Do Parents Have Rights?

BY STEVE NUZUM

On Monday, January 19, the York County, South Carolina, chapter of Moms for Liberty emailed members of its listserv to promote one of several current bills promoting “parental rights” in education. 

In the email, the county Chapter Chair wrote, “we all watched what happened during COVID, when government entities ran roughshod over families, shut parents out of decisions, and ignored basic consent and transparency. That moment made one thing crystal clear: rights that are not clearly protected in law are easily ignored.” 

Moms for Liberty, as a national organization funded by rightwing political organizations, drew its early “grassroots” power from the narrative that schools had gone too far in responding to the worldwide pandemic by following then-current guidelines from health authorities. Quickly getting most of what they wanted-- particularly in states like South Carolina, where remote instruction was short-lived and mask requirements were quickly overturned by the state legislature and the state Supreme Court-- groups like Moms for Liberty pivoted to an ever-growing definition of “parental rights” that encompassed book bans and curriculum mandates, as well as campaigns of doxxing and harassing librarians, teachers, and school board members. 

Parents already have a great deal of power in shaping their children’s lives, and in making decisions about their upbringing and education. 

And it’s especially ironic that Moms for Liberty of York County continues to rely so heavily on grievances about the pandemic and about vaccination requirements (which do not include Covid-19 vaccines for students).

After all, cases of measles in Upstate South Carolina currently lead the nation, constituting the largest U.S. outbreak of the disease in a quarter of a century, and driving infections in multiple other states, as well. Children, along with older adults, are especially at risk for worse outcomes with measles, and measles exposures have already forced hundreds of South Carolina students to quarantine during this latest outbreak. As of this writing, according to the S.C. Department of Health, over 200 students at about a dozen South Carolina schools are in quarantine. Although the Department does not report specific complications from measles, at least 18 people in South Carolina, including children, have already been hospitalized due to the outbreak.

It’s likely that the increasingly dire outbreak is tied directly to the “rights” of parents not to vaccinate their children. According to data from the South Carolina Department of Health, Spartanburg County is the epicenter of the outbreak, and has one of the lowest vaccination rates in the state. The county also has over 6,000 enrolled students lacking required immunizations.  

Spartanburg is just one county over from York, where over 3,000 enrolled students lack required immunizations. (Spartanburg Senator Josh Kimbrell has introduced his own “parental rights” bill this year.) 

Perhaps not coincidentally, the Upstate also has probably the highest concentration of Moms for Liberty chapters. 

And even proponents of “personal freedom” in vaccination policy acknowledge the tradeoff.  As current CDC director (and vaccine skeptic) Dr. Ralph Abraham put it, in explaining the rapid increase in measles cases, “We have these communities that choose to be unvaccinated. That’s their personal freedom.”

So in order to discuss “parental rights” in a rational way, we have to begin with the premise that parents obviously have some important protections and privileges, and use the term “parental rights” (with quotation marks) to discuss the more expansive view that some groups, like Moms for Liberty, and some public officials, have adopted of the things they believe governments should empower some parents to do, even when that power comes at the expense of other families.  

Legal Rights

In the United States, all citizens-- in theory, at least-- have rights which are protected by the Constitution and by state and federal laws. Non-citizen residents and visitors also have legally protected rights.

Obviously, parents have these rights, as well. Organizations like Appleseed South Carolina already do a great job of informing parents of their legal rights, as well as advocating for students in discipline hearings and in the courts. 

Parents and legal guardians enjoy some specific protections in the law related to making decisions for their children, accessing information about their health and education, and defending their privacy. 

But under current law, in order to protect children and society’s interest in them, these protections are not absolute. They may be limited, for example, by a family court judge during a custody case. They may be limited if a parent or guardian is convicted of a crime and sentenced to confinement. They may be limited if a parent or guardian harms or neglects a child, even if some prominent proponents of “parental rights” have sometimes pushed back even against these limits.  

Proposed laws

But so-called “Parental Rights” legislation, like South Carolina’s House Bill 4757 and Senate Bill 840 (sponsored by Senator Josh Kimbrell), assign additional “fundamental rights” to parents as a special class of citizen. 

H. 4757, for example, rests on the premise that, “The liberty of a parent to the care, custody, and control of the parent's child, including the right to direct the upbringing, education, healthcare, and mental health of the child, is a fundamental right,” and that, “All parental rights are exclusively reserved to the parent of a child without obstruction by or interference from the State.” 

