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| ID | 181 |
|---|---|
| Original Title | The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education |
| Sanitized Title | thecentennialofmeyerandpierceparentsrightsgenderaffirmingcareandissuesineducation |
| Clean Title | The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education |
| Source ID | 2 |
| Article Id01 | 596877976 |
| Article Id02 | oai:scholarship.law.gwu.edu:faculty_publications-2970 |
| Corpus ID | (not set) |
| Dup | (not set) |
| Dup ID | (not set) |
| Url | https://core.ac.uk/outputs/596877976 |
| Publication Url | (not set) |
| Download Url | https://core.ac.uk/download/596877976.pdf |
| Original Abstract | This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious exercise and knowledge acquisition, as well as Fourteenth Amendment themes of minority vulnerability, family privacy, and parental concerns beyond education. Part II searches for lessons from the Meyer-Pierce legacy in several contemporary contexts. Part II.A. focuses on a culture war clash in which Meyer-Pierce rights seem exceptionally strong -- regulation of parental consent to gender-affirming medical care for minors suffering from gender dysphoria. In the October 2024 Term, the Supreme Court will hear United States v. Skrmetti, a case presenting a challenge to the Tennessee legislation on this subject. Part II. B. analyzes issues in education. Among these are parents’ rights to control the content of public-school curricula, including instruction about matters of race, sexual orientation, and gender identity; to receive information about gender-related changes in how their children present themselves at school; and to receive financial support of the state in educational choices, including the possibility of religious charter schools. Comparison among these contexts illuminates the many ways in which other, contemporaneous changes in constitutional law influence the shifting shape of parents’ constitutional rights |
| Clean Abstract | (not set) |
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| Original Full Text | GW Law Faculty Publications & Other Works Faculty Scholarship 2024 The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education Ira C. Lupu George Washington University Law School Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Vol. 24, Journal of Contemporary Legal Issues (Univ. of San Diego) (forthcoming 2024), in Symposium: “Educational Choice: The Legacy of Meyer v. Nebraska and Pierce v. Society of Sisters” This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact spagel@law.gwu.edu. The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues inEducationIra C. Lupu1This paper was prepared for a Symposium marking the centennial of the Supreme Court’sdecisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception,Meyer and Pierce reflected constitutional principles of economic freedom and parental controlof their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce.These include the decline of their economic freedom component and the broader grounding oftheir doctrines of parental authority. Eventually, the legacy of Meyer and Pierce expanded toinclude First Amendment concerns of religious exercise and knowledge acquisition; FourteenthAmendment themes of minority vulnerability; family privacy; and parental concerns beyondeducation.Part II searches for lessons from the Meyer-Pierce legacy in several contemporarycontexts. Part II.A. focuses on a topic where Meyer-Pierce rights seem exceptionally strong --regulation of parental consent to gender-affirming medical care for minors suffering fromgender dysphoria. Petitions for certiorari in cases on this subject, arising out of Kentucky andTennessee, are now pending at the Supreme Court, and a grant seems likely. Part II. B. analyzesissues in education. These include parents’ rights to control the content of public-schoolcurricula, including instruction about matters of race, sexual orientation, and gender identity; toreceive information about gender-related changes in how their children present themselves atschool; and to gain access to the financial support of the state in making educational choices,including religious education. In all these contexts, Meyer-Pierce rights appear in varyingdegrees of relevance and strength. Comparison among them illuminates the current scope andlikely future of parents’ constitutional rights.With the rhetoric of parents’ rights all around us, marking the Centennial of Meyer v.Nebraska2 and Pierce v. Society of Sisters3 with a Symposium seems like an ingenious3 268 U.S. 510 (1925).2 262 U.S. 390 (1923).1 Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law Emeritus, George Washington University. Manythanks to Professor Maimon Schwarzschild of the University of San Diego for the kind invitation to participate inthe Symposium; to Professor Richard Epstein and the Classical Liberal Institute at NYU Law School for hosting thegathering; to the Journal of Contemporary Legal Issues for the opportunity to publish the paper; and to Bob Bruno,Naomi Cahn, Clare Huntington, Peter Smith, Bob Tuttle, and John Ward for encouragement and thoughtfulcomments at various stages of the project. I offer a special salute and thanks to John Ward, a student of mine fromhis 1L year and my rookie teaching year at Boston University Law School in 1973-74. John is a civil rights pioneerand hero, who founded GLAD (Gay and Lesbian Advocates and Defenders) in 1978. In Fall 2023, in seminars taughtby John on “LGBTQ Rights and the Courts” at Boston College and Boston University, John, his students, and I (as aone-day guest) explored many of the issues addressed in Part II of this paper. The errors are mine.1concentration of academic energy. As this paper will show, the current collection of parents’rights claims under the Constitution reveals occasional strength and more frequent weakness.4The fundamentals are well-known. Meyer struck down a law that barred instruction,within any school, in any modern foreign language to a child who had not yet completed theeighth grade. Pierce invalidated an Oregon scheme that required all children between eight andsixteen to attend public school, thereby effectively prohibiting the choice of private schools,secular or religious. The conventional and contemporary takeaway from these decisions is thatparents have constitutional rights, resting on the Due Process Clause of the 14th Amendment, todirect the education and upbringing of their minor children.The paths which Meyer and Pierce have followed over the last 100 years, however, arefar more complex than that. Law students frequently learn that the laws blocked in Meyer andPierce were the products of nativism and bigotry. The Nebraska legislature was concernedabout assimilation of immigrants into the state’s population.5 The State of Oregon, through avoter-approved initiative, was lashing out against perceived radical influence6 and the assertedanti-American character of Catholic schools.7 Does this contextual information limit thesignificance of Meyer and Pierce? Or does it broaden them out to other contexts, not involvingparental rights, where nativism and bigotry are operating?Students also learn that Meyer and Pierce are products of the Lochner era, in which theSupreme Court protected freedom of contract and other economic concerns against hostilestate legislation. Meyer involved the right of a German teacher to practice his vocation, as wellas the rights of parents to educate their children in foreign languages. Pierce involved theeconomic interests of those who owned and operated private schools, as well as the right ofparents to select a school. The repudiation of economic due process in the late 1930’s invitedquestions concerning the continued vitality of Meyer and Pierce. It did not take very long,however, for the Supreme Court to recast those decisions as part of the new constitutionalproject of protecting vulnerable minorities.8 Later, the Court famously re-rationalized Meyerand Pierce as decisions in the penumbra of the First Amendment concern about acquisition ofknowledge.9 Eventually, the Court broadened the ambit of these decisions to encompass9 Griswold v. Connecticut, 381 U.S. 479 (1965).8 United States v. Carolene Products, 304 U.S. 144, 152, n.4 (1938).7 See Paula Abrams, Cross Purposes: Pierce v. Society of Sisters and the Struggle over Compulsory Education (UMich. Press 2009) (describing the Oregon initiative as KKK-inspired and aimed at Catholic schools); see also RobertBunting, Pierce v. Society of Sisters,https://www.oregonencyclopedia.org/articles/pierce_vs_society_of_sisters_1925_/..6 1925 U.S. LEXIS at ****5 (“. . . a State can prevent the entire education of a considerable portion of its futurecitizens being controlled and conducted by bolshevists, syndicalists and communists. . .) (argument for the State ofOregon). In 2024, that rhetoric sounds familiar.5 1923 U.S. LEXIS at ****5 - ****6 (argument for the State).4 The political movement for “parents’ rights” has faced setbacks. See, e.g., Lisa Lerer & Patricia Mazzei, Florida SexScandal Shakes Moms for Liberty as Group’s Influence Wanes, N.Y. Times, Dec. 16, 2023, available here:https://www.nytimes.com/2023/12/16/us/politics/moms-for-liberty-sex-scandal.html.2parental rights of control over many aspects of their children’s lives.10 Post-New Deal, nothingseems to remain of the constitutional concern for the economic rights of those who provideeducational services, but parents’ rights remain robust.Meyer and Pierce endure, but much of their framing has changed. Part I of this papertraces the principles of Meyer and Pierce from their common law antecedents through theirinvocation in the 1920’s, and then extends the narrative to their most recent mention in Dobbsv. Jackson Women’s Health Organization.11 Among the stops along the way will be a reminderthat Meyer and Pierce are the first two decisions in a trilogy, all authored by Justice McReynolds,on the subject of parents’ rights to control their children’s upbringing. The third, Farrington v.Tokushige,12 has vanished from view. The tour provided in Part I will both 1) enmesh the story ofMeyer-Pierce within the far larger narrative of Fourteenth Amendment adjudication over thepast century, and 2) leave the reader with questions about the current scope of Meyer-Pierce.Their legacy reflects the larger story of a century’s worth of adjudication under the 14thAmendment, and – like that larger story – their legacy is up for grabs.In the uncertain light of Meyer and Pierce, Part II of the paper will analyze a series ofcurrent problems in the constitutional law of parental authority. Part II.A. analyzes the rights ofparents to direct and control medical care of their children who are suffering from genderdysphoria, a subject of intense legal interest. As of this writing, petitions for certiorari to the 6thCircuit, in companion cases arising in Kentucky and Tennessee, are pending at the U.S. SupremeCourt.13 Part II.B. turns to the context of education, in which Meyer-Pierce arose. The analysisfocuses on parents’ rights to control the content of public-school curricula, for their ownchildren and others; to receive information about the ways that their children presentthemselves at public school; and to gain access to the financial support of the state in makingeducational choices for their children. These problems are not conceptually parallel, and theanalysis of each involves very different considerations.The political rhetoric and constitutional meaning of parents’ rights frequently diverge.I hope that the paper’s examination of various contexts will shed light on that divergence.Please note, however, that the paper is not an attempt to systematically advance a particular13 See L.W. v. Skrmetti, 83 F. 4th 460 (6th Cir. 2023), petition for cert filed, No. 23-466, Nov.1, 2023, available here:https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-466.html. I was amongthe scholars who participated in an amicus brief in the 6th Circuit on the side of the parents in L.W. v. Skrmetti andDoe I v. Thornbury, a companion case from Kentucky decided together with Skrmetti, as well as in the en bancappeal to the 8th Circuit in Brandt v. Rutledge. The Doe I plaintiffs have also filed a petition for certiorari, availablehere: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-492.html. TheUnited States has also filed a certiorari petition, covering both cases, available here:https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-477.html.12 273 U.S. 284 (1927). I am not including in the count Bartels v. Iowa, 262 U.S. 409 (1923), which involved preciselythe same language teaching restriction as Meyers. Justice Holmes, joined by Justice Sutherland, dissented in Meyerand Bartels on the ground that the restriction on teaching a particular subject in the schools was reasonable andtherefore satisfied the Due Process Clause.11 142 S. Ct. 2228, 597 U.S. ___ (2022).10 See, e.g., Troxel v. Granville, 530 U.S. 57 (2000).3view of family law and policy,14 nor does it offer a theory of parents’ constitutional rights. Thepaper reflects a journey through constitutional law over the past hundred years, not adestination.Part I. The Journey of Meyer-Pierce -- From Blackstone to DobbsA. The 1920’s TrilogyMeyer v. Nebraska. Zion Evangelical Lutheran Congregation maintained a parochialschool, where Meyer taught the German language through Bible stories. He was prosecuted andfined twenty-five dollars under a World War I era statute that had been enacted out of hostilityto the large German-speaking population in Nebraska.15When the case arrived at the Supreme Court, what were the relevant legal principles?The Court’s prior treatment of substantive claims made under the Due Process Clause had beenfocused on matters of economic liberty. and most of the arguments presented in Meyerdepended on that line of decision.16 Nevertheless, Justice McReynolds’ opinion famouslyexpanded the relevant zone of substantive liberties protected by the Clause:“While this Court has not attempted to define with exactness the liberty thus guaranteed, theterm has received much consideration and some of the included things have been definitelystated. Without doubt, it denotes not merely freedom from bodily restraint but also the right ofthe individual to contract, to engage in any of the common occupations of life, to acquire usefulknowledge, to marry, [or] establish a home and bring up children, to worship God according tothe dictates of his own conscience, and generally to enjoy those privileges long recognized atcommon law as essential to the orderly pursuit of happiness by free men.”17This passage is followed by a string cite of decisions, none of which involve rights “tomarry, establish a home and bring up children,” or otherwise control the education of children.The opinion explains that the state may not interfere with liberty “by legislative action which isarbitrary or without reasonable relation to some purpose within the competency of the State to17 262 U.S. at 399.16 1923 U.S. LEXIS 2655, ****1 - ****3 (arguments on behalf of Meyer).15 For an insightful and detailed discussion of the legislative background of Meyer, and the connection of Lutheranchurch concerns to both Meyer and Pierce, see William G. Ross, Meyer v. Nebraska: A Lutheran Contribution toConstitutional Law, available here:https://www.lutheranforum.com/blog/meyer-v-nebraska-a-lutheran-contribution-to-constitutional-law. Ohio andIowa had similar statutes, enacted as part of a broader “Americanization” movement against foreign languageinstruction in immigrant communities. Id.14 As an approach to policy in the area, I find congenial the general views advanced by Clare Huntington andElizabeth S. Scott in their article, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev.1371 (2020) (advancing the idea that “child well-being” should be the overarching concern of the law) (hereaftercited as Huntington & Scott, “Conceptualizing Legal Childhood”). Professors Huntington and Scott elaborate ontheir theory of child well-being as the justification for parental rights in The Enduring Importance of Parental Rights,90 Ford. L. Rev. 2529 (2022).4effect.”18 The Court acknowledges that the State has a legitimate interest in the goal ofencouraging assimilation by the children of immigrants, whose mother tongue is not English,“but this cannot be coerced by methods which conflict with the Constitution -- a desirable endcannot be promoted by prohibited means.”19In attempting to explain why the chosen means are prohibited by the Constitution,Justice McReynolds turned to the thought and practice of ancient Greece.20 The Republicidealized by Plato, the opinion tells us, would have removed children from their parentsimmediately and put them with nurses. No parent should know their own child. The Spartansremoved children from parents at age seven and put them in barracks to be reared byguardians. But moderns in a free society have different ideas and customs.What are they? McReynolds concedes that “[t]he power of the State to compelattendance at some school and to make reasonable regulations for all schools, including arequirement that they shall give instructions in English, is not questioned. Nor has challengebeen made of the State's power to prescribe a curriculum for institutions which it supports.”21 What follows as the conclusive reasoning is astoundingly superficial:“[M]ere abuse incident to an occupation ordinarily useful is not enough to justify itsabolition, although regulation may be entirely proper. No emergency has arisen which rendersknowledge by a child of some language other than English so clearly harmful as to justify itsinhibition with the consequent infringement of rights long freely enjoyed. We are constrained toconclude that the statute as applied is arbitrary and without reasonable relation to any endwithin the competency of the State.”22Exactly which “rights long freely enjoyed” had been infringed? Perhaps those of theteacher, who would have to teach other subjects in the school and be left at best to teachGerman in an extra-curricular program. But did the parents have any rights long freely enjoyedthat the legislation infringed? Keep in mind that the state compelled the children to attendschool, and that the state regulated the curriculum at the schools that sought to satisfy thecompulsory attendance law. They taught reading and arithmetic, along with some lessons inmorality and civics. At grades up to eighth, they did not teach calculus, advanced physics, ortennis skills. If parents wanted that instruction, they were on their own, left to self-help orpurchase of instruction outside school hours. They had no right to insist that those subjects betaught to any grade in the public schools.Was the very institution of compulsory education an infringement of rights long freelyenjoyed? Massachusetts had first compelled education of the young, and by 1923, every statehad enacted a compulsory school law. And every state prescribed the elements of the22 Id. at 403.21 Id. at 402.20 Id. at 401-402.19 Id. at 401.18 Id. at 399-400.5curriculum. I have found no indication that such laws were ever challenged as violations of thefederal or state constitutions. Both before and after education became compulsory, parents inseveral states successfully asserted a right to have a child opt out of a particular course ofstudy,23 but no decision protected the right to demand one.Meyer, when focused on parental rights to insist on language instruction in the school,invites a deeper explanation. Two decades ago, Professor Jill Hasday analyzed the common lawbackground of parental rights. She wrote: “The Anglo-American common law understood theconnection between parent and child as a relation of both reciprocal obligation and hierarchicalobedience. At common law, a father enjoyed an almost absolute right to the custody, labor, andearnings of his minor children,24 and was in turn expected to maintain, protect, and educatethem.”25The gendered character of this aside, what appears from this account is a parental rightfocused in part on economic considerations, in the form of labor and earnings. But thereference to duties – “maintain, protect, and educate” – reflects a broader account ofparent-child relations,26 as well as obligations to the community. Children who are not properlymaintained, protected, and educated may behave in destructive and anti-social ways, and theburden of supporting (or perhaps incarcerating) them may fall on the community at large.This is a common law story that at least begins to explain the trilogy of decisions thatbegin with Meyer, though the narrative requires more detail. Why should it matter if a child inNebraska in the 1920’s learns to read or speak German in school? Perhaps earningopportunities in an immigrant community depend on that skill. The child’s experience ofworship and inculcation of religious values, including moral teaching, are likely reinforced by hislanguage skills.27 Perhaps the child’s ability to communicate with her family (and vice versa) intheir native tongue may be enhanced by this instruction. These considerations suggest acultural and economic picture of familial and communitarian solidarity, driven by the rights of27 In the Missouri Synod (widespread in the Midwest) of the Lutheran Church, German remained the language ofworship services in the early 1920’s, though there was intra-church conflict about continuing the use of German inworship services. William G. Ross, Meyer v. Nebraska: A Lutheran Contribution to Constitutional Law, availablehere: https://www.lutheranforum.com/blog/meyer-v-nebraska-a-lutheran-contribution-to-constitutional-law.26 See, e.g., Sch. Bd. Dist. 18 v. Thompson, 24 Okla. 1 (1909) (citing Blackstone for conception of paternal duty tochildren).25 Id. at 310 & n. 26 (also citing Blackstone and Kent). The common law also gave a father the authority to usephysical punishment to correct his child, a moderation of paternal rights of life and death over minor childrenafforded by Roman law. Id. at 311.24 Jill Hasday, Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations, 90 Geo. L. J. 299, 310& n. 25 (2002) (citing1 William Blackstone, Commentaries *441; 2 James Kent, Commentaries on American Law254-55 (O.W. Holmes, Jr., ed., Boston, Little, Brown, & Co.. 12th ed. 1873).23 Sch. Bd. Dist. 18 v. Thompson, 24 Okla. 1 (1909) (right to opt out of singing lessons); Trustee of Schools v. People,87 Ill. 303 (1877) (right to opt out of studies in grammar in high school); Morrow v. Wood, 35 Wisc. 59 (1874) (rightto opt out of course in geography); but see State v. Webber, 108 Ind. 31, 8 NE 708 (1886) (parent may not withdrawchild from music instruction).6parents.28 None of this has the flavor of a child’s self-actualization, a concept to which latergenerations might refer in explaining parental rights29.One final point about Meyer deserves emphasis. The law was not limited to the publicschools, where the state has full and presumptive authority over the curriculum. The Nebraskalaw applied to all accredited schools. What legitimate state interest explained a mandatoryexclusion from a private school curriculum? Accreditation standards properly mandateinclusions, but exclusions demand a different story. Nebraska did not have a story good enoughto justify this kind of intrusion on parental authority and corresponding family life.Pierce v. Society of Sisters.30 Two years later, the decision in Pierce built on Meyer byexplaining more thoroughly what was at stake. In November 1922, Oregon had byvoter-approved initiative enacted the Compulsory Education Act, which required parents orother guardians of children between the ages of 8 and 16 to send them each year to a publicschool.31 The Act exempted children who had completed the eighth grade, so the effect of thelaw, scheduled to go into effect in the Fall of 1926, was to outlaw the offering of the primarygrades by all private schools, secular or religious. The Hill Military Academy, and the Society ofSisters of the Holy Names of Jesus and Mary,32 brought suit to enjoin the enforcement of theAct.Much of the argument in the lower court and the Supreme Court was taken up with thequestion whether corporations could assert the liberty of parents under the Due Process Clauseof 14th Amendment. Justice McReynolds, in a unanimous opinion, made short work of that. Thecorporations could sue to protect their property rights, which were substantial. And in doing so,the schools could assert the liberty of third parties not before the Court – the parents.33The merits portion of the Pierce opinion is concise, to say the least:34“Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922unreasonably interferes with the liberty of parents and guardians to direct the upbringing andeducation of children under their control. . . . . [R]ights guaranteed by the Constitution may notbe abridged by legislation which has no reasonable relation to some purpose within thecompetency of the State. The fundamental theory of liberty upon which all governments in thisUnion repose excludes any general power of the State to standardize its children by forcingthem to accept instruction from public teachers only. The child is not the mere creature of the34 Id. at 534-35.33 Id. at 535.32 The Society was originally formed in Canada, https://snjm.org/en/, and the schools it founded include St. Mary’sAcademy, an all-girls high school in Portland, Oregon.31 Id. at 530. The Act also exempted children who were “not normal” or who lived far from any public school. Id.30 268 U.S. 510 (1925).29 Id. at 1413 et seq. (arguing that parental rights are an instrument for protecting the well-being of children)>28 See Huntington & Scott, Conceptualizing Legal Childhood, note __ supra, at 1414 (analyzing Meyer and Pierce asdecisions that recognize American pluralism).7State; those who nurture him and direct his destiny have the right, coupled with the high duty,to recognize and prepare him for additional obligations.”This language is more sweeping and forceful than that used in Meyer, and for goodreason. Meyer involved a relatively narrow restriction on modern language instruction withinaccredited schools. The Oregon scheme, in contrast, outlawed the entire class of privateschools, upsetting settled expectations of institutions that owned and operated these schools,as well as expectations of parents, children, and teachers. Moreover, the arguments that thestate deployed in defense of the Act reeked with prejudice against immigrants, associating themwith Bolsheviks and other undesirable elements. The State had made no showing in the lowercourt that public schools would assimilate immigrant children more successfully than privateschools. Expensive private schools, like Hill Military Academy,35 were hardly likely to cater toleft-wing revolutionaries.The Oregon proposal had been sponsored by, among others, the Ku Klux Klan, and wasdefended on the ground that it was necessary to protect “a homogeneous American culture.”36Schools run by the Catholic Church and other religious groups were the obvious target, so theAct (had it gone into operation) would have substantially inhibited parental choice to inculcatereligious beliefs, values, and customs.Far more than the Nebraska restriction on teaching a foreign language in schoolsotherwise conducted primarily in English, the Oregon law was an entirely novel attempt to forceall children into the public schools. In this regard, the Compulsory School Act disturbedlong-standing practices of education and the dedication of institutional resources in support ofthose practices. In Pierce, unlike Meyer, the argument that the law undid “rights long freelyenjoyed” was overpowering, and the state interests were served dubiously, if at all.Farrington v. Tokushige.37 The third decision in the trilogy, all authored by JusticeMcReynolds38 in the 1920’s, is the least well-known. Farrington involved the Territory of Hawaii,which in 1925 had enacted the Foreign Language School Act. The Act heavily regulated suchschools, defined as “any school conducted in any language other than English or the Hawaiianlanguage.” The Court’s opinion gives us the flavor of what drove the legislation:38 There is an irony in the authorship of these three decisions, all of which operated to constrain various forms ofbigotry in state legislation. Justice McReynolds was quite infamous, in his own time and later, for his racism,anti-Semitism, misogyny, and other forms of bigotry, which he apparently took no pains to hide. Ian Milhiser, TheFive Worst Supreme Court Justices in American History, Ranked, Think Progress, March 24. 2015,https://archive.thinkprogress.org/the-five-worst-supreme-court-justices-in-american-history-ranked-f725000b59e8/ (ranking McReynolds third and commenting on his “unique blend of self-centered bigotry”). That he led theCourt’s consistent invalidation of laws reflecting comparable bigotry may suggest his deep commitment to theparental rights themes contained in the trilogy.37 273 U.S. 284 (1927).36 Robert Bunting, Pierce v. Society of Sisters,https://www.oregonencyclopedia.org/articles/pierce_vs_society_of_sisters_1925_/.35 Id. at 533 (noting the $800 annual tuition at Hill Military Academy). Eight hundred dollars in 1925 is theequivalent of approximately fourteen thousand dollars today.8“There are one hundred and sixty-three foreign language schools in the Territory. Nineare conducted in the Korean language, seven in the Chinese and the remainder in the Japanese.Respondents are members of numerous voluntary unincorporated associations conductingforeign language schools for instruction of Japanese children. These are owned, maintained andconducted by upwards of five thousand persons; the property used in connection therewith isworth two hundred and fifty thousand dollars; the enrolled pupils number twenty thousand;and three hundred teachers are employed. These schools receive no aid from public funds. Allchildren residing within the Territory are required to attend some public or equivalent school;and practically all who go to foreign language schools also attend public or such private schools.It is affirmed by counsel for petitioners that Japanese pupils in the public and equivalent privateschools increased from one thousand, three hundred and twenty in 1900 to nineteen thousand,three hundred and fifty-four in 1920, and that out of a total of sixty-five thousand, threehundred and sixty-nine pupils of all races on December 31, 1924, thirty thousand, four hundredand eighty-seven were Japanese.”The concern of the Hawaii legislature was the assimilation and loyalty of this substantialpopulation of Japanese descent. The Act (and regulations promulgated under it) imposed avariety of heavy-handed and burdensome demands on foreign language schools. The Court’sopinion quotes at length from the Circuit Court opinion re: the details of the regulatory scheme.These include the imposition of substantial per student fees; state control of the choice oftextbooks; a limitation on hours of attendance per week; and, most egregiously, a regime ofstate control of all teachers. Under the Act, those seeking a permit to teach in the languageschools had “to satisfy state officials that the applicant for the same is possessed of the ideals ofdemocracy; knowledge of American history and institutions, and knows how to read, write andspeak the English language.”39 Beyond that, each applicant had to pledge that he “will, to thebest of his ability, so direct the minds and studies of pupils in such schools as will tend to