> Alpha = .05, the state should not be allowed to interfere further with parental decision-making. Symptoms of alleged dysfunctional situations should be defined in advance, in a manner compatible with other professional practice. E.g., see generally AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994). Various agencies are slowly beginning to appreciate this principle. See Walsh, supra note 181, at 25.
For an example of a situation that arises without evidentiary safeguards against "little infringements," see infra note 182, 188. Court reliance on speculation and stereotypes to justify a "rational basis" should not be sufficient to stand against unrebutted, countervailing, admissible evidence. In the area of alternative education, courts should not be allowed to violate all four of the criteria suggested in the Daubert test.
See generally supra notes, 9, 46, 47, 81, 124, 127, 128, 135, 137, 138, 140.
Of course, the interplay between the state's applicable interest, the specific possible effects on parent and/or child, public policy, and legal precedent will be different in an educational context as opposed to, for example, a medical issue. But the mere fact that specific issues and facts interact in dramatically different ways under the strict scrutiny test does not mean that the strict scrutiny test itself should be arbitrarily and inconsistently applied as to parental rights by the courts. Congress is beginning to address the evidentiary aspects of parental rights, see, e.g., S. 984, 104th Cong., 1st Sess. (1995), microformed on Sup. Docs. No. Y 1.4/1:104- 1-182 (U.S. Gov't Printing Office) (providing for evidentiary standards in a parental rights bill) (reproduced in Appendix A), in an attempt to empower parents so that they can protect their families from violence.
Admittedly, proper procedure may from time to time result in an abuser escaping punishment and abusing another child. This is a regrettable, but
unavoidable cost born by all victims of repeat offenders in a society that upholds due process.
[FN186]. See, e.g., J.B. & L.B. v. Washington County, 905 F. Supp. 979 (D. Utah 1995), appeal docketed, No. 93-CV-1038 (10th Cir. 1996). In that case, an anonymous informant alleged that a home educator had engaged in sexual touching of his seven-year-old daughter. The informant told police that the man was a home educator, that the child was currently at the residence, and that the parents were out of town. Id. at 982. Although the police knew the actual identity of the informant, they did not take the legally permissible step of investigating the "background or objective credibility of the informant." Id. at 990.
Since L.B. was home educated, and did not attend public school, the police determined that "'the only time she would be away from her parents"' would be at church. However, the police rejected the idea of covertly interviewing L.B. at church, "due to . . . fears that contact with church authorities and members would draw undue attention." Id. at 983.
The police drove to L.B.'s residence, and were surprised to find that the parents were at home, contrary to the information they had received from their informant. Id. Nonetheless, the officers "physically removed" L.B. from her parents, detained her for 18 hours, kept her overnight in a "shelter care
location," and then interviewed her. Id. at 983, 988. However, the police were unable to "observe[] any behavior by L.B., or obtain[] any statement, which would substantiate the child abuse allegations." Id. at 983.
The court determined the following:
1. The police "objectives might have been accomplished within a shorter period." Id. at 988. Overnight detention could have been avoided; "county officials could have taken opportunity after L.B. was removed . . . to explain to [the parents] the nature of the allegations, and the intended course of investigation." Id. at 987 n.13.
2. The "warrant [was] based on probable cause," and "[t]he Supreme Court has set forth a general rule that uncorroborated, anonymous tips do not provide probable cause for the issuance of a warrant. . . . Such reports by anonymous informants may be motivated by malice, and absent sufficient corroboration, do not comport with the requirements of the Fourth Amendment." Id. at 989-90.
3. "Typically, child abuse allegations arise from observation of the child, i.e., bruises, scrapes, or evident emotional insecurities," evidence which the police did not have with L.B. Id. at 987 n.11.
4. The "fundamental right" of a parental "interest in the custody and care of [a] child[]" was implicated, as was the right of "familial association," the right of "privacy," and the "liberty" interest of the Fourteenth
Amendment. Id. at 986-87.
5. Although "the procedures taken . . . [were] perhaps not ideal as public policy," id. at 987 n.13, "not every interference with a fundamental right will trigger strict scrutiny," id. at 991 (emphasis added). Consequently, "rational basis" review, id. dictated that the police actions were acceptable due to "the realities of the investigation process," id. at 990. As a result, the "implementation of . . . 'policy, procedure or custom"' had not resulted "in deprivation of plaintiffs' constitutional rights." Id. at 985.
The U.S. Supreme Court has ruled that it is "intolerable that one constitutional right should have to be surrendered in order to assert another." Simmons v. United States, 390 U.S. 377, 394 (1968). This important doctrine of not making the exercise of constitutional rights de facto "costly" has its most frequent application in situations implicating the First, Fourth, and Fifth Amendments. See, e.g., National Acceptance Co. of America v. Bathalter, 705 F.2d 924, 927-28 (7th Cir. 1983); Campbell v. Gerrans, 592 F.2d 1054, 1057-58 (9th Cir. 1979); Black Panther Party v. Smith, 661 F.2d 1243, 1271 (D.C. Cir. 1981), vacated on unspecified grounds, 458 U.S. 1118 (1982).
Rulings and actions that discriminate on the basis of educational preferences are not uncommon, although they are infrequently challenged. However, the
exercise of parents' rights to educate their own child is clearly made costly when First and Fourth Amendment protections are lessened as a consequence of such a decision.
[FN187]. Educational performance presumptions applied to alternative education students tend to be stacked against parents in a "heads-we-win, tails-you-lose" type of arrangement. See, e.g., Murphy v. Arkansas, 852 F.2d 1039, 1040-41 (8th Cir. 1988):
[I]f a home school student does not achieve a composite [standardized test] score within eight months of grade level in designated subjects, the student must be placed in a public, private, or parochial school. No such annual testing is required [under the statutory scheme] for students in public, private, or parochial schools. If children not schooled at home are, for some reason, tested, no remedial placement is required for those who do not achieve certain scores.
Thus, parents and children in alternative education are coerced into situations of cyclical testing, so that the family is in ongoing jeopardy of being characterized as a failure. At the same time, access to the General Educational Development (GED) test is carefully restricted so that it is not available to anyone under the age of seventeen in most states. Consequently, there is no opportunity to permanently prevent further governmental intrusion
by conclusively passing one test that incorporates basic standards that apply equally to public high school graduates. Cf. MURRAY ROCKOWITZ ET AL., HOW TO PREPARE FOR THE GED HIGH SCHOOL EQUIVALENCY EXAMINATION 866-79 (9th ed. 1995).
Ironically, parents such as the Bennetts begin home educating to rehabilitate their children because the public education experience resulted in deficient academic performance. See People v. Bennett, 501 N.W.2d 106, 121 (Mich. 1993).
[FN188]. See, e.g., Billingsley, supra note 182, 188, at C4.
The article reported the following:
[A]buses of the ["social service bureaucracies of San Diego County"] . . . threaten both the safety of innocent children and the rights of innocent adults . . .
[T]he San Diego County Grand Jury has produced a number of thorough, detailed reports on what our child-protection system has become: corrupt, incompetent, secretive, and arrogant. The abuses have been going on for a number of years. But the case of Alicia Wade brought the problems to the public's attention . . .
On May 8, 1989, an assailant abducted eight-year-old Alicia from her bedroom and brutally raped her. The child's description of the intruder included clothing, color of the hair and eyes, and even a pimple on his chin.
She also correctly identified the color of his car. During the subsequent trial, the prosecution objected to Alicia's own description of the attacker as hearsay and, astonishingly, the court sustained the objection.
Child protection officials knew that Albert Raymond Carder, a convicted child molester, had been assaulting children in the same neighborhood. And yet, in spite of all the evidence, the officials maintained from the beginning that Alicia's father, Navy Chief Petty Officer Jim Wade, had been the attacker. [He was subjected to penile plethysmography.]
. . . .
. . . [C]ontrary to the rest of our justice system, the child-protection system assumes guilt . . . . [D]enial is taken as evidence of guilt. . . .
. . . For some 13 months, working without supervision, [a therapist] relentlessly badgered Alicia to accuse her father. The Grand Jury was also alarmed that the therapist taught the eight-year-old Alicia about masturbation "without any parental input or any apparent interest by the child."
Semen left on Alicia's clothing was not examined for almost two years. When it was found, the defense was not told. The test, which requires less than a month, took seven months. After DNA tests on the semen exonerated the father, the District Attorney's office required that the tests be repeated and still prohibited contact between the father and the daughter. Worse, the Grand Jury
identified a "race against time to arrange for Alicia's adoption prior to the availability of the DNA results."
