Touchstone Archives: Family Takeover
FAMILY TAKEOVER
A United Nations Treaty Will Undermine Both the Family & the US Constitution
by Stephen Baskerville
Imagine a law in America that could set children against their parents, centralize power away from the states toward the federal government, mandate increases in government spending regardless of taxpayer wishes, bypass the House of Representatives, and abrogate constitutional limitations on government power. Such a measure may soon come up for ratification by the US Senate: the UN Convention on the Rights of the Child (CRC).
Read more:
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Thursday, June 16, 2011
Can the Government Create Better Dads?
Obama Fatherhood Initiative: New Programs to Help Dads
It sometimes rubs people the wrong way. But President Obama has a tendency to talk about parental responsibility, especially as it pertains to absentee dads, when addressing African-American audiences.
It sometimes rubs people the wrong way. But President Obama has a tendency to talk about parental responsibility, especially as it pertains to absentee dads, when addressing African-American audiences.
Girl placed with Oklahoma City father despite reports of black eyes and bruised body
Girl placed with Oklahoma City father despite reports of black eyes and bruised body | NewsOK.com
Oklahoma child welfare workers twice investigated allegations that Serenity Deal, 5, was abused by her father before her death.
Oklahoma child welfare workers twice investigated allegations that Serenity Deal, 5, was abused by her father before her death.
Cornerstone blasts ‘extreme’ Lynch for siding with abortion lobby over parents
Cornerstone blasts ‘extreme’ Lynch for siding with abortion lobby over parents — Cornerstone Action Cornerstone Action
Says Lynch Proves to be Most Extreme Liberal Governor Ever on Social Issues…..Today, Governor John Lynch once again proved himself to be the most extreme liberal Governor in New Hampshire history on social issues by vetoing the common-sense parental notification bill. In the most recent UNH poll on this issue, nearly 60% of Granite Staters support a parental notification law.
Says Lynch Proves to be Most Extreme Liberal Governor Ever on Social Issues…..Today, Governor John Lynch once again proved himself to be the most extreme liberal Governor in New Hampshire history on social issues by vetoing the common-sense parental notification bill. In the most recent UNH poll on this issue, nearly 60% of Granite Staters support a parental notification law.
FOSTER CARE AND PERMANENCY
http://www.acf.hhs.gov/programs/olab/budget/2012/cj/PFCP.pdf
TABLE OF CONTENTS
FY 2012 BUDGET PAGE
APPROPRIATION LANGUAGE ........................................................................................................ 325
AUTHORIZING LEGISLATION ........................................................................................................ 326
APPROPRIATIONS HISTORY TABLE ............................................................................................. 327
AMOUNTS AVAILABLE FOR OBLIGATION ................................................................................... 329
BUDGET AUTHORITY BY ACTIVITY ............................................................................................ 330
SUMMARY OF CHANGES .............................................................................................................. 331
JUSTIFICATION:
GENERAL STATEMENT ...............................................................................................................
332
PROGRAM DESCRIPTION AND ACCOMPLISHMENTS................................................................. 333
BUDGET REQUEST.................................................................................................................... 337
OUTPUTS AND OUTCOMES TABLE ........................................................................................... 339
RESOURCE AND PROGRAM DATA.............................................................................................. 344
STATE TABLES........................................................................................................................... 348
TABLE OF CONTENTS
FY 2012 BUDGET PAGE
APPROPRIATION LANGUAGE ........................................................................................................ 325
AUTHORIZING LEGISLATION ........................................................................................................ 326
APPROPRIATIONS HISTORY TABLE ............................................................................................. 327
AMOUNTS AVAILABLE FOR OBLIGATION ................................................................................... 329
BUDGET AUTHORITY BY ACTIVITY ............................................................................................ 330
SUMMARY OF CHANGES .............................................................................................................. 331
JUSTIFICATION:
GENERAL STATEMENT ...............................................................................................................
332
PROGRAM DESCRIPTION AND ACCOMPLISHMENTS................................................................. 333
BUDGET REQUEST.................................................................................................................... 337
OUTPUTS AND OUTCOMES TABLE ........................................................................................... 339
RESOURCE AND PROGRAM DATA.............................................................................................. 344
STATE TABLES........................................................................................................................... 348
Trends in Foster Care and Adoption—FY 2002-FY 2009
Trends in Foster Care and Adoption—FY 2002-FY 2009
Trends in Foster Care and Adoption—FY 2002-FY 2009
(Based on data submitted by states as of July 29, 2010)
Source: AFCARS data, U.S. Children's Bureau, Administration for Children, Youth and Families
Click on link above for chart
View Printable version in PDF - (25 KB)
Discussion of Trends Chart
This chart includes data submitted to the Adoption and Foster Care Analysis and Reporting System (AFCARS) by States, the District of Columbia and Puerto Rico by July 29, 2010. Please note that, for all of the years shown, some of the data may differ from that shown in earlier versions of this chart. This is due to the fact that some States have resubmitted their AFCARS data after addressing data quality issues.
