In 1925, the U.S. Supreme Court overturned an Oregon law requiring that parents or guardians send their children to public school in the districts where they lived. The Society of Sisters, which ran private academies, claimed that the law interfered with the right of parents to choose religious instruction for their children. The Court agreed, unanimously. States are permitted to run and regulate schools, even to require that all children receive an adequate education. But the Justices held that the state may not “unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control.”
The decision in Pierce v. the Society of Sisters featured one of the more memorable turns of phrase in Supreme Court history. “The child is not the mere creature of the State,” wrote Justice James C. McReynolds. “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.”
The notion that the state must not interfere with parents and their right to direct their children’s upbringing and education has cast a long shadow over U.S. education. But now, nearly a century after Pierce, the state seems increasingly inclined to relitigate the matter—if not in court, then in practice and policy in America’s public schools. There is a rising and unmistakable tendency on the part of teachers and school districts to assume that government is better positioned than a child’s parents to judge what’s best for children and to act on that assumption, often aggressively, making critical decisions about children’s upbringing and well-being without their parents’ consent or even their knowledge.
There have been myriad recent examples of schools imposing their staffs’ ideological preferences, and in so doing being disingenuous or openly dishonest about critical race theory, trangenderism, “social and emotional learning” programs, and other controversial aspects of school curriculum and culture. The picture that has begun to emerge is of an education establishment straying beyond its remit, emboldened to ignore parents, and determined to subvert local control of schools to advance a social-justice agenda. “It’s infuriating, it’s harmful to children, and it’s unacceptable,” says Vernadette Broyles, an attorney and the founder of the Child and Parental Rights Campaign. “And it’s contrary to law.”
Early in 2021, a national advocacy group called Parents Defending Education (PDE) began inviting parents to submit anonymous “incident reports” to its website documenting instances of schools and teachers imposing an “activist agenda” on children. In a little over 18 months, PDE received more than 2,000 such reports from all 50 states and independently corroborated one-fourth of them. During the first year, nearly all of the tips were about issues related to race, including “race-based grouping of students during the school day, lessons on white privilege, or children in elementary schools being forced to label themselves as oppressors or oppressed based on their skin color and gender,” said PDE founder and president Nicole Neily. More recently, the majority of reports have concerned gender ideology, including school-district policies that require staff to withhold information from parents about their child’s gender transition and the use of curriculum materials parents perceive as age-inappropriate, obscene, or of questionable academic value. “Parents consistently report that they are subjected to smears and accusations of racism, transphobia, and ‘hatefulness’ simply for asking questions and raising concerns,” Neily said.
In New Jersey, one local school district shared “sample resources” that schools could use to meet the state’s new health- and sex-education standards. A first-grade lesson plan circulated to parents read, “You might feel like you’re a boy even if you have body parts that some people might tell you are ‘girl’ parts. You might feel like you’re a girl even if you have body parts that some people might tell you are ‘boy’ parts. And you might not feel like you’re a boy or a girl, but you’re a little bit of both. No matter how you feel, you’re perfectly normal!” Parents responded with outrage over gender flexibility being pushed on ever-younger kids. Within days, New Jersey Governor Phil Murphy, who had barely survived a reelection the previous November, ordered a review of the state’s standards, which were still under wraps as of August 2022.
In Missouri, parent complaints about “diversity and equity” efforts prompted a local school-district literacy coordinator to email teachers and direct them to keep lesson plans dealing with racial profiling, civil disobedience, and police violence off the online classroom-management system where parents could see them. Parents are “looking for specific things to then complain about,” read the email to teachers. “This doesn’t mean throw out the lesson and find a new one. Just pull the resource off so parents cannot see it.”
