Parental Rights Legislation

"The Parental Rights Act draws a line in the sand. It declares that
the right of parents to direct the upbringing of their children is a
fundamental right. The PRA contains several answers to the hottest
issues facing parents." ("The Parental Rights Act: Establishing a
Standard of Liberty", Home School Court Report, Vol. II, No. 2, 1995,
page 1.)

Who could argue with that? It sounds like the legislative answer to
every parent's nightmare of the State stepping into the sanctity of
the home and directing parents to raise their children by government
standards. However, upon closer examination, Parental Rights
legislation, whether it's an act or an amendment to the state's
constitution appears to do exactly what it proposes to stop the
government from doing.

FEDERAL LEGISLATION

"Primarily drafted by Michael Farris and Home School Legal Defense
Association attorneys, the Parental Rights and Responsibilities Act
(PRRA) was introduced on June 28, 1995, in the House and Senate as
H.R. 1946 and S. 984." ("Parental Rights Drama Unfolds", Home School
Court Report, Vol. 11, No. 6, December 1995/January 1996, page 16.)

According to Mainstream Loudoun, a citizens group in Loudoun County
Virginia (where HSLDA is located), the PRA is "one of the ten planks
in the Contract with the American Family" and "was
written by Mike Farris, head of the Home School Legal Defense
Association." (Mainstream Loudoun, "Of The People Action Alert,
Parental Rights Amendment".)

In October of 1995, Michael Farris presented testimony before the
U.S. Committee of the Judiciary, Subcommittee on the Constitution,
relating to the Parental Rights & Responsibilities
Act (PRRA). He introduced himself as the President of HSLDA. the
largest home schooling organization in the country. His testimony
reflected HSLDA's involvement in "an increasing number of cases
involving parental rights in the context of social services
investigations." (Committee on the Judiciary, Testimony of Michael
Farris October 26, 1995.)

It should be noted the Parental Rights Restoration Act (PRRA), Parent
Rights Act (PRA), Parental Rights and Responsibilities Act (PRRA) are
all basically the same legislative proposals. Parental
Rights Amendments (PRA's) are Constitutional Amendments and as such
would have farther-reaching effects.

According to Alan Carlson of the Rockford Institute: "Federal
parents' rights legislation sounds like a good idea, but it makes for
dangerous policy. Family policy has historically been regarded as a
Tenth Amendment issue, one that's within the purview of the states.
However, the problem will not be solved by having the federal
government get into the business of defining parents' rights. That
the federal parental rights legislation would redesign American
family policy is illustrated in an analysis offered by Senator John
Warner (R-VA), a co-sponsor of the Senate version: "Under this act,
before the US government could interfere in the parent-child
relationship, the government would have to show that the action is
necessary to protect a compelling interest and that the means that
the government uses to protect this interest is the least restrictive
available.' Senator Warner is acknowledging that the measure would,
for the first time in American history, authorize direct federal
involvement in the home if that involvement can be swaddled in the
rationale of a government-defined 'compelling interest'." (William
Norman Grigg, "Does the State Own Your Child?" The New American
[Magazine], July 8, 1996, page 7.)

Michael Farris wrote at length about the government's compelling
interest and indicated his belief that government has the power to
punish parents. Because he requested that his writing not be
excerpted, the entire letter is included at the end of this article.

Criticism of the PRRA came not just from sources outside of
homeschooling, but from concerned homeschoolers. "In 1995, an article
entitled 'Is Freedom Burning', written by Cynthia Weatherly, was
published the Christian Conscience Magazine." Ms. Weatherly's article
led to an analysis of the PRRA by Dr. Charles Rice of the Notre Dame
Law School. Dr. Rice concluded that the PRRA would not protect
parental rights. ("A Homeschoolers History of Homeschooling Part VI",
Gentle Spirit Magazine, Vol. 7, No. 4, page 60.)

HSLDA actively lobbied Congress is support of the PRRA. Though the
National Center for Home Education (NCHE) - a ministry of HSLDA -
homeschool lobbyists participating in HSLDA's Capital
Action Program (CAP) visited all Congressional offices delivering
packets. ("D-Day for the PRRA", Home School Court Report, Vol. 12,
No. 4, page 25.) During tax year 1996 HSLDA spent $34,743 to operate
the Congressional Action Program. (HSLDA IRS Form 990, Statement
2, "Other Expenses".) On other occasions CAP volunteers visited
Congressional offices. ("Parental Rights Drama Unfolds," Home School
Court Report, Vol. 11, No. 6, page 16.)

