--March 2, 2010
Parental Rights versus Student Privacy
Last August, a mother in Tennessee was denied access to her son’s records unless he first signed a release to grant permission. The dual-enrolled son was only fifteen years old! His parents not only paid his tuition, but were still legally fully responsible for his upbringing, yet they could not monitor his educational progress because of a policy the school claims is based on the federal Family Educational Rights and Privacy Act, or FERPA.
Passed in 1974, FERPA prevents universities from sharing information about their students, even to parents, with very few exceptions – such as a health or safety emergency. However, it was amended in 1998 to allow schools to notify parents any time a student younger than 21 violates a drug or alcohol policy.
That’s because, as the Washington Post reported last week, “colleges and universities have realized that, in addition to levying official penalties, seeking parents’ help can bolster anti-drinking efforts.” “Students are more concerned about their parents being notified than they are of the legal consequences,” Virginia Tech’s Edward Spencer is quoted as saying by the Post.
We at ParentalRights.org find it ironic that although studies and experience have shown that parental involvement is best for children and teens as a rule, government at various levels often seeks to put barriers in the parents’ way. Now, colleges like Virginia Tech acknowledge that getting parents involved is best for everyone, so they are taking advantage of the 1998 amendment to FERPA by notifying parents of any violation of the alcohol policy. And that college in Tennessee now requires a permission form for parental access before a student is accepted to their dual-enrollment program, as a means to satisfy the FERPA requirement as they understand it while keeping parents of teens in the loop.
Sadly, though, not every organization is willing to apply common sense so liberally. As long as state or federal law continues to provide loopholes in parental rights, there will be schools or other organizations taking advantage of them to the harm of families.
While passing the Parental Rights Amendment will not undo the FERPA law or prevent institutions from taking their federal obligations too far, it will stop the erosion of parental rights in our courts and legislatures so that future lawmakers don’t make things even worse. After all, if parents are responsible for the child’s education, and they’re the ones paying the bills, they shouldn’t be kept in the dark about what is going on in that teen’s schooling. This is just one reason we believe “the liberty of parents to direct the upbringing and education of their child is a fundamental right” that should be preserved.
March 5, 2009 --
It’s only early March, but already “stimulus” is shaping up to be the word of the year. Washington is talking about economic stimulus, stimulus packages, stimulus bills, and so forth. If one looks to the streets and to the state houses, however, it appears the economy is not what is being stimulated. Rather, the people and the states are being stimulated to protest the last decade or more of federal government growth, a situation which the latest “stimulus packages” are only serving to exacerbate.
By now, it is likely everyone in America has heard of CNBC reporter Rick Santelli’s rant at the Chicago Mercantile Exchange a couple of weeks ago, in which he expressed outrage with the Obama administration over the on-going push for more and more deficit spending by the federal government at tax payer expense. His outburst might have received censure from his network and from the news program’s anchors in previous years, but instead received unquestionable support from those around him on the floor of the exchange, and even some encouragement from his colleagues. What is more, it triggered a rash of “Tea Party” protests across the nation last week, as many Americans gathered in a number of cities to say “Enough!” to more than a trillion dollars of “stimulus” poured out by the government in Washington.
At the same time, an increasing number of American state legislatures are considering “sovereignty bills”, or resolutions whereby the states remind the federal government that it has Constitutionally-mandated limits, demanding that Washington recognize and respect these limits, or bear the consequences. For at least two states – Montana and New Hampshire – those consequences may even include secession from the Union!
It is not the business or aim of ParentalRights.org to take a side on any of these issues. They are mentioned here only to point out that even today, 233 years after the Declaration of Independence, Americans are still willing to stand up for their right to govern themselves. In local gatherings of private citizens and in duly-elected state-level fora, the People of the United States are taking an active position in directing their own future, demanding that the elected officials in Washington take notice of their outrage.
But how will this translate when the U.S. Senate takes up the U.N. Convention on the Rights of the Child (UNCRC) for ratification? Will the Senate recognize the treaty for the power-grab that it is? If they pass it anyway, how will the states – or even the private citizens – respond?
If one thing has become clear in recent weeks, it is that an increasing number of Americans are tired of giving their tax dollars to a government that keeps taking away more and more of their rights, while turning a deaf ear to their warnings and complaints. But passage of the UNCRC would only make things worse.