When a group of Michigan parents filed a Freedom of Information Act request for “any and all” documents that included the words “equity, diversity, and inclusion,” they were told they would be charged nearly $400,000 in production costs before Forest Hills Public Schools would comply with the request. A Rhode Island mother was sued by the state’s teachers union after she filed more than 200 requests for public records seeking access to the curriculum being taught in the school district where her daughter attended kindergarten. “Parents have an absolute right to request public information about public education and what their children will learn in school,” said Nicole Solas, who wanted to know what the South Kingstown School District was teaching students about critical race theory and gender ideology. In Virginia’s Loudon County, parents were told they would not be allowed to see a controversial “social and emotional learning” curriculum purchased with public funds unless they signed a nondisclosure agreement that forbids “copying, broadcast, or recording of any kind.”
The conflict between parents’ rights and the authority of school personnel to act in loco parentis can be seen in sharpest relief in how schools treat transgender students and their parents. Under usual circumstances, schools require parental consent for everything from going on a field trip to giving a student an aspirin. But in 2018, New Jersey education officials directed schools to “accept a student’s asserted gender identity; parental consent is not required.” The guidelines were hailed by advocates for lesbian, gay, and transgender youth as “probably the strongest guidance we’ve seen out of any state.” Student preference extended to choice of restrooms and locker rooms. “School district personnel should have an open, but confidential discussion with the student to ascertain the student’s preference on matters such as chosen name, chosen pronoun to use, and parental communications,” the state advised.
Thus, at a stroke, every decision made in a New Jersey public school pertaining to gender identity and expression was deemed to rest with the child; the only adults certain to have knowledge or influence would be the child’s teachers or other school staff members. “There is no affirmative duty for any school district personnel to notify a student’s parent or guardian of the student’s gender identity or expression,” New Jersey’s guidance stated, making the matter unambiguous.
Today, nearly two dozen states have issued similar guidelines. Some, such as Massachusetts and Idaho, cite or suggest middle school as the point at which there is no “affirmative duty” to notify parents. Others, including Michigan and Vermont, cite no specific age or grade level whatsoever.
Such guidance represents a noteworthy departure from decades of commonly understood standards and practices and federal law. If a child’s school records feature a different name or gender, hiding it from parents would be a clear violation of the Family Educational Rights and Privacy Act (FERPA), which gives parents virtually unlimited rights to review their child’s records and to request corrections. A student’s name and gender are basic pieces of information and a common denominator across virtually every education record a school maintains, including grades, transcripts, class lists, and course schedules. This makes it nearly inconceivable that there would be no documentation of a student’s preferred gender identity, and there is no question that parents have the right to access it. “You can have a state law that enhances FERPA but not one that abridges those rights,” explained LeRoy Rooker, who spent 21 years overseeing administration of FERPA at the U.S. Department of Education’s Family Compliance Office.
Advocates for transgender youth have somehow tried to argue that FERPA actually compels schools to keep children’s changes in gender identity a secret from parents. A fact sheet published by the National Center for Transgender Equality states that “revealing a student’s transgender status, birth name, sex assigned at birth, or medical history to classmates, parents, teachers, and others may violate federal educational privacy law.” Rooker considers such claims “disingenuous” and notes that FERPA unambiguously grants parents of minor children the right to review school records. However, according to Rooker, the number of parents who are aware of this right is “very low.”
If school personnel feel they are within their rights to condone or even encourage children to keep their gender identity from their parents, that feeling stems from the belief that transgender children are a uniquely vulnerable group of students and at risk of suicide, particularly if their parents disapprove. Seen in the most benign light, school officials might earnestly convince themselves that these secretive policies are essential to a child’s safety and well-being. It is commonly asserted that transgender adolescents “feel less safe at school, have higher rates of suicide ideation, and are disproportionately represented among unhoused youth, at least partly due to rejection at home,” according to a report in Education Week. “Conversely, affirming transgender students can improve their mental health and academic outcomes.”
