Moving Toward a License to Parent


Last week, a California appeals court ruled that California law requires parents to send their children to full-time schools or have them taught by credentialed tutors at home. The right at stake, said the court, was not the right of a parent to send their children to a school of their choice, ala Pierce v. Society of Sisters, but rather the right of the child to a legal education. The decision implies that children are the type of discrete and insular class which demand greater protection under Carolene. In lieu of political power, children are protected by the State, which acts as Parens Patriae: “father of the people.”

The State’s power as Parens Patriae is deeply rooted in Anglo-American legal history. Blackstone noted that under early English common law, the English sovereign was “general guardian of all infants, lunatics, idiots.” In the US, this awesome power has been reserved for use in family court, which applies the “best interests of the child” standard to determine custody and visitation arrangements. States also require mandatory vaccination of children, and although only West Virginia and Mississippi do not allow for religious exemptions, the American Medical Association is lobbying other states to drop this exemption too in the best interest of the children. The European Union has gone even farther in extending rights to children. Article 24 of the EU Charter stated that the views of children “shall be taken into consideration on matters which concern them in accordance with their age and maturity.”

The debate over whether California is justified in its regulation is complicated by Free Exercise concerns. As one parent of a home-schooled child stated, “I want to have control over what goes in my son’s head, not what’s put in there by people who might be on the far left who have their own ideas about indoctrinating kids.” While the California appeals court brushed aside Wisconsin v. Yoder, which dealt with Amish education, as a unique case, whether the court properly balanced Free Exercise concerns with the State’s duties as Parens Patriae remains unclear.

What does seem clear is that the State should take steps to protect children from concrete, identifiable harms provided those steps do not infringe on parents’ constitutional liberties. One such regulation could be barring the use of tobacco products around children. Each year, secondhand smoke contributes to over 150,000 lower respiratory tract infections in children younger than 18 months old and causes 6% of cancer in children and 18% of childhood leukemia. Perhaps as a result of the growing concerns over secondhand smoke, family courts have begun to use smoking as a factor in child custody disputes. Even prisoners, who have received little sympathy from the courts with regard to conditions of incarceration, have received protection from the known dangers of smoking. In 1993, the Supreme Court held, in Helling v. McKinney, that serious second-hand smoke exposure in prison was a violation of the 8th Amendment. If the danger of second hand smoke is so great, why should the State wait until a custody dispute occurs? Indeed, it cannot be the health and welfare of children embroiled in a domestic dispute are more worthy of protection that the health and welfare of children at large.

What other behaviors can and should the State prohibit parents from engaging in to the detriment of their children? Moreover, if the State should affirmatively act to halt behaviors which negatively affect children, should it not also act to require certain activities of children or at the very least a basic course in parenting? These are not easy questions to grapple with, especially since much of parenting is an art, not a science, and the ways in which individuals choose to parent are central to their self-expression and fulfillment as individuals.

Nevertheless, in order to protect voiceless children from preventable harms, we must try to carve out a sphere of influence for the State. One potential demarcation is that the State can take measures to prevent physical harm to the children. This standard would capture smoking, malnourishment, use of child safety seats in cars, vaccination, and physical abuse. At the same time, there are acts that are not as unambiguously dangerous for the physical health of children but may nevertheless be of such concern that the State should intervene.

For example, while no US States have passed anti-spanking statutes, such statues have been on the books for decades in many European nations, and Brookline, Massachusetts made national headlines in 2005 for passing a nonbinding resolution urging its residents to refrain from using corporeal punishment on children. If adolescent psychology can affirmatively show that spanking causes mental anguish, and the democratic polity believes that this anguish amounts to child abuse, perhaps the State should intervene.

It is not difficult to envision that this power, taken to its limit, could preclude an array of parenting strategies that were considered not only acceptable, but beneficial only a generation before. More concerning is the potential for Parens Patriae power to enforce an orthodoxy of belief and life style that comports with majoritarian preferences. Despite these fears, it is undoubtedly true that many parents are completely overwhelmed by the birth of a child and are unprepared to deal with the complexities and mysteries of the parenting process. While it is in our very nature to procreate, parenting skills are not hard-wired into our DNA.

Instead of traversing the dangerous road of enforcing parenting norms beyond those directly tied to the physical well-being of children, the State should consider mandatory parenting classes for all mothers and fathers to-be. The cost of the program could be mitigated by extending parental leave laws to encompass pre-birth preparation in addition to post-birth care, which incidentally would allow many women to `receive critical pre-natal medical care that is now beyond their reach. These classes need not prescribe an official orthodoxy of parenting, but could instead teach the basics. Mothers and fathers-to-be can share their strategies together, discuss their fears and hopes in a comforting environment, and forge relationships within their communities that will support them well after the birth of their child. And of course, parents retain the freedom to parent as they wish within the confines of the law.

The miracle of childbirth and the great trepidation that accompanies parenthood will not be diminished by this program. However, in a world in which we license practitioners of law, medicine, and education, and require dozens of hours of training for young people to drive automobiles, it seems proper to expect that parenting, one of the most mysterious and challenging endeavors in life, requires training of its own. In this way, the State can fulfill the noble mission of its Parens Patriae power without fear that in so acting, it will be enforcing the orthodoxy of the majority in a task that is central to the individual fulfillment of citizens.

Andrew L. Kalloch is a 2L.

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