FFY = Federal Fiscal Year (October 1 through September 30)
Sub-population Definitions
In Care 9/30: This is an estimated count of all the children in foster care on the last day of the FFY. An individual child is included in the count for each year for which he or she is in foster care on the last day.
Entries: This is an estimated count of all children who entered foster care during the FFY. An individual child is counted only once for each year, even if the child entered, exited and reentered care during the year. The most recent date of removal from home is used to determine whether the child entered foster care during the period. If an individual child entered in one year and then exits and re-enters in a subsequent year, he or she is included in the count of entries for both years.
Exits: This is an estimated count of all children who exited foster care during the FFY at the end of their most recent foster care episode. An individual child is counted only once for each year, even if the child exited, re-entered and exited again during the year. The most recent date of discharge (from foster care) is the one counted. If an individual child exited care in one year and then re-enters and exits again in a subsequent year, he or she is included in the count of exits for both years.
TPR (Termination of Parental Rights): This is an estimated count of all children in care on the last day of the FFY whose parental rights have been terminated and who are waiting for adoption. An individual child who has these characteristics on the last day of the year is counted only once for that year.
Waiting: This is an estimated count of all children who are waiting to be adopted on the last day of the FFY. An individual child is included in the count for each year in which he or she is waiting to be adopted on the last day. There is no Federal definition for children waiting to be adopted. For the purposes of this analysis, children waiting to be adopted include children with a goal of adoption and/or whose parental rights have been terminated. The "waiting" population excludes children whose parents' rights have been terminated, who are 16 years old and older, and who have a goal of emancipation. An individual child is included in the count for each year that he or she has these characteristics on the last day of the year.
Adopted: This is an estimated count of all children adopted with public child welfare agency involvement during the FFY. An individual child is counted only once for each year, even if (in rare cases) the child was adopted multiple times during the year. In cases when an individual child is adopted in one year and then adopted again in a subsequent year, he or she is included in the count of adoptions for both years.
Served: This is an estimated count of all children who were in the public foster care system during the FFY. This number is the sum of two mutually exclusive groups of children: the children who are already in care on the first day of the fiscal year (as of October 1) and the children who enter foster care during the year. An individual child is counted only once for each year.
Technical Discussion
Even though the number of children served is calculated by summing the children in care on the first day of the year plus the entries into foster during the year, another way of counting the number of children served is by adding the number of children in foster care on the last day of the year to the number of exits from foster care during the FFY. We compared the numbers derived from both approaches, and they are equal in FFY 2006, FFY 2008 and FFY 2009, but there is less than a one percent discrepancy in the other years. Most of these differences can be attributed to rounding.
Because the number of entries exceeds the number of exits from FFY 2002 to FFY 2006, we would expect that the number of children\youth in care as of September 30th would have increased during this period. This, however, did not occur, as the number of children in care actually declined. The primary contributing factor to this phenomenon is that, in the AFCARS database, each child is counted only once and the information included on the child in the database is from their most recent foster care episode. However, there are some children who were in foster care on the first day of the year but exited and re-entered during the year one or more times prior to entering their most recent foster care episode. In addition, they remained in foster care through the last day of the fiscal year (September 30) in their most recent foster care episode. In these circumstances, the exit associated with their "in care" status on the first day of the year is not counted, even though it occurred during the fiscal year. We estimate the number of these uncounted exits to be approximately 6,000 per year.
There is also a data quality issue that has had an impact on the number of exits. AFCARS data are submitted every six months and cover a six-month period. Sometimes a child who is reported during one six-month period does not appear in the next period, and there is no record that the child exited. Reviews of these cases have shown that the majority are situations in which the child actually exited, but the exit was not reported to AFCARS. However, because the actual number of these "dropped" exits cannot be calculated, they have not been accounted for in the exit count. As this issue has been brought to the attention of States, the quality of the data has improved dramatically and the number of dropped cases has decreased. For instance, the number of these dropped cases has declined from around 8,000 in FY 2006 to about 3,000 in FY 2007 and FY2008, and about 4,000 in FY 2009. Therefore, these dropped cases constitute less than 2 percent of the reported discharges in the three most recent years.
Data Discussion
Children in Foster Care on September 30th: The data show a decline in the number of children in foster care on the last day of each federal fiscal year (September 30) between FY 2002 and FY 2009, with a small exception in FY2005. A similar pattern is seen in the total number of children served during these years. The number of children served has declined by 100,000 children between FY 2002 and FY 2009 (from 800,000 to 700,000).
Entries into and Exits from Foster Care: In FY 2005, the number of entries into foster care reached its highest point to date with 307,000 entries reported that year. Since that time, however, the number of entries has declined to 255,000 in FY 2009, the lowest number since AFCARS data have been reported. The number of exits, which increased between FY 2002 (278,000) and FY 2007 (295,000), declined to 276,000 in FY 2009, excluding children who exited but re-entered during the same year and children whose discharge dates were missing from the file (see technical discussion above). Beginning in FY 2007 and continuing through FY 2009, the number of exits is greater than the number of entries into foster care.