But “the law already accounts for this,” insists Vernadette Broyles, who notes that teachers are mandated reporters, obligated to report suspected instances of child abuse to child protective services, which operates with a range of due-process protections for parents. “You’re not entitled to take it onto yourself as a teacher to make the judgment that somehow this parent does not share the right value system, or is going to correct or guide their child in a way that you don’t approve of,” Broyles says.
Broyles has tracked lawsuits filed by parents in at least eight states, including California, Wisconsin, Massachusetts, and Virginia—suits challenging policies that discourage or forbid schools from notifying parents. These include cases in which parents allege that their children were actively encouraged by teachers to change their names and pronouns without their consent. All but one of the suits was filed in the past two years.
Broyles is not surprised by the sudden surge. After all, she notes, “the right of parents to direct the upbringing, education care, custody control, medical care of their child has been ingrained in culture and law.” Among teachers, administrators, and school counselors, “there was a recognition of parental authority that was almost universal. It’s a very, very, recent phenomenon where you see these wholesale challenges to the family and parental authority over their children.”
Long-standing Supreme Court precedent appears to come down on the side of parents. In Parham v. J.R. (1979), for example, a 6–3 majority rejected a challenge from a group of minors to parents’ ability to commit children to Georgia’s state mental hospitals. The court took into consideration the claim that some parents could abuse their power and treat the facilities as a “dumping ground” for unwanted children. “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children,” Chief Justice Warren Burger wrote for the majority, specifically invoking the 1925 Pierce decision. “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”
The risk of suicide or self-harm may also be overstated. Jay Greene, a former University of Arkansas professor of education reform, notes that abnormally high rates of depression, anxiety, and suicide among young people experiencing gender dysphoria do not tell us whether these problems stem from a failure to “affirm” a child’s gender identity or from unproductive efforts to address their mental-health issues.
“In the past, when girls suffering from depression and anxiety resorted to eating disorders or cutting to transform their external appearance to feel in control of their inner turmoil, all of the adults at school would recognize this as a problem that required coordination with parents to address,” said Greene, currently a senior research fellow at the Heritage Foundation. “No one would have thought of eating disorders or cutting as the authentic expression of a child’s true self that required affirmation and secrecy from parents.” Greene published a study earlier this year that found lowering legal barriers for minors to undergo “gender-affirming” medical interventions without parental consent was associated with higher rates of suicide among young people in states that adopt these changes.
Court challenges are likely to multiply over schools encouraging children to transition or attempting to keep from parents that their children use a different name, pronoun, or gender in school. But “the best solution may be legislative,” observes Luke Berg, an attorney with the Wisconsin Institute for Law & Liberty. “It would not be hard to craft a simple bill requiring parental permission before minor students can change their identity at school.”
It should also be noted that not every educator is comfortable with this kind of guidance. The head of one New Jersey charter school, Stephanie Saroki de Garcia, emphasizes that her school, which will open next year, will abide by state law, but she worries that such guidance puts schools in an awkward position—particularly schools like hers that emphasize strong parental engagement and trust. “Schools should not be getting in between children and families. We should be supporting strong families,” she says. “Anytime we’re in a situation where we’re counseling kids not to talk to their parents or giving advice where parents really should be the ones giving advice, then we’ve overstepped.”
Legislation can be written and passed. State guidance to schools can be contested in courts. The far greater obstacle to reasserting parental authority over education is challenging and changing the culture of education and the mindset that tolerates and even encourages teachers to conceive of themselves as child advocates or activists.
Public education accounts for one-third of all state and local government spending, but it is rare for public-school teachers to conceive of themselves consciously as a state actor or authority. This self-conception is not a recent phenomenon or a fashionable manifestation of “wokeness.” For at least three decades, a prominent strain of teacher education and preparation has expected teachers to be “professional educators as well as activists committed to diminishing the inequities of American society,” according to an authoritative 2005 report from the American Educational Research Association. At the same time, while teachers are generally encouraged to cultivate good relationships with parents (a robust body of research links active parental engagement in a child’s education with improved academic outcomes), a 2018 poll of teachers showed that only 36 percent expressed “complete” or “a lot of” trust in parents—below the level of confidence they expressed in their principal, students, union leadership, and other education stakeholders.