Besides HSLDA, many other conservative groups are working for passage
of parental rights legislation (PRA's) including American Legislative
Exchange, Christian Coalition, Concerned Women For America, Family
Research Council, Focus on the Family, and Of The People. (Kim A.
Lawton, "The Right to Parent: Should It Be Fundamental?" Christianity
Today. April 29, 1996, page 57; John R. Cole, "The New 'Parental
Rights' Crusade", The Humanist, March/April 96, page 41.)

According to Of The People, PRA's were passed by committees in the
legislatures of NE, ND, VA and WA either in 1995 or 1996. PRA's were
introduced or had sponsor commitments in AK, AL, AZ, CA, DE, FL, GA,
HI, IA, IL, KS, KY, MI, MN, MO, MS, NC, NY, OH, OR, PA, SC, TX, and
WI. In 1997, Of the People indicated parental rights amendments had
been introduced in CA, CO, CT, DE, FL, IA, IN, KS, LA, MD, MI, MN,
OH, PA, SC, VT, WA, and WI. (http://www.ofthepeople.org and
http://www.ofthepeople.org/state.htm. These links are no longer
active as of 1/05).

Of the People has also taken on the cause of corporal punishment. "Of
The People has introduced a 'parental rights' amendment to the
constitutions of 28 states. Greg Erken, the groups Executive
Director, said it aims in part to keep government from interfering
with parental discipline." ("Heavy-handed discipline or parental
right: Spanking sparks row" , Bruce Stanley for Associated Press,
Newark Star-Ledger; July 21, 1996; p 39.)

COLORADO

A Parental Rights Amendment proposal was a ballot initiative in
Colorado in 1996. Because Amendment 17 was controversial it quickly
became the focus of the election. The controversy
centered on supporters who believed passage would ensure that
parents, rather than government, would have authority in many areas
of child rearing. Concerns included interference with corporal
discipline, access to their children's school, interference with
health care decisions and parental access to their school, health and
social service records. Critics feared the religious right was
attempting to gain control of public school curriculums, prevent
authorities from investigating child abuse charges and would
interfere with responding to outbreaks of disease.

Opponents warned that, "under the PRA, parents would have strong
legal footing to successfully challenge and remove materials from
libraries on the grounds that it violated their 'control' of their
children's 'education and values.'... The amendment already has the
full support of parochial school organizations and home-school groups
who hope that the legislation will lead to state and federal funding
for private schools and home-school programs." Also, "Greg Erken is
quoted as admitting that the amendment would give 'greater legal
standing' to parents who want to challenge school curriculums and
limit access to material in public libraries." ("The Parental Rights
Amendment and Libraries", Earl Lee, American Libraries, November
1996, page 31.)

People for the American Way has written a lengthy analysis of
Parental Rights initiatives, the people and groups involved and the
issues that can be read at their web site.
(http://www.pfaw.org/pfaw/general/default.aspx?oid=1998#)

"The effort to pass the [CO] PRA was led by home schooling parents.
Realizing this, HSLDA President Mike Farris sent a letter on October
29 to Colorado home schooling families, outlining actions they could
take to promote the PRA. Families were also provided with a flyer to
distribute." ("Colorado PRA Defeated", Home School Court Report, Vol.
12, No. 6, p 3.)

In November, voters in Colorado defeated the parental rights ballot
measure, which would have required an amendment to the State
constitution, by 44% to 56%. ("Referendums and Other
Elections", Associated Press, USA Today, November 6, 1996. Page 22A.)
HSLDA reported the figures as 42% for and 58% against. ("Colorado PRA
Defeated, ibid.)

HSLDA provided $70,000 of member's money to Of The People "to provide
support for education and media related to parental rights amendment
to Colorado Constitution" (Internal Revenue Service, HSLDA Form 990,
Return of Organization Exempt from Income Taxes, Internal Revenue
Service, 1996.)

Following the defeat of the Colorado Parental Rights Amendment, Of
The People introduced parental rights legislation in 7 other states.
The model language "reads,
'(1) The right of parents to direct the upbringing and education of
their children is a fundamental right. (2) The state maintains a
compelling interest in investigation, prosecuting and punishing
child abuse and neglect as defined by statue.'