Children Waiting to be Adopted: Since FY 2006, the number of children waiting to be adopted has been declining (from 135,000 in FY 2006 to 115,000 in FY 2009). The number of waiting children whose parental rights had been terminated as of the last day of the year increased from 74,000 in FY 2004 to 82,000 in FY 2007. The number then declined in FY 2008 to 79,000 and was down to 70,000 in FY 2009. However, as a percentage of the children waiting to be adopted, those children whose parental rights had been terminated has stayed relatively stable, constituting between 61 and 62 percent of the waiting children in FY 2007, FY 2008 and FY 2009, representing an increase over the earlier years (56% in FY 2002).
Children Adopted: Between FY 2002 and FY 2006, the number of adoptions remained relatively flat, ranging between 50,000 and 52,000. Beginning with the FY 2007 data, we see an increase from 53,000 in FY 2007 to 55,000 in FY 2008 to 57,000 in FY 2009.
Trends in Foster Care and Adoption—FY 2002-FY 2009
(Based on data submitted by states as of July 29, 2010)
Source: AFCARS data, U.S. Children's Bureau, Administration for Children, Youth and Families
Click on link above for chart
View Printable version in PDF - (25 KB)
Discussion of Trends Chart
This chart includes data submitted to the Adoption and Foster Care Analysis and Reporting System (AFCARS) by States, the District of Columbia and Puerto Rico by July 29, 2010. Please note that, for all of the years shown, some of the data may differ from that shown in earlier versions of this chart. This is due to the fact that some States have resubmitted their AFCARS data after addressing data quality issues.
FFY = Federal Fiscal Year (October 1 through September 30)
Sub-population Definitions
In Care 9/30: This is an estimated count of all the children in foster care on the last day of the FFY. An individual child is included in the count for each year for which he or she is in foster care on the last day.
Entries: This is an estimated count of all children who entered foster care during the FFY. An individual child is counted only once for each year, even if the child entered, exited and reentered care during the year. The most recent date of removal from home is used to determine whether the child entered foster care during the period. If an individual child entered in one year and then exits and re-enters in a subsequent year, he or she is included in the count of entries for both years.
Exits: This is an estimated count of all children who exited foster care during the FFY at the end of their most recent foster care episode. An individual child is counted only once for each year, even if the child exited, re-entered and exited again during the year. The most recent date of discharge (from foster care) is the one counted. If an individual child exited care in one year and then re-enters and exits again in a subsequent year, he or she is included in the count of exits for both years.
TPR (Termination of Parental Rights): This is an estimated count of all children in care on the last day of the FFY whose parental rights have been terminated and who are waiting for adoption. An individual child who has these characteristics on the last day of the year is counted only once for that year.
Waiting: This is an estimated count of all children who are waiting to be adopted on the last day of the FFY. An individual child is included in the count for each year in which he or she is waiting to be adopted on the last day. There is no Federal definition for children waiting to be adopted. For the purposes of this analysis, children waiting to be adopted include children with a goal of adoption and/or whose parental rights have been terminated. The "waiting" population excludes children whose parents' rights have been terminated, who are 16 years old and older, and who have a goal of emancipation. An individual child is included in the count for each year that he or she has these characteristics on the last day of the year.
Adopted: This is an estimated count of all children adopted with public child welfare agency involvement during the FFY. An individual child is counted only once for each year, even if (in rare cases) the child was adopted multiple times during the year. In cases when an individual child is adopted in one year and then adopted again in a subsequent year, he or she is included in the count of adoptions for both years.
Served: This is an estimated count of all children who were in the public foster care system during the FFY. This number is the sum of two mutually exclusive groups of children: the children who are already in care on the first day of the fiscal year (as of October 1) and the children who enter foster care during the year. An individual child is counted only once for each year.
Technical Discussion
Even though the number of children served is calculated by summing the children in care on the first day of the year plus the entries into foster during the year, another way of counting the number of children served is by adding the number of children in foster care on the last day of the year to the number of exits from foster care during the FFY. We compared the numbers derived from both approaches, and they are equal in FFY 2006, FFY 2008 and FFY 2009, but there is less than a one percent discrepancy in the other years. Most of these differences can be attributed to rounding.
Because the number of entries exceeds the number of exits from FFY 2002 to FFY 2006, we would expect that the number of children\youth in care as of September 30th would have increased during this period. This, however, did not occur, as the number of children in care actually declined. The primary contributing factor to this phenomenon is that, in the AFCARS database, each child is counted only once and the information included on the child in the database is from their most recent foster care episode. However, there are some children who were in foster care on the first day of the year but exited and re-entered during the year one or more times prior to entering their most recent foster care episode. In addition, they remained in foster care through the last day of the fiscal year (September 30) in their most recent foster care episode. In these circumstances, the exit associated with their "in care" status on the first day of the year is not counted, even though it occurred during the fiscal year. We estimate the number of these uncounted exits to be approximately 6,000 per year.