makethem good and loyal American citizens, and will not permit such students to receive instructionsin any way inconsistent therewith.”40 The scheme oozed suspicion of disloyalty of its targets.The challenge to the Act was based on the Due Process Clause of the Fifth Amendment,applicable in the Territories. The lower courts had no hesitation in relying on Meyer and Pierceto hold that the Act infringed on the liberty of parents to direct the upbringing of theirchildren.41 For the Supreme Court, Justice McReynolds saw the case precisely the same way:“The Japanese parent has the right to direct the education of his own child withoutunreasonable restrictions; the Constitution protects him as well as those who speak anothertongue.”42 With little additional discussion, the Court affirmed the grant of preliminary relief tothe plaintiffs. Apparently, the state did not attempt to litigate the matter further and the42 273 U.S. at 298.41 Farrington v. Tokushige, 11 F. 2d 710 (9th Cir. Haw. 1926). The Circuit Court affirmed a broad injunction that thedistrict court had entered against enforcement of the Act. Id. at 713.40 Id. at 293-94.39 273 U.S. at 293.9schools thrived for the next 14 years,43 though they faded away after the attack on PearlHarbor.44Perhaps Farrington was an easier case than Meyer and Pierce. The foreign languageschools in Hawaii existed outside of the schools designed to satisfy compulsory educationrequirements. Students attended the language schools before or after regular school hours.The language schools thus were supplements to required education, not substitutes for it. Toour contemporary eyes, as well as to the eyes of federal judges in the mid-1920’s, the Act seemslike an outrageous slur on the loyalty and integrity of families of Asian descent.Whatever its ease, Farrington extended Meyer and Pierce to a more general protectionof parental choices of how their children should be reared and taught. Animus toward part ofthe population – a theme that also animates Meyer and Pierce – cannot justify interference witha parent’s choice to add layers of language, customs, and culture to her child’s experience. Evena notorious bigot like James McReynolds could see that.45B. From the 1920’s to the 2020’s -- The Evolving Character of the Trilogy1. The 1940’sBetween the mid-1920’s and the rise of the New Deal Court in the late 1930’s, the Courtvery rarely cited the decisions in the trilogy.46 Despite the trilogy’s multiple emphases onparental rights and economic liberties of teachers and school proprietors, the apparent death ofsubstantive due process in the late 1930’s could have been fatal to the trilogy. All three caseshad been brought by an economic actor, complaining of injury to occupation or proprietorship,rather than by a parent.4747 Today, we might think of these decisions as involving standing to raise the rights of third parties, though nonewere explained that way at the time. Nevertheless, it is ironic that the constitutional concept of parents’ rightsarose in three decisions in which no parent appeared as a party.46 A rare mention of Pierce appears in Hamilton v. Regents of California, 293 U.S. 245 (1934), a decision thatrejected a claim of conscientious exemption from required military training at the University of California. TheHamilton opinion cites Pierce for the proposition that the liberty protected by the due process clause includes theright to hold and teach religious beliefs. Id. at 262.45 See Milhiser, note ___, supra. Meyer and Pierce involved a predominantly White population, but Tokushigeobviously did not.44 “Japanese Schools in Hawaii,”https://sites.google.com/a/hawaii.edu/ndnp-hawaii/Home/historical-feature-articles/japanese-schools-in-hawaii(schools were shut down during WW II and re-opened in smaller numbers thereafter).43 Yoshihide Matsubayashi, The Japanese Language Schools in Hawaii and California, 1892 – 1941 (D.Ed.,dissertation Univ. of San Francisco, 1985), available here:https://www.proquest.com/openview/145b055659629d1c2226dc743ab54ede/1?pq-origsite=gscholar&cbl=18750&diss=y. Chapter V is entitled “The Golden Period of Japanese Language Schools: 1928 – 1941.” (Permission tolook at microfilm required).10The Court quickly addressed the question of whether these decisions retained vitalityafter West Coast Hotel Co. v. Parrish.48 The first move toward re-rationalizing Meyer, Pierce, and(occasionally) Farrington appeared in Palko v. Connecticut,49 decided just nine months afterWest Coast Hotel. In the course of explaining why the double jeopardy provision of the FifthAmendment was not absorbed by the Due Process Clause of the 14th, Justice Cardozo’s opinionexplained that some parts of the Bill of Rights, but not others, were “implicit in the concept ofordered liberty.”50 In a key passage, Cardozo wrote that “the due process clause of theFourteenth Amendment may make it unlawful for a state to abridge . . . the freedom of speechwhich the First Amendment safeguards against encroachment by Congress [citations omitted]or the like freedom of the press [citations omitted] or the free exercise of religion . . . cf. Piercev. Society of Sisters.”51Palko thus represented the first move toward folding Pierce into the First Amendment,the Free Exercise Clause in particular, even though Pierce made no mention of the FirstAmendment and protected the choice to attend secular as well as religious private schools.Whatever the scope of the Palko dictum, it pushed away from treatment of Pierce as resting ona free-floating conception of substantive liberty under the Due Process Clause.Just four months later, the Court once again reframed the story of the trilogy in the thirdparagraph of the famous footnote 4 to United States v. Carolene Products Co.:52“Nor need we enquire whether similar considerations enter into the review of statutesdirected at particular religious, Pierce v. Society of Sisters, or national, Meyer v.Nebraska, Bartels v. Iowa, Farrington v. Tokushige, or racial minorities, Nixon v. Herndon, Nixonv. Condon: whether prejudice against discrete and insular minorities may be a special condition,which tends seriously to curtail the operation of those political processes ordinarily to be reliedupon to protect minorities, and which may call for a correspondingly more searching judicialinquiry. . .”This paragraph represents the second re-rationalization of Meyer and Pierce. Apart fromFarrington, the Court in the trilogy had said very little about whether the challengedenactments had been directed at specific minorities. The opinions, particularly those in Meyerand Pierce, paid far more attention to questions of property loss and the scope of corporateliberty. Blending Meyer, Pierce, and Farrington into a focused concern for prejudice againstvulnerable minorities thus moved away from a narrative of substantive rights and toward amodel of concern with political processes.52 304 U.S. 144, 152, n.4 (1938) (citations omitted).51 Id.50 Id. at 324.49 302 U.S. 319 (1937).48 300 U.S. 379 (1937) (upholding minimum wage law for women, and overruling Adkins v. Children’s Hospital, 261U.S. 525 (1923)). The Court decided Adkins on April 9, 1923, in the same Term as Meyer v. Nebraska, decided June4, 1923.11The Carolene Products footnote version of the trilogy overlapped with Palko’s referenceto Pierce, but also revealed inner tension. A general conception of free exercise and a concernfor religious minorities obviously fit together, however imperfectly. In contrast, a concern forethnic and racial minorities did not necessarily overlap with any particular provision in the Bill ofRights, and so rested on a 14th Amendment theory disconnected from Amendments 1-8.At the time, these ideas were nascent, ripe for future development, and both haveinfluenced the interpretation of decisions in the trilogy thereafter. In the 1940’s, mentions ofthe trilogy were sparse but important. The most striking pieces of the story are thedisappearance of Farrington from the litany of citations, the boundary imposed on parents’rights in Prince v. Massachusetts, and the use of Pierce as a counterweight to EstablishmentClause limitations on state support of religious schools.The disappearance of Farrington v. Tokushige. In the first Flag Salute Case, Minersville v.Gobitis,53 Chief Justice Stone’s dissenting opinion cites (in passing) all three decisions in thetrilogy, as part of plea for judicial protection of the civil liberties of minorities.54 Two years later,in West Virginia Board of Education v. Barnette,55 only Justice Frankfurter’s dissent citedFarrington.56 Abruptly and continuing to this date, Farrington v. Tokushige thereafter vanishesfrom all references to parents’ rights in the Supreme Court.What happened to Farrington? On June 7, 1943, the Supreme Court announced itsdecision in Hirabayashi v. United States,57. upholding a curfew order imposed on all person ofJapanese descent in various Western areas of the United States. There is good reason to thinkthat the Justices who sided with the United States in the Japanese Exclusion Cases, premised ondeference to military judgment about the security risks posed by American citizens of Japaneseancestry, were not keen to highlight an earlier decision from the Territory of Hawaii in which theCourt scoffed at the notion of disloyalty among this population.58That thesis is borne out by the Court’s opinion in Prince v. Massachusetts,59 announcedon January 31, 1944, barely more than six months after Hirabayashi. Sarah Prince was amember of the Jehovah’s Witnesses, and she brought her nine-year-old niece onto a public59 321 U.S. 158 (1944).58 As will be discussed further below, Justice Douglas struck the coup de grace by omission against Farrington inGriswold v. Connecticut, 381 U.S. 479 (1965), by way of the famous reference to Meyer and Pierce as penumbralFirst Amendment decisions. Douglas concurred in Hirabayashi, involving curfew orders in his home state ofWashington, and a year later was in the majority in Korematsu v. United States.57 320 U.S. 81 (1943).56 Id. at 658 (Frankfurter, J., dissenting). The citation was oddly in service of an unpersuasive argument that parentschoose public school and therefore consent to all obligations imposed therein on their children. The idea seemedto be that the state may not control the “intimate and essential” details of private education, but should be free toimpose such control over public schools. Farrington had said nothing about the degree of state control over theideological demands imposed in public schools.55 319 U.S. 624 (1943).54 Id. at 606 (Stone, CJ, dissenting),53 310 U.S. 586 (1941).12street in Brockton, Massachusetts, to sell copies of that faith’s publications, The Watchtowerand Consolation. Ms. Prince was convicted of violating the state’s child labor laws, whichprohibited children from selling goods of any kind on a public street and made it an offense foranyone to supply children with the goods to be sold.60Ms. Prince raised defenses under the Free Exercise Clause of the First Amendment,which had recently been incorporated into the Fourteenth,61 as well as under a due processtheory of parents’ rights. In a series of prior cases involving street preaching and distribution ofreligious literature, the Jehovah’s Witnesses had fared very well in the Supreme Court in theearly 1940’s.62 The opinion by Justice Rutledge for the Court in Prince expressed considerablesympathy for the claimant:63“It is cardinal with us that the custody, care, and nurture of the child reside first in theparents, whose primary function and freedom include preparation for obligations the state canneither supply nor hinder. . . . And it is in recognition of this that [Barnette, Meyer, and Pierce]have respected the private realm of family life which the state cannot enter.”Nevertheless, the State prevailed in Prince, for reasons succinctly explained:64“But the family itself is not beyond regulation in the public interest, as against a claim ofreligious liberty. And neither rights of religion nor rights of parenthood are beyondlimitation. Acting to guard the general interest in youth's well-being, the state as parenspatriae may restrict the parent's control by requiring school attendance, regulating orprohibiting the child's labor, and in many other ways. Its authority is not nullified merelybecause the parent grounds his claim to control the child's course of conduct on religion orconscience. Thus, he cannot claim freedom from compulsory vaccination for the child morethan for himself on religious grounds. The right to practice religion freely does not includeliberty to expose the community or the child to communicable disease or the latter to ill healthor death. . . . [T]he state has a wide range of power for limiting parental freedom and authorityin things affecting the child's welfare; and that this includes, to some extent, matters ofconscience and religious conviction.”As noted above, Farrington v. Tokushuige is nowhere to be seen in any of the opinions inPrince.65 More generally, Prince is an important episode in the evolution of decisions aboutparental rights. Here, in an otherwise sympathetic context, the Court is refusing to recognize65 Justice Jackson, joined by Roberts and Frankfurter, concurred, Id. at 176. Justice Murphy dissented. Id. at 171.64 Id. at 166-167.63 321 U.S. at 166.62 See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. Opelika, 316 U.S. 584 (1942); Chaplinsky v. NewHampshire, 315 U.S. 568 (1942); Cantwell v. Connecticut, 310 U.S. 296 (1940).61 Cantwell v. Connecticut, 310 U.S. 296 (1940).60 The law differentiated boys, who were prohibited from such street selling before the age of 12, and girls, forwhom the age of prohibition was 18. Id. at 160-61. But Sarah Prince’s niece was only 9, so the sex distinctionmade no difference in this case.13religious exemptions from generally applicable laws and affirming state power over children inthe public realm, including public schools and places of child labor. Prince sets boundaries,uncertain as they may be at the margin, that remain in place.Everson v. Ewing Township.66 The last principal mention in the 1940’s of any decisionfrom the trilogy (now reduced to the binary of Meyer and Pierce) arrived in the Court’s firstmajor encounter with the question of whether the Establishment Clause applies to the states,and how the Clause is to be construed. Everson involved the seemingly simple question ofwhether a New Jersey Township could reimburse the cost of bus fares to parents of childrenattending Catholic high schools. The Court was unanimous on the incorporation question, andlikewise on the notion that the State could not directly assist schools that engaged in religiousindoctrination. But the Court was bitterly divided on the merits of the fare reimbursement. Themajority opinion upheld the reimbursement while insisting that the Constitution has built a wallbetween church and state.67 Near the end, the opinion included this: “This Court has saidthat parents may, in the discharge of their duty under state compulsory education laws, sendtheir children to a religious rather than a public school if the school meets the seculareducational requirements which the state has power to impose. See Pierce v. Society ofSisters.”68Everson’s broad embrace of a bar on direct state support of religious education makes iteasy to overlook that Justice Hugo Black, the sworn enemy of substantive due processadjudication, is citing Pierce favorably. Perhaps he accepted Justice Cardozo’s revisionist view ofPierce as a free exercise case, though Black doesn’t say so, or perhaps this sentence was justnecessary to get a fifth vote to uphold the reimbursement scheme.In any event, Everson has been foundational for the Constitution’s longstandingdichotomy between parental rights to choose a religious school