By Robert
Pondiscio
Friday, August
26, 2022
In 1925, the U.S. Supreme Court overturned
an Oregon law requiring that parents or guardians send their children to public
school in the districts where they lived. The Society of Sisters, which ran
private academies, claimed that the law interfered with the right of parents to
choose religious instruction for their children. The Court agreed, unanimously.
States are permitted to run and regulate schools, even to require that all
children receive an adequate education. But the Justices held that the state
may not “unreasonably interfere with the liberty of parents and guardians to
direct the upbringing and education of children under their control.”
The decision in Pierce v. the
Society of Sisters featured one of the more memorable turns of phrase
in Supreme Court history. “The child is not the mere creature of the State,” wrote
Justice James C. McReynolds. “The fundamental theory of liberty upon which all
governments in this Union repose excludes any general power of the State to
standardize its children by forcing them to accept instruction from public
teachers only.”
The notion that the state must not
interfere with parents and their right to direct their children’s upbringing
and education has cast a long shadow over U.S. education. But now, nearly a
century after Pierce, the state seems increasingly inclined to
relitigate the matter—if not in court, then in practice and policy in America’s
public schools. There is a rising and unmistakable tendency on the part of
teachers and school districts to assume that government is better positioned
than a child’s parents to judge what’s best for children and to act on that
assumption, often aggressively, making critical decisions about children’s
upbringing and well-being without their parents’ consent or even their
knowledge.
There have been myriad recent examples of
schools imposing their staffs’ ideological preferences, and in so doing being
disingenuous or openly dishonest about critical race theory, trangenderism,
“social and emotional learning” programs, and other controversial aspects of
school curriculum and culture. The picture that has begun to emerge is of an
education establishment straying beyond its remit, emboldened to ignore
parents, and determined to subvert local control of schools to advance a
social-justice agenda. “It’s infuriating, it’s harmful to children, and it’s
unacceptable,” says Vernadette Broyles, an attorney and the founder of the
Child and Parental Rights Campaign. “And it’s contrary to law.”
Early in 2021, a national advocacy group
called Parents Defending Education (PDE) began inviting parents to submit
anonymous “incident reports” to its website documenting instances of schools
and teachers imposing an “activist agenda” on children. In a little over 18
months, PDE received more than 2,000 such reports from all 50 states and
independently corroborated one-fourth of them. During the first year, nearly all
of the tips were about issues related to race, including “race-based grouping
of students during the school day, lessons on white privilege, or children in
elementary schools being forced to label themselves as oppressors or oppressed
based on their skin color and gender,” said PDE founder and president Nicole
Neily. More recently, the majority of reports have concerned gender ideology,
including school-district policies that require staff to withhold information
from parents about their child’s gender transition and the use of curriculum
materials parents perceive as age-inappropriate, obscene, or of questionable
academic value. “Parents consistently report that they are subjected to smears
and accusations of racism, transphobia, and ‘hatefulness’ simply for asking
questions and raising concerns,” Neily said.
In New Jersey, one local school district
shared “sample resources” that schools could use to meet the state’s new
health- and sex-education standards. A first-grade lesson plan circulated to
parents read, “You might feel like you’re a boy even if you have body parts
that some people might tell you are ‘girl’ parts. You might feel like you’re a
girl even if you have body parts that some people might tell you are ‘boy’
parts. And you might not feel like you’re a boy or a girl, but you’re a little
bit of both. No matter how you feel, you’re perfectly normal!” Parents
responded with outrage over gender flexibility being pushed on ever-younger
kids. Within days, New Jersey Governor Phil Murphy, who had barely survived a
reelection the previous November, ordered a review of the state’s standards,
which were still under wraps as of August 2022.
In Missouri, parent complaints about
“diversity and equity” efforts prompted a local school-district literacy coordinator
to email teachers and direct them to keep lesson plans dealing with racial
profiling, civil disobedience, and police violence off the online
classroom-management system where parents could see them. Parents are “looking
for specific things to then complain about,” read the email to teachers. “This
doesn’t mean throw out the lesson and find a new one. Just pull the resource
off so parents cannot see it.”