There is also a data quality issue that has had an impact on the number of exits. AFCARS data are submitted every six months and cover a six-month period. Sometimes a child who is reported during one six-month period does not appear in the next period, and there is no record that the child exited. Reviews of these cases have shown that the majority are situations in which the child actually exited, but the exit was not reported to AFCARS. However, because the actual number of these "dropped" exits cannot be calculated, they have not been accounted for in the exit count. As this issue has been brought to the attention of States, the quality of the data has improved dramatically and the number of dropped cases has decreased. For instance, the number of these dropped cases has declined from around 8,000 in FY 2006 to about 3,000 in FY 2007 and FY2008, and about 4,000 in FY 2009. Therefore, these dropped cases constitute less than 2 percent of the reported discharges in the three most recent years.
Data Discussion
Children in Foster Care on September 30th: The data show a decline in the number of children in foster care on the last day of each federal fiscal year (September 30) between FY 2002 and FY 2009, with a small exception in FY2005. A similar pattern is seen in the total number of children served during these years. The number of children served has declined by 100,000 children between FY 2002 and FY 2009 (from 800,000 to 700,000).
Entries into and Exits from Foster Care: In FY 2005, the number of entries into foster care reached its highest point to date with 307,000 entries reported that year. Since that time, however, the number of entries has declined to 255,000 in FY 2009, the lowest number since AFCARS data have been reported. The number of exits, which increased between FY 2002 (278,000) and FY 2007 (295,000), declined to 276,000 in FY 2009, excluding children who exited but re-entered during the same year and children whose discharge dates were missing from the file (see technical discussion above). Beginning in FY 2007 and continuing through FY 2009, the number of exits is greater than the number of entries into foster care.
Children Waiting to be Adopted: Since FY 2006, the number of children waiting to be adopted has been declining (from 135,000 in FY 2006 to 115,000 in FY 2009). The number of waiting children whose parental rights had been terminated as of the last day of the year increased from 74,000 in FY 2004 to 82,000 in FY 2007. The number then declined in FY 2008 to 79,000 and was down to 70,000 in FY 2009. However, as a percentage of the children waiting to be adopted, those children whose parental rights had been terminated has stayed relatively stable, constituting between 61 and 62 percent of the waiting children in FY 2007, FY 2008 and FY 2009, representing an increase over the earlier years (56% in FY 2002).
Children Adopted: Between FY 2002 and FY 2006, the number of adoptions remained relatively flat, ranging between 50,000 and 52,000. Beginning with the FY 2007 data, we see an increase from 53,000 in FY 2007 to 55,000 in FY 2008 to 57,000 in FY 2009.
Constitutional Protection for Parental Rights
Constitutional Protection for Parental Rights
Constitutional Protection for Parental Rights
The Meyer-Pierce Legacy
Robert P. George and Jana V.T. Baldwin
June, 1994
[T]he custody, care and nurture of the child [should] reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.1
The 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.2
For the last several decades, a significant amount of social and legal commentary has focused on the relationship of parent to child and the family to the state. As the economic and political life of America has changed profoundly over the years, family law has correspondingly undergone a host of changes. Today, as a result of the crisis confronting the American family, a scholarly, legal and public debate rages over family policy.3
"Children's Rights" advocates argue that children should have, and the state should recognize, greater autonomy from their parents in deciding how to live. Indeed, some scholars and activists argue for the liberation of children from their parents control as part of a larger attack on the
institution of the nuclear family.4
Against this backdrop, the Constitution limits the use of state power to diminish parental rights and undermine the family. Although the Constitution
does not deal explicitly with parental authority, the Supreme Court has specifically recognized parental rights of custody and control. In the landmark decision of Meyer v. Nebraska,5 closely followed by Pierce v. Society of Sisters,6 the Court stated that parents have a substantive due process right to "bring up children."7 Although these cases were handed down in the 1920s they are no mere archaisms, but rather have withstood the test of time. Indeed, Justice Brennan has remarked of Meyer and its progeny: "I think I am safe in saying that no one doubts the wisdom or validity of those decisions."8 The precedents Meyer and Pierce generated have further solidified the principle that parents should have the predominant role in raising their children.
