The Unalienable Liberty of Parents to Control & Direct the Upbringing of their Children

Governments increasingly infringe on parents' liberty to direct and control the upbringing of their children. Does the Constitution limit the exercise of government power in this area. Can government school officials, for example, secretly participate in the social gender transitioning of a child without notifying the child's parents?

Fundamental Liberty, Strict Scrutiny, and the Deeply Rooted Legal History and Tradition of a Parent's Right to Direct and Control the Upbringing of Their Children 

The United States Supreme Court first examined the issue of parental rights over a century ago in Meyer v. Nebraska, 262 U.S. 390 (1923). In Meyer, the State made it unlawful to teach any subject in languages other than English. Id.  Prior to the government's action in that case, no conflict existed between the state and parents. The reason no conflict existed is because deeply rooted historical and legal traditions of the nation properly recognized the family as the backbone of society. See e.g., John Locke, Second Treatise of Civil Government, 1690, Sec. 56, Sec. 63. (authority "to govern the minority of their children" rests with parents); 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190 (recognizing that natural bonds of affection lead parents to act in the best interest of the children). The deeply rooted history and legal traditions were well in place before the founding of our nation and existed in the common law at the time we ratified our Constitution. Wagner, Revisiting Divine, Natural, and Common Law Foundations Underlying Parental Liberty to Direct and Control the Upbringing of Children, 5 W. Australian Jurist 1 (2014); Estrada, Homeschooling in the United States: A Seismic Parental Rights Victory, 18 Liberty L. Rev. 865 (2024)

Political and social activism in the early 20th century sought to alter those deeply rooted historic views on family and government. The Meyer Court responded by holding that “it is the natural duty of the parent to give his children education suitable to their station in life.” Meyer, 262 U.S. at 400. The Court explained that “[t]he individual has certain fundamental rights which must be respected. ... [The individual] cannot be coerced by methods which conflict with the Constitution — a desirable end cannot be promoted by prohibited means.” Id. at 401.

Meyer recognized the family as the building block of society -- rejecting Plato’s musing that “children are to be common” as contrary to our nation’s founding. Id. at 402.  Meyer conclusively held that parental rights are a constitutional right under the Fourteenth Amendment. Id. at 398.

Two years later the Supreme Court unanimously reaffirmed that parental rights are a constitutional right under the Fourteenth Amendment. Pierce, 268 U.S. 510 (1925) (striking down an Oregon law requiring children between 8 and 16 to attend only public schools).  Building upon the foundation laid in Meyer, the Pierce Court confirmed that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce, 268 U.S at 535.

Later, in Prince v. Massachusetts, the Supreme Court again recognized parental rights stating:

[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

321 U.S. 158, 166 (1944).

Thereafter, the U.S. Supreme Court in Wisconsin v. Yoder, decisively reaffirmed the fundamental nature of parental rights under both the First and Fourteenth Amendments. 406 U.S. 205 (1972) (confirming "the fundamental interest of parents" in overturning convictions of Amish citizens convicted of violating a State’s compulsory attendance statute). The Court reasoned,

“[t]he values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. … Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Yoder, 406 U.S. at 213-214, 232.

After affirming the inalienable nature of the parental rights, Yoder made clear that government actions infringing on this constitutional liberty must face strict scrutiny:

The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. Id. at 215.

In Washington v. Glucksberg, the Supreme Court upheld Washington’s law banning assisted suicide. 521 U.S. 702 (1997). The Court in that case held that the Fourteenth Amendment did not include a fundamental right to physician-assisted suicide, while reaffirming that parental rights were a fundamental right -- and that courts must use strict scrutiny in reviewing governmental actions infringing upon parental rights:

In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the rights . . . to direct the education and upbringing of one's children. … The Fourteenth Amendment forbids the government to infringe ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Id. at 720 - 721 (cleaned up).

While physician-assisted suicide killing was not deeply rooted in the legal history or traditions of the nation, the right of parents to direct the upbringing and education of their children was – and was part of our common law at the founding of our Constitution, as later amended by the Fourteenth Amendment. Thus, for the same reason the Court found no fundamental right for physician-assisted suicide in the Constitution under the Due Process Clause, it found there a fundamental right for parents to direct the education and upbringing of one's children. See Phillips, Liberating Liberty: How the Glucksberg Test Can Solve the Supreme Court’s Confusing Jurisprudence on Parental Rights, 16 Liberty L. Rev 347 (2022). https://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1319&context=lu_law_review (last visited July 15, 2025); Wagner, Revisiting Divine, Natural, and Common Law Foundations Underlying Parental Liberty to Direct and Control the Upbringing of Children, 5 W. Australian Jurist 1 (2014)

In the grandparent visitation case of Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court summed up almost a century’s worth of precedence, stating,

“[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court. … In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. … The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 65-66, 72-73.

Recognizing that the Fourteenth Amendment "provides heightened protection against government interference with certain fundamental rights and liberty interests,” a plurality of the Court in Troxel reaffirmed the fundamental nature of parental rights and found that the State’s nonparental visitation statute "unconstitutionally infringe[d] on that fundamental parental right” Troxel, 530 U.S. at 65, 67.  While Troxel strongly reaffirmed a parent’s right to direct and control the upbringing of their children as a fundamental liberty interest under the Fourteenth Amendment, the lack of consensus among the Justices on the appropriate level of scrutiny to apply to government interference created a catalysis for jurisprudential confusion. 530 U.S. at 80 (Thomas, J., concurring).

