Parents seek increased control over children's lives in legislatures, courts.

"Your children are not your children," wrote the late poet and essayist Kahlil Gibran in The Prophet, a collection of a fictitious seer's teachings on birth, death, and just about everything in between.

Published in 1923, The Prophet has been translated into more than 20 languages and has millions of admirers. Mike Farris is not one of them.

"I don't think I've seen it, but it sounds like something George Orwell would have written," said Farris, president and founder of the Home School Legal Defense Association located in Purcellville, Virginia.

Farris is at the forefront of the parental rights movement, which in recent years has been pressing for laws that would confirm that parents have a fundamental right to direct the upbringing--including education, religious training, medical treatment, and discipline--of their children.

The effort may seem redundant to many people who believe that parents already have a right to control how their children are raised. But parental rights supporters argue that parents' rights to govern their children's training and care have been steadily eroding. As proof, they point to children's increased exposure to controversial ideas or programs--like sex education, psychological counseling, and substance abuse prevention training--over parents' objections.

New laws are needed "for the same reason that the states ratified the amendments to the Constitution that eventually became our Bill of Rights," Farris said. "If you don't write it down in black and white, you start losing your rights."

The movement gained national attention a few years back when advocates--largely conservative Republicans and members of Christian groups like the Christian Coalition--sought to add a parental rights amendment to constitutions at both the federal and state levels.

In 1995, in response to lobbying by parental rights supporters, Rep. Steve Largent (R-Okla.) and Sen. Charles Grassley (R-Iowa) introduced bills in the U.S. Congress known as the Parental Rights and Responsibilities Act. Drafted by Farris, the legislation would have barred federal, state, and local governments from "interfer[ing] with or usurp[ing] the right of a parent to direct the upbringing of the child of the parent." The bills also included language relating to health care and corporal punishment.

In recent years, parental rights activists have succeeded in getting constitutional amendment proposals introduced in over two dozen state legislatures. Although none of the measures--at the federal or state level--has made it into law, the idea of an amendment was, at least initially, popular with many voters.

For example, a 1996 poll showed that 76 percent of Colorado citizens favored an amendment proposed in that state. The proposal was considered a test case for the parental rights movement because Colorado's largely conservative constituency made adoption of an amendment more likely there and because Colorado is the only state where an amendment has been submitted to voters for approval.

In most states, the legislature must vote on a proposed amendment before it can be considered by the state's citizens. But Colorado's amendment was allowed to go directly before voters though an initiative procedure. After a hotly contested battle between supporters and opponents--including a coalition of health, education, and civil liberties groups--the proposed amendment was ultimately defeated by a vote of 58 percent to 42 percent.

Although parental rights legislation may have failed the test in Colorado, advocates have continued to push for new laws in other venues. According to Reese Isbell, state legislative coordinator for Americans United for the Separation of Church and State, legislation is pending in at least five states--Missouri, Montana, New Jersey, New York, and Texas. And a proposed amendment to Virginia's constitution was voted down by that state's senate just this year.

Isbell, whose organization opposes parental rights amendments, said the latest Virginia vote indicates the campaign for new laws may be losing some steam. An amendment to Virginia's constitution "nearly passed [in the state senate] two years ago," he said. In 1997, an amendment was defeated in the Virginia senate by a close margin--21 to 19. "The vote this year [26 opposed and 11 for] is a good clue that the push for legislation isn't really gaining momentum," Isbell said.

Farris disagrees that enthusiasm for parental rights laws is ebbing. He attributed the apparent lag in momentum to the fact that some activists are focusing their efforts on the upcoming presidential campaign. And, he said, supporters are re-grouping in an attempt to redraft legislation to make it more palatable to legislators and voters.

Model language for proposed amendments is taken from a 73-year-old U.S. Supreme Court opinion that invalidated an Oregon law requiring all children to go to public schools. The Court found that the statute "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control." (Pierce v. Society of the Sisters, 268 U.S. 510 (1925).)

Pros and cons 

Advocates claim that amendments--which typically state that the right of parents to direct the upbringing and education of their children is a fundamental right --would simply codify the Pierce holding.

Opponents say the proposed language is deceivingly simple and would hamper investigation and prosecution of child abuse allegations, create a torrent of litigation by parents who claim their rights have been violated, result in gridlock over decisions on public school curricula, and further undermine the public school system by laying a legal foundation for school vouchers.

The debate centers on the word "fundamental." Parental rights advocates, citing Pierce and later Supreme Court cases that relied on that decision, say the Court has consistently declared that parental rights are fundamental. Consequently, advocates say, the government should be allowed to usurp parental authority only when it has a "compelling interest" in doing so.

But opponents argue that laws declaring parental rights fundamental would upset the delicate balance between the rights of parents and the needs of children established by decades of developing case law and carefully worded statutes.