. . . .
Alicia had been away from her family for over two years and narrowly escaped being adopted away forever. When she was returned to her family, she was using a medication to which she was allergic, she did not have the glasses she wore when she was detained, [and] . . . . [l]egal fees of over $125,000 left the innocent family impoverished. The psychological damages are incalculable and likely permanent.
. . . The Grand Jury discovered similar elements in some 300 cases. . . . [S]uch problems are national in scope.
. . . .
[T]he funding for foster programs is primarily from federal grants and is practically open-ended. . . .
Foster care, said the Grand Jury, has evolved into a highly-developed [lucrative] cottage industry. . . . The jury concluded that between 35 and 70 percent of foster children "never should have been removed from their parental homes."
. . . .
The Jury lamented that [the responsible agencies] . . . "have neither accepted any responsibility . . . nor critically examined existing policies
and procedures . . . ."
. . . .
Incredibly, the Juvenile Court is still giving lucrative referrals to [the therapist] . . . [T]he standard for review of therapists [is] "innocent until proven guilty."
. . . .
One obstacle to reform is that social workers enjoy unqualified immunity from civil actions. On April 21, the Public Safety Committee . . . refused to . . . diminish this immunity.
[FN189]. See Margaret Carlson, The Sex-Crime Capital, TIME, Nov. 13, 1995, at 89; David Van Biema, The Tide Turns in Wenatchee: But Will Justice Prevail?, TIME, Dec. 25, 1995, at 136, 136. In East Wenatchee, Washington, the community's sole sex crimes investigator, Robert Perez, recently used his foster daughter as a witness to accuse 82 adults of child abuse, allegedly committed in 23 different locations. When the articles went to press, one woman had faced 3200 charges of child abuse, and 28 people were already serving sentences. Many of those in prison, half of whom were women, were functionally illiterate, mentally deficient, poor, or otherwise unable to mount a robust defense; no one who has hired private counsel to fight the charges has been imprisoned. One man who had charges meriting eight life sentences saw charges
reduced to two misdemeanors after he chose to hire a defense attorney and mount a defense.
As the campaign spread, Perez interviewed other children to gain "recovered memories." He did not take notes, videotape the discussions, or allow parents to be present. He did this because his own notes had been used to impeach some of his previous efforts. After hours of interrogation, Perez would have children sign conclusory statements that he had drafted.
Many of the children who signed statements have recanted, alleging that Perez intimidated and/or induced them into cooperating. Perez pushed for children to be put in foster care; he had one Mormon girl handcuffed, strapped to a gurney and sent to an out-of-state mental institution to get over her "pathological loyalty" to her family. During the process, the girl screamed so loudly that her vocal cords were damaged.
According to Preacher, Wife Acquitted in Child Sex-Abuse Case, USA TODAY, Dec. 12, 1995, at A3, one of the critics of Perez's efforts was a lay Pentecostal pastor and his wife. The couple was charged with child rape and molestation. On the mere basis of the allegation, their five year-old daughter was taken from them, despite the fact that the daughter denied any abuse and the fact that there was no evidence she had ever been abused. After being acquitted, the couple were then forced to seek a return of custody after the lengthy separation.
East Wenatchee citizens have coped in a variety of ways. Some parents have declared bankruptcy; at least one teenage girl fled into hiding; at least one family moved to Canada. Governor Mike Lowry, after receiving a petition signed by 2169 citizens, has begun an investigation. The United States Justice Department has also responded to the local campaign by initiating a civil rights investigation; a state appeals court may free those who have already been jailed. However, the damage caused to shattered lives and families affected by the premature removal of children from their homes, most of which could have been prevented with evidentiary protections derived from the fundamental right to direct the upbringing of a child, is already done.
As Wenatchee illustrates, parents are not afforded a public defense in many types of state actions that infringe on family autonomy; even when a defense is available, many simply capitulate. In Wenatchee, the fact that citizens and community leaders managed to band together to protect themselves prevented the injustices from going unchallenged.
State agencies, in contrast to individual parents or families, have an accumulated body of legal expertise, access to many expensive expert witnesses, numerous resources, and little emotional burden. Hence, the state is in a much better position to present statistical and professional evidence in proof of its position. The state is in a better position to spread the costs of its own systemic inadequacies. As a result, strict scrutiny is a better way to resolve
the risk of destroying a functional family and the risk of not protecting a victimized child.
[FN190]. Cf. Proctor, supra note 45, at 1329 n.172.
[FN191]. REX E. LEE, A LAWYER LOOKS AT THE CONSTITUTION 154 (1981). One can argue that the natural law approach is grounded in a certain undiminishable human intuitive sense for moral justice; at the same time, natural law could be criticized as being expansively nebulous. Original intent produces relatively stable, defined outcomes, and has an attraction as an approach that respects the intended parameters of societal contracts, although one could argue that the resulting outcomes are antiquated.
Policy analysis arguably has the advantage of adaptability and relevance; at the same time, one can argue that such an approach is capriciously ill-defined and outcome-determinative and that it is an unstable basis for interpreting the law. It is difficult to find any clear and comprehensively detailed articulation of how such an approach is to work in any given situation.
[FN192]. Cf. Moore v. City of East Cleveland, 431 U.S. 494, 500-01 (1977) (plurality opinion):
To be sure, [our previous] cases did not expressly consider the family
relationship presented here. [Previous Supreme Court] cases were immediately concerned with freedom of choice with respect to childbearing, or with the rights of parents to the custody and companionship of their own children, or with traditional parental authority in matters of child rearing and education. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.
The court noted that liberty is a "rational continuum." Id. at 503 n.10.
See also Lockwood v. Nims, 98 N.W.2d 753, 759-60 (Mich. 1959) (quoting United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, 664, 759 (S.D.N.Y. 1946) (a right is to be accorded special deference when it is "'necessary to an Anglo-American regime of ordered liberty"'; "the provisions for the protection of life, liberty and property are to be largely and liberally construed in favor of the citizen," "to effectuate, not to abolish, the protection sought by it to be afforded").
[FN193]. The majority argued that "'[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies,"' People v. Bennett, 501 N.W.2d 106, 116 n.30 (Mich. 1993) (quoting Prince v. Massachusetts, 321 U.S. 158,
168 (1944)), and that "[i]n general, it can be assumed the state has an interest in seeing that all children . . . are properly educated." Id. at 116.
However, these assertions were inapposite to the questions posed by the case. In her dissent, Justice Riley clearly indicated that she also felt that the state had "a legitimate interest in ensuring the adequate education of all children." Id. at 124. The real difficulty is in defining vague terms such as "proper education," or what is implied by "healthy, well-rounded growth." "Obviously, this is a question about which men and women of ordinary intelligence would greatly disagree. Their answers would vary in large measure in relation to their differing social, ethical, and religious views." Roe v. Conn, 417 F. Supp. 769, 780 (M.D. Ala. 1976).
There are both costs and benefits to living in a diverse society. Although on one hand differing standards for raising a child portend a lack of unity, variation in child raising behavior is also a form of biodiversity that protects the population against pandemic dysfunctions. Subjective ad hoc edicts by state officials are not an effective and fair way of managing diversity. See Alsager v. District Court, 406 F. Supp. 10, 18 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976).
[FN194]. Roberts v. Ward, 493 A.2d 478, 481 (N.H. 1985) (citations
omitted).
[FN195]. English and American deference to parental autonomy has a long history, and originally derives from the Judeo-Christian tradition's emphatic support for such policies. See, e.g., Deuteronomy 11:19 (King James) ("And ye shall teach [my words to] your children, speaking of them when thou sittest in thine house, and when thou walkest by the way, when thou liest down, and when thou risest up."); Proverbs 1:8 (King James) ("My son, hear the instruction of thy father, and forsake not the law of thy mother."); Malachi 4:5-6 (King James) (prophesying that Elijah shall "turn the heart of the fathers to the children, and the heart of the children to their fathers, lest [the LORD] come and smite the earth with a curse").
At the same time, Judeo-Christian deference to parental discretion is hardly anomalous or myopic in according deference to parent-child relationships; in most areas of the world, legal precedent and/or cultural practices afford de facto deference to the parent-child relationship. Such deference is reaffirmed by the common experience and needs of all humanity.