The second section is designed to head off the calumny that sank
Colorado's Amendment 17 as opponents claimed that it would give
parents carte blanche to abuse their children." ("Parental Rights
Rerun", Human Events, September 19, 1997, page 24.)

NEW JERSEY

In March of 1997, Senator Gerald Cardinale of New Jersey introduced
Senate Concurrent Resolution (SCR) 114 proposing a parental rights
amendment to the New Jersey Constitution. It
reads:
"Amend Article I by adding a new paragraph 23, as follows:
23. (a) The right of parents to direct the upbringing and education
of their children shall not be infringed.
(b) The Legislature shall have the power to define and enforce, by
appropriate legislation, the provisions of the paragraph."

That there can be no doubt as to the source of parental rights
proposals, the last paragraph of New Jersey's proposal states:
"The 'Parental Rights Amendment' has been introduced by legislators
in at least 29 states to date. Major pro-family organizations are
working for he adoption of the amendment across the nation, including
the Family Research Council, Focus on the Family, the Christian
Coalition, Concerned Women for America, Of the People, and the Home
School Legal Defense Association. This amendment complements federal
parental rights legislation which has been introduced by
Representative Steve Largent of Oklahoma and Senator Charles Grassley
of Iowa." (Senate Concurrent Resolution No. 114, State of New Jersey,
Introduced March 10, 1997 by Senator Cardinale.)

During the 1998 Legislative session Senator Cardinale introduced
another attempt at a parental rights amendment to the NJ Constitution
(SCR90). This version included the model language:
"23. (a) The right of parents to direct the upbringing and education
of their children is a fundamental right.
(b) The State maintains a compelling interest in investigating,
prosecuting and punishing child abuse and neglect as defined by
statute." (SCR 90)

In November of 1998 HSLDA sent out an urgent alert urging NJ parents
to contact members of a Senate committee in support of SCR 90:

"Some home schoolers are troubled by section (b), which seems to
place significant limits on the rights of parents. HSLDA believes,
based on our fifteen years of litigation on behalf of families, that
the language in section (b) will help protect parents who are accused
of child abuse more than it will hurt them. Under current New Jersey
practice, "child abuse and neglect" is more often defined by the whim
of the individual social worker than by the Legislature. DYFS workers
feel free to use any means to make parents conform to their idea
of "good parenting," rather than using the "least restrictive means"
that courts require when a "fundamental right" is at stake.

You don't have to be a seasoned litigator to grasp the other reason
to support section (b) -- it partially neutralizes the "Village
People" who claim this Amendment legalizes child abuse.
The teacher's union and the rest of the usual suspects will mobilize
all their resources to defeat this bill. They see it as the "end of
public education," since it would clearly give public school parents
more of a say in the education of their children." (HSLDA New Jersey
Urgent Action Alert--November 19, 1998)

SAN DIEGO

In July of 1997, the San Diego County school board considered a
Parental Involvement Initiative submitted by Santee resident, Bob
Ward, seeking to allow parents to exempt their children from
activities or teaching materials they deem objectionable. It also
would give parents the right to exempt their children from having to
read textbooks considered to be a violation of conscience or
religious beliefs. "I think this could be very important," said Bob
Heckman of Of The People, a parental-rights group headquartered in
Arlington, Va. "Parents are very frustrated. We see that in all the
polling. This could very well be an approach that parents around the
country utilize." Michael Farris, president of the Virginia-based
Home School Legal Defense Association, agreed. "San Diego is on the
cutting edge of a new trend," he said. "This is the kind of thing
that is going to be necessary to stop the exodus from public schools."

The school board decided to table the measure and consider it again
in six months. It is interesting to note that one of the primary
arguments, that of curriculum selection, caused Julie
McIntosh, vice president of the Ninth District Parent-Teacher
Association to comment, "Parents have choice now. Parents have the
legal right to educate their children at home and that is giving
them entire control." El Cajon parent David Kidder said while home-
schooling is an option, he and other parents who may want to teach
their children don't always have the resources to do it.
"The biggest problem is that a home school takes money," Kidder said.
Conservative organizations that are following the parental-rights
issue nationally said that the San Diego
initiative was an important model for advancing their agenda
elsewhere. (Emmet Pierce and Susan Gembrowski, "Nation eyes parental-
rights vote | County school board gets grass-roots issue tonight ",
San Diego Union Tribune, July 9, 1997, page A1.; Susan
Gembrowski, "Parental `veto' is tabled in county | Board won't
dictate to 43 school districts", San Diego Union Tribune,
July 10, 1997, page B-1.)