For starters, by this treaty the federal government would grant to the U.N., and to itself as their agent, full control over family law in the United States, which right now is among those rights “not delegated to the United States by the Constitution, nor prohibited by it to the States, [which] are reserved to the States respectively, or to the people” under the Tenth Amendment. This also means these rights are among those “beyond the scope of these constitutionally delegated powers” from which various states’ sovereignty bills would order the federal government to “cease and desist”, including Oklahoma’s HJR 1003, which cleared the Oklahoma House by a vote of 83-17 least week, and SJR 10, which cleared the Oklahoma Senate by a 25-17 decision a few days later. With such support, there is no doubt Oklahoma will be able to put these two together and pass a single bill through both houses that bears these same sentiments.
The fact is, the U.N. Convention on the Rights of the Child is not a set of suggestions by our neighbor nations on how we should treat our kids. It is binding international law that creates an obligation on those nations who ratify it, that they change their domestic law to accord with the contents of the Convention. In our case, due to Article VI of the U.S. Constitution, those changes would be automatic as “the Supreme Law of the land.” And that content includes giving the government and its agents the right to determine what is in “the best interest of the child” in every decision made, taking that right away from parents, and even away from the states. It also includes making the federal government singularly responsible for all family law, that Washington may ensure that every state complies with the U.N.’s definition of respecting children’s rights. The vast majority of family laws in this country are state laws now, but all would be over-ridden and given to the federal government under the UNCRC. Are we, as a nation, ready to test and see whether Montana, New Hampshire, Oklahoma and their kin will be willing to settle for that?
And what of the people? If we’re already having tea parties over tax issues, what will we do when they come for our children?
We must make clear, before such damage is done, that we will not tolerate the U.N. Convention on the Rights of the Child, and that we want the Parental Rights Amendment as a permanent solution to that threat. If you have not already done so, sign our online petition to let Congress know where you stand. Then, please contact your Senator’s office and urge a “NO” vote on the UNCRC, and a “YES” vote on the Parental Rights Amendment. You might point out to them that the nation is threatening a major backlash over the issue of self-governance, and that this issue is too important to be ignored.Read more
The Perilous State of Parental Rights in America
by Michael Ramey
Reprinted from Child and Family Protection Association, January, 2009
“At this point, I feel really alone. You go to your home where you’ve made your life for the last twelve years and it’s empty.” That’s how a Paradise, California father named Joe described his situation to local KHSL-TV on November 3. That morning, Joe had kissed his wife and 9-month-old son goodbye, and headed off to work. When he returned home in the evening, his son was gone.
During the day Joe’s wife, impaired by post-partum depression and mind-altering pesticide poisoning, had taken the little boy to a local golf course and left him there to be found by a stranger, who handed the boy over to police. When he found out that evening, Joe immediately phoned the authorities, expecting to answer some questions and pick up his precious little boy. Instead, his wife was admitted to the Behavioral Health clinic for observation, and his son was handed over to Child Services. Now Joe was completely alone.
There are no allegations that either Joe or his wife has committed any crime. The mother’s actions were irrational and dangerous, but they were not intentional, and they did not include Joe. Neither could they have been anticipated. A doctor, a counselor, and a pastor had all seen Joe’s wife in the days prior to the event, and thought she would recover without incident. There was no sign that Joe should be concerned.
But the incident was a spark, and Joe’s world exploded.
On January 27, 1967, a single spark ignited the air inside the cockpit of Apollo I, killing all three astronauts aboard. The horrifying accident was the result of several factors; avoiding any one of them could have prevented the catastrophe. The cockpit had been filled with pure oxygen to an unprecedented pressure, a highly inflammable atmosphere. The hatch opened inward, designed to protect against the vacuum of space rather than to provide a quick escape. Bare wiring beneath the seat provided an easy flashpoint. All it took then was a spark.
Parental rights in America today face just such a deadly combination. Using the analogy of the Apollo I catastrophe, (1) our domestic laws and courts provide a dangerous atmosphere for families; (2) our Constitution, because it was designed to protect us only from federal tyranny rather than shielding us from both federal and international intrusions, is now the dangerous escape-proof hatch; and (3) the “faulty wiring” of failed social services and family law practices creates sparks every day. In such an environment, can parental rights long survive?