[FN196]. See supra part IV.D.3-5; infra parts IV.E.3-4. The effort by some judges to weaken parental rights is incorrect for a plethora of additional reasons that cannot be fully explored here. It is helpful to recall three
points that have been raised elsewhere in this Comment.
First, parents need protection against being second-guessed as to decisions they make within the family, just as a judge needs assurance that court management will not be interrupted by easily acquired writs of mandamus. The "'continuity of affectionate care,"' which children need to fulfill the state interest in the child's welfare, Roe, 417 F. Supp. at 778 (quoting testimony from expert witnesses Dr. Sally A. Provence and Dr. Albert J. Solnit, child development specialists at Yale University), usually does not occur otherwise. Second, opponents of pro-family public policy have not conclusively demonstrated that there is an alternative social structure that functions as a long-term substitute for an autonomous family structure in meeting the same range of human needs. Third, even assuming that the family structure was eroding into obsolescence, the fact that some people fail to exercise a legal right responsibly does not justify denying the existence of the legal right itself.
[FN197]. See generally supra parts II.A-B, IV.C-D. Many rights implicitly recognize the family as a situs of societal privacy and wealth production. Cf., e.g., BLACK'S LAW DICTIONARY 741, 967-68, 1465 (6th ed. 1990) (discussing husband-wife privilege, the marital communications privilege, and tenancy by the entirety).
[FN198]. People v. Bennett, 501 N.W.2d 106, 122 n.3 (Mich. 1993) (Riley, J., dissenting) (quoting Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy--Balancing the Individual and Social Interests, 81 MICH. L. REV. 463, 480-81 (1983)) (citation omitted in original).
[FN199]. "Totalitarianism" is a word that carries many emotion-laden connotations. In this Comment, "totalitarian" is used as a political science term, and is defined as being "[o]f or pertaining to a system of government which tolerates only one political party, to which all other institutions are subordinated, and which usu[ally] demands the complete subservience of the individual to the state." 18 THE OXFORD ENGLISH DICTIONARY 287 (2d ed. 1989).
In contrast, "pluralism" as used in this Comment denotes a political
theory which opposes monolithic state power and advocates instead increased devolution and autonomy for the main organizations that represent man's involvement in society. Also, the belief that power should be shared among a number of political parties . . . . The existence of toleration of diversity of ethnic or cultural groups within a society or state, of beliefs or attitudes within a body or institution, etc.
11 THE OXFORD ENGLISH DICTIONARY 1089 (2d ed. 1989).
Both pluralism and totalitarianism can be advocated as approaches for coping
with the societal challenges associated with "diversity," which in this Comment is used to denote a variety in the demographic characteristics of a population.
[FN200]. In the education context, early American common law recognized that a due regard for the diverse interests of a child could easily lead a parent to eliminate, delay, or alter the presentation of the subject of study to suit that child's individual development and learning style. School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 580 (Okla. 1909). "'Such pupils are not idle, but merely devoting their attention to other branches; and so long as [such action] . . . does not prejudice the equal rights of other students, there is no cause for complaint."' Id. at 580 (citation omitted).
[FN201]. The Supreme Court in Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) has "equat[ed] the 'right of parents . . . to direct the education of their children' with 'freedom of speech and of the press."' People v. Bennett, 501 N.W.2d 106, 124 n.10 (Mich. 1993) (Riley, J., dissenting) (citations omitted). The Supreme Court has declared that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Freedom of speech and the press includes "the right to educate one's children as one chooses, . . . the right to distribute, the right to
receive, the right to read, and freedom of inquiry, freedom of thought, and freedom to teach." Id. (citations omitted).
In our information age, it is important to recognize that teacher certification, institutional accreditation, mandatory testing, mandated standards, curriculum approval, reading lists, compulsory attendance, forced interaction with third parties, and other similar devices are really disguised forms of "opportunity cost" censorship. In other words, "[t]he cost of choosing to use resources [such as time or money] for one purpose . . . [sacrifices other] alternative[s] for using those resources." DAVID H. HYMAN, ECONOMICS 14 (2d. Instructor's Ed. 1992). "To allow [state mechanisms] to decide who can best provide a child intellectual stimulation could chill the propagation and perpetuation of disfavored political, philosophical, and religious views within the privacy of the family circle," In re J.P., 648 P.2d 1364, 1376 (Utah 1982), even though this information may be quite useful in living in society, and may even be ahead of its time. Frequently public education organizational policy is structured with the open objective of screening informational inputs by precluding literature, debate, or activity that addresses views deemed dangerous by those in control of the design of the educational processes. See, e.g., Donald W. Meyers, Charter School Tabled: Extremist Groups Would Benefit, Educators Warn, DAILY HERALD (Provo, Utah), Feb. 8, 1996, at A7 (education groups lobby Utah legislature to adopt measures designed to prevent "extremist"
liberal or conservative ideas from being discussed).
Totalitarians have an additional desire to socialize citizens within the framework of a state dogma. They view education as a bureaucratic instrument of state power, instead of as an informational product that is made available on the market to family consumers. Consequently, education is incorporated as a governmental function that is not subject to the same consumer protection mechanisms as those that apply to the private sector. Overlooked is the fact that public education is one means of reallocating wealth to fund education of the poor, but it is not the only means whereby the poor could receive tax- funded assistance. Failure to allow other educational alternatives has dramatic economic costs, because with politically directed economic mechanisms, "'organizational procedures become valued ends in themselves; the organization strikes bargains with its environment that compromise present objectives and limit future possibilities." WILLIAMSON, supra note 7, at 148 (quoting RICHARD SCOTT, ORGANIZATIONS 91 (1981)).
Once education is viewed as an informational product, a consumer-welfare philosophical orientation arises and a policy incorporating an antitrust type of analysis suggests itself. From a policy standpoint, the actions of anyone providing educational services should be disallowed if they are not pro- competitive, outcome expanding, and beneficial to student consumers. As Justice Stevens noted:
"The heart of our national economic policy long has been faith in the value of competition." Standard Oil Co. v. FTC, 340 U.S. 231, 248. The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain--quality, service, safety, and durability--and not just immediate the cost, are favorably affected by the free opportunity to select among alternative offers. . .
. . . [L]arge-scale projects affecting public [wellbeing] does not alter [this] analysis. . .
. . .
In sum, the Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable. Such a view . . . would create [a] "sea of doubt." . . .
National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 695-96 (1978).
This is not to suggest, of course, that public school actions violate the current body of Antitrust law. "Undoubtedly the most effective kind of barrier is a monopoly restriction from the government." E. THOMAS SULLIVAN & HERBERT HOVENKAMP, ANTITRUST LAW, POLICY AND PROCEDURE: CASES, MATERIALS, PROBLEMS 628 (3rd ed. 1994). Government agencies that exclusively control economic activity can theoretically compel tax contribution, regulate competitors, enlist government resources against competitors, and compel acceptance of substandard
services, something that is more difficult for private monopolies. Deduction from economic principles suggests that bureaucratic efforts to restrain trade are most likely to arise when the pecuniary benefits derived from the effort outweigh the costs of conducting the campaign. Efforts to restrict parental rights are therefore most likely to arise when either a few isolated people can be targeted or when a large population shows a propensity to alter its behavior adversely to the pecuniary interests of anti-competitive forces.
Cases such as Bennett unjustifiably foreclose the ability of many parents to protect the economic interests of their child by anticipating and avoiding people who compromise the interests of children for personal economic benefit. See, e.g., Teachers Refusing to Write Letters, DAILY HERALD (Provo, Utah), Oct. 15, 1995, at A10 (New Jersey Teachers' Unions, who were seeking higher pay for teachers, orchestrated a teacher campaign to refuse to write letters of recommendation, to have contact with parents, or to grade papers after the school day. High school applicants to competitive-admission universities, who controlled neither the contracts with teachers nor the criteria for application to universities, were heavily impacted by the denial of the letters.); That's Outrageous, supra note 45, at 72-73 (Georgia high school officials use certification requirements to fire math teacher Ira Joseph, an engineer who had previously studied at West Point and Virginia Tech, even though there was a shortage of qualified math teachers. Although Joseph's mathematical background
was sufficient for a lengthy career that included participation in the design of the F-15 fighter plane, his qualifications did not meet the technical requirements for teacher certification as a math teacher.); Toch, supra note 17, at 62 (describing numerous systemic anti-competitive activities and behaviors with in public education).
In today's modern information economy, parental rights are key to preserving academic freedom, checking institutional anticompetitive behaviors, and protecting children from anticompetitive exploitation.