"Parental rights are provided for under various cases and statutes. They are balanced to protect the rights of parents," said Judith Schaeffer, deputy legal director for People for the American Way, which opposes right-wing initiatives. "A blanket constitutional amendment that says parents have a constitutional right to direct the upbringing of their children sounds innocuous, but it's a wolf in sheep's clothing. Good parents don't need it, and bad parents would abuse it."

Making the case

Parental rights supporters take cold comfort in recent court decisions, many of which have held that government authorities must demonstrate merely a "rational basis" for abrogating the parental role. These cases are frequently cited as examples of why laws declaring parents' rights as fundamental are needed.

In Newkirk v. Fink, parents claimed their rights were violated when their son, who was in third grade, received psychological counseling by a school counselor over their objections. The trial court granted summary judgment for the defendants, and the Sixth Circuit affirmed. (57 F. 3d 1070 (6th Cir. 1995).)

In Brown v. Hot, Sexy, and Safer Productions, Inc., parents of high school students claimed their fundamental right to direct the upbringing of their children was violated when they were denied an opportunity to have their children "opt out" of a controversial sex education program at school. The First Circuit held parents do not have "a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children." (68 F.3d 525 (1st Cir. 1996).)

In Immediato v. Rye Neck School District, the Second Circuit held that parents who objected on moral grounds to a school's mandatory community service requirement did not have a fundamental right to exempt their son from the requirement. (73 E3d 454 (2d Cir. 1996).)

In each case, the U.S. Supreme Court has denied certiorari. This, some parental rights advocates claim, has allowed the Pierce fundamental rights standard to die a "death of a thousand cuts."

Yet, some advocates are hoping that two decisions handed down just last year may signal a change in the tide. In Planned Parenthood v. Camblos, the Fourth Circuit ruled that a Virginia law requiring minors seeking abortions to first notify one or both parents was not unconstitutional. (155 E3d 352 (4th Cir. 1998).) The U.S. Supreme Court denied certiorari in February.

And in Williams v. Williams, also a Virginia case, the state court of appeals reversed an award of visitation rights to a child's grandparents. The court found that the child's parents, who objected to the visitation, had a fundamental right to raise their child as they saw fit and that "state interference with [that right] must be justified by a `compelling state interest.'" (485 S.E.2d 657 (Va. Ct. App. 1997).) The Supreme Court of Virginia affirmed the decision last year. (501 S.E.2d 417 (Va. 1998).)

Although courts in other states have upheld grandparent visitation orders (see Visitation and Custody Battles Aren't Just for Parents Anymore, TRIAL, Sept. 1998, at 100), parental rights supporters say the appellate court's language in Williams could set a significant precedent.

"It's one of the best decisions I've seen in terms of arguing the doctrine of parental rights," said Shannon Royce, counsel for Of the People Foundation, a national parental rights advocacy group. "The court said that without a finding of harm to a child, a court may not impose its subjective notions of the child's best interests over the united objections of the child's parents without violating the constitutional rights of the parents."

Advocates on both sides are closely watching a Pennsylvania case stemming from a March 1996 physical examination of 59 sixth-grade girls at J.T. Lambert Intermediate School in East Stroudsburg. As part of the examination, the girls were told to undress and lie on a table so a doctor could inspect their genitalia for abnormalities. (Doe v. East Stroudsburg School District, No. CV96-852 (M.D. Pa. filed June 1996).)

After investigating the incident, school district officials concluded the genital exams were within the parameters of state health rules. (Cheryl Wetzstein, Genital Exams at School Irk Parents, Wash. Times, Apr. 27, 1996, http://www.winternet.com/-radams/exams/a4.html.)

Some of the girls and their parents have filed suit, claiming the examinations violated their Fourth and Fourteenth Amendment rights, including parental liberty rights, because they were conducted without the parents' knowledge or consent. The plaintiffs are seeking monetary damages and injunctive relief against future school examinations. Trial is set for July 12.

Philadelphia attorney Brian Thomas, who represents two of the girls and their families, said the exams were unnecessary given the girls' ages. "The reason [the doctor gave for doing the exams] was to check for sexually transmitted diseases. But the lowest risk for that is in 11-year-olds. There was no need, statistically speaking, to check that segment of the population."

Although parental rights supporters continue to press their case in legislatures and courts, the future of the movement may lie closer to home.

Bob Heckman, senior vice president of Of the People Foundation, said publicity about parental rights amendments and cases has resulted in "an explosion of activity by parents" in dealing with local school boards, health services organizations, and state agencies.

"They're not waiting for a statute or an amendment, they're going out and exerting t heir own rights. After all, the theory behind the amendments is that those rights existed and we were simply codifying them," Heckman said.

People for the American Way's Schaeffer said that's exactly what parents should be doing. "Parents are needlessly feeling disenfranchised," she said. "Studies show that only 9 or 10 percent of parents cast votes in school board elections. Parents need to start paying attention to elections and get involved--talk to teachers, go to PTA conferences."

Isbell agrees. "There are a lot of ways parents can be involved in a child's activities," he said. "[Proposed amendments are] designed to create a way for parents to take schools to court, and that is not where these issues need to play out."