 In Mahmoud v. Taylor, No. 24-297, slip op. (U.S. June 27, 2025)) the Supreme Court recently helped to clarify some of the jurisprudential confusion.  The Court did so by reaffirming the longstanding recognition of parental rights as fundamental, and by applying strict scrutiny to government actions infringing on this inalienable liberty.

Focusing this time on the First Amendment, Mahmoud reasserted the lesson in Yoder that:

A government burdens the [fundamental right] of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the ... beliefs and practices that the parents wish to instill.  Wisconsin v. Yoder, 406 U. S. 205, 218 (1972).  And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction. Mahmoud, No. 24-297, slip op. at 1-2

In Mahmoud, the State of Maryland “introduced a variety of LGBTQ+ inclusive storybooks into the elementary school curriculum.” Id. The government sought to “disrupt children’s thinking about sexuality and gender” and to that end the government mandated attendance of children and refused to notify parents. Id. Relying on Yoder, the parents here contended the government’s no parental notification /  no opt out policy “infringed on their right as parents to the free exercise of their religion” in violation of the First Amendment. Id at 14.

Based on the record before it, the Court agreed:

We hold that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable. Id. at 21-22

Relying on Yoder, the Mahmoud Court stated:

Here, the Board requires teachers to instruct young children using storybooks that explicitly contradict their parents’ religious views, and it encourages the teachers to correct the children and accuse them of being “hurtful” when they express a degree of religious confusion.  Such instruction “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.” Yoder, 406 U. S., at 218. (cleaned up) Mahmoud, No. 24-297, slip op. at 26

Mahmoud confirmed that “when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate” even if the “law is neutral or generally applicable.” Id. at 36   In Mahmoud,

the board’s policies, like the compulsory-attendance requirement in Yoder, substantially interfered with the religious development of the parents’ children. And those policies pose “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill in their children. Id. at 37

Because the burden in Mahmoud was “of the exact same character as the burden in Yoder,” the Court applied strict scrutiny to the government action. Id. The Court then reaffirmed that “[t]o survive strict scrutiny, a government must demonstrate that its policy advances interests of the highest order and is narrowly tailored to achieve those interests.” Id., citing, Fulton v. Philadelphia, 593 U. S. 522, 541 (2021) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993)). (cleaned up) Under this standard of review, the Court found Maryland’s action unconstitutional.

Government infringement on parental liberty cannot be reconciled with the Supreme Court’s decisions in Meyer, Pierce, Troxel, Yoder, and Mahmoud. If school officials knowingly contradict parents and hide vital information from them, no way exists for the parents to guide the future, education, or healthcare, of their children. Yoder, 406 U.S. at 232. There is also no way that the parents can exercise “parental concern for the nurture and upbringing of their children.” Id.

Too often lower a court’s reasoning undermines the core teaching of the Supreme Court’s decision in Yoder, and the Supreme Court’s recognition that parents, not government officials (even public-school teachers) are the ones with the “primary role … in the upbringing of their children…” Id. See also, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974) (confirming "freedom of personal choice in matters of marriage and family life" as constitutionally protected liberties); Moore v. East Cleveland, 431 U.S. 494, 503-504 (1977) (holding that "the institution of the family is deeply rooted in this Nation’s history and tradition."; Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977) (documenting the fundamental nature of liberty associated with family matters as deeply rooted in history and tradition of the American nation, predating even the Bill of Rights); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (confirming that "the relationship between parent and child is constitutionally protected"); Stanley v. Illinois, 405 U.S. 645, 651 (1978) (reaffirming the fundamental nature of parental rights); Parham v. J. R., 442 U.S. 584, 602-604 (1979) (reaffirming the fundamental nature of parental rights, rejecting "any notion that a child is the mere creature of the State"); Santosky v. Kramer, 455 U.S. 745, 753, 760 (1982) (reaffirming “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child); Reno v. Flores, 507 U.S. 292, 303-304 (1993). (confirming that parental rights must be respected as a constitutional limit on the exercise of state power, even if nonparents think they would do a better job making decisions for a child than the child’s parents).

A century of U.S. Supreme Court precedents firmly establishes that the Constitution protects the right of a parent to direct and control the upbringing of their children as a fundamental right. As such, government infringement of such inalienable liberty requires judicial review using a strict scrutiny analysis where government must demonstrate that its policy advances interests of the highest order and is narrowly tailored to achieve those interests.

Notwithstanding the deeply rooted legal history and tradition affirming parental rights as fundamental, significant jurisprudential confusion exists among the lower federal courts. Reflecting this division, federal appellate courts continue to split over how to decide these kinds of issues. The Supreme Court should resolve the significant jurisprudential disagreement evident in these lower court splits. It should do so now, since predictability in the law is necessary for good governance under the Rule of Law, especially during times of cultural discord. 

Consistent judicial decisions, grounded in honest interpretation, give government officials and others notice of what is prohibited.  When it comes to judicial review of government action and constitutional provisions, consistent decisions provide predictability for officials seeking to act in accordance with constitutional standards.  Inconsistent judicial precedents lead to unpredictability in the law, providing no beneficial guidance for government officials or others trying to act within the law.  Mahmoud helped by confirming the fundamental nature of parental rights in the context of the First Amendment.  The Supreme Court ought to finish the jurisprudential task by doing the same under the Fourteenth Amendment.