An Explosive Environment: Domestic Law
For almost 200 years, the United States recognized constitutionally protected parental rights. In 1937, the Supreme Court determined in Palko v. Connecticut that parental rights were implied in and protected by the U.S. Constitution. The High Court reinforced this in its landmark 1972 private education case, Wisconsin v. Yoder, asserting that the “primary role of parents in the upbringing of their children is now established beyond debate as an American tradition.” Ironically, what was “established beyond debate” in 1972 has been completely taken apart in the last 30-plus years. The viability of the traditional nuclear family is in great peril.
More recently, while the Supreme Court continued the tradition of upholding parental rights in Troxel v. Granville (2000), it did so with disagreement among the Justices over whether parental rights are fundamental rights. The distinction between rights that are fundamental and rights that are not fundamental is crucially important.
Under current Supreme Court doctrine, all rights are not equal. A fundamental right, according to the Yoder decision mentioned above, cannot be violated unless the state (1) has an interest “of the highest order” and (2) protects that interest by the “least restrictive means.” The freedom of speech, for instance, while a fundamental right, does not allow for yelling “Fire!” in a crowded theater. In that case, the government has an interest of the highest order – protecting the lives of those who could be unnecessarily trampled to death – which it protects by the least restrictive means. It is not, after all, illegal to use the word “fire” in a sentence; one simply cannot shout it in a crowded venue without cause. A non-fundamental right, on the other hand, can be restricted if the government simply shows reasonable cause. For example, your right to drive down Main Street may be preempted for a few hours to allow for the local Christmas parade.
In Troxel v. Granville, only four Justices held that parental rights are fundamental rights protected by the Constitution. These Justices included conservatives William Rehnquist and Sandra Day O’Connor, as well as the more-liberal Stephen Breyer and Ruth Bader-Ginsberg. Justice Clarence Thomas, concurring, held that parental rights are fundamental rights, but that they are not actually in the Constitution. Justice David Souter wrote in a separate concurring opinion exactly the opposite: that parental rights are “generally protected” by the Constitution, but that they are not fundamental rights.
Of the three dissenting Justices, Anthony Kennedy and John Paul Stevens claim that parental rights do not exist except in “balance against the State’s…interests as parens-patriae,” (i.e. the state acts as the parent of minors) leaving the scope of parental rights at the discretion of government agents and courts. This usurpation of God-given parental rights is how liberal, judicial-activist judges will increasingly rule in the future if left unchecked.
Perhaps more significant, though, is the position of Justice Antonin Scalia, a conservative proponent of strict constructionism. By this philosophy, he believes that no rights are protected by the Court unless they appear in the text of the Constitution itself. While the Constitution by its silence prevents the federal government from violating parental rights, or any rights not expressly given to that government, that same silence leaves the Supreme Court unauthorized to step in and settle matters between citizens and the individual states. By Scalia’s reasoning, it is not in the purview of the High Court to decide which implicit rights go to the states, and which to the people. An increasing number of conservative judges subscribe to the same philosophy, including new Chief Justice John Roberts and Justice Samuel Alito. With these two replacing Rehnquist and O’Connor, the Troxel case, if heard today, would have a very different and destructive outcome.
Yet, even the 6-3 win is hardly a victory for parental rights. The splintered nature of the decision has left ambiguity at the state and federal levels. Since its publication, Troxel has been cited in support of parental rights in California (In Re: Rachel L, 2008) and Nebraska (Farnsworth v. Farnsworth, 2008), but set aside by courts in Massachusetts (Parker v. Hurley, 2007) and elsewhere. Thus, parental rights issues are decided on a state-by-state basis until another case reaches the Supreme Court, now made up of judicial activists and strict constructionists. For parental rights, that equates to a high pressure, oxygen-rich environment waiting to explode – with tragic results for American families.
A Backward Hatch: The Constitution and International Law
Meanwhile, we are locked into this atmosphere by the very thing that is meant to protect us from tyranny – the United States Constitution. Intended to limit the powers of government and prevent the abuses which the colonists suffered under England, the Constitution was not intended to entangle American families in today’s complex international relationships. Two Constitutional phrases in particular, which were originally designed to protect us, are now locking us in to the encroaching dangers of international law.
First, Article VI of the Constitution states that “This Constitution … and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby….” Often referred to as “The Supremacy Clause”, this section establishes that any international treaty ratified by our Senate immediately has the force of law, and over-throws every law that contradicts it except the text of the Constitution itself.