Collectively, these factors and impulses ripen conditions for teachers and other public-school staffers to feel not just comfortable but justified substituting their judgment and preference for those of parents, and to do so unabashedly. Examples abound on social media. In April, the Twitter account “Libs of TikTok” shared a video posted by an Oklahoma teacher who declared, “If your parents don’t accept you for who you are, f—k them. I’m your parents now.” An Oakland, California, teacher posted a video describing his school’s “transition closet” for transgender students: “The goal of the transition closet is for our students to wear the clothes that their parents approve of, come to school, and then swap out into the clothes that fit who they truly are.”
With nearly 3.7 million teachers in U.S. classrooms, we should not assume that videos posted on social media are representative of the profession at large. But neither should it be quite so easy to find daily examples of teachers so clearly exceeding their authority without compunction. If you see yourself clearly as a state agent with coercive power over a captive audience of impressionable children, you are unlikely to grant yourself permission to behave like the AP government teacher caught on camera by Project Veritas admitting he wants his students to take up arms against the state. “I have 180 days to turn [students] into revolutionaries…to scare the f—k out of them,” said Gabriel Gipe, who hung an Antifa banner in his California classroom. Another teacher took to social media to describe how she removed the American flag from her classroom because “it made me uncomfortable.” When a student asked which flag they should pledge allegiance to, she pointed to the Gay Pride flag, which still hung on the wall.
If public-school teachers are under the impression that such speech and actions are protected, they are wrong. The principle of “academic freedom,” common to higher education, doesn’t apply to K–12 public education. In Garcetti v. Ceballos (2006), the Supreme Court agreed that a public official’s speech is only protected if it is engaged in as a private citizen. In other words, school districts do not regulate teacher speech so much as they hire speech. To be sure, the idea of “hired speech” is complicated by practical, day-to-day aspects of teaching practice. Very little classroom instruction is “scripted” or prescribed in any meaningful way; teachers typically customize or create their own lessons with minimal (if any) administrative approval or oversight. But precedent clearly assumes professionalism and circumspection. “Teachers have unique access to other citizens’ minor children and must not be perceived as using their position of authority to promote their own personal views on controversial issues or sensitive topics,” said Bonnie Snyder, director of K–12 programs at the Foundation for Individual Rights and Expression (FIRE) and the author of Undoctrinate: How Politicized Classrooms Harm Kids and Ruin Our Schools—and What We Can Do About It. “Students are required by law to attend school and parents are compelled to send them there, making students in school a captive audience,” she added. Snyder frequently advises teachers that they are generally considered to speak for the school district when in a public-school classroom—a crucial point that is seldom made in teacher preparation programs.
All of this—fights over critical race theory, gender ideology, schools pushing a social-justice agenda and parents pushing back—is taking place in an atmosphere of diminished trust in institutions such as the public-education system. As is true with the public’s feelings about Congress—Americans have long held it in contempt, but reliably reelect their congressman—parents for decades have given failing grades to public education at large while rating their own child’s school and teacher as good or excellent. The past few years have offered a stiff challenge to this pattern. Three consecutive school years have been disrupted by Covid, and battles over masking children will persist into a fourth. School closures and student quarantines meant “Zoom school.” Lessons that once occurred behind closed classroom doors were webcast live into homes all across the country. The shotgun transparency did not inspire parental confidence.
It would be wrong to suggest that schools have fallen into the voracious maw of the culture war. After all, a school’s purpose is cultural transmission. But post–George Floyd, public education leaned into a social-justice agenda with an urgency bordering on obsession, with many school districts investing heavily in “diversity, equity, and inclusion” programs and staff, and public commitments to “anti-racist” policies and practices, often disingenuously framing its more radical tendencies as “just teaching honest history.”