[FN202]. In re J.P., 648 P.2d 1364, 1376 (Utah 1982); see also Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976) ("The fact that a home is 'improper' in the eyes of the state officials does not necessarily mean that a child in that home is subject to physical or emotional harm.").
[FN203]. Plato's vision parallels conditions in the ancient city-state of Sparta. Spartan society was structured as a military regime; youth were permanently separated from parents at the age of seven to become part of the military. Sparta was militarily successful for a time, but is remembered for little else. For a discussion of Spartan society, see generally S.S. LAURIE, HISTORICAL SURVEY OF PRE-CHRISTIAN EDUCATION (1900).
[FN204]. Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923).
[FN205]. In observing later in the opinion that "[t]he power of the state . . . to make reasonable regulations for all schools . . . is not questioned," the Court was not espousing a doctrine, but was merely noting that "[t]hose matters are not within the present controversy." Id. at 402.
[FN206]. See State v. Whisner, 351 N.E.2d 750, 770 (Ohio 1976) (stating that the "standards" propounded by the Ohio Department of Education were used to suffocate independent thought and education, and to completely supplant independent school philosophy with state philosophy).
[FN207]. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
[FN208]. The Ottoman Empire developed a system for taking as prisoners from captured lands "young children, . . . reserved for the state and . . . sent to . . . [be] educated among the Turks. . . [and] employed in military service." M. FUAD KOPRULU, THE ORIGINS OF THE OTTOMAN EMPIRE 114 (Gary Leiser ed. & trans. 1992). The system successfully operated along the conquered frontier territories of the empire, territory that is now Bulgaria, Albania, Rumania, and the former Yugoslavia. See LORD KINROSS, THE OTTOMAN CENTURIES:
THE RISE AND FALL OF THE TURKISH EMPIRE 344 (1977) (map).
[U]nder local supervision Christian villagers were to surrender all their male children between the ages of eight and twenty, who were brought to Istanbul where their Ottomanization began. . . . "So perfectly did the Palace School mold aliens of widely divergent race and creed to the Turkish type, and so thoroughgoing was the process of assimilation, that there are on record few instances of rebels . . . among officials educated within its walls."
KAREN BARKEY, BANDITS AND BUREAUCRATS: THE OTTOMAN ROUTE TO STATE CENTRALIZATION 31 (1994) (quoting Barnett Miller, quoted in Metin Kunt, Ethnic Regional (Cins) Solidarity in the Seventeenth-Century Ottoman Establishment, 5 INT'L J. MIDDLE E. STUD. 234 (1974)).
[FN209]. Adolph Hitler's core competency was his adeptness in using socialization techniques as a means of political control. Hitler wrote about his conception of ideal educational socialization:
It is of paramount interest to the state and the nation to prevent these ["splendid people"] from falling into the hands of bad, ignorant, or even vicious educators. The state, therefore, has the duty of watching over their education and preventing any mischief. It must exercise strict control over the press . . . . In the uniformity and constant repetition of this
instruction lies its tremendous power. If anywhere, therefore, it is here that the state must not forget that all means must serve an end; it must not let itself be . . . talked into neglecting its duty and denying the nation the food which it needs and which is good for it; with ruthless determination it must make sure of this instrument of popular education, and place it in the service of the state and the nation.
. . . [I]n this school [the boy] must . . . learn to be silent not only when he is justly blamed but must also learn, when necessary, to bear injustice in silence. . . .
. . . .
. . . His citizen's diploma, a legal document which admits him to public activity, [should be issued]. . . .
. . . .
. . . Youth has its own state . . . . The ten year-old's bond with his playmate of the same age is more natural and greater than his bond with grown-ups. A boy who snitches on his comrade practices treason . . . .
. . . . [I]n the present method of teaching history a change must be made. . . . [O]ur historical education is directed by the nature of our political activity. . . .
. . . [I]n historic instruction an abridgment of the material must be undertaken. . . . [A]n advantage will later accrue to the individual from his
knowledge, which summed up will also benefit the community . . . [and] the continued existence of our own nationality.
. . . .
Science, too, must be regarded by the folkish state as an instrument for the advancement of national pride. . . .
. . . .
Important as the type of physical and mental education will be in the folkish state, equally important will be the human selection as such.
ADOLPH HITLER, MEIN KAMPF 242, 414-15, 420-21, 426, 428 (Ralph Manheim trans., Houghton Mifflin Co. 1971) (1925).
[FN210]. Imperialist Japan had a policy similar to that of Nazi Germany, which it implemented during the period culminating in the Japanese Imperialism of World War II:
The overall educational system was geared to Japanese requirements. . . . The Ministry of Education asserted authority over all schools, including private Japanese and Western mission schools. . . . [T]he Japanese rejected the ideas of democracy and of equality in education. To the Japanese leaders, the purpose of education was . . . to provide competent citizens as a base for a strong state. . . . Education became an instrument of government that existed for the sake of the country and not for that of the students. Japan
pioneered in authoritarian techniques of using education as a means of political tutelage.
MILTON W. MEYER, JAPAN: A CONCISE HISTORY 153-54 (3d ed. 1993).
[FN211]. Karl Marx and Frederick Engels set forth the Communist stance toward parental rights:
Abolition of the family! Even the most radical flare up at this infamous proposal of the Communists. . . .
. . . The bourgeois family will vanish . . . with the vanishing of capital.
Do you charge us with wanting to stop the exploitation of children by their parents? To this crime we plead guilty.
But, you will say, we destroy the most hallowed of relations, when we replace home education by social [education].
. . . .
The bourgeois clap-trap about the family and education, about the hallowed co-relation of parent and child . . . [is] disgusting . . . .
. . . .
The proletariat will use its political supremacy to wrest, by degrees, all capital from the bourgeoisie, to centralize all instruments of production in the hands of the State . . . .
. . . .
. . . [I]n the most advanced countries the following [methods] will be found pretty generally applicable: [ten items listed]
. . . .
10. Free education for all children in public schools[, and] [c]ombination of education with industrial production . . . .
KARL MARX & FRIEDRICH ENGELS, THE COMMUNIST MANIFESTO 33-34, 39-40 (Paul M. Sweezy trans., Modern Readers Paperback 1968) (1933). Engels further noted: "[Communism's influence on the family] will transform the relations between the sexes . . . . It can do this since it does away with private property and educates children on a communal basis, . . . [removing] the dependence . . . of the children on the parents." FRIEDRICH ENGELS, PRINCIPLES OF COMMUNISM 80 (Paul M. Sweezy trans., Modern Readers Paperback 1968) (1952).
Communists were as serious about the statist education and anti-family aspects of their agenda as they were about abolishing property rights. Unlike the Mennonites in Wisconsin of Yoder fame, for example, the Russian Mennonites had no constitutional protections to invoke when the Communists implemented their educational policies and subsumed the Russian Mennonite educational system as part of "the Great Terror." See JOHN B. TOEWS, CZARS, SOVIETS & MENNONITES 177-78 (1982).
[FN212]. Development of political attitudes in 1930s Iraq, an ex-province
of the Ottoman empire, led Arab nationalists to reorient their thinking from "the Western tradition of Natural Law and rationalism" to that of "the Third Reich." COMMITTEE AGAINST REPRESSION AND FOR DEMOCRATIC RIGHTS IN IRAQ, SADDAM'S IRAQ: REVOLUTION OR REACTION? 91 (1986) (quoting BASSAM TIBI, ARAB NATIONALISM: A CRITICAL INQUIRY 100 (Marion Farouk-Sluglett & Peter Sluglett eds. & trans. 1981)). This philosophical shift away from natural law occurred as the Ba'th Socialist Party was beginning its formative development. Cf. id. at 92. In the first year of Ba'th Socialist Saddam Hussein's control of Iraq, Hussein apparently synthesized the state socialization tenets of previous totalitarian regimes:
Those comrades who are active in the sector of youth or concerned with its affairs . . . should recognise its importance and appreciate the significance of the words: "Win the young and safeguard the future". [sic]
Perhaps you have had no opportunity to ask yourself . . . what makes the youth the centre of so much attention in young countries and especially those which are working hard to change their present state for a better future by unconventional means, namely by revolutionary means?
. . . Why all this emphasis on youth, while not foregetting the role of every other sector in the new construction of society . . .?
. . . .
. . . [W]e find it inadequate to give the young the same kind of general
attention given to society at large. To enable our youth to participate actively in the transformation process, we must . . . allocate for them a special programme in addition to the general one. . . . With the correct fashioning of our youth as a result of this approach, we shall safeguard the future and ensure [their] full utilisation . . . in the service of the revolutionary aims.
