Parent Demands in Public Education are not Parent Rights.

Hot button:  an emotional and usually controversial issue or concern that triggers immediate intense reaction.

https://www.merriam-webster.com/dictionary/hot%20button

Public education in the United States is a long story of hot button issues.  Emerging from a pandemic fraught with hot buttons – vaccines, school closures, remote education, quarantining, information and disinformation, lost trust in public schools – we may want a calmer educational environment.  But we are not getting calm.  The hot button today is parental rights in education – red hot!

What do we know?

Parental rights in education begin with two constructs.

  1. The US Constitution does not include any statement of parental rights in education.  The late Justice Scalia labeled parent rights in education as “unenumerated”.  As such, there is no basis for shaping law or policy based upon what the Founding Fathers wrote.  Specific rights to determine a child’s education are not extended to parents nor protected by the Constitution.
  • Nature abhors a vacuum.  In the absence of substance in a defined space, surrounding and denser matter will invade the space until the defined space looks and acts like its surrounding.  So, it is with parental rights in education.  In the absence of a legal basis, parental rights are whatever parent activism can carve out of the undefined space of law.

Why are these constructs important to understanding parental rights in education?  In any dispute regarding an act of the state, in this case a school district or school board, the argument is first reviewed under the Constitution.  Because education is not enumerated, attention is given to the 14th Amendment that ensures due process and establishes concepts of equal protection under the law. 

Although education is not a function of the federal government, Congress has taken action to ensure the rights of citizens within public education.  For example, the 14th Amendment provided for equal access to education and the end of racially segregated schools.  It also pointed Congress to pass PL 94-142 protecting the rights of, meeting the individual needs of, and improving the educational results for children with disabilities and their families.  PL 94-142 may be as close as the federal government has come to stipulating that parents and schools are equal partners in determining the best educational placement for their child.

Further, we know.

The US Constitution implies that each state government is responsible for the establishment of public education in its state.

In the WI Constitution, chapter 118.01(1) – Purpose establishes the authority for the creation of public schools.  “Public education is a fundamental responsibility of the state.  The constitution vests in the state superintendent the supervision of public instruction and directs the legislature to provide for the establishment of district schools.  The effective operation of the public schools is dependent upon a common understanding of what public s hooks should be and do.  Establishing such goals and expectations is a necessary and proper complement to the state’s financial contribution to education.  Each school board should provide curriculum, course requirements and instruction consistent with the goals and expectations established under sub. (2).  Parents and guardians of pupils enrolled in the school district share with the state and the school board the responsibility for pupils meeting the goals and expectations under sub. (2).”

https://docs.legis.wisconsin.gov/statutes/statutes/118

Eight goals for public schools in Wisconsin are enumerated in WI Stat 118.01(2).

https://docs.legis.wisconsin.gov/statutes/statutes/118/01/2

The duties and powers of a local school board are enumerated in the state constitution.  In 118.001 Duties and powers of school boards; construction of statutes, the legislature says “The statutory duties and powers of school boards shall be broadly construed to authorize any school board action that is within the comprehensive meaning of the terms of the duties and powers, if the action is not prohibited by the laws of the federal government or of this state. 

So, what do we know?

The US Constitution does not address education.  The responsibility for education is implied to the various states.

The WI constitution authorizes the state superintendent to supervise public education and local school boards to implement public education.  The constitution enumerates goals and expectations for public education in WI and authorizes school boards to create policies and rules to achieve these goals and expectations.  Parents and guardians “share” responsibility with the state and school board for assisting children to meet goals and objectives.

There is no constitutional or statutory discussion regarding the rights of parents.  Parents “share” in the responsibility to achieve the state’s goals in educating children.

What changed?

Educational policy is no longer about children but about adults.  Very few educational policies today are designed to improve or enhance teaching or student learning and achievement.  There are exceptions such as Act 20, Wisconsin’s new literacy and reading proficiency law.  Most policies today are written and enacted to achieve the political goals of adults.  The simple version of this story is that children in school don’t vote, their parents vote.  So educational politics focuses on satisfying adult voters.