In Meyer,9 the Supreme Court held that the right of parents to raise their children free from unreasonable state interferences is one of the unwritten "liberties" protected by the Due Process Clause of the Fourteenth
Amendment.10
The Court invalidated a state statute prohibiting foreign language instruction to school children, recognizing the right of German-speaking parents to have their children taught German. The Court
found that the state's interest in encouraging American ideals by prohibiting the teaching of foreign languages is not great enough to permit infringement of the rights of parents to raise their children as they see fit.11 The Court rested its opinion in large part on the rights of parents
to control the activities of their children,12 concluding that the statute was an interference "...with the power of parents to control the education of their own."13
Two years after Meyer, the Supreme Court in Pierce14 invalidated an Oregon statute requiring parents to send their children to public school, holding
that the statute "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."15 Pierce made clear that the constitutional rights of a parent are
not limited to physical custody, but that parents possess the right to direct their child's "destiny."16
The principle enunciated by Meyer and Pierce, that parents have the right to direct the upbringing and education of their children, has survived the
many turbulent changes of the last several decades. A line of decisions following Meyer and Pierce further cemented the rights of parents to exercise their own best judgment in raising their children. For example, twenty years after Pierce, the Supreme Court in Prince v. Massachusetts17
stated that "[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."18
Meyer also helped undergird the Supreme Court's decision in Parham v. J.R.19 In Parham, the Supreme Court deferred to parents' wishes to place their child in a mental hospital, stating that "the law's concept of the
family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions.20 The Court emphasized that simply "because the decision of a parent is not agreeable to a child or because it involves
risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state."21
More recently, in the prominent case of Santosky v. Kramer,22 the Supreme Court acknowledged that "freedom of personal choice in matters of family
life is a fundamental liberty" and stated that natural parents have a "fundamental liberty interest...in the care, custody, and management of their child."23 Similarly, in Bowen v. American Hospital Ass'n,24 the Supreme Court recognized "a presumption...that parents are the appropriate decisionmaker for their infants."25
The constitutional protection of parental rights recognized by the federal courts has been affirmed and enforced by state courts.26 The recent case of Alfonso v. Fernandez27 illustrates that the parental rights doctrine, while
viable, is under attack today. In Alfonso, parents of New York high school students challenged the New York School Board's condom distribution program, arguing, among other things, that the program unconstitutionally denied
parents the right to opt their children out of the distribution program. On December 30, 1993, a New York appeals court held that the New York Board of
Education's condom distribution program was illegal and unconstitutional absent a parental opt-out provision. Citing Meyer and Pierce, the court recognized that the petitioners enjoy a "well-recognized liberty interest in
rearing and educating their children in accord with their own views..." including "the right to regulate their children's sexual behavior as best they can..."28 The court determined that "no matter how laudable its purpose, by excluding parental involvement, the condom availability
component of the program impermissibly trespasse[d] on the petitioners' parents rights" by substituting the School Board's judgment for the petitioners' judgment without a compelling necessity.29
Alfonso demonstrates that the Constitution still stands as a staunch defender of parental rights. Alfonso and its parental rights predecessors such as Meyer and Pierce are rooted in the recognition that parents possess
the right "to direct the upbringing and education of children under theircontrol."30
Despite the firm constitutional basis for parental rights, traditional concepts of parental authority are under attack from private and public groups seeking to give the state greater control of the upbringing of children, as evidenced by the appeals in the Alfonso case. Opponents of
parental rights understand perfectly well the significance of Meyer and Pierce as obstacles to their agenda, and the need to undermine these precedents in order to achieve their goals.31
In accordance with the court's decision in Alfonso, the New York Board of Education voted to revise the condom distribution policy to permit parents or guardians of unemancipated students to opt their children out of the
distribution component of the program. The New York Civil Liberties Union ("NYCLU"), however, moved to intervene in the action for the purposes of
filing an appeal and People About Changing Education ("PACE") and the Coalition For the Homeless moved for leave to appear as amici curiae to argue in favor of reversing the court's ruling. These groups argued that
affording "parents or guardians an `absolute veto' over unemancipated minors [ability] to receive condoms [in school] impermissibly infringes on New York City public school students' [constitutional] rights."32 The court denied NYCLU's motion to intervene, and the NYCLU lost a subsequent appeal of that denial. The New York Bar Association and the New York State Attorney General
had also moved to appear as amici curiae in favor of the NYCLU's motion to intervene and in opposition to the court's ruling.
The relentless zeal with which the NYCLU (and even the State of New York, as represented by the New York Attorney General), sought to overturn the
court's ruling in Alfonso makes clear that the right of parents to make substantive choices regarding their children's education and moral upbringing remains in jeopardy.
In short, the protection of parental rights should not have to be achieved on a piecemeal basis through unpredictable and expensive court challenges. The constitutional mandate articulated by Meyer and its progeny is clear: The right of parents to direct the upbringing and education of their children shall not be infringed.
Robert P. George is an Associate Professor of Politics at Princeton University, and a Presidential Appointee to the U.S. Commission on Civil Rights. He is the author of Making Men Moral: Civil Liberties and Public
Morality (Oxford University Press, 1993). Jana V.T. Baldwin was counsel for plaintiffs in Alfonso v. Fernandez, the December, 1993 decision which overturned New York City's condom distribution policy.
The views expressed in this memo are those of the authors, and do not necessarily reflect the views of other organizations with whom they are affiliated.
Endnotes
1. Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
2. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
3. For commentary discussing the difficulties facing today's family, see generally, Giving Children a Chance: The Case for More Effective National Policies, (George Miller ed., 1989); Sylvia Hewlett, When the Bough Breaks: The Cost of Neglecting Our Children (1991); Rebuilding the Nest: A New Commitment to the American Family (David Blankenhorn et al. eds., 1990).