. . . .
. . . The ability of the young to . . . develop in response to the new ideas and principles of the transformation process is much greater . . .
. . . .
. . . [W]e must act speedily to stop all elements from adding to the foundations of the anti-revolutionary forces, whether in the form of action or the intellect. The best method for doing so is to . . . [w]in the young in order to stop new factors from strengthening the foundations of the counter- revolution . . . .
. . . .
. . . [W]hen we win the young we leave nothing substantial to the others.
. . . .
. . . [T]he care of the young can only be effected by elements that are competent educationally, intellectually and practically.
. . . .
Those who work among the young must be known for their experience and ability to win over the masses. Each one of them must be a psychologist so as to be able to tell when to speak and how to win over his listeners . . . . This is a matter which has a special relevance to work among youth.
The subsequent development of citizens depends to a large extent on their formation during their youth.
. . . .
How do we choose personnel for work among the youth? We must put the required specifications in regard to their age, education, morality and the Party's standard.
. . . .
In order to lead, you must convince the people you are leading that you are just, even when acting severely in matters which call for severity.
SADDAM HUSSEIN, SOCIAL AND FOREIGN AFFAIRS IN IRAQ 55-61 (Khalid Kishtainy trans. 1979) (1976).
Upon assuming the presidency, Hussein stated that "'the youth have no social awareness or political affinities"' and "'therefore the Party and the State should be their family, their father and mother."' EFRAIM KARSH & INARI RAUTSI, SADDAM HUSSEIN: A POLITICAL BIOGRAPHY 176-77 (1991) (footnote omitted). Saddam Hussein implemented his philosophy by enacting "[l]aws for . . . compulsory education . . . including imprisonment for those who failed to attend
classes." Id. at 91.
[FN213]. These regimes were selected because they are associated with interests that were officially deemed so detrimental or offensive to the United States that the United States used military action to combat such interests in World War I, World War II, the Korean War, the Vietnam War, and the Persian Gulf War. This is not to suggest, of course, that a concern for parental rights or human rights was the primary motivation for the military intervention of the United States.
[FN214]. International Shoe v. Washington, 326 U.S. 310, 320 (1945) (citation omitted) (articulating this standard in the context of territorial jurisdiction procedural due process).
[FN215]. Totalitarian rationale maintains that children fare better when the state can care for them unimpeded by hinderance related to the antiquated rights of their oppressive parents. Yet the plight of children in China and Romania demonstrates that totalitarian systems have as poor a record in the management of children as they do in economic development and environmental protection.
For insight into China's Platonic management of children, see Carroll Bogert,
Leaving Them to Starve, TIME, Jan. 15, 1996, at 42. The Human Rights Watch/Asia report "charges that the horrifying conditions in some orphanages make them virtual death camps," as well as "a nationwide practice of letting unwanted children die of starvation and abuse in state-run orphanages." Id. at 42.
[M]ore readily adoptable babies are kept in the main institute . . . while children marked for death [due to minor or major medical conditions] . . . are taken to the 'number two' institute . . . on Chongming Island, where foreigners don't get invited.
. . . A documentary last year by Britain's Channel 4, "The Dying Rooms," showed children tied to wooden toilets, sleeping in their own excrement . . . .
. . . .
. . . [T]he death rates among children in these institutions . . . are simply staggering. . . . [T]he ratio of deaths to new admissions exceeded 50 percent per year. . . . That's closer to a death camp than an orphanage; the death rate at Auschwitz was between 70 and 80 percent.
The vast majority of kids . . . are not orphans at all . . . . They're almost always girls, victims of the government's one-child-per-family policy . . . .
. . . [T]he $3,000 required "donation" to the Chinese [from American parents seeking adoption] is . . . a fortune for an orphanage that may be
spending less than 25 cents a day to sustain the child. The Chinese may not want to give up the money.
Id. at 42-43.
China's atrocities against the family are often subconsciously downplayed as being an anomalous consequence of the Asian country's large population. Yet Nicolai Ceausescu's smaller Rumanian communist regime in Europe demonstrates that China's atrocities against children should not be attributed solely to China's concern with preventing population growth. Romania's population goals were a polar opposite to those of the Chinese regime. Yet the carefully documented organizational forces at work in Romania functioned in a similar manner to those in China and yielded similar results:
This dictatorial system used economic activity to serve the state, rather than to meet human needs. . . .
Central to Ceausescu's economic plan were specific pronatal policies to increase the population from 23 to 30 million people. . . . Women younger than 45 were expected to have five children. To enforce these policies, women were rounded up at their workplaces each month, taken to government clinics, and checked for pregnancy. . . . [P]regnancy was monitored . . . [with mandatory] "health checkups." . . . Unmarried persons over 25 and childless married couples . . . were assessed a special 30% tax on income.
A second Ceausescu policy, known as "systematization," severely hampered
the ability of families to care for their children. . . . [Whole villages were relocated], with a devastating effect on extended family systems. The social networks that previously existed to help care for infants and small children, as well as children with special needs, were disrupted. . . . The state's full employment policy further negatively affected family caregiving. Women were required to return to the workplace after only three to six months of maternity leave . . . .
At the most basic level, therefore, the state's socioeconomic system affected the family's ability to care for small children and handicapped persons. . . . [T]he overarching solution to the problems associated with caring for children was institutionalization. Since doctors could be punished if a child died in their care, the tendency was to refer children to hospitals and institutions if there was any question about their health or home environment. . . . Without normal parenting, these children did not [learn] to walk or talk. . . . [They became] permanent residents of the institutional system. . . .
. . . Estimates suggest that [the number of Rumanian children in institutional care] may be as high as 200,000, or about 4% of the child population. Many different types of children's institutions exist [for different demographic categorizations]. . . .
. . . .
Once institutional care begins, it is difficult to change the decision. . . . [R]arely do committees recommend that children return home. . . . This occurs partly because institutions receive government funding based on the number of children in their care and partly because there are no social workers trained to work with the families . . . . Typically, therefore, children age into the next type or level of institutional care . . . indeterminately.
Alice K. Johnson et al., Foster Care and Adoption Policy in Romania: Suggestions for International Intervention, 72 CHILD WELFARE 489, 491-94 (1993) (citations omitted).
Monetary incentives do not disappear within a bureaucracy; they simply take on a different form from the incentives that impel a capitalist in a free market situation. Both bureaucratic and capitalist institutions have, by inherent design, built-in monetary incentives that prevent the institutions from adequately substituting for the family unit. This important lesson is worthy of some additional organizational economics scholarship.
[FN216]. "Culture" as used in this Comment refers to "[t]he cultivating or development (of the mind, faculties, manners, etc.); improvement or refinement by education and training. . . . The training, development, and refinement of mind, tastes, and manners; the condition of being thus trained and refined; the
intellectual side of civilization." 4 THE OXFORD ENGLISH DICTIONARY 121 (2d ed. 1989).
"Cultural genocide," as used in this Comment refers to the deliberate, forcible extermination, alteration, homogenization, and/or supplanting of an existing culture. These efforts typically involve a combination of resource rationing, imposed socialization regimens, and infringement on family autonomy. The term does not include actions taken against a culture that are essential to defensively protect the rights of another society or nation from a clear and present danger.
[FN217]. Some Hispanics have utilized home education as a way to avoid public education that they believe incorporates the attitude that Hispanics are meant only for manual labor. Cf. Haya El Nasser, Hispanics Seek a Larger Role, USA TODAY, Mar. 2, 1992, at A3 (in an area torn by a dispute over pedagogy in which Hispanics threw eggs at Anglo school board officials during a meeting and phoned in death threats, Anita Montanez chose to teach her son and daughter at home).
See also Patrick Rogers & Karen Roebuck, Tongue Lashing: A Texas Judge's English-Only Order Ignites a Bilingual War of Words, PEOPLE, Sept. 25, 1995, at 111, 111. During a divorce custody hearing, the judge threatened bilingual, naturalized Mexican-American Martha Laureano with a loss of custody unless she
spoke English with her child at home. The judge characterized speaking Spanish in the home as educational neglect, a form of "child abuse" that would "'relegat[e] [her daughter] to the position of a house maid." James C. Harrington, Taking Liberties: Racism Lingers in Texas Courts: The Judge Who Accused a Woman of Child Abuse for Speaking Spanish to Her Daughter Should Apologize and Then Resign from the Bench, 11 TEX. LAW., Sept. 11, 1995 (concluding also that since Ms. Laureano's other children were achieving academically, the judge had "interposed his personal bias to the detriment of a loving and nurturing family situation").