for their children, and thedisability of the state to finance religious education. Much has changed in this corner of theconstitutional universe, to which the paper will return in Part II.B.2. Meyer, Pierce, and the Rise of Privacy Rights.The 1950’s were a quiet time for constitutional development of parental rights. Thestory picks up dramatically in Griswold v. Connecticut,69 which held that the Constitutionprotects a right of privacy extending to use of contraceptives by a married couple. The Courtopinion, written by Justice Douglas, explicitly rejected the notion that the case involved anexercise in pure substantive due process.70 Instead, Douglas famously articulated the idea that“specific guarantees of the Bill of Rights have penumbras, formed by emanations from those70 Id. at 481-82 (insisting that Lochner was not the Court’s guide).69 381 U.S. 479 (1965).68 Id.67 Id. at 18.66 330 U.S. 1 (1947)14guarantees that help give them life and substance.”71 Those penumbras include areas of“privacy and repose.”72For purposes of this paper, the most significant part of this exegesis is its opening:“The association of people is not mentioned in the Constitution nor in the Bill of Rights. Theright to educate a child in a school of the parents' choice -- whether public or private orparochial -- is also not mentioned. Nor is the right to study any particular subject or any foreignlanguage. Yet the First Amendment has been construed to include certain of those rights.By Pierce v. Society of Sisters, . . . the right to educate one's children as one chooses is madeapplicable to the States by the force of the First and Fourteenth Amendments. By Meyer v.Nebraska, . . . the same dignity is given the right to study the German language in a privateschool. In other words, the State may not, consistently with the spirit of the First Amendment,contract the spectrum of available knowledge [other citations omitted]. Without thoseperipheral rights, the specific rights would be less secure. And so we reaffirm the principle ofthe Pierce and the Meyer cases.”Notice all that is happening in Griswold. The Bill of Rights does not mention parentalrights to educate a child in particular subjects or places. And yet, Douglas (citing Pierce andMeyer) writes that the First Amendment has been construed to include such rights. Moreover,Douglas could have added Farrington v. Tokushige, but did not, and this omission conclusivelyterminated the narrative of a parents’ rights trilogy, originating in the 1920’s.As we all know, Pierce and Meyer never mention the First Amendment. They are entirelyabout the substantive meaning and protection of liberty in the Due Process Clause, andGriswold tried to discredit that move. The liberty protected by the Clause, under the Griswoldapproach, is limited to Bill of Rights liberties and their penumbras. Griswold emphaticallyreaffirmed Meyer and Pierce, but ignored their constitutional foundation, and relocated theirprinciple. On this narrative, Meyer and Pierce have become part of the Warren Court project ofincorporation of the Bill of Rights into the Fourteenth Amendment.73If this view of Meyer and Pierce – that they involve First Amendment limits on Statepower to “contract the spectrum of available knowledge,” in a context where parents sought toexpand that spectrum for their children --were to hold, those decisions would be boundedaccordingly. But even at the time of Griswold, several Justices challenged those boundaries.Justice Goldberg’s concurring opinion, joined by Chief Justice Warren and Justice Brennan,asserted that the Ninth Amendment reinforced the general idea that the liberty protected bythe Fourteenth had a substantive component.74 In Goldberg’s elucidation of this argument, hecited Meyer as a leading illustration of the idea that the Fourteenth Amendment protects74 381 U.S. at 486.73 This move also represents echoes of Palko v. Connecticut, and Carolene Products, footnote 4. Douglas joined theCourt in 1939, shortly after those decisions.72 Id. at 485.71 Id. at 484.15unenumerated fundamental rights. His opinion quotes Meyer for the proposition thatFourteenth Amendment liberty “denotes not merely freedom from bodily restraint but also [forexample] the right . . . to marry, establish a home and bring up children . . . .".75 And, in affirmingthat the right of privacy attaches to matters of “ the marital relation and the marital home,” theconcurrence cites Prince v. Massachusetts for the conclusion that“the Meyer and Pierce decisions ‘have respected the private realm of family life which the statecannot enter.’”76Eventually, this more honest and less confined view of Meyer and Pierce triumphed inRoe v. Wade. Shortly before the expansion of privacy rights in Roe, however, the decision inWisconsin v. Yoder77 brought Meyer and Pierce back to center stage. Yoder protected the right ofthe Old Order Amish to remove their children from the requirement of compulsory education atage 14, rather than age 16 as provided by state law. The opinion drew heavily from a view ofPierce that built upon a Griswold-driven penumbral account. Chief Justice Burger’s opinionemphasized aspects of Pierce relating to religious upbringing:“As Pierce suggests, the values of parental direction of the religious upbringing andeducation of their children in their early and formative years have a high place in our society . . .. Thus, a State's interest in universal education, however highly we rank it, is not totally freefrom a balancing process when it impinges on fundamental rights and interests, such as thosespecifically protected by the Free Exercise Clause of the First Amendment, and the traditionalinterest of parents with respect to the religious upbringing of their children so long as they, inthe words of Pierce, ‘prepare [them] for additional obligations.’"78As we know, Pierce involved a claim by secular as well as religious private schools inOregon, and Meyer (which Yoder also sites) was not tied to the religious context of languageinstruction. But the Court in Yoder purposely treated the Amish claim as one of free exercise bya traditional, unique, and highly insular religious group, rather than as a case about parentalliberty per se.79A year later, in Roe v. Wade,80 a seven-Justice majority expanded the range of sources forthe constitutional right of privacy. These included the First, Fourth, and Fifth Amendments; thepenumbras of the Bill of Rights; and – citing Meyer v. Nebraska – “the concept of libertyguaranteed by . . . the Fourteenth Amendment.” Citing both Meyer and Pierce, the opinionadded that the right extends to matters of “child rearing and education.” And, leaving no doubtas to its own reasoning, the opinion proceeded to explain that this right of privacy is founded80 410 U.S. 113 (1973).79 Id. at 235. Chief Justice Burger wrote, “It cannot be overemphasized that we are not dealing with a way of lifeand mode of education by a group claiming to have recently discovered some "progressive" or more enlightenedprocess for rearing children for modern life.”78 Id. at 213-214.77 406 U.S. 205 (1972).76 Id. at 495.75 Id. at 488.16upon the Fourteenth Amendment’s “concept of personal liberty and restrictions upon stateaction.”Concurring in Roe, Justice Stewart explicitly declared that Griswold must be understoodas a substantive due process case rather than a Bill of Rights decision. He went on to say “[t]heConstitution nowhere mentions a specific right of personal choice in matters of marriage andfamily life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendmentcovers more than those freedoms explicitly named in the Bill of Rights.” The string citationfollowing that sentence included Meyer and Pierce.With respect to Meyer and Pierce, Roe thus undid what the Douglas opinion in Griswoldhad tried to do – that is, to fully re-rationalize those decisions as applications of the FirstAmendment. Roe returned Meyer and Pierce to the setting of unenumerated constitutionalrights in which they had originated.I am aware of no Symposia marking the 50th anniversary of Meyer and Pierce, but anarticle prepared for that imaginary collection would have appropriately remarked that the Courthad taken Meyer and Pierce on a remarkable journey across a half-century. They began asdecisions that recognized, as substantive constitutional rights, the common law rights of parentsto direct and control the upbringing of their children. By the 1940’s, Pierce had become a freeexercise decision, and Meyer-Pierce-Farrington had become exhibits in the “discrete and insularminority” collection. By the 1960’s, Farrington had vanished, but Meyer-Pierce were affirmed asFirst Amendment cases about parents’ rights with respect to access of their children to the“spectrum of available knowledge.” By the 50th anniversary of Meyer, Meyer-Pierce had gonefull circle to decisions about the unenumerated, substantive due process rights of parents inmatters of family life, including questions of “child rearing and education.”3. Meyer, Pierce, and post-Roe developments.In the half-century since Roe, references to Meyer and Pierce have reappearedsporadically. The most important reaffirmation of a broad understanding appeared in theplurality and other opinions in Troxel v. Granville.81 In contrast, the Court opinion in Dobbs v.Jackson Women’s Health82 hints at an effort to cut back Meyer and Pierce.A few years after Roe, all-white academies that had been sued for racial discriminationunder a 19th century civil rights statute attempted a constitutional defense of parents’ rights tocontrol the association of their children. In Runyon v. McCrary,83 the Court summarily disposedof that argument: “The Court has repeatedly stressed that while parents have a constitutionalright to send their children to private schools and a constitutional right to select private schoolsthat offer specialized instruction [citing Pierce and Meyer], they have no constitutional right to83 427 U.S. 160 (1976).82 597 U.S. ___ ; 142 S. Ct. 2228 (2022).81 530 U.S. 57 (2000).17provide their children with private school education unfettered by reasonable governmentregulation. Indeed, the Court in Pierce expressly acknowledged "the power of the Statereasonably to regulate all schools, to inspect, supervise and examine them, their teachers andpupils…."84Griswold and Roe involved privacy rights that would facilitate the choice to not become aparent. The context of abortion soon invited judicial attention to the scope of parental authorityover their pregnant minor daughters. Soon after Roe, Missouri enacted a new set of restrictionson abortion, including a requirement of parental consent for a non-emergency abortion by anunmarried child under the age of 18. In general, the background law of parental authority atthe time protected parents’ rights to be informed of, and withhold consent for, non-emergencyhealth care decisions involving their minor children.Nevertheless, in Planned Parenthood v. Danforth85 and Bellotti v. Baird,86 the Courtinvalidated parental consent requirements and imposed an obligation on the states to provide ajudicial bypass around parental notice rules. Both decisions recognized that minors haveconstitutional rights to control their bodies; that a decision about whether to continue orterminate a pregnancy has enormous significance, physical and emotional; and thatinvolvement of parents may in some cases may be far more damaging than helpful.These decisions presented a configuration of the state-parent-child triad different fromthose in Meyer, Pierce, Prince, and Yoder. In all the earlier cases, the state had prohibitedparents’ decisions on behalf of their minor children. None of the decisions focused on anyconflict between parent and child.87 In sharp contrast, the challenges in Danforth and Bellottiinvolved claims on behalf of minor children seeking to vindicate their rights while excludingtheir parents from information and decision-making authority.In Danforth, the State of Missouri argued to no avail that “parental discretion . . . hasbeen protected from unwarranted or unreasonable interference from the state,” citing Meyer,Pierce, and Yoder.88 The Court held (8-1) that the state could not protect that discretion to theextent of a parental veto over a minor’s abortion decision.Three years later, in Bellotti v. Baird,89 where the central issue was the noticerequirement, the Court splintered in its reasoning, though less so in result. Justice Powell’splurality opinion offered three reasons why children’s constitutional rights of bodily autonomy89 443 U.S. 622 (1979).88 428 U.S. at 73.87 Justice Douglas’ dissent in Yoder raised the question, but nothing in the record supported the premise ofparent-child conflict. 406 U.S. at 241-246 (Douglas, J., dissenting).86 443 U.S. 622 (1979)85 428 U.S. 52 (1974).84 Id. at 178-79 (citing Pierce, 268 U.S. at 534). In Part II.B., below, this treatment of state power to regulate allschools will turn out to be of considerable contemporary importance.18were sometimes different from those of adults.90 These included the notions that children areespecially vulnerable, and sometimes unable to make critical decisions in an informed way.Moreover, the parental role of care and concern is particularly important when serious mattersare at stake. The plurality opinion included a footnote that read: “Pierce [and] Yoder all havecontributed to a line of decisions suggesting the existence of constitutional parental rightsagainst undue, adverse interference by the State [citing, inter alia, Meyer v. Nebraska].” And itquoted in detail the words of Justice McReynolds in Pierce that those who nurture a child anddirect his destiny, not the State, “have the right, coupled with the high duty, to recognize andprepare him for additional obligations."91Nevertheless, eight Justices agreed that the constitution requires a judiciallyadministered bypass from parental notice requirements.92 When judges determine that theminor seeking to terminate a pregnancy is mature enough to make the decision withoutparental involvement, or that avoiding parental notice is in the minor’s best interests, theconstitution requires permission to proceed with the abortion without such notice. Abortioninvolves a decision sufficiently weighty and time-sensitive that the State may not allow parentalrights to interfere.93The abortion cases, unlike Meyer-Pierce-Yoder, involved the problem of conflictbetween parents and children, with the state taking the parents’ side. Just days before thedecision in Bellotti v. Baird, the Court announced its decision in Parham v. J.R.,94 a case involvingthe question of what procedural safeguards were due to minors when their parents sought tocommit them to state mental institutions. Thus, Parham, like Bellotti, involved contexts inwhich the interests of parents and their children had significant potential for adversity. Unlike inBellotti, where the Court overrode the state legislative judgment about the scope of parentalrights, the Court in Parham upheld Georgia’s detailed scheme for involuntary commitment ofminors, initiated by parents or guardians.In analyzing the problem in Parham, Chief Justice Burger’s majority opinion said this:” Our jurisprudence historically has reflected Western civilization concepts of the familyas a unit with broad parental authority over minor children. Our cases have consistentlyfollowed that course; our constitutional system long ago rejected any notion that a child is "themere creature of the State" and, on the contrary, asserted that parents generally "have theright, coupled with the high duty, to recognize and prepare [their children] for additionalobligation.” [citing Pierce; see also Yoder, Prince, and Meyer.] Surely, this includes a "high duty"to recognize symptoms of illness and to seek and follow medical advice. The law's concept