When a group of Michigan parents filed a
Freedom of Information Act request for “any and all” documents that included
the words “equity, diversity, and inclusion,” they were told they would be
charged nearly $400,000 in production costs before Forest Hills Public Schools
would comply with the request. A Rhode Island mother was sued by the state’s
teachers union after she filed more than 200 requests for public records
seeking access to the curriculum being taught in the school district where her
daughter attended kindergarten. “Parents have an absolute right to request
public information about public education and what their children will learn in
school,” said Nicole Solas, who wanted to know what the South Kingstown School
District was teaching students about critical race theory and gender ideology.
In Virginia’s Loudon County, parents were told they would not be allowed to see
a controversial “social and emotional learning” curriculum purchased with
public funds unless they signed a nondisclosure agreement that forbids
“copying, broadcast, or recording of any kind.”
The conflict between parents’ rights and
the authority of school personnel to act in loco parentis can be seen in
sharpest relief in how schools treat transgender students and their parents.
Under usual circumstances, schools require parental consent for everything from
going on a field trip to giving a student an aspirin. But in 2018, New Jersey
education officials directed schools to “accept a student’s asserted gender
identity; parental consent is not required.” The guidelines were hailed by
advocates for lesbian, gay, and transgender youth as “probably the strongest
guidance we’ve seen out of any state.” Student preference extended to choice of
restrooms and locker rooms. “School district personnel should have an open, but
confidential discussion with the student to ascertain the student’s preference
on matters such as chosen name, chosen pronoun to use, and parental
communications,” the state advised.
Thus, at a stroke, every decision made in
a New Jersey public school pertaining to gender identity and expression was
deemed to rest with the child; the only adults certain to have knowledge or
influence would be the child’s teachers or other school staff members. “There
is no affirmative duty for any school district personnel to notify a student’s
parent or guardian of the student’s gender identity or expression,” New
Jersey’s guidance stated, making the matter unambiguous.
Today, nearly two dozen states have issued
similar guidelines. Some, such as Massachusetts and Idaho, cite or suggest
middle school as the point at which there is no “affirmative duty” to notify
parents. Others, including Michigan and Vermont, cite no specific age or grade
level whatsoever.
Such guidance represents a noteworthy
departure from decades of commonly understood standards and practices and
federal law. If a child’s school records feature a different name or gender,
hiding it from parents would be a clear violation of the Family Educational
Rights and Privacy Act (FERPA), which gives parents virtually unlimited rights
to review their child’s records and to request corrections. A student’s name
and gender are basic pieces of information and a common denominator across
virtually every education record a school maintains, including grades,
transcripts, class lists, and course schedules. This makes it nearly inconceivable
that there would be no documentation of a student’s preferred gender identity,
and there is no question that parents have the right to access it. “You can
have a state law that enhances FERPA but not one that abridges those rights,”
explained LeRoy Rooker, who spent 21 years overseeing administration of FERPA
at the U.S. Department of Education’s Family Compliance Office.
Advocates for transgender youth have
somehow tried to argue that FERPA actually compels schools to keep children’s
changes in gender identity a secret from parents. A fact sheet published by the
National Center for Transgender Equality states that “revealing a student’s
transgender status, birth name, sex assigned at birth, or medical history to
classmates, parents, teachers, and others may violate federal educational
privacy law.” Rooker considers such claims “disingenuous” and notes that FERPA
unambiguously grants parents of minor children the right to review school
records. However, according to Rooker, the number of parents who are aware of
this right is “very low.”
If school personnel feel they are within
their rights to condone or even encourage children to keep their gender
identity from their parents, that feeling stems from the belief that
transgender children are a uniquely vulnerable group of students and at risk of
suicide, particularly if their parents disapprove. Seen in the most benign
light, school officials might earnestly convince themselves that these
secretive policies are essential to a child’s safety and well-being. It is
commonly asserted that transgender adolescents “feel less safe at school, have
higher rates of suicide ideation, and are disproportionately represented among
unhoused youth, at least partly due to rejection at home,” according to a
report in Education Week. “Conversely, affirming transgender
students can improve their mental health and academic outcomes.”
But “the law already accounts for this,”
insists Vernadette Broyles, who notes that teachers are mandated reporters,
obligated to report suspected instances of child abuse to child protective
services, which operates with a range of due-process protections for parents.