VIRGINIA

A proposed parental rights amendment to the Virginia Constitution was
narrowly defeated in 1997. The vote split along party lines 21-19.
(Newark Star ledger 2/2/97, page 8, section 10).
During the debate, proponents "touted a poll commissioned by the Home
School Legal Defense Association, a chief backer of the amendment,
showing that 87 percent of Virginians support it". (David Lerman,
Daily Press, Newport News VA January 29, 1997). The poll results are
available at http://www.hslda.org/docs/nche/000000/00000076.asp.

The Virginia Teachers Association opposes the Parental Rights
Constitutional Amendment. Among the issues they cite are parents
using the amendment to usurp the actions of school boards and other
state education agencies by giving parents complete control over the
education of their children. Additionally, there is grave concern
over the legal ramifications of every parent of every public school
child asserting their right to direct the education of their child
and the legal morass that would ensue in the courts. VEA's position
paper on the Internet at:
http://www.veaweteach.org/articles_archives_detail.asp?
ContentID=317. .

Introduced again in 2005, the language has been changed introducing
religion into the VA Constitution. The proposed Constitutional
amendment reads, "That the God-given right of parents to direct the
upbringing and education of their children is a fundamental right,
subject only to those same limitations as other fundamental rights."
(Proposed Article I, Bill of Rights, section 16A Parental Rights.)

SUMMARY
It should be clear to most parents that Parental Rights
legislation is anything but. The amendments and acts refer to
parent's rights, but offer nothing with regard to their obligations
to their children or their children's rights, including not to be
abused or mistreated.

No reasonable parent wants their Legislature to "define and enforce
parenting" nor do they want a government definition of "compelling
interest" to be used to justify intrusion into their family
decisions. This sham of empowering parents to make important
decisions in their children's lives - on closer examination - would
empower the State to become more involved in the sanctity of the
home, usurping the parent's authority if that involvement could be
swaddled in the rationale of a government definition of compelling
interest. Parental Rights legislation could conceivably do exactly
what it is intended to prevent.

***

Michael Farris' "Compelling Interest" letter:

Dec. 12, 1997

Dear Mrs. (private),

Thank you for writing and asking me directly for my response.
So much of what is happening today on the Internet is just
simply gossip. And far too often, people are spreading offenses
against brothers without ever following the principles of Matthew
18 which requires as a first step to go directly to the brother
who
may have committed the offense. Thank you for doing things
in a Scriptural manner.

You have asked what I personally believe and I am happy to
tell you this. However, as a caveat let me say that HSLDA's
policy from the beginning has been this: God gives children to
parents; not to government; not to HSLDA. We will zealously
defend the views of any parent even when our personal opinions
may differ on how we would raise our children. We will never in
court purposefully take a position that is contrary to the
position
desired by our family.

In theory there have to be limits to what we would do. For
example, we would not defend a parent who says, "I believe
that I should teach my child sex education and the best way
to do that is for me to engage in sex with my child." But, the
limits have only been theoretical. Because never have we been
asked to defend a position that we believed to be so far outside
the bounds of reason that we could not defend the parents in
good conscience.

We believe it is our job in court to defend our members'
position,
not to argue our own.

But, now, as requested, let me share my personal opinions on the
questions you have asked.

Let me answer your question first from a biblical perspective and
then from a constitutional perspective.

I believe that God commands parents to teach their children.
Deut. 6:7; Eph. 6:4. God does not command or authorize the
government to teach children. God does not command or
authorize the church to teach children (although Scripture does
command the church to teach young men and women). I do not
feel that I can interpret this scriptural pattern for others.
But for
me and my house, I believe that the Bible requires my wife and
I to teach our children ourselves. (When they are young men
and women we believe the church can play a substantial role and
this is why our oldest daughter attends a Christian college).