of94 442 U.S. 584 (1979).93 See Huntington & Scott, Conceptualizing Legal Childhood, note __ supra, at 1443-1444 (analyzing the decisionsabout abortions and minors as consistent with an overarching family law goal of advancing children’s well-being).92 Id. at 632, 642-644 (plurality opinion of Justice Powell); id. at 652-655 (Justice Stevens, concurring, joined byJustices Brennan, Marshall, and Blackmun).91 442 U.S. at 637.90 Id. at 634.19the 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. Moreimportant, historically it has recognized that natural bonds of affection lead parents to act in thebest interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries onAmerican Law 190.”95Parham thus gazes back to Blackstone and Kent on the common law rights of parents,and to Meyer-Pierce on the constitutional character of those rights. The liberty interests ofchildren, in the setting of a confinement decision, limit those parental rights, but the latterremain as a firm and broad constitutional backdrop. Moreover, as Part II.A. below highlights,those rights extend beyond education to the duty “to recognize symptoms of illness and to seekand follow medical advice.”96Nearly two decades later, on a Court with seven Justices who had been appointed afterBellotti and Parham, an important passage in the Court’s crucial decision in Washington v.Glucksberg97 confirmed that understanding of Meyer and Pierce. Glucksberg rejected the claimthat the Due Process Clause of the Fourteenth Amendment protected a right of assisted suicidefor terminally ill patients. In explaining the relevant precedents, Chief Justice Rehnquist affirmedthat the Clause has a substantive component, providing “heightened protection againstgovernment interference with certain fundamental rights and liberty interests.”98 In addition tofreedoms protected by the Bill of Rights, “the liberty specially protected by the Due ProcessClause includes the rights to marry;99 to have children;100 to direct the education and upbringingof children [citing Meyer and Pierce]; to marital privacy;101 to use contraception;102 to bodilyintegrity;103 and to abortion.”104The Glucksberg opinion went on to assert that the methodology for determining whatinterests are specially protected by the Clause involves two steps. First, the Court mustdetermine whether the claimed right is “deeply rooted in the Nation’s history and tradition.”105Second, because these interests get special protection from the Constitution, courts must105 521 U.S. at 720-721 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 5xx (1977).104 Citing Planned Parenthood v. Casey, 505 U.S. 833 (1992). The full sentence, with all the citations in its text, is at521 U.S. 720.103 Citing Rochin v. California, 342 U.S. 165 (1952).102 Citing Baird v. Eisenstadt, 405 U.S. 438 (1972).101 Citing Griswold v. Connecticut, 381 U.S. 479 (1965).100 Citing Skinner v. Oklahoma, 316 U.S. 535 (1942).99 Citing Loving v. Virginia, 388 U.S. 1 (1967).98 Id. at 719-720.97 521 U.S. 702 (1997).96 Id.95 Id. at 602.20provide “a ‘careful description’ of the asserted fundamental liberty interest.”106 Deploying thismethodology,107 the Court rejected the claimed right of assisted suicide.Glucksberg was of course not a decision about the rights of parents to direct theupbringing of their minor children. Nevertheless, its description of the scope of Meyer andPierce matched that provided in Bellotti and Parham eighteen years earlier. In the yearsfollowing Roe, therefore, the Court’s understanding of Meyer and Pierce was consistent. Thosedecisions were not tethered to the Bill of Rights. Moreover, that understanding extendedbeyond questions of education to matters of medical care, reproductive autonomy, andfreedom from physical confinement.This capacious notion of parental rights was on vivid display just a few years later, inTroxel v. Granville,108 the Court’s last major engagement with the constitutional status ofparental rights. Troxel involved a dispute between a mother (the custodial parent), and paternalgrandparents who wanted more frequent contact with two minor children than the motherallowed.Washington was one of a number of states that had enacted laws designed to limit therights of custodial parents to completely exclude others (including parents, grandparents, andother family members) from contact with children. The Washington scheme, however, was intwo respects an outlier among state laws of this type. First, “any person” could seek visitation.Second, the standard for determining whether courts should grant visitation was “the bestinterests of the child.” The opinion of the custodial parent was given no weight. A family courtin Washington had ruled for the Troxels (the grandparents), and the Washington Supreme Courthad decided that the statute was unconstitutional on its face as a violation of parental rights,protected by the Fourteenth Amendment.The U.S. Supreme Court splintered on its reasoning, with only a four Justice pluralityagreeing with the Washington Supreme Court that the state law was invalid on its face. TwoJustices concurred in the disposition,109 and three dissented. In two separate dissents, JusticesStevens and Kennedy wrote that the facial invalidation was too broad, and that the case shouldbe remanded for a narrower ruling. Justice Scalia (generally a foe of substantive due processadjudication), dissented more broadly, on the ground that the Court should not extend Meyerand Pierce to the context of child visitation.For purposes of this paper, the lonesomeness of Justice Scalia’s treatment of Meyer andPierce is conspicuous. The plurality opinion, written by Justice O’Connor, took a very broad viewof Meyer-Pierce and their progeny:109 Id. at 75-79 (Souter, J., concurring); id. at 80 (Thomas, J., concurring).108 530 U.S. 57 (2000).107 Justice Souter also referred to Meyer and Pierce as substantive due process cases, 521 U.S. at 761-62, though hedisagreed with the methodology. Id. at 755-773. No Justice dissented in Glucksberg.106 Id. at 721 (citing, inter alia, Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).21“The liberty interest at issue in this case -- the interest of parents in the care, custody,and control of their children -- is perhaps the oldest of the fundamental liberty interestsrecognized by this Court. [citing Meyer] Two years later, [in Pierce]. we again held that the"liberty of parents and guardians" includes the right "to direct the upbringing and education ofchildren under their control." We explained in Pierce that the child is not the mere creature ofthe State; those who nurture him and direct his destiny have the right, coupled with the highduty, to recognize and prepare him for additional obligations . . . . It is cardinal with us that “thecustody, care and nurture of the child reside first in the parents, whose primary function andfreedom include preparation for obligations the state can neither supply nor hinder.” [citingPrince, at 166].110In substituting a judge acting under an unqualified “best interests of the child” standardfor the judgment of a custodial parent about visitation, the plurality concluded, the Washingtonstatute was facially unconstitutional. Justice Souter’s concurrence also cited Meyer and Pierceapprovingly,111 and Justice Thomas noted that Pierce “holds that parents have a fundamentalconstitutional right to rear their children, including the right to determine who shall educateand socialize them.”112 Of the three dissenters, only Scalia challenged the breadth of theMeyer-Pierce rights of parents.For the next two decades, nothing disturbed the breadth of the Meyer-Pierce narrativethat had been unfolding since 1923. First and foremost, the rights involved care and control inmatters of education, health, and physical liberty. States may intervene if parents (or othercustodians) abuse or neglect their minor charges, but otherwise parents have strong rights torear their own children without state interference, because parents are presumed to know theirchildren best and care for them most. Beyond those rights, rooted in the Due Process Clause,the Court had built an elaborate structure on the foundation of Meyer-Pierce. This included anexus to First Amendment freedoms of speech and religion; egalitarian themes of judicialprotection of vulnerable minorities; and rights of reproductive liberty. As recently as 2020,113the assertion that Meyer-Pierce contains multitudes seemed well borne out.The only dissonant note in this chorus is a recent, small, and subtle one that appeared in2022, in Dobbs v. Jackson Women’s Health.114 As we all know, Dobbs held that the Due ProcessClause does not protect a woman’s right to terminate a pregnancy, and thereby overruled Roe v.114 597 U.S. ___ ; 142 S. Ct. 2228 (2022).113 In Espinoza v. Montana Department of Revenue, 591 U.S. ___, 140 S. Ct.2246 (2020), Chief Justice Robertswrote: “Drawing on ‘enduring American tradition,’ we have long recognized the rights of parents to direct ‘thereligious upbringing’ of their children [Citing Yoder]. Many parents exercise that right by sending their children toreligious schools, a choice protected by the Constitution [citing Pierce].” Id. at 2261.112 Id. at 80. Thomas noted that no party to the case had challenged the basic notion of substantive due process.Id..111 Id. at 77.110 Id. at 65-66. Justice O’Connor added: “In subsequent cases also, we have recognized the fundamental right ofparents to make decisions concerning the care, custody, and control of their children.” Id. at 66. A long list ofpost-1970 citations followed this sentence.22Wade. Dobbs claimed to adhere to the approach to substantive due process announced inWashington v. Glucksberg.Justice Alito’s opinion for the Court in Dobbs focused, inter alia, on the reliance onprecedent in Roe and Planned Parenthood v. Casey. The opinion made mention of Meyer andPierce only through that lens. That discussion began:“Nor does the right to obtain an abortion have a sound basis in precedent. Casey reliedon cases involving the right to . . . make decisions about the education of one’s children [citingMeyer and Pierce].”115Later in the opinion, the Court turned to the use of precedent in Roe itself. Justice Alitocriticized the Roe opinion for conflating “two very different meanings of the term [privacy]: theright to shield information from disclosure and the right to make and implement importantpersonal decisions without governmental interference. Only the cases involving this secondsense of the term could have any possible relevance to the abortion issue, and some of thecases in that category involved personal decisions that were obviously very, very far afield. SeePierce (right to send children to religious school); Meyer (right to have children receive Germanlanguage instruction).”116Please reflect on those descriptions of Meyer and Pierce. They are both significantlyunderinclusive. Pierce included a secular military school as a plaintiff. The forbidden category ofinstruction in Meyer was all modern foreign languages, not German only. Suggesting that Meyerand Pierce are limited in these ways represents a significant inroad on the path of precedentsince Roe v. Wade, which had invoked Meyer-Pierce as protecting a broad right of parents todirect the upbringing of their children, including in matters of education, but extending as wellto other matters of health and well-being. Suddenly, without explanation, Justice Alito’s opinionframes Meyer-Pierce in ways that resemble Justice Cardozo’s treatment of Pierce in Palko, andJustice Douglas’ treatment of both decisions in Griswold. For the first time in almost 60 years,Dobbs stuffs Meyer-Pierce into ill-fitting First Amendment frames.Perhaps we should not make so much of this. Dobbs said nothing about Troxel, the mostrecent and expansive of the due process decisions about parental rights. More generally, Dobbsis not a parents’ rights decision, and a passing parenthetical or two should not be taken as asolemn pronouncement on the status of oft-cited, 100-year-old precedents.But this Symposium is, after all, focused on the question of that status, going forward.So it seems appropriate to notice the treatment of these decisions in Dobbs, to wonder abouthow deliberate it was, and to ask whether Dobbs is a vise in which parental rights are now to besqueezed. There are no reasons to think that other Justices who joined the Dobbs opinion were116 Id. at 2267-68.115 142 S. Ct. at 2257. The sentence also mentions the right to marry, use contraceptives, engage in same sexintimacy and marriage, among others. Id.23closely focused on those references. The case was entirely and monumentally about the futureof Roe. For the same reason, the failure of the dissenters (or concurring Justices) in Dobbs tochallenge those brief descriptions of Meyer and Pierce cannot be seen as dispositive of any oftheir views. Every one of the nine Justices had his or her eyes on the obvious prize – whether aconstitutional right to terminate a pregnancy would still exist when the litigation concluded.The status of Meyer-Pierce was for most – though perhaps not for Alito, who snuck in thesereferences – an afterthought, or a non-thought.II. The Scope and Future of Parents’ RightsDespite Dobbs, it remains appropriate to the call for this Symposium, as well as to a fairappraisal of the state of the law, to treat as completely open the questions of the current scopeand likely future of parents’ constitutional rights.117 In this Part, I address two general topicsthat fit under that heading. Part A. focuses on the most urgent and compelling narrative in theparents’ rights space – the sudden explosion of state laws aimed at controlling the care thatparents provide, with full medical approval, to minor children suffering from gender dysphoria.I will focus only on the due process issue of parents’ rights, but the litigation involves seriousequal protection issues as well, and Supreme Court intervention seems likely.Part B. addresses a series of timely topics involving parents’ rights in the educationalprocess – control over the curriculum in the public schools; access to information from publicschool personnel about children’s presentation of gender identity; and equal access to statefunds for education in schools that promote worship and inculcation of religious beliefs. Inthese contexts, Meyer and Pierce frequently show up in the conversation, but few if any of theparents’ rights claims are meritorious. If these causes succeed, other constitutional theories willbe doing the work.A. Matters of Physical and Mental Health – The Case of Gender Affirming CareHad this Symposium taken place as recently as 2020, I suspect few of us wouldhave predicted the forthcoming assault on rights protected by Meyer-Pierce. The legislativeonslaught against the interests of transgender people has arrived in a rush.118 The enactmentsinvolve, inter alia, bathroom and locker room access; eligibility to compete in gendered sportscompetitions; policies of school disclosures; and, most frequent of all, regulation of treatmentof minors for gender dysphoria. Fights over pronoun use and other duties of respect imposed118 For a comprehensive collection of anti-transgender legislation over the last several years, seetranslegislation.com (collecting proposed and enacted laws). States enacted over 80 such laws in 2023, includinglaws relating to bathroom access, athletic competitions, and treatment of minors with gender dysphoria. The 2023enactments are collected here: https://translegislation.com/bills/2023/passed.117 The paper does not address systematically the subject of statutory rights for parents, of which there has been arecent explosion. Many of these laws are collected, with links, athttps://www.future-ed.org/legislative-tracker-parent-rights-bills-in-the-states/ andhttps://parentalrights.org/states/. Most of these are context specific, with a focus on education or child custodymatters. The paper will touch on a few of these as relevant to the topics explored below.24on teachers have also become commonplace, usually in the name of teachers’ religiousfreedom.119 Add to the list the sudden Red State preoccupation with drag shows.120These laws are driven by a moral panic, exploited for political purposes, about genderfluidity.121 Moreover, these campaigns play to a set of religious commitments about thepermanence of gender, determined at birth.As of late 2023, twenty-one states had prohibited parents from authorizing the use ofgender affirming drugs – puberty blockers and hormone treatments - to minors in gendertransition.122 The drugs remain available to adults, and to minors (with parental consent) whouse them in ways that are consistent with the biological sex assigned at birth. That is, their useis prohibited only for those minors who use them as treatment for gender dysphoria.123 Theprohibitions extend to members of the medical profession who prescribe and administer suchsubstances.124124 See, e.g., Doe v. Ladapo, at *10: “The statute makes violation of these provisions a crime and grounds forterminating a healthcare practitioner’s license. See id. § 456.52(1) & (5).”123 See, e.g,, Doe v. Ladapo, 2023 US Dist. LEXIS 99603 (N.D. Fla, June 6. 