This was not an issue when the Constitution was written, since treaties were only used to establish alliances and to end wars. The clause provided that, if the U.S. signed a peace treaty with a former adversary, every state in the Union had to honor that peace.
Since the rise of the United Nations in 1945, however, the nature of international treaties has changed significantly. The United Nations Convention on the Rights of the Child, for instance, relegates all parents to mere caregivers of the “government’s children”, assigned “responsibilities” and “duties”, but holding no rights where their own children are concerned. Were this treaty to be ratified by the Senate, the federal government would be required to oversee and authorized to intrude into every aspect of our children’s lives, in order to ensure to the U.N. that children’s rights are not violated.
Second, Article I, Section 8 of the Constitution asserts that “[t]he Congress shall have the Power…[t]o define and punish…[o]ffences against the Law of Nations.” Again, the wording was fine in its original context, giving Congress the authority to enforce international laws such as, for instance, those prohibiting piracy beyond our borders on international waters.
Today, however, this section is frequently used by activist judges to look beyond our own borders, deciding American cases by what is acceptable in other parts of the world. They find authority for their decisions not in the Constitution, but in Customary International Law (CIL), the modern equivalent of “the Law of Nations.” In Roper v. Simmons (2005), the Supreme Court admitted that it “has referred to the laws of other countries and to international authorities as instructive for its interpretation” of the Constitution.
Deadly Sparks: Any Excuse Will Do
With parental rights only tenuously upheld, is it any wonder parents all over the country are losing custody of their children, or the right to direct their up-bringing, for any and every possible reason? An on-line search for “Child Protective Services” will pull up long lists of articles stating that, “No charges have been filed, but the children were taken into protective custody.”
In Rhode Island, Diana Owen had her baby taken away by the hospital she turned to when her daughter was having breathing problems. Doctors accused her of Munchausen by Proxy, a mental condition wherein parents seek attention for themselves by faking illness in their children, even though their own records and medical staff verified that the little girl’s symptoms were real. Ironically, in Nebraska, Mary and Josue Anaya had their baby taken from them for the opposite reason; their convictions kept them from subjecting their son to a certain health test, so authorities came and took the newborn away.
When Sheila Sumey’s parents grounded her at age 13 for sexual and drug-related activities, she took them to court and became a ward of the state, much to their – and her – dismay.
When poverty strikes, poor single moms call Social Services for help with paying their bills, and are coerced into giving the government inappropriate authority over their children. Ethnicity also plays a roll: African-American children are taken into foster care at a rate twice that of any other demographic, and reunited with their families at a rate of only half the average.
In Paradise, California, Joe has done nothing wrong, but he still waits on the court to decide when he can be a father again.
Repairing the Hatch: Amending the U.S. Constitution
The inflammable atmosphere of judicial activism and internationalist ideals will not just go away, and the sparks will continue as long as over-zealous bureaucrats and power-hungry judges rule our juvenile and family courts. But we can do something to save our children and the future of our nation. To keep with the analogy, we can turn our escape hatch around. We can amend the Constitution, so that it protects us not only from federal intrusions, but from international risks as well.
Some oppose Constitutional amendments as a matter of course, hesitant to change a powerful document that has worked so well for more than two centuries. In this case, however, change is coming not from the Amendment, but from the failure to pass it. Without the Parental Rights Amendment, Customary International Law will radically alter the way we, the people, and our government relate to one another. Only with the Amendment can the parental rights upheld by the Supreme Court all these years hope to be maintained as fundamental rights.
The Amendment has been introduced in the U.S. House of Representatives as H. J. Res. 97, and says:
The liberty of parents to direct the upbringing and education of their children is a fundamental right.
Neither the United States nor any State shall infringe upon this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.
No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.
The proposed first section uses language already defined by the Supreme Court to establish parental rights as fundamental. This affords them the same protection as other basic rights, such as freedom of religion, of the press, and of speech, as we described above.
The proposed second section reinforces the first, but leaves room for government officials to step in when in fact a “highest order” interest does exist, such as in cases of true child abuse or neglect. This section provides that criminals cannot prey on innocent children without punishment, but protects parents’ due process rights when they are accused of a crime. Removing children based on shoddy allegations in anonymous phone calls would come to an end.