[FN218]. Native Americans have explained how public education was used as a tool in the United States campaign to undermine Native American culture:
[T]he fall of each year was pretty similar on many reservations across the United States and Canada. . . .
From the late 1800s until the 1960s, . . . no matter how much we fought it or hated it, we would be taken by car, bus or rail to the nearest government or parochial boarding school.
The U.S. government, in its infinite wisdom, decided in the late 1800s to figuratively--and in some cases it turned out literally--to "kill the Indian and save the child." Saving the child meant different things to the government than it did to the leaders of the different tribal entities.
Saving the child meant cleansing the mind of everything Indian. It meant removing any semblance of traditional [Native American] spirituality . . . .
It meant changing the exterior of the child also. This included shaved heads, identical uniforms . . . working as a child laborer for the institution . . . and attending classes where speaking the Native tongue was strictly forbidden.
I . . . [lived] on the Pine Ridge Reservation in South Dakota. . . .
At boarding schools the girls . . . did the things the supervisors believed were things they would need to know as women.
. . . .
. . . We were . . . issued our uniforms, which in the Bureau of Indian Affairs schools were actually military-type uniforms.
. . . We were lined up by company . . . had our names called out at roll call . . . . The table captains were actually like platoon sergeants. . . .
But I suppose the worst thing about going back to school was watching your parents drive away knowing full well that you wouldn't see them for nine months . . . .
. . . Many of us just sat down and cried. . . .
"Kill the Indian and save the child." I think that in many cases it turned out the other way around. Many of us died, mentally, emotionally and sometimes, physically, in those boarding schools.
Tim Giago (Nanwica Kciji), Back to School Meant Exile for Native Americans, DAILY HERALD (Provo, Utah), Aug. 31, 1995, at B4.
Although Giago's account may initially seem sensationalist or emotionally loaded, the experience he reports is paralleled with allegations of institutional brutality alleged by another author from a different tribe, reservation, and state:
[M]y homesickness only intensified.
Rules. Rules. So many rules. . . .
. . . .
The moon's . . . light . . . squeezed through a pair of steel-rail bunks and streaked through the ["bare, smooth" walls] of [New Mexico's Shiprock Boarding School on the Navajo Reservation].
. . . .
The stink of the inadequate facilities wafted across the room . . . .
. . . .
We had all been made to take showers . . . All of us had been literally forced in, two per shower. . . . I was just nine years old. . . . Around the drain . . . green matter jelled uninvitingly. . . .
In the morning, I'd have to wear those green overalls again. We were all dressed alike . . . . [We would have] roll call . . . .
. . . .
. . . [For "bed check" we] were commanded to stand at attention ["military style"] . . . .
. . . .
. . . There were many bullies [who "beat" younger children "badly" and took their money], and they all walked in packs, like mean wolves. [N]othing was done [when we complained to school authorities].
. . . .
The school did not have much playground equipment . . . .
The government boarding school historically has had one thing in mind for the Indian child--to remove him from the supposedly uncivilized Indian world and teach him to appreciate the white man's way. The Navajo language was to be verbally exterminated. This was government policy for more than several decades.
The Navajo way was the whole of our very lives. We had been brought fully by our parents into the Indian culture. Now, in boarding school, the indoctrination was directed to destroy all that our parents had taught us to cherish.
. . . .
In this school, we marched everywhere in military fashion. Wherever we went, we were told not to get caught speaking Navajo [or our mouths would be washed with lye soap]. . . .
[M]any times I was forced to stand and stare at the blank wall for hours on end. Or, if we used . . . incorrect grammar, we had to wear a sign around our necks that said "Dummy.". . .
. . . .
All the teachers were Anglos. The government required them to follow rigid policy and procedure sent from Washington to use in all reservation government schools. Part of this policy was regimentation and punishment . . .
Instruction was stiffly formal. Even the rows of runner chairs were nailed to the floor.
. . . .
There was no library. . . .
Normally . . . our day was highly organized, leaving enrollees little time to be on their own. Our routine of bed making, kitchen detail, and cleaning filled the hours before classes began.
. . . Our whole day was regulated by bells, clear until bedtime. The kitchen and dining room were poorly equipped. Meals [consisting of government surplus food] were eaten in silence along unadorned mess tables. . . . [A]fter meals, we were searched . . .
. . . .
. . . Some of our friends had run away but were caught by the Navajo police
and brought back. There were stories of others who ran away during the winter months but . . . froze to death in their efforts to reach home.
GEORGE P. LEE, SILENT COURAGE: AN INDIAN STORY: THE AUTOBIOGRAPHY OF GEORGE P. LEE A NAVAJO 85-90, 92 (1987).
As Native Americans have struggled to defend their rights within a legal system that is unfamiliar to them, erroneous condemnation of Native American educational values have also occurred. See, e.g., In re McMillan, 226 S.E.2d 693, 694-95 (N.C. Ct. App. 1976) (finding that "the [lower] court [properly] exercised its control to interfere with the natural right of the parents in the best interest and welfare of the children" when it compelled the children to go to the school and found the parents guilty of criminal neylect); see also In re Baum, 382 N.Y.S.2d 672, 676 (Fam. Ct. 1976), aff'd, 401 N.Y.S.2d 514 (App. Div. 1978), appeal denied, 407 N.Y.S.2d 106 (1978) (Native American who felt that her child was and would continue to be subjected to racist instruction in contravention of Native American heritage, was deemed to be causing a "tragic" "retardation of the child's educational progress"; the child was ordered back to school); Hatch v. Goerke, 502 F.2d 1189, 1192 (10th Cir. 1974) (court rejected assertion that Native American's parental right to "inculcate in their children a knowledge of and respect for Indian customs, traditions and religious beliefs" was violated when a public school forced their son to come to school conforming to short hair and a "non-Indian standard
of appearance," dismissing the case as one that "lacks constitutional substance").
As in many campaigns of cultural genocide, the "kill the Indian and save the child" campaign also involved using welfare agencies alleging parental neglect. This facilitated "'redistribution of . . . entire minor population[s] among . . . worthier members of the [white] community"' in the fashion contemplated and denounced in In re J.P., 648 P.2d 1364, 1376 n.11 (Utah 1982) (quoting H. Simpson, The Unfit Parent: Conditions Under Which a Child May Be Adopted Without the Consent of His Parent, 39 U. DETROIT L.J. 347, 355 (1962)). Around 30% of Native American children from 1969 to 1974 were permanently separated from their parents by government social workers who employed ill-defined standards of abuse that were based upon normative cultural and social suppositions. JOHN KAPLAN & ROBERT WEISBERG, CRIMINAL LAW: CASES AND MATERIALS (2d ed. 1991) (citing Byler, Removing Children: The Destruction of American Indian Families, 9 CIV. RTS. 19 (Summer 1977)).
Of course, the extensive agitation of another demographic group, African- Americans, relative to the impact of public education on their cultural history is well documented, and addressing all of the relevant literature is beyond the scope of this Comment. This Comment recognizes the relevance of their experience, including the forcible separation of families via the slave market, see generally, e.g., WILMA KING, STOLEN CHILDHOOD: SLAVE YOUTH IN NINETEENTH-
CENTURY AMERICA (1995), but will not further explore such points here.
[FN219]. As previously mentioned, Wisconsin attempted to utilize compulsory attendance statutes and criminal law to force Old Order Amish Mennonite children to enroll in public schools. Wisconsin v. Yoder, 406 U.S. 205, 207-10 (1972). The attempt, part of a multi-state prosecution effort, see Brendan Stocklin-Enright, The Constitutionality of Home Education: The Role of the Parent, the State, and the Child, 18 WILLAMETTE L. REV. 563, 570-71 (1982), was partially thwarted by the United States Supreme Court. The Supreme Court observed that Wisconsin school district administrators sought a course that would "ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today," because high school education "places Amish children in an environment hostile to Amish beliefs" and "takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life." Yoder, 406 U.S. at 211-12.