“You’re not entitled to take it onto yourself as a teacher to make the judgment
that somehow this parent does not share the right value system, or is going to
correct or guide their child in a way that you don’t approve of,” Broyles says.
Broyles has tracked lawsuits filed by
parents in at least eight states, including California, Wisconsin,
Massachusetts, and Virginia—suits challenging policies that discourage or
forbid schools from notifying parents. These include cases in which parents allege
that their children were actively encouraged by teachers to change their names
and pronouns without their consent. All but one of the suits was filed in the
past two years.
Broyles is not surprised by the sudden
surge. After all, she notes, “the right of parents to direct the upbringing,
education care, custody control, medical care of their child has been ingrained
in culture and law.” Among teachers, administrators, and school counselors,
“there was a recognition of parental authority that was almost universal. It’s
a very, very, recent phenomenon where you see these wholesale challenges to the
family and parental authority over their children.”
Long-standing Supreme Court precedent
appears to come down on the side of parents. In Parham v. J.R. (1979),
for example, a 6–3 majority rejected a challenge from a group of minors to
parents’ ability to commit children to Georgia’s state mental hospitals. The
court took into consideration the claim that some parents could abuse their
power and treat the facilities as a “dumping ground” for unwanted children.
“Our jurisprudence historically has reflected Western civilization concepts of
the family as a unit with broad parental authority over minor children,” Chief
Justice Warren Burger wrote for the majority, specifically invoking the
1925 Pierce decision. “The statist notion that governmental
power should supersede parental authority in all cases because some parents
abuse and neglect children is repugnant to American tradition.”
The risk of suicide or self-harm may also
be overstated. Jay Greene, a former University of Arkansas professor of
education reform, notes that abnormally high rates of depression, anxiety, and
suicide among young people experiencing gender dysphoria do not tell us whether
these problems stem from a failure to “affirm” a child’s gender identity or
from unproductive efforts to address their mental-health issues.
“In the past, when girls suffering from
depression and anxiety resorted to eating disorders or cutting to transform
their external appearance to feel in control of their inner turmoil, all of the
adults at school would recognize this as a problem that required coordination
with parents to address,” said Greene, currently a senior research fellow at
the Heritage Foundation. “No one would have thought of eating disorders or
cutting as the authentic expression of a child’s true self that required
affirmation and secrecy from parents.” Greene published a study earlier this
year that found lowering legal barriers for minors to undergo “gender-affirming”
medical interventions without parental consent was associated with higher rates
of suicide among young people in states that adopt these changes.
Court challenges are likely to multiply
over schools encouraging children to transition or attempting to keep from
parents that their children use a different name, pronoun, or gender in school.
But “the best solution may be legislative,” observes Luke Berg, an attorney
with the Wisconsin Institute for Law & Liberty. “It would not be hard to craft
a simple bill requiring parental permission before minor students can change
their identity at school.”
It should also be noted that not every
educator is comfortable with this kind of guidance. The head of one New Jersey
charter school, Stephanie Saroki de Garcia, emphasizes that her school, which
will open next year, will abide by state law, but she worries that such
guidance puts schools in an awkward position—particularly schools like hers
that emphasize strong parental engagement and trust. “Schools should not be
getting in between children and families. We should be supporting strong
families,” she says. “Anytime we’re in a situation where we’re counseling kids
not to talk to their parents or giving advice where parents really should be
the ones giving advice, then we’ve overstepped.”
***
Legislation can be written and passed.
State guidance to schools can be contested in courts. The far greater obstacle
to reasserting parental authority over education is challenging and changing
the culture of education and the mindset that tolerates and even encourages
teachers to conceive of themselves as child advocates or activists.
Public education accounts for one-third of
all state and local government spending, but it is rare for public-school
teachers to conceive of themselves consciously as a state actor or authority.