2023), at *10: “The challenged parts of thestatute and rules apply to patients under age 18. The statute prohibits the use of “puberty blockers” to “stop ordelay normal puberty in order to affirm a person’s perception of his or her sex if that perception is inconsistentwith the person’s [natal] sex.” Fla. Stat. § 456.001(9)(a)1.; see id. § 456.52. And the statute prohibits the use of“hormones or hormone antagonists to affirm a person’s perception of his or her sex if that perception isinconsistent with the person’s [natal] sex.” Id. § 456.001(9)(a)2. This purpose-driven focus is typical of this set ofstate laws. See, e.g., L.W. v. Skrmetti, 2023 U.S. Dist. LEXIS 111424 (D. Tenn. June 28, 2003), at *6: ([The Tennesseelaw] permits administration of medical procedures as defined in the law if the purpose of the procedures is toresolve a congenital defect or precocious puberty but prohibits the administration of such procedures if thepurpose is to enable a minor to live with a gender identity that is different from that minor's sex at birth.’)122 Id. See also https://www.nytimes.com/2023/10/03/us/transgender-care-lawsuits-courts.html. As of the date ofthe article, litigation challenges had been commenced in fourteen states. Id. Late in 2023, Governor DeWine ofOhio vetoed a bill that prohibited parents from approving, and medical professionals from providing,gender-affirming medical care for minors. Anumita Kaur, Ohio Governor vetoes ban on gender-affirming care forminors, Washington Post, Dec. 29, 2023, available here:https://www.washingtonpost.com/dc-md-va/2023/12/29/ohio-transgender-care-bill-dewine/.121 For a comprehensive catalogue and analysis of the animus behind these laws, see generally ScottSkinner-Thompson, Trans Animus, B.C. L. Rev. forthcoming 2024), available here:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4563643.120 See, e,g, Griffin v. HMI _ Orlando, 2023 U.S. Dist. LEXIS 134671 (M.D. Fla. July 19, 2023). See also RachelMonroe, The Drag Queens Fighting Performance Bans in Texas, The New Yorker, Dec. 6, 2023.119 Meriwether v. Hartop, 992 F. 3d 492 (6th Cir. 2021) (Free Exercise Clause protects teacher autonomy in use ofpronouns); Vlaming v. West Point Sch. Bd., https://www.vacourts.gov/opinions/opnscvwp/1211061.pdf (stateconstitution protects religious freedom of teacher to not use gender transition pronouns;http://religionclause.blogspot.com/2023/12/florida-transgender-teachers-challenge.html; see also Mirabelli v.Olson, 2023 U.S. Dist. LEXIS 163880, at *27-*31 (S.D. Ca. Sept. 14, 2023) (Free Exercise Clause protects teachers’right to contradict state and local policy re: disclosure to parents of a student’s gender transition at school). Seegenerally Katie R. Eyer, Anti-Transgender Constitutional Law, ___ Vand. L. Rev . ___ (forthcoming 2024) (describingthe constitutional backlash to transgender legal gains), available here:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4627458. Professor Eyer’s slightly earlier work focused onthe promise of constitutional law for the transgender community. Katie B. Eyer, Transgender Constitutional Law,171 U. Pa. L. Rev. 1 (2023).25These children are typically in early adolescence, old enough to understand what theyare facing in the arrival of puberty. They are suffering – the apt word – from what theyexperience as an extreme disconnect between what is happening to their bodies and theirsense of gender.125 This presents a highly inviting case for recognition of parents’ rights claims,among others, because parents, their fully aware children, and well-informed, specializedmedical professionals treating these children all concur in the prohibited treatment.126 That is,those who know the child best and care for the child the most have chosen this course. On whatbasis may the state intervene in choices of that character?127As Part III.B. of this paper suggests, some claims of parents’ rights present closequestions and invite analytical nuance. That cannot be said about claims arising from theprohibition on parent-authorized use of pharmaceutical products to treat gender dysphoria inminors. These laws are cruel, stupid, and unconstitutional.128 For an extended stretch of time,the federal courts were overwhelmingly of the same view. As of this writing, every federaldistrict court but one has declared unconstitutional the laws prohibiting pharmaceuticaltreatment of minors for gender dysphoria.129 Many of the constitutional arguments rest on the129 Poe v. Labrador, 2023 U.S. Dist. LEXIS 229332 (D. Idaho, Dec. 26, 2023); Doe v. Ladapo, 2023 US Dist. LEXIS 99603(N.D. Fla, June 6, 2023); Koe v. Noggle, 2023 U.S. Dist. LEXIS 147770 (N.D. Ga., Aug. 20, 2023); K.C. v. IndividualMembers of Indiana Medical Bd., 2023 U.S. Dist. LEXIS 104870 ((D. Ind. June 16, 2023); L.W. v. Skrmetti, 2023 U.S.128 For a comparable appraisal, which I discovered after writing the sentence in text, see Developments in the Law,Intersections in Health Care and Legal Rights, 134 Harv. L. Rev 2163, 2164 (2021) (“This Chapter shines light onattempts to outlaw necessary gender-affirming medical treatment for minors, drawing on scientific evidence andlegal doctrine to show why such legislative efforts are harmful, prejudiced, and unconstitutional.”)127 When the state has tried to intervene in medical treatment by a physician, provided with parental approval to achild in an individual case, courts have given wide latitude to choices made by parents. See, e.g., In re Hofbauer,393 N.E. 2d 1009, 1014 (N.Y. 1979) (In a neglect proceeding, “the court's inquiry should be whether the parents,once having sought accredited medical assistance and having been made aware of the seriousness of their child'saffliction and the possibility of cure if a certain mode of treatment is undertaken, have provided for their child atreatment which is recommended by their physician and which has not been totally rejected by all responsiblemedical authority.”) See generally Joseph Goldstein, Medical Care of the Child at Risk: On State Supervision ofParental Autonomy, 86 Yale L.J. 645 (1976). I am grateful to Kevin Barry and Maxine Eichner for calling this point tomy attention in connection with the preparation of a scholars’ amicus brief in Brandt v. Rutledge in the 8th Circuit.126 For a thorough set of articles and arguments from the perspective of medicine and medical ethics, seeSymposium, Transgender Health Equity and the Law, 50 J. of Law, Medicine & Ethics, Issue #3, Fall 2022, availablehere:https://www.cambridge.org/core/journals/journal-of-law-medicine-and-ethics/issue/F33FB21A447A98F7072B8621C8967173125 Every piece of litigation on this subject presents highly sympathetic stories of minors for whom gender dysphoriais agonizing, and who have benefitted enormously for gender-affirming medical care. See, e.g., the descriptions ofL.W. , Ryan Roe, and John Doe in the petition for certiorari in L.W. v. Skrmetti, No. 23-466, available here:https://www.supremecourt.gov/DocketPDF/23/23-466/288540/20231101094123880_No.%20__%20Petition%20For%20A%20Writ%20Of%20Certiorari.pdf. See also the narratives in the Amicus Brief of Elliot Page, Nicole Maines,and 55 other individuals in Support of the Petitioners in L.W., available here:https://www.supremecourt.gov/DocketPDF/23/23-466/292238/20231204173511032_23-466%20-477%20-492%20TLDEF%20Amicus%20Brief.pdf. For a moving story of the plight of a family forced to go out of state for treatmentsfor their transgender child, see Emily Witt, A Trans Teen in an Anti-Trans State, New Yorker, October 9, 2023(Tennessee family with transgender daughter compelled to leave Tennessee to continue treatment), available athttps://www.newyorker.com/magazine/2023/10/16/a-trans-teen-in-an-anti-trans-state.26Equal Protection Clause, including claims of discrimination based on sex, and discriminationbased on transgender status. The challenges also rest on the concept of parents’ rights to directand control the upbringing of their children.After a year or more of consistent district court victories for the challengers, however,the 6th Circuit reversed the decisions involving Tennessee and Kentucky,130 and the 11th Circuitreversed the decision enjoining enforcement of the Alabama law.131 On November 1, 2023, theplaintiffs in L.W. v. Skrmetti, the Tennessee case, filed a petition for certiorari, asserting equalprotection and due process grounds for reversal of the 6th Circuit.132I believe that the equal protection arguments against these statutes are very strong.133 Inlight of our Symposium topic, however, my analysis will be limited to the parents’ rights claimsbased on Meyer-Pierce and their progeny. I will also add some thoughts about the possibility ofreligious liberty claims, under state or federal law, for parents facing the dilemma of legalprohibitions on the best medical treatment of their children. To my knowledge, no one has yetin litigation advanced religious liberty arguments, but if the laws are ultimately upheld againstequal protection and due process challenges, we can expect to see religion-based approacheson an as-applied basis.Study of the opinions, quite careful and lengthy, in the district courts reveals a starkpattern of repetition. The state laws, inspired by architects of a burgeoning anti-transgender133 See id. at 18-26 (capably presenting the arguments that the bans constitute sex discrimination and transgenderdiscrimination, both of which should trigger heightened judicial review). See generally Kevin M. Barry, Brian Farrell,Jennifer L. Levi, & Neelima Vanguri, A Bare Desire to Harm; Transgender People and the Equal Protection Clause, 57B.C. L. Rev. 507 (2016). See also Quinn Yeargain, Litigating Trans Rights in the States, Forthcoming, Ohio St. L. J.(2024), available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4555941.132 L.W. v. Skrmetti, Case No 23_ 466, U.S. Sup. Ct., filed Nov. 1, 2023, available here:https://www.supremecourt.gov/DocketPDF/23/23-466/288540/20231101094123880_No.%20__%20Petition%20For%20A%20Writ%20Of%20Certiorari.pdf. On November 6, 2023, the United States (an intervenor-plaintiff inSkrmetti) also filed a petition for certiorari, No. 23-477, available here:https://www.supremecourt.gov/DocketPDF/23/23-477/288875/20231106135238432_U.S.%20v.%20Skrmetti%20-%20Pet.pdf. The petition from the United States focuses only on equal protection grounds and does not addressthe parents’ rights questions under the Due Process Clause. See id. at 17, n. 6.131 Eknes-Tucker v. Marshall, 80 F. 4th 1208 (11th Cir. 2023)130 L.W. v. Skrmetti, 83 F. 4th 460 (6th Cir. 2023), petition for cert. filed, Nov. 1, 2023, No. 23-466, available here:https://www.supremecourt.gov/DocketPDF/23/23-466/288540/20231101094123880_No.%20__%20Petition%20For%20A%20Writ%20Of%20Certiorari.pdf..Dist. LEXIS 111424 (D. Tenn. June 28, 2003), rev’d 83 F. 4th 460 (6th Cir. 2023), petition for cert. filed, Nov. 1, 2023;Jane Doe 1 v. Thornbury, 2023 U.S. Dist. LEXIS 111390 (June 28, 2023, W.D. Ky), rev’d 83 F. 4th 460 (6th Cir.2023); Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021) (preliminary injunction granted), aff’d 47 F.4th 661(8th Cir., 2022), 2023 U.S. Dist. LEXIS 106517 (June 20, 2023) (permanent injunction granted); Eknes-Tucker v.Marshall, 603 F. Supp. 3d 1131 (M.D. Ala. 2022), rev’d 80 F. 4th 1208 (11th Cir. 2023). The one exception is Poe v.Drummond, No. 23-cv-177, 2023 WL 6516449 (N.D. Okla. Oct. 5, 2023), appeal pending, No. 23-5110 (10th Cir. filedOct. 10, 2023). At least one state court has joined the chorus, see Van Garderen v. Montana, available here:https://s3.documentcloud.org/documents/23993157/montana-order-granting-plaintiffs-motionfor-preliminary-injunction.pdf.27movement,134 all are structured quite similarly. The district court opinions emphasize a set ofkey facts.135 Any reasonable synthesis of these findings includes the following:● Approximately one percent of Americans are transgender.● Transgender people may suffer from gender dysphoria, a condition that involves feelingsof great distress at the disconnect between sex assigned at birth136 and psychologicalexperience of gender.● The World Professional Association of Transgender Health and the Endocrine Societyhave published evidence-based standards of treatment for gender dysphoria.137 Allmajor medical and mental health organizations in the U.S. recognize these guidelines asappropriate for the guidance of health professionals treating patients with genderdysphoria.● The guidelines include specific and detailed recommendations for the treatment ofadolescents.● Before puberty, treatment of gender dysphoria does not involve drugs or surgery.● As puberty approaches, the distress of gender dysphoria becomes much stronger.● Without treatment, many adolescents with gender dysphoria are at serious risk of harm,including depression, eating disorders, substance abuse, and self-harm including suicide.● Once adolescents experience significant gender dysphoria for a sustained time period, itvery unlikely that they will later identify with their sex assigned at birth.● The treatments include careful and lengthy counseling, and, in cases consideredmedically and psychologically appropriate, use of the drugs in controversy.● The patient and the patient’s parents must give informed consent, after extended andcareful counseling about risks and benefits.● These uses of the drugs are off-label but are not disapproved as unsafe by any reputablemedical authorities.● Puberty blockers pause puberty and permanent body changes from puberty.● Puberty blockers help to avoid heightened gender dysphoria and are reversible.