Court recognized the parental right to “bring up children” but also acknowledged the “power of the state to compel attendance,” to “make reasonable regulations for all schools” and to “prescribe curriculum…” (Meyer v. Nebraska, 262 U.S. 390, 399, 402 (1923).) Two years later, the Court added to the right when it found that a state could not require parents to enroll their children in only public schools because requiring public school attendance unreasonably interfered with the “liberty” interest of parents “to direct the upbringing and education of children under their control.” (Pierce v. Society of Sisters, 268 U.S 510 (1925).)

Since Pierce, Supreme Court decisions have further established the rights of parents to make decisions “concerning the care, custody, and control of their children.” (Troxel v. Granville, 530 U.S. 57, 66 (2000).) But for over 50 years, the Court has not issued an opinion directly addressing parental control over their children while at school. The last time the Court considered this topic was in 1972 when it relied on the holdings in Meyer and Pierce to support Amish parents who had challenged Wisconsin’s compulsory education law on First Amendment grounds. The parents wanted to withdraw their children after eighth grade to work on their farm, which the Court supported because “the history and culture of Western civilization reflect a strong parental concern for the nurture and upbringing of their children.” (Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).) With the increased activity by lawmakers to define parental rights and with a growing number of cases filed by parents to further establish their rights, the Court may soon decide the constitutional contour of parental rights relative to their children’s education in classrooms and participation in extracurricular activities.

United States Constitution

When an individual right is expressly identified in the U.S. Constitution, it is considered a fundamental right that, if interfered with, will receive the greatest protection by the courts. Any interference with the exercise of a fundamental right will be strictly scrutinized by the courts. On the other hand, when a right is not specifically included in the Constitution and is not otherwise found by judicial interpretation to be a fundamental right, any regulation of it need only bear a reasonable relationship to a legitimate state interest. (San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).)

The Court has found rights not enumerated in the Constitution to be fundamental for a variety of reasons, but one of the most common practices is to interpret a right of privacy as a “liberty” interest in the 14th Amendment, like the right to marry a person of a different race or intimate right to marital privacy. The Court interprets those privacy rights in the 14th Amendment as fundamental because those rights are “deeply rooted” in the nation’s “history and tradition” and “implicit in the concept of ordered liberty.” (Washington v. Glucksberg, 521 U.S. 702, 721 (1997) citing to Loving v. Virginia, 388 U.S. 1 (1967), Griswold v. Connecticut, 381 U.S. 479 (1965).) However, the Court’s recent decision related to the right of privacy limited the right by finding that the right to abortion was not a practice common enough among the states to be a right of privacy that was ever part of our nation’s history and traditions. (Dobbs v. Jackson Women’s Health Organization, 597 US ___ (2022).) Instead, the Court used the rational basis test for a non-fundamental right to overrule precedent that had found this privacy right to be a fundamental right included in the 14th Amendment.

Although the Supreme Court has not considered the breadth of parental rights for decades, nor has it opined on the argument that parental rights are related to the 14th Amendment’s privacy rights, lower federal courts presented with the issue have ruled in various ways. For example, the federal Ninth Circuit Court of Appeals, with jurisdiction over California, has opined that although parental rights are fundamental, the right is limited to deciding where their children go to school, because “what information schools provide [to students] is a matter for the school boards, not the courts, to decide.” (Fields v. Palmdale School District, 447 F. 3d 1187, 1190-91 (2006); CA. Parents for Equalization of Educ. Materials v. Torlakson, 973 F. 3d 1010, 1017 (2020).) It is possible that given the increase in parental rights cases, the Court may take on the topic of parental rights and decide differently than the Ninth Circuit.

California Constitution and statutes

Even if the Supreme Court expands parental rights beyond the contours of existing legal precedent in California, a student’s personal information is protected by the right to privacy specifically included in the State Constitution. (CA. Const. Art.1 § 1.) This privacy right extends to minors of any age when seeking pregnancy-related treatment and advice without parental consent. (Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307, 940 (1997); Family Code §6925.) Adding to this, students in grades 7-12 may be excused from school without the consent of a parent to receive confidential medical services. (Education Code § 46010.1.) Similarly, conversations between students 12 years and older and a school counselor are confidential and cannot be disclosed to parents except in limited circumstances. (Education Code § 49602.) In addition to explicit protections of student privacy, California law protects students from “discrimination of any kind in the educational institutions of the state,” furthering arguments in favor of protecting students. (Education Code §231.5.)

Parental rights arguments

Parental rights cases nationwide are challenging anti-discrimination and student privacy policies that restrict school employees’ ability to disclose a student’s social gender transition to others including parents without the student’s consent. These cases emphasize existing rights of parents such as those found in Education Code section 51101, which includes the right of parental access to student records. In California, a parent is challenging the guidance from the California Department of Education, which states that engaging parents is the best option, but if students do not consent to disclosing their social transition, parents may only be informed if there is a “compelling need to know.” (Regino v. Staley, 2023 WL 2976381, (E.D. Cal. Apr. 17, 2023).) Any ruling by the Supreme Court to establish a fundamental right for parents to receive information from schools about gender transition using the Meyers-Pierce right, or by creating a new fundamental “familial privacy” right to intimate information about their child, would trump the student’s right of privacy and protection from discrimination used by courts to support the challenged policies. (Tatel v. Mt. Lebanon Sch. Dist., 2022 WL 15523185 (W.D. Pa. Oct. 27, 2022).)

Until the Supreme Court responds to these multi-faceted constitutional questions, governing boards in California are bound by the state’s right of privacy and anti-discrimination laws that, in many instances, weigh in favor of protecting the rights of students.

Keith Bray is CSBA’s General Counsel & Chief of Staff

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.

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