In a perhaps less widely known parallel to the Yoder events, the United States government utilized political, economic, and military pressure to impose a public school system on the Territory of Utah. The effort culminated with provisions encoded in the Edmunds-Tucker Act and the Enabling Act for Utah Statehood. See LEONARD J. ARRINGTON & DAVIS BITTON, THE MORMON EXPERIENCE: A
HISTORY OF THE LATTER-DAY SAINTS 253 (1980). Statehood was premised on a requirement "[t]hat provision shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of said State and free from sectarian control." Utah Enabling Act, ch. 138, § 3, 28 Stat. 107 (1894); see also id. §§ 6, 9-11.
Not coincidentally, the population of Utah at the time was overwhelmingly members of the Church of Jesus Christ of Latter-day Saints, a religion that was unpopular at the time. Joseph Smith, Jr., the founder of the church, espoused an unusual educational methodology that conflicted with the conventional educational trends in the latter half of the nineteenth century. Members were to "teach one another words of wisdom . . . seek[ing] learning even by study and also by faith," and were also to "prepare every needful thing . . . and establish a house of . . . learning." THE DOCTRINE AND CONVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, 88:118. People were to be taught "correct principles" and then left to "govern themselves." Discourse by Elder John Taylor (May 18, 1862), in 10 JOURNAL OF DISCOURSES 49, 57-58 (1967) (quoting Joseph Smith, Jr.). Saints were to "stand fast in this liberty wherewith [they had] been made free . . . [and] trust no one to be [their] teacher . . . except he be a man of God, walking in his ways and keeping his commandments." THE BOOK OF MORMON: ANOTHER TESTAMENT OF JESUS CHRIST, Mosiah 23:13-14.
Consistent with these principles, Brigham Young stated, "I am opposed to free
education as much as I am opposed to taking away property from one man and giving it to another," Discourse by President Brigham Young (Apr. 6, 1877), in 18 JOURNAL OF DISCOURSES 353, 357 (1967), and added that he was "opposed to free schools, and to all legislation in favor of free schools." A Mormon Tramp, SALT LAKE TRIB., Jan. 23, 1877, at 2. The theme continued through the administration of Church President Joseph F. Smith, who included the issue in his remarks to the Church:
I hope that I may be pardoned for giving expression to my real conviction with reference to the question of education in the State of Utah. The government of the State has provided for the common schools up to the eighth grade . . . . In addition to these, we are having forced upon the people high schools throughout every part of the land. I believe that we are running education mad. . . . [B]urdens are placed upon the tax payers of the state to teach the learning or education of this world. God is not in it. . . [W]e have to establish Church schools or institutions of education . . . that our children may have the advantages of moral training in the their youth. I know that I shall be criticized by professional "lovers of education" . . . in relation to this matter.
Discourse by President Joseph F. Smith (Oct. 3, 1915), in 86TH SEMI-ANNUAL CONFERENCE REPORT 1, 4.
Early Church officials such as George Q. Cannon, and President John Taylor,
also helped to mount a vehement, but ultimately unsuccessful, forty-year campaign to preserve an effective, functioning, long-existing Church educational system. See A Mormon Tramp, supra at 2; Discourse by President John Taylor (Dec. 8, 1878), in 20 JOURNAL OF DISCOURSES 102, 107-08 (1967); Discourse by President John Taylor (Apr. 8, 1879), in 20 JOURNAL OF DISCOURSES 174, 174-79 (1967). In the end, the Mormon population simply could not withstand the financial pressure of being forced to sustain parallel educational systems.
[FN220]. See In re J.P., 648 P.2d at 1376 ("[I]t is proper to take alarm at the first experiment on our liberties.") (quoting Memorial and Remonstrance Against Religious Assessments, 8 THE PAPERS OF JAMES MADISON 298, 300 (Rutland & Rachal eds., 1973)).
[FN221]. Murphy v. Arkansas, 852 F.2d 1039, 1041-42 (8th Cir. 1988).
[FN222]. Curiously, public discourse has tended to focus primarily on the damage done to oppressed subcultures via the wrongful seizure of physical property, the denial of free expression, or the denial of political representation. Yet the major, concerted campaigns against various ethnic, racial, and religious minorities in the United States have historically tended
to involve both a deprivation of property rights and an assault on the family structure of the subculture. In the United States, wide-scale assaults on the family typically have been spearheaded by public education and government social services departments, often on pretenses of education, public morality, and/or the welfare of the children.
Arguably, forcibly severing family relationships has proven to be an even more potent method for destroying cultural structures.
[FN223]. People v. Bennett, 501 N.W.2d 106, 117 n.33 (Mich. 1993).
[FN224]. The Bennett court erred in a second respect, assuming that someone who invests personal time with a child is less concerned than someone who is financially motivated to monitor someone else hired to teach their child.
[FN225]. The Bennett's family income was insufficient to simultaneously support the demands of both taxes for public education and tuition for private schools. Bennett, 501 N.W.2d at 108 n.3. The impossibly narrow teacher certification requirements, upheld in Bennett, also effectively precluded the Bennetts from providing a home education for their children. Thus, for a family so situated, compulsory attendance laws have the de facto effect of
mandating that the children attend public school.
High income parents effectively have more parental rights than low income families, since the cost barriers created by taxation for education can more easily be hurdled. Many such families, including many politicians who are decidedly "pro-public education" in determining political policy (for example, the families of President Bill Clinton, Senator Edward Kennedy, and Mayor Marion Barry) use private education for their own children. Cf., e.g., Lee Davidson, Hatch Sees Hypocrisy in Stalling City Kid's Aid, DESERET NEWS (Salt Lake City, Utah), May 7, 1992, at B14 ("no key Education Department Officials or members of congressional education committees" had children in the struggling District of Columbia public school system; Senator Edward Kennedy "sent all his children to some of the country's most expensive private schools"; congressmen that did use public education did so within "two systems [one in Maryland, one in Virginia] considered among the best in the nation"); Fred Barnes, National Capital, National Shame, READER'S DIG., Nov. 1989, at 106, 108 (Mayor Marion Barry and 533 of the 535 members of Congress chose alternatives to Washington's public education system).
The de facto result of the current legal and socioeconomic system is that wealthy parents enjoy a substantially expanded parental right when compared to poor parents. Some go so far as to assert that by "[u]sing school as a sorting mechanism, we appear to be on the way to creating a caste system, complete with
untouchables who wander through subway trains begging and [who] sleep on the streets." Gatto, Why Schools Don't Educate, supra note 17, at 24. A prerequisite to addressing this inequity is respecting the expansive rights of all parents.
[FN226]. Cf. Bennett, 501 N.W.2d at 117 nn.33 & 39 (postulating that parents who use public schools are more likely to demand "quality education" for their children, and expressing the hope that "regulators [can] find a regulatory scheme that would allow the flexibility needed by the home school proponents without leading to abuses").
[FN227]. See id. at 108 n.3, 109 n.7, 120. The Bennetts could not afford private school tuition, and could not home educate because they did not qualify for the teacher certification requirement upheld by the court as prerequisite for operating.
[FN228]. See, e.g., Dana Hawkins, Homeschool Battles: Clashes Grow as Some in the Movement Seek Access to Public Schools, U.S. NEWS & WORLD REP., Feb. 12, 1996, at 57, 57-58:
[A] request by homeschoolers to join in particular classes and activities ["polarized townspeople" at Orange, Massachusetts] . . . . "It's not fair for
them . . . [not to] pay[] the[ir] dues," says Nadine Parsons, who, with help from her son Matt . . . circulated a petition last spring to deny homeschoolers access. . . . "We were told we weren't part of the school community; it didn't matter that our kids had played Little League with theirs," said Anita McDowell. "We never expected it to get so ugly."
In reality, of course, tax-paying alternative educators "pay their dues" by subsidizing the education of other parents' children. See Christofferson, supra note 178, at 1 (explaining how alternative educators must pay taxes and then pay private tuition); see also Jonathan Kaufman, Grade Inflation: Suburban Parents Shun Many Public Schools, Even the Good Ones: Eager to Give Their Children Any Edge, They Scrimp to Pay Pricey Tuitions: Angst, Guilt at $15,000 a Year, WALL ST. J. (Western ed.), Mar. 1, 1996, at A1, A8. Encouragingly, the article suggests that people harboring this hostility can reverse their position dramatically:
"Two years ago, I thought this [home education] thing would phase out," says Patricia Lines, a senior research analyst who monitors homeschooling trends. . . .
. . . .
[Interaction with the diverse home education community] could increase the public's acceptance of homeschooling [over the long term]. So could more interaction . . . . Matt Parsons says he won't be passing around any more
petitions. One of his best pals now is a homeschooler who plays on his school's basketball team. "Once you meet them, you realize they're just like yourself," says the 16-year-old. . . . This past year, 10 more students left Mohar to be schooled at home.