4. See generally, Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's Rights, 14 Cardozo L. Rev. 1747 (1993) (arguing that parents' rights, "as currently understood, undermine values of responsibility and mutuality necessary to children's welfare"); Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed,
70 Va. L. Rev. 879, 882 (1984) (challenging "the law's adherence to the exclusive view of parenthood when the premise of the nuclear family has failed").
5. 262 U.S. 390 (1923).
6. 268 U.S. 510 (1925).
7. Meyer, 262 U.S. at 399.
8. Michael H. v. Gerald D., 491 U.S. 110, 142 (Brennan, J.
dissenting).
9. 262 U.S. 399 (1923).
10. Id. at 399 ("[T]he liberty [guaranteed by the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to...marry, establish a home and bring up children"). Conservative critics of the notion of substantive due process have observed that Meyer (and Pierce) is
defensible even if the substantive due process doctrine on which the Court relied is not. See, eg., Robert H. Bork, The Tempting of America (New York: Free Press, 1990), pp. 47-49.
11. Id. at 400-01.
12. Id.
13. Id. at 401.
14. 268 U.S. 510 (1925).
15. 268 U.S. at 534-35.
16. Id.
17. 321 U.S. 158 (1944).
18. Id. at 166.
19. 442 U.S. 584 (1979).
20. Id. at 602.
21. Id. at 603.
22. 455 U.S. 745 (1982).
23. Id. at 753.
24. 476 U.S. 610 (1986) (plurality opinion).
25. Id. at 628 n.13 (quoting President's Comm'n for the Study of Ethical problems in Medicine and Biomedical Behavior Research, Report, at 212-214 (1983)).
26. See, e.g., Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993) ("the reasoning of federal constitutional cases convince[s] us that parental rights constitute a fundamental liberty interest" under the Tennessee Constitution); Bailey v. Menzie, 542 N.E.2d
1015, 1019 (Ind. Ct. App. 1989) ("we are fully cognizant of
parents' well settled right under the Fourteenth Amendment to raise their families generally as they see fit"); Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984) ("the parenting right is a fundamental liberty interest that is protected against unwarranted state intrusion"); People v. Sheppard, 429 N.E.2d
1049, 1052 (N.Y. 1981) (it "is well settled that parents
generally have a right under the Fourteenth Amendment to raise their families as they see fit").
27. 606 N.Y.S.2d 259 (N.Y. App. Div. 1993).
28. Id. at 265.
29. Id.
30. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Meyer, 262
U.S. 390, 401 (1923).
31. See, e.g., Barbara Bennett Woodhouse, "Who Owns the Child?
Meyer and Pierce and the Child as Property" 33 William and Mary Law Review, 995 (1992)
32. Brief Amici Curiae of People About Changing Education (PACE) and the Coalition for the Homeless at p. 13.
. For commentary discussing the difficulties facing today's
family, see generally, Giving Children a Chance: The Case for More Effective National Policies, (George Miller ed., 1989);
Sylvia Hewlett, When the Bough Breaks: The Cost of Neglecting Our Children (1991); Rebuilding the Nest: A New Commitment to the American Family (David Blankenhorn et al. eds., 1990).
. See generally, Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's Rights, 14 Cardozo L.
Rev. 1747 (1993) (arguing that parents' rights, "as currently understood, undermine values of responsibility and mutuality necessary to children's welfare"); Katherine T. Bartlett,
Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed,
70 Va. L. Rev. 879, 882 (1984) (challenging "the law's adherence to the exclusive view of parenthood when the premise of the nuclear family has failed").
. 262 U.S. 390 (1923).
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Constitutional Protection for Parental Rights
The Meyer-Pierce Legacy
Robert P. George and Jana V.T. Baldwin
June, 1994
[T]he custody, care and nurture of the child [should] reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.1
The 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.2
For the last several decades, a significant amount of social and legal commentary has focused on the relationship of parent to child and the family to the state. As the economic and political life of America has changed profoundly over the years, family law has correspondingly undergone a host of changes. Today, as a result of the crisis confronting the American family, a scholarly, legal and public debate rages over family policy.3
"Children's Rights" advocates argue that children should have, and the state should recognize, greater autonomy from their parents in deciding how to live. Indeed, some scholars and activists argue for the liberation of children from their parents control as part of a larger attack on the
institution of the nuclear family.4
Against this backdrop, the Constitution limits the use of state power to diminish parental rights and undermine the family. Although the Constitution
does not deal explicitly with parental authority, the Supreme Court has specifically recognized parental rights of custody and control. In the landmark decision of Meyer v. Nebraska,5 closely followed by Pierce v. Society of Sisters,6 the Court stated that parents have a substantive due process right to "bring up children."7 Although these cases were handed down in the 1920s they are no mere archaisms, but rather have withstood the test of time. Indeed, Justice Brennan has remarked of Meyer and its progeny: "I think I am safe in saying that no one doubts the wisdom or validity of those decisions."8 The precedents Meyer and Pierce generated have further solidified the principle that parents should have the predominant role in raising their children.