● Later in adolescence, in some cases it is medically appropriate to provide hormonetreatment to induce puberty that is consistent with the patient’s gender identity.137 The WPATH Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, publishedon-line in September 2022, is available here:https://www.tandfonline.com/doi/pdf/10.1080/26895269.2022.2100644. Chapter 6, pp. 543-567, is devoted tothe professional care of adolescents. The material in the chapter is very careful in its discussion of care protocols,and of the evidence that supports current recommendations. The field is relatively new, and subject to revision likeany health science. At every stage, the standards recommend caution and elaborate consultation with the patientand parents or other guardians. Among other recommendations is Standard 6.12.b., which recommendsgender-affirming care only if “the experience of gender diversity/incongruence is marked and sustained over time.”Id. at 560. Among patients whose treatments have conformed to the protocols, regret appears very infrequently.Id. at 561.136 On the importance of the terminology, see Jessica Clarke, Sex Assigned at Birth, 122 Colum. L. Rev. 1821 (2022).135 See, e.g., Doe v. Ladapo, 2023 U.S. Dist. LEXIS 99603 (N.D. Fla., June 6, 2023), at *7 - *17; Brandt v. Rutledge,2023 U.S. Dist. LEXIS 106517 (June 20, 2023) (permanent injunction granted), at *10-*90. Brandt is now on appealto an en banc panel of the 8th Circuit.134 See legislation collected at https://translegislation.com. The laws involve a variety of contexts, includingbathroom privacy, gendered athletic competition, and gender affirming care.28● In a very high percentage of cases, use of these drugs, carefully monitored, providesgreat relief to those receiving them.● Adverse side effects are limited and infrequent.138These district court opinions have emerged from a range of judges, both Republican andDemocratic appointees.139 Where the opinions diverge, but only slightly, is in the emphasis ondifferent constitutional grounds of attack. Because standards of judicial review appear to be farmore settled in equal protection than parental rights’ cases, most of the evaluation of stateinterests has arisen in the context of equal protection review. Having determined that thestatutes involve a classification based on sex,140 district court judges have applied intermediatescrutiny – the classification must be substantially related to important state interests. In light ofthe detailed record on the physical and mental health justifications for the use of these drugs totreat gender dysphoria, and the flimsy support for the state’s concerns about the well-being ofthe minors being treated,141 judges have repeatedly concluded that the laws do not surviveequal protection review.Equal protection reasoning will be especially important in the context of other forms ofregulation directly affecting transgender people who are not minors.142 In this paper, however,142 The treatment of transgender prison inmates is of particular importance. See generally Jennifer Levi and KevinM. Barry, Transgender Rights and the Eighth Amendment, 99 S. Cal. L. Rev. 109 (2021).141 A very different scenario appears in the context of state laws that ban the use of sexual orientation changeefforts (“SOCE”), also known as conversion therapy. A number of states have prohibited licensed psychotherapistsfrom offering such therapy to minors. In Pickup v Brown, 740 F. 3d 1208 (9th Cir. 2014), cert. denied, ___ U.S. ___,the Ninth Circuit upheld such a ban against free speech attack by professional therapists. The panel wrote “Thelegislature relied on the well-documented, prevailing opinion of the medical and psychological community thatSOCE has not been shown to be effective and that it creates a potential risk of serious harm to those whoexperience it. Id. at 1223. In Pickup, the court also rejected a parents’ rights argument that the therapists hadadvanced as a third-party claim. Id. at ___1235-36. The 11th Circuit reached a different result in Otto v. City of BocaRaton, 981 F.3d 854 (11th Cir. 2020) (invalidating on free speech grounds a ban on SOCE for minors), primarilybecause it refused to recognize professional speech as being subject to broad regulation. For thorough analysis anddiscussion, see Claudia Haupt, Professional Speech, 125 Yale L.J. 1238 (2016). Note that parents always retain theright to bring their children for counseling with clergy and pastoral counselors, not licensed by the state as mentalhealth professionals.140 Some also conclude that the statutes classify based on transgender status. The appropriate constitutionalstandard for such classifications is uncertain, but judges have concluded that such classifications are highlyquestionable and invite non-deferential review. See, e.g., L.W. v. Skrmetti, 2023 U.S. Dist. LEXIS 111424 (D. Tenn.June 28, 2003, at *23 – 33 (citing many other decisions that hold transgender classifications quasi-suspicious); seealso Doe v. Ladapo, 2023 US Dist. LEXIS 99603 (N.D. Fla, June 6, 2023) at *24 - *28.139 Doe 1, Kentucky, David Hale (Obama); K.C., Indiana, James P. Hanlon (Trump); L.W., Tennessee, Eli Richardson(Trump); Brandt, Arkansas, James M. Moody, Jr. (Obama); Doe v. Ladapo, Florida, Robert Hinkle (Clinton);Eknes-Tucker, Alabama, Liles C. Burke (Trump); Koe, Georgia, Sarah E. Garaghty (Biden); Poe v. Labrador, Idaho, B.Lynn Winkill (Clinton).138 The district courts occasionally note that the state’s testimony against this use of the drugs is extremely weak –offered by so-called experts who have never treated anyone with gender dysphoria. See, e.g., Brandt v. Rutledge,2023 U.S. Dist. LEXIS 106517 (June 20, 2023) (permanent injunction granted), at *90 (“Most of the State's expertwitnesses, Professor Mark Regnerus, Dr. Stephen Lappert, and Dr. Paul Hruz, were unqualified to offer relevantexpert testimony and offered unreliable testimony. Their opinions regarding gender-affirming medical care foradolescents with gender dysphoria are grounded in ideology rather than science.”29the parents’ rights claims will be the central focus. In one case, plaintiffs made no such claim.143In another, the court did not address that claim.144 In two more, the treatment of the parents’rights claim was perfunctory;145 the judges apparently thought the equal protection analysiscould do all the work, and the due process claim did not add anything important.In four others, however, the due process theory received considerable attention. Andthree of these – L.W. v. Skrmetti (Tennessee), Doe 1 v. Thornbury (Kentucky) and Eknes-Tucker v.Marshall (Alabama)146 – turn out to be the decisions that have been reversed at the CircuitCourt level, with L.W. now being the likely vehicle for Supreme Court review. In these districtcourt decisions, the judges’ due process reasoning emphasized the Supreme Court’s morerecent decisions in Parham and Troxel, discussed in Part I, rather than the older decisions inMeyer and Pierce. This emphasis is not just about vintage. Meyer and Pierce are abouteducation; in contrast, Parham and Troxel both addressed broader contexts of parental control.Indeed, Parham specifically references decisions about medical care:“. . . [P]arents generally ‘have the right, coupled with the high duty, to recognize and prepare[their children] for additional obligation.’ [citing Pierce] Surely, this includes a ‘high duty’ torecognize symptoms of illness and to seek and follow medical advice.”147None of the Supreme Court’s parents’ rights precedents, however, involved substantivechoices of particular treatments or drugs, approved by medical authorities. The district courtdecisions all referred to Circuit precedent that touched on matters of medical care,148 thoughnone involved a parental choice to consent to their children’s use of a pharmaceutical substancethat was lawful except for the challenged prohibition. The absence of directly on-point decisionsfrom these or other Circuits is no surprise, considering the totally unprecedented quality of theintrusion into the parent-child-doctor relationship presented by the challenged laws.All four of the district court judges concluded that the laws interfered with the parents’rights, protected by the Due Process Clause, to choose otherwise lawful and medically approvedtreatments for gender dysphoria.149 Adults were free to use these treatments for themselves,and they were also free to use them for minors for purposes other than treating gender149 See, e.g., Poe v. Labrador, 2023 U.S. Dist. LEXIS 229332, at *50 (D. Idaho, Dec. 26, 2023).148 In L.W. v. Skrmetti, 2023 U.S. Dist. LEXIS 111424, at *16, Judge Richardson relied on Kanusewski v. Mich. Dept. ofHHS, 927 F. 3d 396 (6th Cir. 2019). In Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, at 1144 (M.D. Ala. 2022), JudgeBurke relied on Bendiburg v. Dempsey, 909 F. 2d 463 (11th Cir. 1990). Both Kanusewski and Bendiburg are quite farafield from the bans on gender-affirming care.147 442 U.S. 584, 602 (1979) (citations omitted).146 L.W. v. Skrmetti, 2023 U.S. Dist. LEXIS 111424 (D. Tenn. June 28, 2003, at *17; Jane Doe 1 v. Thornbury, 2023 U.S.Dist. LEXIS 111390 (June 28, 2023, W.D. Ky), at *8, *1 ; Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, at 1144(M.D. Ala. 2022). The fourth is Poe v. Labrador, 2023 U.S. Dist. LEXIS 229332, at *48 - *57 (D. Idaho, Dec. 26, 2023).145 Doe v. Ladapo, 2023 U.S. Dist. LEXIS 99603 (N.D. Fla., June 6, 2023), at *31 (concluding that “there is no rationalbasis, let alone a basis that would survive heightened scrutiny, for prohibiting these treatments in appropriatecircumstances.”); Brandt v. Rutledge, 551 F. Supp. 3d 882, 892-893 (E.D. Ark. 2021).144 Koe v. Noggle, 2023 U.S. Dist. LEXIS 147770 (N.D. Ga., Aug. 20, 2023).143 K.C. v. Individual Members of Indiana Medical Bd., 2023 U.S. Dist. LEXIS 104870 ((D. Ind. June 16, 2023)30dysphoria. The character of the restrictions strongly suggested prejudiced hostility against thetransgender population. Whether the constitutional norm was equal protection or due process,the restrictions invited close scrutiny, which none could survive considering the medicalevidence in cautious support of these treatments, and the highly flimsy medical case againstthem.That the parents’ rights claims succeeded repeatedly, across a range of district courtjudges, should come as no surprise. Recall the narrative in Part I about the multitude ofconsiderations and constitutional themes that the Supreme Court had attached to theMeyer-Pierce legacy over the past hundred years. These included parental autonomy; theCarolene Products concern for the vulnerability of minority groups, frequently targets ofprejudice; familial privacy; and First Amendment protections of religious freedom. Theseconcerns all appear vividly in the narratives of gender dysphoria in adolescents and parentaldecisions about how to best care for their children in distress.Nevertheless, on appeal the tone and substance of the judicial opinions changeddramatically. Both Judge Lagoa in Eknes-Tucker v. Marshall150 and Judge Sutton in L.W. v.Skrmetti151 began their due process analysis with a Dobbs-flavored emphasis on history,tradition, and restraint. Judge Lagoa aggressively narrowed the relevant rights to those whichcould be found, at a very high degree of specificity, in 1868. Parents’ use of thesepharmaceutical products to treat gender dysphoria in minors was not, she argued, deeplyrooted in the 19th century history of parents’ rights.152That move seems entirely result-oriented and jurisprudentially unsound. Manipulatingthe level of generality of protected parental rights would permit legislatures to interfere freelywith new choices that fall within widely accepted categories of parental authority. May thestate prohibit the use of penicillin and its derivatives for minors because the drug was notdiscovered until 1928?153 Similarly, and within the core of Meyer-Pierce, may the state outlawinstruction for children in computer technology, or the use of artificial intelligence?Once medical care is included in the general concept of parental control overdevelopment and upbringing of children, the state should have to justify under strict standardsany interference with choices of treatments available to adults and medically approved in othercontexts for children. The rights-narrowing move in Eknes-Tucker permitted the panel to avoidthose questions of justification, which the district court had answered strenuously in thenegative.153 “Discovery and development ofpenicillin,”https://www.acs.org/education/whatischemistry/landmarks/flemingpenicillin.html. In Poe v. Labrador,2023 U.S. Dist. LEXIS 229332 (D. Idaho, Dec. 26, 2023), Judge Winkill used penicillin (among other treatments andprocedures) as an example of medical interventions that the due process clause would not protect as a parentalchoice because they were discovered in the 20th Century. Id. at *55-*56.152 80 F. 4th 1205, 1219-1225.151 2023 U.S. App. LEXIS 25697, 83 F. 4th 460 (6th Cir. 2023).150 80 F. 4th 1205 (11th Cir. 2023).31As Judge Winkill put it in Poe v. Labrador: “. . . [T]he appropriately precise way to framethe issue is to ask whether parents' fundamental right to care for their children includes theright to choose a particular medical treatment, in consultation with their healthcare provider,that is generally available and accepted in the medical community. . . . [S]uch a right is deeplyrooted in our nation's history and traditions and implicit in our concept of ordered liberty.”154In L.W. v. Skrmetti, Judge Sutton was more sophisticated in his arguments but eventuallywound up in the same place, letting the state escape the burden of justification associated withinterfering with fundamental rights. Rather than beginning (as many district court judges had)with the question of whether parental rights include matters of medical decision, Judge Suttonopened with questions about whether the Constitution is neutral with respect to the relevantsubject, leaving it presumptively to legislative judgement.155Reasoning from the posture of restraint he attributed to Washington v. Glucksberg andDobbs, Judge Sutton treated the medical care context as an expansion rather than anapplication of parental due process rights. He wrote: “No such expansion is warranted here. Thiscountry does not have a "deeply rooted" tradition of preventing governments from regulatingthe medical profession in general or certain treatments in particular, whether for adults or theirchildren. . . . State and federal governments have long played a critical role in regulating healthand welfare, which explains why their efforts receive ‘a strong presumption of validity.’”156Judge Sutton was correct about the general role of government in regulating health care.Nothing in Meyer, Pierce, or their progeny, however, support framing the relevant question thisway. The methodology of substantive due process has never involved the opening move offocusing on the existence of government power. Rather, it focuses on the category and qualityof the individual rights foreclosed by the challenged legislation. In Meyer and Pierce, the Courtdid not emphasize the history of state power over education, which was considerable. In Troxel,the Court did not begin its analysis with discussion of state power, likewise extensive, overcustody and visitation decisions. The question of justification for the exercise of state authorityshould arrive at the back end of the analysis, after the court has evaluated the claimed right andchosen an appropriate standard of review. Accordingly, one might conclude that parents cannotsuccessfully assert a right to consent to their children’s use of drugs if the FDA has not licensedthem as safe and effective; in that case, the government may have a compelling interest inprohibiting use of the drug for anyone.157157 If the relevant question is whether the state law violates parental rights as they existed in 1868, parents’ rightsto choose treatment for their children might be much broader. The FDA did not exist at that time, and the onlylegal limitations on using pharmaceutical products were tort law limits on sellers, and the prohibition on abuse andneglect of children by parents. If the courts were to go this far, every FDA decision would have to meet thecompelling interest standard when parents used the drug for their children. This would dramatically shift powerfrom the FDA to the courts, a move that seems consistent with some recent trends in administrative law.156 Id. at *23-*24 (citation omitted).155 2023 U.S. APP Lexis 25697, at *21-*25.154 Id. at *50.32In L.W., the path to reversal of the district court depended on minimizing the standard