Parents Pushing Back on Public Education: The Law Is on Your Side

COMMENTARY: A recent article by professor Helen Alvaré offers an encouraging example.

Parents are increasingly vocal about the education of their children.
Parents are increasingly vocal about the education of their children. (photo: Unsplash)

More and more American parents are waking up to the pervasive and lasting injuries inflicted by gender ideology on children. This grotesque assault on the nature of what it means to be human is being endorsed by institutions everywhere — but we must not give in to despair. 

Parents, with the support of relatives, friends, teachers and clergy, have the right and obligation to step up and safeguard their children from this ideology. The good news is that when the indoctrination involves public schools, the law favors parents, especially the law related to religious freedom. 

Let me refer you to an encouraging law review article by professor Helen Alvaré of the George Mason University Scalia School of Law in the Loyola University Chicago Law Journal

A frequent contributor to the Register, Alvaré teaches family law, law and religion, and property law and has written extensively about marriage, parenting, nonmarital households and the First Amendment. She also co-founded the Catholic Women’s Forum (CWF), a branch of the Ethics and Public Policy Center in Washington, D.C. Their Person and Identity Project offers lots of helpful information for parents, parishes, schools and clergy who find themselves grappling with transgender issues.  

Alvaré begins her article with a pretty basic proposition: 

“Old and New Testament scriptures persistently point to human beings’ ordinary romantic and familial relationships and experiences as pathways for glimpsing foundational religious beliefs — beliefs about the identity of God, His love for humanity, and how human beings are to love Him and one another.” In other words, she adds, “sex, marriage, and parenting are inextricable parts of the ‘language of Christian belief,’ and the very ‘architecture’ of the faith.” 

How does this relate to confronting indoctrination in gender ideology in our public schools? Because teaching on “familial relations” is part and parcel of instilling and transmitting the faith itself — and anything that interferes with it interferes with the liberty and free exercise rights of parents.  
As a preamble to the article’s brilliant legal analysis, Alvaré offers a lengthy discussion of the writing of two Catholic theologians: the late Father Luigi Giussani, founder of the Communion and Liberation movement, and Cardinal Angelo Scola, former archbishop of Milan and an eminent theologian. Their writings explain how Christian beliefs about familial relations constitute “the architecture of the faith and therefore play a crucial role in its transmission.” 

She then cites the writing of Mary Eberstadt and other sociological investigators who reinforce the importance of children’s exposure to Christian family norms. And she makes the key point that the maintenance and transmission of the faith can be derailed by “confident and authoritative leaders” with different views.

Enter the public-school system in America. 

Gone are the days when parents could simply opt their children out of sex-education classes in order to retain their authoritative voice in the formation of their children’s consciences. Schools now weave discussions about family and human sexuality throughout the school day. 

Alvaré’s article cites cases in which schools brazenly exposed schoolchildren to shockingly sexualized and disorienting propaganda. 

In Colorado, for example, kindergarteners were shown a school play performed by a transgender choir, celebrating transgender identification. In Massachusetts, middle-schoolers were given free access to condoms and related literature, and other children in the state had to attend a mandatory school-wide assembly involving the simulation of aspects of sexual intercourse, with audience participation and role-playing. 

Fortunately, Supreme Court precedent is on the side of parents who push back. According to Alvaré, the Court has consistently acknowledged parents’ rights respecting their children’s education, both as a matter of the free-exercise guarantee and as a matter of parents’ 14th Amendment substantive due-process rights. Most poignant was the Court’s observation in a 1925 case: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” 

Granted, the Court has yet to look at the question of parental rights to opt out of sex-and-family-related material presented at a public school, but Alvaré explains that its decisions strongly support the conclusion that “parents’ legal authority regarding their children’s upbringing and education is broad, even as they grant states’ interests in providing the education necessary to form citizens prepared to live in a pluralistic democracy and to be self-sufficient.” 

So that’s the good news. The bad news is that lower courts have been getting things wrong. There has been a nearly universally held conclusion that parents’ constitutional free-exercise and custodial rights do not require their involvement in schools’ choices to influence students about sex, sexual relations and parenting. 

Alvaré calls out the errors of these lower courts — a service to parents and their lawyers. A few points are worth highlighting. For example, she notes that schools’ activities and communications are not merely “internal matters,” but of “extraordinary, and often also of religious, concern to families.” And she points out that parents pursuing legal action are not “asking for curricula ‘tailored’ to their religious interests, only the removal of increasing state pressure upon their children to believe and act in ways contrary to their religion.” 

She also writes that schools’ claims that they are “not taking a side and exerting coercion are plainly preposterous.” And, finally, she notes that schools lack credible empirical data showing that the beliefs and conduct they promote benefit minors’ health, safety or welfare. In fact, she posits that “the conduct urged by Christian familial norms is equally or more likely to result in the flourishing of young people.” 

Judicial solutions are not the only recourse, of course. Many families are deciding to leave the public-school system entirely and pursue private education or home schooling. Those who stay, however, should feel confident in asserting themselves. They have the law on their side.