U.S. House Leadership Made Parental Rights A Priority, But Much Work Remains

Last month, the House Judiciary Committee held a subcommittee hearing addressing the Biden administration’s relentless attacks on parents’ fundamental right to direct the upbringing of their children and to publicly express their views on policies affecting their children.

The hearing brought much-needed attention to the growing instances of government officials actively seeking to replace parents as the ultimate arbiters of what’s best for children. My fellow witnesses and I used our time with the committee members to urge them to implement policy that makes it clear that the government can’t interfere with parents’ fundamental rights.

Much of the narrative surrounding why parental rights are now in the spotlight has focused on a recent and growing grassroots movement driven by parents, but the work to protect parental rights isn’t new. In fact, the Supreme Court has been considering cases involving parental rights for 100 years.

Throughout that time, the Supreme Court has consistently described the right of parents to direct the upbringing and education of children as “fundamental.” But despite acknowledging this truth, the court has stopped just short of applying a consistent, strict-scrutiny standard of review for violations of parental rights, like the standard applied in cases involving other fundamental, constitutionally protected rights.

This lack of consistency has left parents unsure of whether the courts will protect their rights. But last week, the U.S. House took a critical step in resolving this question.

H.R. 5, the Parents Bill of Rights Act, included language reiterating the importance of parental rights under the law.

The legislation affirmed that “parents have a fundamental right, protected by the U.S. Constitution, to direct the education of their children.” The House of Representatives expressed its firm belief that parental rights must be treated with the same strict scrutiny review used by courts for government actions that violate other fundamental rights.

The importance of this declaration should not be understated. The continued and growing instances of parents being denied their basic right to direct the upbringing of their own children requires a robust response in the legislature and in the courtroom.

My law firm, Alliance Defending Freedom, has represented several families seeking relief for the harm caused by government actors denying parents their fundamental rights.

For example, in B.F. v. Kettle Moraine School District, attorneys with Wisconsin Institute for Law and Liberty and ADF filed a lawsuit on behalf of parents challenging a school’s policy of facilitating a student’s “social transition” at school even over the direct objection of the parents.

In Kettle Moraine, a 12-year-old girl began suffering from significant anxiety and depression along with questions about her gender. The school district immediately treated this young girl as a boy and encouraged her to “transition” to living as a male. The parents took care to seek mental health support for their daughter, who eventually embraced her girlhood. But the school declares that “affirmative care” is their policy and insists that it will continue to immediately use new names and pronouns associated with a “social transition” at school if a student requests it—even over the direct objection of the parents.

And, in Ricard v. USD 475 Geary County School Board, a teacher objected on religious grounds to complying with a policy that forced her to deceive parents by addressing students with preferred first names and pronouns at school but with their legal names and biological pronouns in her communications to parents.

In ruling that the school had no legitimate interest in burdening the teacher’s religious freedom, the court also observed that this policy of deceiving parents likely ran counter to parents’ rights, too. The court questioned what interest the school could have in “withholding or concealing from the parents of minor children, information fundamental to a child’s identity, personhood, and mental and emotional well-being....”

These cases are just two examples of the egregious intrusions parents are facing with increasing regularity in school districts across the country. These continued violations of parental rights make it vital that the rights of parents be treated as fundamental when they take these grievances to court.

While the actions in the House shone an important spotlight on parental rights, Congress should continue to build on this momentum to enact even greater protections for parental rights. The House took a critical first step in the work to safeguard the ability of parents to direct the upbringing and education of their children consistent with their values and beliefs—but much more work remains to be done.

Tyson Langhofer serves as senior counsel and director of the Center for Academic Freedom at Alliance Defending Freedom (@ADFLegal).