In dozens of school districts, parents were sufficiently upset with the elevation of “race” as education’s fourth “R” that they began complaining angrily to school boards. Infamously, the National School Boards Association (NSBA) sent a letter to President Biden in October 2021, claiming that “America’s public schools and its education leaders are under an immediate threat” and characterizing angry parent protests as “equivalent to a form of domestic terrorism and hate crimes.” The letter implored the president to involve the Justice Department, the FBI, and other departments. When it went public, a hasty apology didn’t stop more than half of all states from ending their relationship with the NSBA.
The spreading hostility between schools and parents has spurred the explosive growth of grassroots parent advocacy groups across the country.1 The largest and most prominent, Moms for Liberty, was founded in January 2020 by a pair of former Florida school-board members upset with Covid-related school closures. The group claims more than 200 local chapters and nearly 100,000 members in 40 states, and has already had a demonstrable impact, running and supporting candidates for local school boards, and pushing for states to adopt a parent “bill of rights.” Such measures are aimed at ensuring curriculum transparency, data privacy, minimum ages at which sexual and racial topics can be taught, and respect for the fact that “parents have the fundamental right to direct the upbringing of their child,” reports co-founder Tiffany Justice. She says the organization has a five-year goal to enact a parent bill of rights in all 50 states. Such legislation has already been introduced in 27 states and has been enacted in Arizona, Georgia, Louisiana, and Florida.
Whether or not framed this way by combatants, battles before school boards and state legislatures are not mere culture-war jousting. They are border skirmishes between parents and public education that’s testing the limits of schools’ ability to act “in loco parentis.” Whether willfully or carelessly, school administrators and teachers are probing the lines, creating the sense that schools are exceeding their authority and pushing values and attitudes that run counter to those taught at home, exposing children to material that is ideological or age-inappropriate—or, with the rise of “social and emotional learning,” prioritizing students’ mental health at the expense of the core mission of academics. These fights will echo through the courts for years to come.
And through our politics. Heading into the November midterm elections and gubernatorial contests in 36 states, Republicans have seized on parental discontent with schools as a wedge, hoping to re-create the success of Glenn Youngkin’s 2021 campaign in Virginia. The race turned in Youngkin’s favor when he called out Democratic front-runner Terry McAuliffe, the state’s governor from 2014 to 2018, over his veto of a bill that would have required schools to warn parents if their children were to be assigned books with sexually explicit content. “I don’t think parents should be telling schools what they should teach,” McAuliffe sniffed. Perceiving that they had found a champion in Youngkin, Virginia parents put him in the governor’s office.
If Republicans succeed, it will be a remarkable reversal. As recently as 2017, Democrats enjoyed a nearly 20 percent polling advantage over the GOP on the question of which party voters trust more on education issues. A survey of likely voters in battleground states conducted over the summer by the American Federation of Teachers, the nation’s second-largest teachers’ union, found that 39 percent of respondents had more confidence in Republicans on education issues vs. 38 percent for Democrats. Respondents also said the number one problem in schools is that “education has become too politicized.” No less ominously for Democrats, a recent Harris poll of 5,000 parents found that 82 percent “would vote for someone outside their party” if the candidate’s education agenda matched their own.
The more vexing and longer-term problem to solve is the culture of education and the steady drift of public education into an oppositional relationship with its stakeholders, particularly parents. A training session for teachers in Wisconsin’s Eau Claire Area School District last year insisted that parents are “not entitled to know” the gender identities their children use in school. “That knowledge must be earned,” teachers were instructed—another example of a public school out of touch with its mission and estranged from its supporters. As long as there continues to be a steady drumbeat of these kinds of incidents, there will be more parent unrest, and more parents at local school boards wearing t-shirts emblazoned with the motto favored by Moms for Liberty activists: “I don’t co-parent with the government.”
1 In September 2021, COMMENTARY published an article on this subject by Christine Rosen titled “Will Parents Become Activists?”
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