I also believe that God commands the government to punish
those who do evil. I Peter 2:14. I believe that this includes
the
power of government to punish parents who do evil to their
children. If a parent rapes a child, beats a child with chains,
intentionally breaks a child's arm, or intentionally starves a
child
the government has the responsibility to punish such evil doing.
Likewise, if a parent denies their child food, clothing, basic
shelter,
or education I believe the government can punish such a parent
because God requires the parent to furnish all these things
to their child.

Stated simply, if a parent has a child who has the basic
intelligence to be capable of reading the Bible, and that parent
deliberately fails to teach that child to read (by the time the
child
is twelve years old, for example) the government has the
authority
to punish such a parent because the parent has done an evil thing
as defined by God. "But if anyone provide not for his own, and
specially for those of his own house, he hath denied the faith,
and
is worse than an infidel." I Timothy 5:8.

Constitutionally, I believe that the government has the authority
to do what the Bible command--to punish those who deliberately
fail to teach their children.

Does this mean that the government has the authority to approve
who teaches? No. Does this mean that the government has the
authority to dictate curriculum? No. Dictate hours of study?
No.
Dictate a particular test? No. Dictate testing at all? No.
Give a
role to local school authorities to supervise parents? No.
Dictate
that we seek any sort of advance approval? No. Require
compulsory ATTENDANCE? No.

I believe that there is no constitutional role for public schools
to
supervise home schools. But I do believe that there is a
constitutional role for prosecuting authorities to punish those
who
claim to be home schooling but are in fact not even teaching
their
children to read. This authority is properly exercised only when
the government has evidence of wrong doing. We should not be
required to prove our innocence. The government should always
be required to prove our guilt.

The Supreme Court invented the compelling state interest test
over time. But by the late 1960s it was firmly in place. It is
the
highest test that is in place for protection of all fundamental
rights
including the freedom of speech, freedom of press, and the right
of
parents to direct the upbringing of their children. I believe it
is a
very good test when applied correctly; but it is not the test
that I believe that is ideal. In fact, I like none of the
existing
constitutional tests invented by the Supreme Court; I prefer
simply imposing the language of the Constitution plus
original intent.

However, given the current realities, I want the rights that I
hold dear (religious freedom and parental rights) to be judged
by the highest and most protective standards available. And,
again, the compelling interest standard is the highest test in
use today and when properly employed it is very good.

In Wisconsin v. Yoder, 406 U.S. 205 (1972) the Court used
the compelling interest standard to hold that the state did not
have a sufficiently compelling interest in compulsory education
to require that the Amish attend high school. They did hold that
the government had a compelling interest in literacy and
self-sufficiency but not in compulsory attendance.

In People of the State of Michigan v. DeJonge, 501 N.W.2d 127
(Mich. 1993), (a case I argued) the Michigan Supreme Court held
that the government did not have a compelling interest in
imposing
teacher's certification on religious home schoolers. In that
case I
did not challenge the notion that the government had a compelling
interest in literacy and self-sufficiency as defined by Yoder,
rather
I attacked the regulation in place--teacher's certification--and
argued
that abstract questions about education in general were not
before
the court. The question, I suggested, was whether this
regulation
was truly essential to make sure that children learned the basic
skills. We proved that the DeJonge children were doing fine
without
such detailed government regulation. And we won on
constitutional
grounds.

It is my legal opinion as a constitutional lawyer that had we
simply argued that the government had no authority to punish
those
who simply do not teach child at all that we would have lost. It
is
my opinion as an ordained minister and church elder that God
would
not have blessed such an argument because it is contrary to His
Word.

In summary, if you believe that it is necessary for HSLDA to
argue that government can never punish those who do absolutely
nothing for their children's education, we are not the
organization
for you. However, if you believe that government (and
particularly
the public schools) have no authority to require you to seek
their
permission or dictate any of the details of your child's
education,
and have only the limited authority to punish those who do
nothing,
then you are in agreement with HSLDA's bottomline position.

I hope that this answers your question. If not feel free to
write again.
I would appeal to you to write first to me for clarification or
to show
me where I have deviated from Scripture (if you disagree with me)
rather than simply posting my letter to the Internet.

This letter is intended for you personally. But if it does get
posted, I respectfully request that the entire letter be posed
and never excerpted. Thanks for your understanding on this point.

And, again, my deepest thanks for coming to me yourself with
your question.

In Christ's Service,
Michael Farris