The proposed third section would defend against the threat of International Law, whether explicitly rendered by treaty, or implicitly applied through CIL court decisions. This sentence would protect American families from somebody else’s laws which may disagree with our American values of liberty and justice.
Where We Are and Where We Are Going
The mission has already begun. The Amendment is already in the Judiciary Committee of the House of Representatives. The groundwork has been laid to support a massive grassroots mobilization to get this “hatchway” turned around.
But we need your help if American parents like Joe, Diana Owens, the Anayas, and the Sumeys are to be able to keep their children.
In the coming months, ParentalRights.org will launch a major petition drive called “2x10” (“Two-by-Ten”). Participants (2x10 Representatives) will be asked to get ten friends to sign a petition in the form of three post cards, and to ask for a $1 donation to ParentalRights.org (PRO). The 2x10 Representative is then asked to recruit two more people to do the same thing. The cards will be held in reserve until the appropriate time, when we plan to mail them all to Congress at once – one each to the signer’s Congressman and both Senators. Our aim is to reach more than 4 million participants – 10,000 for each Congressional district – and to send enough cards to shut down the Capitol post office. We want the Congress to know that parents in America are willing to stand together to save our children by preserving our parental rights. We have put this plan in place to be sure we get that message across.
An amendment requires two-thirds approval in each house of Congress, followed by ratification in three-fourths of the states. That’s 67 Senators, 290 Congressmen, and 37 states. Many claim that the process takes seven-to-ten years, but we don’t believe we have that long. Thus, we plan to move this bill aggressively through Congress within about a year.
Your Help Is Critical Starting Now
Right now, we urge you to become a 2x10 Representative. Visit the website at ParentalRights.org to sign up and get the pages you need to get started right away, and to track our success as others join when the larger “official” launch takes place. As a 2x10 Representative, you will help put the pressure on Congress now, and become part of a vital network with which we will work in the various states later on.
We also need sponsors to fund this monumental effort. Donations are gratefully welcome on-line at www.parentalrights.org/contribute, or by mail to: ParentalRights.org, P.O. Box 1090 Purcellville, VA 20134. Because PRO is a 501(c)4 organization specifically seeking to change federal law, direct donations cannot be tax deductible, but they are vital to our success.
Today in Paradise, California, Joe continues to wait for a judge to decide if an innocent man can have his baby back. “I would move mountains for my son,” Joe vows through his tears. But, to continue with our Apollo I analogy, he is still strapped in – in a dangerous atmosphere. We have to rescue him and all American families.
Together, we can effect the repairs our nation needs to protect our children by empowering parents – through the Parental Rights Amendment. The time is now – before the time is gone.
Waiting to Explode.pdf (149 KB) This article in 4-page pdf format to print out and share with your friendsRead more
On October 27, 1991, Hurricane Grace was taking aim at Florida and the Carolinas. The southeastern United States braced for the impact – but the storm never arrived. A much broader storm off the coast of Nova Scotia, fueled by cold air from the north, stretched far enough southward to redirect, and later absorb, Hurricane Grace. Although the southeast coast was spared, the combining of the low pressure systems formed what the National Weather Service called The Perfect Storm. The range of the northern storm, fueled by the tropical energy of the dying hurricane, made the combination of the two far more deadly and powerful than the sum of its parts. Ultimately, this “Halloween Storm” regained hurricane force, hammered away at New England and Nova Scotia, and caused several deaths, inspiring a major 2000 film-release.
Parental rights in America today are facing a “perfect storm” as well. Our “Hurricane Grace” is the body of state and federal legislation and court decisions which, until now, have upheld parental rights, but which are heading toward a dangerous landfall. Our “broader storm”, seemingly harmless but far-reaching, is the ever-expanding body of International Law, whose influence on our nation looms larger every year.
Domestic Law – Our “Hurricane Grace”
Just as Hurricane Grace threatened our coastline in 1991, America’s Domestic Law, defined by state and federal legislation and court decisions, is threatening our parental rights today.
Historically, parental rights were universally recognized and protected under the U.S. Constitution. In 1937, the Supreme Court found parental rights to be implicit in and protected by the Constitution (Palko v. Connecticut). The 1972 Wisconsin v. Yoder decision (406 U.S. 205, 215) asserted that the “primary role of the parents in the upbringing of their children is now established beyond debate as an American tradition.”