This self-conception is not a recent phenomenon or a fashionable manifestation
of “wokeness.” For at least three decades, a prominent strain of teacher
education and preparation has expected teachers to be “professional educators
as well as activists committed to diminishing the inequities of American
society,” according to an authoritative 2005 report from the American
Educational Research Association. At the same time, while teachers are
generally encouraged to cultivate good relationships with parents (a robust
body of research links active parental engagement in a child’s education with
improved academic outcomes), a 2018 poll of teachers showed that only 36
percent expressed “complete” or “a lot of” trust in parents—below the level of
confidence they expressed in their principal, students, union leadership, and
other education stakeholders.
Collectively, these factors and impulses
ripen conditions for teachers and other public-school staffers to feel not just
comfortable but justified substituting their judgment and preference for those
of parents, and to do so unabashedly. Examples abound on social media. In
April, the Twitter account “Libs of TikTok” shared a video posted by an Oklahoma
teacher who declared, “If your parents don’t accept you for who you are, f—k
them. I’m your parents now.” An Oakland, California, teacher posted a video
describing his school’s “transition closet” for transgender students: “The goal
of the transition closet is for our students to wear the clothes that their
parents approve of, come to school, and then swap out into the clothes that fit
who they truly are.”
With nearly 3.7 million teachers in U.S.
classrooms, we should not assume that videos posted on social media are
representative of the profession at large. But neither should it be quite so
easy to find daily examples of teachers so clearly exceeding their authority
without compunction. If you see yourself clearly as a state agent with coercive
power over a captive audience of impressionable children, you are unlikely to
grant yourself permission to behave like the AP government teacher caught on
camera by Project Veritas admitting he wants his students to take up arms
against the state. “I have 180 days to turn [students] into revolutionaries…to
scare the f—k out of them,” said Gabriel Gipe, who hung an Antifa banner in his
California classroom. Another teacher took to social media to describe how she
removed the American flag from her classroom because “it made me
uncomfortable.” When a student asked which flag they should pledge allegiance
to, she pointed to the Gay Pride flag, which still hung on the wall.
If public-school teachers are under the
impression that such speech and actions are protected, they are wrong. The
principle of “academic freedom,” common to higher education, doesn’t apply to
K–12 public education. In Garcetti v. Ceballos (2006), the
Supreme Court agreed that a public official’s speech is only protected if it is
engaged in as a private citizen. In other words, school districts do not
regulate teacher speech so much as they hire speech. To be
sure, the idea of “hired speech” is complicated by practical, day-to-day
aspects of teaching practice. Very little classroom instruction is “scripted”
or prescribed in any meaningful way; teachers typically customize or create
their own lessons with minimal (if any) administrative approval or oversight.
But precedent clearly assumes professionalism and circumspection. “Teachers
have unique access to other citizens’ minor children and must not be perceived
as using their position of authority to promote their own personal views on
controversial issues or sensitive topics,” said Bonnie Snyder, director of K–12
programs at the Foundation for Individual Rights and Expression (FIRE) and the
author of Undoctrinate: How Politicized Classrooms Harm Kids and Ruin
Our Schools—and What We Can Do About It. “Students are required by law to
attend school and parents are compelled to send them there, making students in
school a captive audience,” she added. Snyder frequently advises teachers that
they are generally considered to speak for the school district when in a
public-school classroom—a crucial point that is seldom made in teacher
preparation programs.
***
All of this—fights over critical race
theory, gender ideology, schools pushing a social-justice agenda and parents
pushing back—is taking place in an atmosphere of diminished trust in
institutions such as the public-education system. As is true with the public’s
feelings about Congress—Americans have long held it in contempt, but reliably
reelect their congressman—parents for decades have given failing grades to
public education at large while rating their own child’s school and teacher as
good or excellent. The past few years have offered a stiff challenge to this
pattern. Three consecutive school years have been disrupted by Covid, and
battles over masking children will persist into a fourth. School closures and
student quarantines meant “Zoom school.” Lessons that once occurred behind
closed classroom doors were webcast live into homes all across the country. The
shotgun transparency did not inspire parental confidence.
It would be wrong to suggest that schools
have fallen into the voracious maw of the culture war. After all, a school’s
purpose is cultural transmission. But post–George Floyd,
public education leaned into a social-justice agenda with an urgency bordering
on obsession, with many school districts investing heavily in “diversity, equity,
and inclusion” programs and staff, and public commitments to “anti-racist”
policies and practices, often disingenuously framing its more radical
tendencies as “just teaching honest history.”