In Meyer,9 the Supreme Court held that the right of parents to raise their children free from unreasonable state interferences is one of the unwritten "liberties" protected by the Due Process Clause of the Fourteenth
Amendment.10
The Court invalidated a state statute prohibiting foreign language instruction to school children, recognizing the right of German-speaking parents to have their children taught German. The Court
found that the state's interest in encouraging American ideals by prohibiting the teaching of foreign languages is not great enough to permit infringement of the rights of parents to raise their children as they see fit.11 The Court rested its opinion in large part on the rights of parents
to control the activities of their children,12 concluding that the statute was an interference "...with the power of parents to control the education of their own."13
Two years after Meyer, the Supreme Court in Pierce14 invalidated an Oregon statute requiring parents to send their children to public school, holding
that the statute "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."15 Pierce made clear that the constitutional rights of a parent are
not limited to physical custody, but that parents possess the right to direct their child's "destiny."16
The principle enunciated by Meyer and Pierce, that parents have the right to direct the upbringing and education of their children, has survived the
many turbulent changes of the last several decades. A line of decisions following Meyer and Pierce further cemented the rights of parents to exercise their own best judgment in raising their children. For example, twenty years after Pierce, the Supreme Court in Prince v. Massachusetts17
stated that "[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."18
Meyer also helped undergird the Supreme Court's decision in Parham v. J.R.19 In Parham, the Supreme Court deferred to parents' wishes to place their child in a mental hospital, stating that "the law's concept of the
family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions.20 The Court emphasized that simply "because the decision of a parent is not agreeable to a child or because it involves
risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state."21
More recently, in the prominent case of Santosky v. Kramer,22 the Supreme Court acknowledged that "freedom of personal choice in matters of family
life is a fundamental liberty" and stated that natural parents have a "fundamental liberty interest...in the care, custody, and management of their child."23 Similarly, in Bowen v. American Hospital Ass'n,24 the Supreme Court recognized "a presumption...that parents are the appropriate decisionmaker for their infants."25
The constitutional protection of parental rights recognized by the federal courts has been affirmed and enforced by state courts.26 The recent case of Alfonso v. Fernandez27 illustrates that the parental rights doctrine, while
viable, is under attack today. In Alfonso, parents of New York high school students challenged the New York School Board's condom distribution program, arguing, among other things, that the program unconstitutionally denied
parents the right to opt their children out of the distribution program. On December 30, 1993, a New York appeals court held that the New York Board of
Education's condom distribution program was illegal and unconstitutional absent a parental opt-out provision. Citing Meyer and Pierce, the court recognized that the petitioners enjoy a "well-recognized liberty interest in
rearing and educating their children in accord with their own views..." including "the right to regulate their children's sexual behavior as best they can..."28 The court determined that "no matter how laudable its purpose, by excluding parental involvement, the condom availability
component of the program impermissibly trespasse[d] on the petitioners' parents rights" by substituting the School Board's judgment for the petitioners' judgment without a compelling necessity.29
Alfonso demonstrates that the Constitution still stands as a staunch defender of parental rights. Alfonso and its parental rights predecessors such as Meyer and Pierce are rooted in the recognition that parents possess
the right "to direct the upbringing and education of children under theircontrol."30
Despite the firm constitutional basis for parental rights, traditional concepts of parental authority are under attack from private and public groups seeking to give the state greater control of the upbringing of children, as evidenced by the appeals in the Alfonso case. Opponents of
parental rights understand perfectly well the significance of Meyer and Pierce as obstacles to their agenda, and the need to undermine these precedents in order to achieve their goals.31
In accordance with the court's decision in Alfonso, the New York Board of Education voted to revise the condom distribution policy to permit parents or guardians of unemancipated students to opt their children out of the
distribution component of the program. The New York Civil Liberties Union ("NYCLU"), however, moved to intervene in the action for the purposes of
filing an appeal and People About Changing Education ("PACE") and the Coalition For the Homeless moved for leave to appear as amici curiae to argue in favor of reversing the court's ruling. These groups argued that
affording "parents or guardians an `absolute veto' over unemancipated minors [ability] to receive condoms [in school] impermissibly infringes on New York City public school students' [constitutional] rights."32 The court denied NYCLU's motion to intervene, and the NYCLU lost a subsequent appeal of that denial. The New York Bar Association and the New York State Attorney General
had also moved to appear as amici curiae in favor of the NYCLU's motion to intervene and in opposition to the court's ruling.
The relentless zeal with which the NYCLU (and even the State of New York, as represented by the New York Attorney General), sought to overturn the
court's ruling in Alfonso makes clear that the right of parents to make substantive choices regarding their children's education and moral upbringing remains in jeopardy.