However, the Supreme Court recognizes two kinds of Constitutional rights. According to Yoder, a fundamental right cannot be violated unless the state proves it has an interest “of the highest order”, protected by the “least restrictive means.” A non-fundamental right ranks below the interest of the state in court proceedings; the government only needs to show reasonable cause to restrict these rights.
In the 2000 case of Troxel v. Granville (530 U.S. 57, 66), the question arose: Are parental rights fundamental rights? While six Justices agreed that parental rights are protected under the U.S. Constitution, thus finding for Troxel in the ruling, only four of these (see right) – a minority of the high court – held that parental rights are fundamental.
|"Significantly, the four Justices supporting fundamental parental rights — William Rehnquist, Sandra Day O’Connor, Stephen Breyer, and Ruth Bader-Ginsberg — cover both ends of America’s political spectrum.|
Justice Clarence Thomas upheld parental rights as fundamental as well, but based solely on precedent, suggesting they may not be protected as fundamental within the Constitution itself. Had the case been argued differently, he would have sided with Granville.
Justice David Souter, completing the majority, held that parental rights are “generally protected” by the Constitution, but does not classify them as fundamental rights.
Justice Antonin Scalia argued that no rights are protected by the Court unless they appear in the text of the Constitution itself. Parental rights are among the “unalienable rights” referred to in the Declaration of Independence, he says, but they are not protected because they are not explicitly named in the Constitution.
The two remaining justices, Anthony Kennedy and John Paul Stevens, believe that parental rights exist only in “balanc[e] against the State’s . . . interests as parens-patriae,” which leaves the scope of those parental rights entirely at the discretion of that state. History has shown that “rights” at government discretion are no rights at all!
Since Troxel v. Granville, Rehnquist and O’Connor have left the bench, replaced by Chief Justice John Roberts and Justice Samuel Alito. While it is unknown where this new Court stands, it is reasonable to assume that parental rights are more at risk today than they were eight years ago.
Like Hurricane Grace, however, this threat may never strike. The Courts may never revisit the question of parental rights, because a much greater threat is looming,
International Law: Our “Broader Storm”
Like the broader storm off New England in 1991, international law appears benign despite its reach, thus escaping our attention in the face of our domestic hurricane. We trust that our President and Congress will insulate us from any dangers posed by international treaty or precedent. Sadly, though, our government cannot be protection enough.
America is a nation unlike any other, and our Constitution is equally unique. This is most often an advantage and a cause for great national pride. In the area of international law, however, the Constitution leaves us vulnerable for two reasons.
The Supremacy Clause
“This Constitution…and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
Our first vulnerability to international law is the “Supremacy Clause” of Article VI, which gives international treaties more authority in the United States than they have in any other nation. In France or Germany, for example, a ratified international treaty may direct, influence, or inform their laws, but the government determines the degree to which the treaty impacts them as a people by the specific laws they pass. In the United States, the treaty itself becomes law – “the supreme Law of the Land” — the moment it is ratified by Congress.
This in itself is nothing new; Article VI has never been amended from its original wording. Since the establishment of the United Nations in 1945, however, international treaties are increasingly instructive of how governments rule their subjects, taking our right of selfgovernance away from us and giving it to the representative body of the entire political world.
Among these treaties is the UN Convention on the Rights of the Child (CRC), which contains many very good – and other very dangerous – ideals. Undoubtedly, the intentions behind the CRC are noble for the protection of our most precious resource, children the world over. Had we the freedom as a nation to adopt and impose this treaty with our own specific wording, to fulfill its intentions while protecting our national and individual liberties, it would surely be a wonderful document.
Unfortunately, under Article VI the CRC, once ratified, would become “the supreme Law of the Land” exactly as it is, including terms and phrases rendering parental rights obsolete. The very term “rights” never appears in the document as it pertains to parents. Rather, to these secondary persons are assigned the “responsibilities” and “duties” to care and provide for their children. These duties are a given, but so too should be the rights to carry out these duties in the manner that fits our individual convictions and beliefs in every circumstance that does not pose a clear and imminent threat to the well-being of the child.
Sadly, such rights would not be preserved if this treaty were ratified today. Nor would any question be left to merit a new case before the Supreme Court on this issue.
The Law of Nations
“The Congress shall have the Power . . . [t]o define and punish . . . [o]ffences against the Law of Nations.”