In dozens of school districts, parents
were sufficiently upset with the elevation of “race” as education’s fourth “R”
that they began complaining angrily to school boards. Infamously, the National
School Boards Association (NSBA) sent a letter to President Biden in October
2021, claiming that “America’s public schools and its education leaders are
under an immediate threat” and characterizing angry parent protests as
“equivalent to a form of domestic terrorism and hate crimes.” The letter
implored the president to involve the Justice Department, the FBI, and other departments.
When it went public, a hasty apology didn’t stop more than half of all states
from ending their relationship with the NSBA.
The spreading hostility between schools
and parents has spurred the explosive growth of grassroots parent advocacy
groups across the country.1 The largest and most prominent,
Moms for Liberty, was founded in January 2020 by a pair of former Florida
school-board members upset with Covid-related school closures. The group claims
more than 200 local chapters and nearly 100,000 members in 40 states, and has
already had a demonstrable impact, running and supporting candidates for local
school boards, and pushing for states to adopt a parent “bill of rights.” Such
measures are aimed at ensuring curriculum transparency, data privacy, minimum
ages at which sexual and racial topics can be taught, and respect for the fact
that “parents have the fundamental right to direct the upbringing of their
child,” reports co-founder Tiffany Justice. She says the organization has a
five-year goal to enact a parent bill of rights in all 50 states. Such
legislation has already been introduced in 27 states and has been enacted in
Arizona, Georgia, Louisiana, and Florida.
Whether or not framed this way by
combatants, battles before school boards and state legislatures are not mere
culture-war jousting. They are border skirmishes between parents and public
education that’s testing the limits of schools’ ability to act “in loco
parentis.” Whether willfully or carelessly, school administrators and teachers
are probing the lines, creating the sense that schools are exceeding their
authority and pushing values and attitudes that run counter to those taught at
home, exposing children to material that is ideological or
age-inappropriate—or, with the rise of “social and emotional learning,”
prioritizing students’ mental health at the expense of the core mission of
academics. These fights will echo through the courts for years to come.
And through our politics. Heading into the
November midterm elections and gubernatorial contests in 36 states, Republicans
have seized on parental discontent with schools as a wedge, hoping to re-create
the success of Glenn Youngkin’s 2021 campaign in Virginia. The race turned in
Youngkin’s favor when he called out Democratic front-runner Terry McAuliffe,
the state’s governor from 2014 to 2018, over his veto of a bill that would have
required schools to warn parents if their children were to be assigned books
with sexually explicit content. “I don’t think parents should be telling
schools what they should teach,” McAuliffe sniffed. Perceiving that they had
found a champion in Youngkin, Virginia parents put him in the governor’s
office.
If Republicans succeed, it will be a
remarkable reversal. As recently as 2017, Democrats enjoyed a nearly 20 percent
polling advantage over the GOP on the question of which party voters trust more
on education issues. A survey of likely voters in battleground states conducted
over the summer by the American Federation of Teachers, the nation’s
second-largest teachers’ union, found that 39 percent of respondents had more
confidence in Republicans on education issues vs. 38 percent for Democrats.
Respondents also said the number one problem in schools is that “education has
become too politicized.” No less ominously for Democrats, a recent Harris poll
of 5,000 parents found that 82 percent “would vote for someone outside their
party” if the candidate’s education agenda matched their own.
The more vexing and longer-term problem to
solve is the culture of education and the steady drift of public education into
an oppositional relationship with its stakeholders, particularly parents. A
training session for teachers in Wisconsin’s Eau Claire Area School District
last year insisted that parents are “not entitled to know” the gender
identities their children use in school. “That knowledge must be earned,”
teachers were instructed—another example of a public school out of touch with
its mission and estranged from its supporters. As long as there continues to be
a steady drumbeat of these kinds of incidents, there will be more parent
unrest, and more parents at local school boards wearing t-shirts emblazoned
with the motto favored by Moms for Liberty activists: “I don’t co-parent with
the government.”
1 In September 2021, Commentary published an article on this subject by Christine Rosen
titled “Will Parents Become Activists?”
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