Hawkins, supra at 57-58. Unfortunately, the changes in attitude often come too late for those who have to endure harassment from the community. For some possible solutions to this difficulty, see Appendix B, infra.
[FN229]. See Mawdsley, supra note 19, at 274; see also Cornwell v. State Bd. of Educ., 428 F.2d 471, 472 (4th Cir. 1970). Maryland State Board of Education bylaw provided that "[i]t is the responsibility of the local school system to provide a comprehensive program of family life and sex education in every elementary and secondary school for all students as an integral part of the curriculum." The court upheld dismissal of First Amendment and Fourteenth Amendment parental rights challenges to the bylaw, affirming the lower court decision that such a claim was not substantial enough to even justify jurisdiction.
Thus, although parents apparently cannot "replace state educational requirements with their own idiosyncratic views of what a child needs to be a productive and happy member of society," Bennett, 501 N.W.2d at 112 n.18 (quoting Wisconsin v. Yoder, 406 U.S. 205, 239 (1972)), public educators are
allowed to impose their sundry pedagogical and philosophical views on the children of others with little restriction. Public educators and social workers are allowed to invoke their own idiosyncratic theories to override parental wishes, even when such state agents may arguably have a poor track record for anticipating the demands of a future economy and society.
[FN230]. See, e.g., Commonwealth ex rel. Sch. Dist. of Pittsburgh v. Ross, 330 A.2d 290 (Pa. Commw. Ct. 1975). In that case, the parents' daughter was slammed against a wall by students at school, and their son was assaulted at the same school by another student who used scissors in commission of the battery. The parents, fearing that school arrangements were inadequate for the health and safety of their children, withdrew the children from school. The court determined that it had the authority to override the parents' judgment that the children's health and safety were threatened, and ordered the children back to school without any additional security provisions.
Presumably, under such reasoning, public educators could compel parents to send a child to school even if parents feared that a child molester was on the staff, so long as the school persuaded the court that there was no positive and immediate threat to the child's health and safety.
[FN231]. In the widely adopted, landmark decision Peter W. v. San
Francisco Unified Sch. Dist., 131 Cal. Rptr. 854 (Cal. Ct. App. 1976), the court determined that:
Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught . . . . The "injury" claimed here is [high school graduate] plaintiff's inability to read and write. Substantial achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.
Id. at 860-61. The court further ruled that public school officials have a duty to exercise reasonable care respecting students' physical safety, but no legal duty of care respecting the students' academic development. Id. at 858, 861. Public educators also were deemed to have no duty to exercise reasonable care to report and properly represent a student's academic status to the student's parents. Id. at 862-63.
Thus, public educators have successfully disclaimed almost all personal or institutional civil liability respecting their students' academic development, on the theory that such a duty of care "would expose them to the tort
claims . . . of disaffected students and parents in countless numbers," resulting in an incalculable burden on public schools and society "in terms of public time and money." Id. at 854.
At the same time, parents who assert direct control of their children's educations, in violation of statutorily articulated educational objectives that public schools are supposedly required to achieve, face potentially severe civil and criminal sanctions. Parents can be fined, imprisoned, and/or deprived of custody even when the evidence suggests that their child has benefitted from the parents' course of action. See, e.g., Jernigan v. State, 412 So.2d 1242 (Ala. Crim. App. 1982); People v. Turner, 263 P.2d 685 (Cal. App. Dep't Super. Ct. 1953); State v. M.M., 407 So.2d 987, 989 (Fla. Dist. Ct. App. 1981); State v. Lowry, 383 P.2d 962, 963 (Kan. 1963); State v. Newstrom, 371 N.W.2d 525, 527 (Minn. 1985); State v. Edgington, 663 P.2d 374, 376 (N.M. Ct. App. 1983); State v. Whisner, 351 N.E.2d 750, 752-53 (Ohio 1976); State v. Bowman, 653 P.2d 254 (Or. Ct. App. 1982); State v. Superior Court, 346 P.2d 999, 1000-01 (Wash. 1959) (en banc).
[FN232]. See Carlson, supra note 189, at 90. Many families are presented with a difficult choice: face financial ruin and loss of reputation by enduring litigation, or concede to the demands of the state. Many are trying to mitigate this problem by pooling research resources, legal expertise, and political
influence. Carlson, supra, at 90. Indeed, one such organization, the Home School Legal Defense Fund, was involved in Bennett and DeJonge cases, helping them to mount an effective legal defense. See People v. Bennett, 501 N.W.2d 106, 107 (Mich. 1993); People v. DeJonge, 501 N.W.2d 127, 129 (Mich. 1993).
[FN233]. 262 U.S. 390, 401-02 (1923) (repudiating Plato's concept of socialization for his Ideal Commonwealth).
[FN234]. Recall the discussions from supra parts IV.D.4-5 and IV.E.3-4.
[FN235]. Bennett, 501 N.W.2d at 115-16; see also In re Valenti, 224 Cal. Rptr. 10, 12 (Cal. Ct. App. 1986).
[FN236]. See DeJonge, 501 N.W.2d at 137, 138.
[FN237]. PHI DELTA KAPPAN, Mar. 1987, at 510.
[FN238]. Id.
[FN239]. Id.
[FN240]. Id.
[FN241]. Id. at 512.
[FN242]. Id. at 513.
[FN243]. Id. at 514 (quoting uncited American Civil Liberties Union Policy statement).
[FN244]. Id. at 514-15.
[FN245]. Id. at 515-16.
[FN246]. Id. at 516.
[FN247]. Id. at 517.
END OF ORIGINAL DOCUMENT
NOTE: This article was published in 1996. At that time, the state of the law was such that it was correct to indicate in footnote 38 and the surrounding text that "the case law language is so confused that it is susceptible to widely divergent interpretations [about whether the right to direct the upbringing of a child is a 'fundamental' federal constitutional right subject to strict scrutiny]." Witte's comment called for "a decisive, comprehensive, well-reasoned, and articulate United States Supreme Court opinion respecting parental rights" in order "to remedy this current state of confusion."
Four years later, the precise legal question finally found its way to the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000). At that time, the justices were put in possession of hard copies of the same Witte comment that is now set forth on this web page. As reflected in Justice Scalia's dissent, Scalia and some of the other justices debated the comment's propositions that 1) parental liberty was regarded to be an inherent fundamental right from the time of the Declaration of Independence onward, and 2) parental liberty was protected by, inter alia, the Ninth and Fourteenth Amendments (the Fourteenth Amendment has been interpreted to be both an original source of constitutional rights and a legal mechanism for incorporating other amendments to apply against the states).
A five-justice majority (Chief Justice Rehnquist and Justices O'Connor, Thomas, Ginsburg, and Breyer) acknowledged that the right to direct the upbringing of one's child is not only a multi-faceted federal constitutional right protected by the Fourteenth Amendment, but a "fundamental" right to boot. As Justice Thomas noted in his concurrence, "fundamental" rights are entitled to "strict scrutiny" deference under principles of traditional constitutional jurisprudence. In other words, Troxel adopted the precise legal paradigm advocated in Witte's comment, and lower courts have (for the most part) subsequently acknowledged that parental liberty is constitutionally protected.
In footnotes 106-08 and the surrounding text, Witte's comment predicted that some secular conservatives (those in the Robert Bork tradition) would eschew originalist analysis and attempt to deny any constitutional protection to parental liberty. Justice Scalia's dissent also vindicated Witte's observation in that regard.
Footnote 23 of Witte's comment observed that there are several potentially overlapping sources of protection for parental liberty in addition to (or in conjunction with) the Ninth Amendment. Justice Thomas seemed to agree. In his final, succinct, revised concurrence, Thomas sidestepped the Scalia's broadside and instead cursorily mentioned the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment as two of the possible sources for parental rights.
Troxel provided an adequate and clear answer about the practical test for constitutional protection of parental liberty. But because of the unusual and narrow majority on the Court that supported parental liberty, and the economic incentives to destroy parental liberty that are set forth in Witte's comment, it is anticipated that protection of parental liberty will require ongoing vigilance. Opponents of parental liberty will continue to try to overturn or limit the holding in Troxel, just as they once used State v. Hoyt, 146 A. 170 (N.H. 1929) to disregard previous United States Supreme Court precedent and plunge alternative education into a long dark age.
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