Our second vulnerability to international law today is found in Article I, Section 8 of the Constitution. As in the case of Article VI, the text has never changed, but our international reality has. When the Constitution was ratified in 1787, the above phrase gave Congress authority to enforce not only American laws, but laws held as an international standard – laws against piracy and the like.
Since the twentieth century, however, activist judges have looked ever farther away from our Constitution, citing even obscure samples of international law and foreign court decisions, to determine their interpretation of our laws and our Constitution. They find authority for their rulings not in the Constitution, but in Customary International Law (CIL), which they call the modern version of the Law of Nations. The Supreme Court in Roper v. Simmons (2005), admits that “the (Supreme) Court has referred to the laws of other countries and to international authorities as instructive for its interpretation” of the Constitution.
The Perfect Storm: Domestic Meets International
On October 29, 1991, the broader storm absorbed Hurricane Grace, combining the reach of the one with the fury of the other. Likewise, the combination of today’s international reality with increasingly anti-family domestic courts is producing a devastating storm against parental rights.
Without ratifying any treaties or passing any new laws, we have entered a world where our judges cite CIL, using international cases to rule on our American laws. The 2008 Australian law dictating to parents what foods, and in what quantities, can or cannot go into their pre-schoolers’ lunchboxes, for instance, could soon be cited here. So could a Quebec court’s recent judgment to overturn a father’s decision to ground his own daughter because she went around his efforts to limit her internet activity and posted inappropriate pictures of herself on adult dating sites. The girl in question was twelve years old.
The Only Solution
Only one solution addresses the state, federal, and international challenges to the rights of parents: the Parental Rights Amendment to the United States Constitution. Without it, state and federal courts will continue to flounder in the sea of ambiguity evidenced by the six different opinions in the Troxel case. Without it, judges will continue to use Customary International Law to trump our freedoms on the basis of foreign laws and decisions. Most importantly, only the Parental Rights Amendment can protect parental rights from international treaties. Only as a fundamental right expressly named in the Constitution can parental rights have any hope of surviving our bold new twenty-first century world.Read more
by Michael P. Farris, J.D.
reprinted from The Home School Court Report (vol. XXII, no. 6)
Human rights should not be viewed as being in conflict with the promotion of pluralism. At the core, any theory of human rights views the decisions of individuals for their own lives to be presumptively superior to governmental authority. Of course, there are limits to this theory, and not all things that are claimed to be a human right survive logical analysis. But there is something about the right of private judgment that is fundamental to the idea of human rights.
One of the most important applications of this right of private judgment, at least to the homeschooling community, is the right of parents to decide how their children should be educated. Parents should have a prior right to make such decisions that is superior to any claim of government.
Pluralism, properly defined, is a compatible goal with human rights. In an operational sense, pluralism means that people of different races, religions, and views should live together with mutual respect and as equal citizens.
A government may promote pluralism. But if pluralism and human rights are to mean anything, they must mean that a person may not be compelled to give up his or her individual views in the name of making a pluralistic society. In fact, coerced pluralism is a self-defeating objective.
This thought completely evaded the European Court of Human Rights in its September 12, 2006, decision that affirmed the power of the German government to ban home education. Parents who claimed both parental rights and religious freedom were rebuffed by the court in a shocking assertion of raw governmental power to indoctrinate children—all in the name of the promotion of pluralism.
This decision is devastating for the German homeschooling movement. We must take action as soon as possible to help these families escape the unacceptable tyranny that they now face. However, the decision was rendered just as this edition of the Court Report was going to press, and Home School Legal Defense Association has not had time to formulate specific plans to help our brothers and sisters in Germany.
We must recognize that this decision may have enormous implications for the American homeschooling movement as well.
I have written prior articles on the threat of international law and the need to explicitly define and protect parental rights in the text of the United States Constitution.1 For some time, I have believed that (1) international law would conclude that the right to homeschooling is unprotected; and (2) American courts would import this and other principles of international law to our own detriment.
We see in the European decision exactly what would happen in the United States if the United Nations Convention on the Rights of the Child were ratified by the Senate or employed by the federal courts as a measure of enforceable customary international law. In short, if the international law movement is not curtailed in the United States, American homeschooling will be banned.