Conservative populist politicians can build constituencies based on attacking social and cultural institutions, like schools, libraries, museums, and public media.  They exercise elected authority to shape public education in ways that appeal to voters and donors.  While they are not able to affect federal policy, they use gerrymandered state houses to affect state legislation, state departments of education, and policies at the local school district level.

Education is a soft target because everyone is a product of childhood education and from their experiences is a self-made expert about schools.  Public education is a soft target because it is large and statewide and a problem in one school district can be implied as a problem for all school districts – it is easy to generalize.  And public education is funded by tax dollars, and everyone favors reduced taxes.  Lastly, public education is attacked by those who want this most public of state institutions to give them as individuals what they want as individuals and to codify their specific wants into laws for everyone.

Governor Walker (WI) used Act 10 to diminish the connection between teacher unions and the Democratic Party in Wisconsin.  The Act had other ramifications for school operations, but its origin was to decrease the political power of public employee unions. Although the legislative slogan implied shifting power from collectively bargained contracts to school board decision-making, the realities of school financing changed very little over time.

Governor Youngkin (VA) campaigned on promises of empowering parents and restoring excellence in education.  With a Republican-led legislature, he banned critical race theory discussion in schools and retracted accommodations for transgender students.  His legislature also passed a pro-education budget to placate those opposed to his policy changes.  Youngkin empowers parents to be active in pushing conservative values at their local school board level with a “we support what you want” encouragement.

Governor DeSantis (FL) has gone beyond policy to enforcement with threats of incarceration and loss of teaching license for educators who do not comply with his mandates.  He states that “Florida is where woke goes to die” and “We will not allow reality, facts, and truth to be optional”.  Parental rights in Florida are only for parents who agree with their governor.  Rights are restricted for those.

Governor Reynolds (IA) moved the state legislature to significantly change school financing.  Now every child represents an amount of state aid regardless of enrollment in public, private, or parochial school.  Every student is a voucher, and every school is a voucher school.  It does not jive with the Founding Fathers’ separation of church and state, but it passes muster with Iowa’s Republicans, and they are the votes who matter to Reynolds’s.

The pandemic re-taught Americans that all politics are local.  School board meetings are open to public participation and typically have less than a dozen residents in attendance.  Parents with a pandemic-based purpose found that a school board confronted by a vocal handful could either command board members to approve their policy demands by their loud and in-your-face presence or cause boards to shut down and adjourn meetings without enacting the posted agenda.  Neither outcome was good for the school district but accomplished the goals of selected parents – give me what I want.

While most school boards did not experience a capitulation or shut down, board meeting confrontations were common enough to shift the traditional relationships between parents and board members.  Parents who disagreed with pandemic masking disenrolled their children seeking a school with more favorable policies.  Parents who disagreed with quarantining and school closures disenrolled in favor of home schooling.  And parents who disagreed with masking and closures and kept their children enrolled in the school became constant voices at school board meetings and in local media.  Goodwill and traditional trust were eroded on both sides by what was said and written by both sides.

The relational upshot from the pandemic is that growing numbers of parents want and demand an active voice in the daily operations of their local school.  Voice no longer is about masking, but is about the books in classrooms and libraries, the curriculum that is taught, and the language and dispositions that teachers use in daily teaching that are subjected to parental review.  It is about partitions between genders.  It is about diversity and inclusivity.  A new status arose from the pandemic – a parent has the right to determine school policy and rules regarding her child. 

The Big Duh!

There is no legal authority in our public law for parental rights in education.

There is a growing charismatic authority in political leadership that wants to give specific rights to parents relative to public education in exchange for the political support of those parents.

The dichotomy between the public and parents lies in the fact that public education is created to achieve the public’s goals in educating children not the goals of individual or groups of parents.

Rights and demands are two different things.   Politics has the capacity to give legitimacy to parent demands, turning them into legislated parent rights.  This is a changing landscape with an unknown future.  What the pendulum swing of one partisan legislature approves may be disapproved when the pendulum swings again.

At the end of the day, public schooling is about children not about parents.  Parents choose the school in which to enroll their children and share with teachers and school leaders in the responsible assurances that all children will achieve the school’s educational goals.  Excepting the provisions of specific laws, such as PL 94-142 and approved 504 plans, that is the extent of parental rights.