This idea that “parental rights” are absolute and cannot be abridged conflicts with the established roles of the courts and of agencies that exist to protect the well-being and rights of children.

Among other things, bills like H. 4757 would create a sweeping process for parents to opt children out of instruction. In practice, this would likely have a chilling effect on instruction for all students, as overworked educators are unlikely to be able to create special alternative lessons for students every time their parents aren’t comfortable with a topic. What would this do, for example, to education about the Holocaust, slavery, or other difficult but necessary topics?

The bill also requires five-day advance notice about any topic covered in schools that is even vaguely related to “gender”. This would effectively end discussion of current events and curtail the kinds of organic conversations that happen when kids truly engage with a lesson. 

Most of the best conversations I had with students as an English teacher were unexpected “teachable moments”. Reading Antigone, a student today might bring up a current news story about a protest, or a historical connection to the Civil Rights movement.  Should I have told these students-- some of them excited about an academic subject for the first time that year-- that they should give me five days to respond or to introduce new information that could help our discussions continue? 

Intentionally or not, this kind of legislation reduces education to pre-approved, canned materials which will-- ironically for sincere “parental rights” supporters-- ultimately have to be decided by government entities like education departments and school districts, rather than by classroom teachers in collaboration with students and parents. 

Of course, many of the “rights” outlined in H. 4757-- like the ability to review children’s medical and academic records, and to be involved in educational decisions, are already protected by federal laws like the Family Educational Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA). 

But at the same time, when considering child custody, for example, South Carolina law requires giving consideration to parental abuse, and even, crucially, to the preference of the child. 

That’s because children, like adults, have rights.  

Children enjoy most of the protections adults enjoy, with general theories limiting their rights being for their own protection. We don’t prohibit children from driving because they aren’t fully human or because they aren’t citizens, but because it’s not safe for them to drive. They are not the property of their parents or of the state; they are independent beings with rights, needs, and preferences of their own. 

And under the South Carolina Constitution, it is students, not parents, who are guaranteed educational rights: “The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the State and shall establish, organize and support such other public institutions of learning, as may be desirable.”

But you wouldn’t necessarily know that from reading “parental rights” legislation or listening to “parental rights” rhetoric. 

“Parental rights” rhetoric is often focused on adults: what grownups should be able to decide for, and do to, children. It often starts from a place of grievance that doesn’t center children or society’s interest in protecting and educating them. 

In endorsing H. 4757, for example, the Chapter Chair of Moms for Liberty of York County recently shared in her email that the far-right, anti-trans organization Alliance Defending Freedom (ADF) had written the bill.  

ADF, which is based in Arizona, was also a major force in previous South Carolina legislation that has resulted in a significant abridgement in the rights of children and their parents or legal guardians to make important decisions about gender-affirming care. Indeed, at the first hearing for the bill, Matt Sharp of the ADF, testifying via online meeting software provided the only public testimony in favor of the bill. At a subsequent hearing, supporters had to call two additional out-of-state witnesses to support the bill. 

The language in these bills, and in the grievances shared by groups like Moms for Liberty, is rarely actually about children.  Children certainly suffered during COVID, both as a side effect of South Carolina’s brief lockdowns and disruptions to the normal school year, and because of the high toll in lives and long-term health issues caused by the virus itself, but Moms for Liberty seems more concerned with what this did to parents. Decisions about gender-affirming care have massive stakes for children, but state policies around gender-affirming care have taken the power to make these decisions away from parents. 

The “personal freedom” at stake here, then, is a freedom that puts the preferences of small groups of people-- those who want to ban The Handmaid’s Tale, for example, or those who want to eliminate gender-affirming care options-- against the wellbeing and freedoms of much larger groups of people. 

This vision of “rights” recently earned South Carolina high marks on “parental rights” from the pro-voucher Palmetto Promise Institute.

But this vision of “parental rights” necessarily limits the rights of many parents and children. 

You can’t have a sweeping  “protection” from gender-affirming care for children (a ban) without taking away the rights of families who want gender-affirming care.

You can’t have a state regulation that bans books from every library in the state without harming the ability of parents who do want their children to have access to those books to help their own children make that choice. 

You can’t be “protected” from vaccination requirements without also limiting the opportunities of other people not to get sick. 

And you can’t give some parents veto power over what gets taught in schools without creating the potential that children miss out on essential skills and information, and that other parents and guardians lose the “right” to direct their own children’s education. 

In order to have a functioning society, healthy adults— both parents and non-parents— balance their personal desires and feelings with what is in the best interest of all children.