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Supreme Court Justice Questions Constitutional Basis for Parental Education Rights

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Cross-posted from The School Law Blog

Washington

U.S. Supreme Court Justice Antonin Scalia told a law school audience on Monday that there is no U.S. constitutional right of parents to direct the education and upbringing of their children. 

The nation's charter document is "not a perfect Constitution," and many "important rights are not contained there," Scalia told an auditorium of first-year law students at Georgetown University Law Center here.

"For example, my right to raise my children the way I want," he said. "To teach them what I want them taught, not what Big Brother says. That is not there."

To a large degree, Scalia was repeating views he has long held and expressed in dissents to the high court's decades-old precedents that say that parents do have such a fundamental right to direct the upbringing of their children. In Troxel v. Granville, a 2000 case about grandparents' child-visitation rights, the court reaffirmed that view.

Scalia dissented from the outcome in that case, which went against two Washington state grandparents seeking visitation rights to their grandchildren against the wishes of the children's mother. He said the right of parents to direct the upbringing of their children was among the "unalienable rights" mentioned in the Declaration of Independence, but that he did not believe the Constitution gave him the power as a judge to rule on state laws that may interfere with such a parental right.

Scalia's dissent cast some doubt on the constitutional underpinnings of the court's two key precedents on parental rights in education—Meyer v. Nebraska, a 1923 decision in which the court struck down a Nebraska law that barred instruction in foreign languages because it interfered with the right of parents to obtain such instruction for their children, and Pierce v. Society of Sisters, a 1925 ruling that struck down an Oregon law that required public school attendance, thus precluding enrollment in parochial schools.

In his wide-ranging conversation at Georgetown on Monday, Scalia was a bit more direct in expressing doubt about a constitutional right of parents to direct their children's education, and he drew a comparison to a more recent hot issue—same-sex marriage.

Because such a parental right is "simply not in the Constitution," he said, "I will not enforce it from the bench."

"The notion that everything you care a lot about has to be in the Constitution is a very dangerous notion," Scalia continued. "Because it begins with stuff we all agree upon. 'Oh, sure, we ought to be able to educate our children the way we want.' That was one of the early substantive due process [cases]—don't get me going on substantive due process."

That is the notion that the 14th Amendment due-process clause protects certain fundamental rights as well as procedural rights. 

Scalia said Monday that "at the bottom of that slide" down the slippery slope of substantive due process "is same-sex marriage."

Scalia's dissent in last June's decision in Obergefell v. Hodges was critical of the majority's recognition of a 14th Amendment substantive-due process right to same-sex marriage. Substantive due process "stands for nothing whatever, except those free- doms and entitlements that this court really likes," Scalia wrote. 

"That's what happened," Scalia added at Georgetown. "It began with, 'Oh, who could possibly disagree with Pierce v. Society of Sisters.' Nobody could disagree with that. But then, once the court is making these decisions, it is going to make decisions a lot of people disagree with."

In his majority opinion in Obergefell, Justice Anthony M. Kennedy wrote that one "basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education."

He cited Pierce and Meyer. "The court has recognized these connections by describing the varied rights as a unified whole: The right to marry, establish a home, and bring up children is a central part of the liberty protected by the Due Process Clause," Justice Kennedy said in his opinion.  

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