The European decision was based in large part on a child’s supposed right to an education. American courts have never ruled that education is a constitutional right. There is a good reason for this. If it were so labeled, all aspects of our educational system would be run by the judiciary. Today, the judiciary rules the schools on the periphery. But if the idea of education as a constitutional right is ever successful, then we will see a flood of claims that demand particular kinds of education and particular levels of education spending determined by the judiciary.
By the way, Congressman Jesse Jackson, Jr. (D-IL), has introduced a constitutional amendment that declares the right to an education to be the constitutional right of every child.
The child’s right to an education was interpreted by the European Court of Human Rights to mean that every child has the “right” to attend the public schools to receive instruction for the promotion of “pluralism.”
But the court had a funny idea of what it means to have a right. Normally a right does not mean that you must take it if you don’t want it, but this is what the court determined. Moreover, it is antithetical to any reasonable theory of human rights to coerce children to receive instruction in pluralism.
The European court declared that the aim of their Convention for the Protection of Human Rights and Fundamental Freedoms includes “safeguarding pluralism in education which is essential for the preservation of the ‘democratic society’ . . . . In view of the power of the modern State, it is above all through State teaching that this aim must be realised . . . .”2
While the decision noted that some nations in the European Union allow for homeschooling, and while Germany allows for private institutional education, the court made it clear that such allowances are a matter of legislative grace and not founded in principles of protected human rights.
If a nation wanted to ban all private education in the name of the promotion of pluralism, the reasoning of the court stands clearly on the side of such a measure. After all, “the applicant parents were free to educate their children after school and at weekends,” the court said.
This is the exact opposite of what the United States Supreme Court said on the same matter in the famous case Pierce v. Society of Sisters (1925). The unanimous Court held that “the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
While we take comfort in this fact for the moment, there is no doubt that if the Pierce case were before the Court today, it would not receive a unanimous vote from the justices. At a minimum, Justice Scalia would vote against such an outcome based on his clear statements that parental rights are not enforceable. There is a substantial likelihood that other justices would join with him.
Moreover, the reason that parental rights cases are so often mishandled in lower courts is that our claims of parental rights are based upon Supreme Court decisions and not upon the actual text of the Constitution. There is enough fuzzy language in Supreme Court opinions to give lower courts the latitude they want to override parental rights in the name of the “good of the state.”
The European decision in Konrad v. Germany should serve as a wake-up call to American parents. The federal courts, including the Supreme Court, have already begun to use international theories of children’s rights in interpreting American law.
If we are going to protect parental rights by placing an amendment into the actual text of the Constitution—securing parental rights in black and white—we must do so now. We cannot wait until European law has overtaken us.
As I recently reflected on the current failure of the effort to gain an amendment to guard against same-sex marriage, something important finally dawned on me. I was one of the voices calling for a federal marriage amendment back in 1999. The answer we received from most pro-family leaders at the time was, “Come back when the problem is acute.”
Here is the problem with that approach.
What would an acute failure in the protection of parental rights look like? The government could enact an outrageous program invading the sphere of the family. The Supreme Court could change its views on the right of parents by adopting some combination of the views of Justice Scalia (parents’ rights are not protected but should be) and Hillary Clinton (parents’ rights should not trump the rights of children as represented in the UN Convention on the Rights of the Child). If something of this sort happened, it would mean that a significant portion of society had shifted in the wrong direction.
Constitutional amendments are successful only if the American public supports them by an overwhelming majority. If we wait until the problems are acute, we will have waited until public support for parental rights has dissipated—probably to the point that achieving victory is impossible.
Waiting ensures defeat.
James Madison was told that the immediate problems facing the nation were too severe to waste time on securing the Bill of Rights. After all, where were the current problems on any of these matters? But Madison knew that if he did not secure the Bill of Rights at the first available moment, the mood of society might well change and the opportunity would be lost forever.
We must have the practical political instincts of James Madison. Today is the day. We must secure parents’ rights as a protected right in the actual text of the Constitution of the United States.
Tomorrow may be too late. International law knocks at the door.
1See the Home School Court Report, “A Dangerous Path: Has America Abandoned Parental Rights?” (July/August 2006), “Parental Rights: Why Now Is the Time to Act” (March/April 2006), and “Judicial Tyranny Goes Global” (March/April 2005).
2Konrad and others v. Germany (2006). Go to www.echr.coe.int and select "Case-Law" to search for the text of the decision.