In short, the protection of parental rights should not have to be achieved on a piecemeal basis through unpredictable and expensive court challenges. The constitutional mandate articulated by Meyer and its progeny is clear: The right of parents to direct the upbringing and education of their children shall not be infringed.
Robert P. George is an Associate Professor of Politics at Princeton University, and a Presidential Appointee to the U.S. Commission on Civil Rights. He is the author of Making Men Moral: Civil Liberties and Public
Morality (Oxford University Press, 1993). Jana V.T. Baldwin was counsel for plaintiffs in Alfonso v. Fernandez, the December, 1993 decision which overturned New York City's condom distribution policy.
The views expressed in this memo are those of the authors, and do not necessarily reflect the views of other organizations with whom they are affiliated.
Endnotes
1. Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
2. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
3. For commentary discussing the difficulties facing today's family, see generally, Giving Children a Chance: The Case for More Effective National Policies, (George Miller ed., 1989); Sylvia Hewlett, When the Bough Breaks: The Cost of Neglecting Our Children (1991); Rebuilding the Nest: A New Commitment to the American Family (David Blankenhorn et al. eds., 1990).
4. See generally, Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's Rights, 14 Cardozo L. Rev. 1747 (1993) (arguing that parents' rights, "as currently understood, undermine values of responsibility and mutuality necessary to children's welfare"); Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed,
70 Va. L. Rev. 879, 882 (1984) (challenging "the law's adherence to the exclusive view of parenthood when the premise of the nuclear family has failed").
5. 262 U.S. 390 (1923).
6. 268 U.S. 510 (1925).
7. Meyer, 262 U.S. at 399.
8. Michael H. v. Gerald D., 491 U.S. 110, 142 (Brennan, J.
dissenting).
9. 262 U.S. 399 (1923).
10. Id. at 399 ("[T]he liberty [guaranteed by the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to...marry, establish a home and bring up children"). Conservative critics of the notion of substantive due process have observed that Meyer (and Pierce) is
defensible even if the substantive due process doctrine on which the Court relied is not. See, eg., Robert H. Bork, The Tempting of America (New York: Free Press, 1990), pp. 47-49.
11. Id. at 400-01.
12. Id.
13. Id. at 401.
14. 268 U.S. 510 (1925).
15. 268 U.S. at 534-35.
16. Id.
17. 321 U.S. 158 (1944).
18. Id. at 166.
19. 442 U.S. 584 (1979).
20. Id. at 602.
21. Id. at 603.
22. 455 U.S. 745 (1982).
23. Id. at 753.
24. 476 U.S. 610 (1986) (plurality opinion).
25. Id. at 628 n.13 (quoting President's Comm'n for the Study of Ethical problems in Medicine and Biomedical Behavior Research, Report, at 212-214 (1983)).
26. See, e.g., Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993) ("the reasoning of federal constitutional cases convince[s] us that parental rights constitute a fundamental liberty interest" under the Tennessee Constitution); Bailey v. Menzie, 542 N.E.2d
1015, 1019 (Ind. Ct. App. 1989) ("we are fully cognizant of
parents' well settled right under the Fourteenth Amendment to raise their families generally as they see fit"); Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984) ("the parenting right is a fundamental liberty interest that is protected against unwarranted state intrusion"); People v. Sheppard, 429 N.E.2d
1049, 1052 (N.Y. 1981) (it "is well settled that parents
generally have a right under the Fourteenth Amendment to raise their families as they see fit").
27. 606 N.Y.S.2d 259 (N.Y. App. Div. 1993).
28. Id. at 265.
29. Id.
30. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Meyer, 262
U.S. 390, 401 (1923).
31. See, e.g., Barbara Bennett Woodhouse, "Who Owns the Child?
Meyer and Pierce and the Child as Property" 33 William and Mary Law Review, 995 (1992)
32. Brief Amici Curiae of People About Changing Education (PACE) and the Coalition for the Homeless at p. 13.
. For commentary discussing the difficulties facing today's
family, see generally, Giving Children a Chance: The Case for More Effective National Policies, (George Miller ed., 1989);
Sylvia Hewlett, When the Bough Breaks: The Cost of Neglecting Our Children (1991); Rebuilding the Nest: A New Commitment to the American Family (David Blankenhorn et al. eds., 1990).
. See generally, Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's Rights, 14 Cardozo L.
Rev. 1747 (1993) (arguing that parents' rights, "as currently understood, undermine values of responsibility and mutuality necessary to children's welfare"); Katherine T. Bartlett,
Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed,
70 Va. L. Rev. 879, 882 (1984) (challenging "the law's adherence to the exclusive view of parenthood when the premise of the nuclear family has failed").
. 262 U.S. 390 (1923).
=================================================================
THIS HAS FAR REACHING IMPLICATIONS OF GOVERMENT "FOR THE CHILDREN" POLICIES!
SEE ADDITIONAL POSTINGS FROM APFN NETWORK AT:
http://www.InsideTheWeb.com/mbs.cgi/mb1075995
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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Last updated 03/08/2011
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