ofreview. Accordingly, on both the equal protection and substantive due process claims, JudgeSutton analyzed the questions in ways that enabled him to do just that. With respect to the dueprocess claim, he framed the question as whether parents had rights to consent to treatmentsfor gender dysphoria that had been “reasonably banned.”158 Comparing the bans to those onuse of substances that the FDA had never approved, he analyzed the state interests in a highlydeferential way, emphasizing concerns about the “experimental” quality of the treatments andtheir possible irreversibility. Only by relying on a strong presumption of validity, inconsistentwith the concept that parents had fundamental rights at stake, could Judge Sutton reject theconclusion of unconstitutionality that so many district courts had reached.159Indeed, Judge Sutton never confronts the parents’ central constitutional argument – thatstates may not legislate against the purpose of gender transition as a reason for using theseproducts, as distinguished from legislating against use alone. At its core, the states’ regulatorytarget is the parents’ philosophy of care for their children rather than the medical safety of theirchoices. As Judge Helene White argued in dissent, “both the (Tennessee and Kentucky) statuteseffectively reveal that that their purpose is to force boys and girls to look and live like boys andgirls.”160 Moreover, Judge White added, widespread medical approval of the use of thesepharmaceutical treatments for gender dysphoria in minors and the flimsiness of the states’medical concerns – all well established in the district court record – likewise supported thenotion that the states were not acting to protect the health of minors.161The Circuits are now split, though they may not remain that way.162 If the Supreme Courtgrants the petitions for certiorari in L.W., many dispositions are possible. Perhaps a majority ofJustices will agree with the 6th and 11th Circuit on all grounds. The full merits of the equalprotection arguments are outside the scope of this paper, but I do want to offer a few thoughtson which ground of decision for the challengers might be preferred, by the litigants or by theJustices.162 The Eighth Circuit in Brandt affirmed the district court, 48 F. 4th 661 (8th Cir. 2022), but there is now a petition foren banc review in Brandt, and the full 8th Circuit may wind up agreeing with 6th and 11th. Other appeals are alsopending in the Circuit Courts. See Petition of the United States, No. 23-477, available here:https://www.supremecourt.gov/DocketPDF/23/23-477/288875/20231106135238432_U.S.%20v.%20Skrmetti%20-%20Pet.pdf., note ___ supra, at 27-31.161 Id. at 506. If the constitutionality of these schemes really turned on a fine balancing of empirical evidence onboth sides, the case for judicial deference would be far stronger. But that sort of fine balance does not appear toexist. For a helpful discussion of the uses and misuses of empirical argument in matters of family law, see ClareHuntington, The Empirical Turn in Family Law, 118 Colum. L. Rev. 227 (2018).160 Id. at 505.159 Judge Sutton similarly avoided stricter scrutiny by ruling that the prohibitions did not involve a sex classification,and by not reaching the question of whether transgender classifications were suspect or quasi-suspect. Id. at ___,___. Judge Helene White dissented on all grounds, including the parental rights claim, see id. at 491-513.158 Id. at *28 - *29.33Because the equal protection arguments are the broadest bases for decision, thechallengers to the statutes and their cause-oriented lawyers will prefer the Court to reverse onthose grounds. Moreover, the Solicitor’s General’s petition for the United States has raised onlyequal protection grounds for reversal.163 An equal protection ruling, whether based on sexdiscrimination or transgender discrimination, would logically and inevitably extend to all directregulation of transgender persons, adults or minors. It would implicate controversies involvingthird parties, such as questions about the fairness of athletic competitions, or the separation ofmen and women in prisons or other facilities. In contrast, a due process ruling in favor of theparents’ rights claims would be limited to issues involving transgender minors, and to a contextin which the interests of parties outside the family unit would not be at stake.164An analogy to the judicial choices made in Lawrence v. Texas165 and Obergefell v.Hodges166 seems stark and obvious. In those cases, challengers to laws that restricted the rightsof LGBT people to sexual privacy (Lawrence) and access to marriage (Obergefell) raised equalprotection and due process arguments. Had the Court focused on the equal protectionarguments – in particular, in Lawrence, decided in 2003 – all restrictions on the rights of LGBTpeople might thereafter have become subject to strict judicial review. The marriage questionitself might have been settled far more quickly had the Lawrence Court made that move.Instead, the Court focused on due process grounds of privacy in Lawrence and access tomarriage in Obergefell. This approach, championed by Justice Kennedy (who wrote both Courtopinions), left both decisions subject to attack in the wake of Dobbs and its emphasis on historyas the source of due process rights. Equal protection rulings would not face that kind ofvulnerability to revision.By reasoning similar to what apparently motivated Justice Kennedy in Lawrence andObergefell, a ruling in the families’ favor in L.W. based solely on due process and parents’ rightswould once again be the more restrained path. It would leave other regulation of transgenderpeople untouched, neither approved nor disapproved constitutionally.However disappointing a due process ruling might be for LGBT advocates, anyinvalidation of these state laws would constitute a major victory. Because parents’ rights havedeep common law antecedents, such a ruling would not be vulnerable in the ways thatLawrence and Obergefell are. More broadly, perhaps, it would be a signal to lawyers and judgesthat, despite Dobbs, substantive due process doctrines remain available in appropriate cases.That would be a memorable marker for the 100th anniversary of Meyer-Pierce!166 576 U.S. 644 (2015).165 539 U.S. 558 (2003).164 If the case involved mature minors seeking treatments for gender dysphoria without parental notice or consent,the parents’ competing interests would be at stake. Cf. Bellotti v. Baird, 443 U.S. 622 (1979). But that is not thiscase or any of the other cases being litigated at this time. For discussion of application of the mature minordoctrine in this context, compare F. Lee Francis, Who Decides: What the Constitution Says About Parental Authorityand Rights of Minor Children to Seek Gender Transition Treatment, 46 S. Ill. U.L.J. 535 (2022) with Emily Ikuta,Overcoming the Parental Veto: How Transgender Adolescents Can Access Puberty-Suppressing Hormone Treatmentin the Absence of Parental Consent under the Mature Minor Doctrine, 25 S. Cal. Interdisc. L.J. 179 (2016).163 Id. at 17, n. 6.34Beyond this case-specific analysis, we should remember that the core of the legislativeattacks on transgenderism is not about the scope of parental authority. Rather, this sudden andloud campaign is about the validity of the concepts of gender fluidity and transgender status.For many people, the roots of the campaign are religious, rooted in the notion that we are eachDivinely created at birth as male or female, and that any effort to transform that identity isunnatural and ungodly.167In other contexts, promoters of anti-trans legislation can hide behind a variety ofplausible masks. The sponsors of legislation about competition in sports wave the banner of fairplay.168 The bathroom wars supposedly rest on suddenly unsettled expectations of privacy.169 Inboth of those contexts, some third-party interests (however marginal) are at stake. When thelegislation turns to denial of necessary medical and psychological care to children, however,with no pretense of protection for others, its roots in religion-based animus towardtransgenderism are most fully exposed.I suspect this is why Judge Sutton and others work so hard to conclude that broaddeference to legislatures is constitutionally appropriate in the context of gender dysphoria.Without that deference – that is, with a clear look at the medical knowledge that supports suchtreatments in appropriate cases, and the weak case on the other side – the pretextual,anti-trans, religion-based story of opposition comes more starkly into view.170The narrative of animus drives the equal protection theories in the case, especially theline of argument that transgender classifications are constitutionally suspicious. Once upon atime, this observation might also have invited an Establishment Clause attack on anti-trans170 Doe v. Ladapo, 2023 US Dist. LEXIS 99603 (N.D. Fla, June 6, 2023) at *31-*32 (state’s justifications for prohibitionon gender affirming care for minors “are largely pretextual.”)169 The leading case is Grimm v. Gloucester Cty. Sch. Bd., 972 F. 2d 586 (4th Cir. 2020), cert denied, 2021 U.S. LEXIS3441 (June 28, 2021). See generally Susan Hazeldean, Privacy as Pretext, 104 Corn. L. Rev. 1719 (2019); LauraPortuondo, Note, The Overdue Case Against Sex-Segregated Bathrooms, 29 Yale J. Law & Feminism 465 (2018).168 See generally Erin Buzuvis, Sarah Litwin, & Warren K. Zola, Sport is for Everyone: A Legal Roadmap forTransgender Participation in Sport, 31 J. Lega. Aspects of Sport 312 (2021). A district court in Florida recentlyupheld that state’s statutory prohibition on transgender males competing in girls’ high school sports. D.N. v.DeSantis, 2023 U.S. Dist. LEXIS 198678 (S.D. Fla. Nov. 6, 2023).167 Seehttps://www.pewresearch.org/short-reads/2022/07/07/attitudes-about-transgender-issues-vary-widely-among-christians-religious-nones-in-u-s/ (reporting on influence of religious beliefs on attitudes of Protestants,white and black, re: transgender status); Marianne Campbell, Jordan D.X. Hinton, Joel R. Anderson, A systematicreview of the relationship between religion and attitudes toward transgender and gender-variant people, 20 Int. J.Transgenderism 21-38 (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6830999/. The “pronoun cases” areall about religious objection to gender transition. See Meriwether v. Hartop, 992 F. 3d 492 (6th Cir. 2021) (FreeExercise Clause protects teacher autonomy in use of pronouns); Vlaming v. West Point Sch. Bd.,https://www.vacourts.gov/opinions/opnscvwp/1211061.pdf (state constitution protects religious freedom ofteacher to not use gender transition pronouns). See alsohttp://religionclause.blogspot.com/2023/12/florida-transgender-teachers-challenge.html35legislation. The model would be Epperson v. Arkansas,171 which invalidated a law that bannedthe teaching of Darwinian evolution in public schools. The Supreme Court held that the lawlacked a secular purpose, because its only justification was the constitutionally illicit promotionof Creationism through suppression of competition from modern biology. In the context oflegislative prohibitions on treatment of gender dysphoria, one might readily conclude thatsimilar arguments obtain – that the laws are designed to protect a particular, religion-basedview of gender as fixed against a rival of gender as fluid.In 2023, however, such an argument runs up against a formidable obstacle of a Courtthat has been gutting the Establishment Clause.172 After Kennedy v. Bremerton School District,173which announced a wholesale repudiation of the Lemon test,174 it is an open question whetherthe law still requires that legislation have a secular purpose. Even if a glimmer of thatrequirement remains, many judges (including a majority of the Supreme Court) would be likelyto defer to the possibility, however remote, that secular, health-based purposes buttress theprohibition on gender-affirming care for minors.The invocation of religious beliefs in the context of gender dysphoria, however, invites adifferent, promising, and quite parent-focused angle of approach to the laws restrictingtreatment of transgender minors. As noted in Part I, the Free Exercise Clause frequentlydovetails with parents’ rights, including in Pierce itself and later in Yoder. It is highly likely thatat least some parents of minors who suffer from gender dysphoria have deep religiousconvictions about parental love and about God’s plan for their children. For such parents,helping their children cope with the dysphoria is a religious imperative, rooted in their sense ofparental duty. Indeed, for such parents, not providing appropriate medical care for theiradolescent children with this condition would be a violation of religious conscience.This theory, which might provide these parents with as-applied relief from theprohibitions, deserves its own law journal article. But the elements of this approach, modeledon comparable litigation in the post-Dobbs world of abortion restrictions,175 are easy to see andmay be (in a particular factual context) very difficult to refute. The prohibitions on gender175 See discussion in Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. Rev, forthcoming 2023, available here:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4553079; Micah Schwartzman & Richard Schragger,Religious Freedom and Abortion, 108 Iowa L. Rev. 2299 (2023); Caroline M. Corbin, Religious Liberty for All? AReligious Right to Abortion, 2023 Wisc. L. Rev. 475; Elizabeth Platt, The Abortion Exception: A response to Abortionand Religious Liberty, 124 Colum. L. Rev. Forum (forthcoming 2024), available here:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4557180. See id. at note 4 for a list of state law complaints,based on religious liberty, against state abortion laws. Appeals in the Indiana cases were argued on December 6,2023. http://religionclause.blogspot.com/2023/12/appeals-court-hears-religious.html174 Id. at 2427-2428.173 597 U.S. ___ , 142 S. Ct. 2407 (2022) (holding that a high school football coach’s prayer at 50 yard lineimmediately after a game is protected by the Free Exercise Clause and not prohibited by the Establishment Clause).172 See generally Ira C. Lupu & Robert W. Tuttle, The Remains of the Establishment Clause, 74 Hastngs L.J. 1763(2023) (hereafter “Remains”).171 393 U.S. 97 (1968). See also Edwards v. Aguillard, 482 U.S. 578 (1987) (Louisiana law mandating “BalancedTreatment” of Creationism and Darwinism lacks a secular purpose).36affirming treatment substantially burden the religious exercise of parents who have sincerereligious beliefs motivating them to provide this care. As such, the prohibition triggers thereligious freedom restoration acts which many of the regulating states have on the books.176The flimsy justifications for the prohibitions of treatment cannot survive honest application ofthe strict scrutiny that state laws demand in such cases.177With respect to federal constitutional law, the Supreme Court’s decision in EmploymentDivision v. Smith is a limitation of free exercise exemption claims with respect to generallyapplicable laws. But the Court in recent years has been shrinking the category of generalapplicability and widening the exceptions to it.178 In cases that fall within those exceptions,courts are instructed to apply strict scrutiny.179 The treatment prohibitions are far from generallyapplicable. They discriminate based on age and purpose of use. They frequently makeexceptions for those who have begun treatment prior the law’s effective date.180 Their targetedquality makes them easy pickings for any good lawyer, armed with the latest precedents andsupportive academic arguments. And, for the same reasons that these prohibitions will fail strictscrutiny at the state statutory or constitutional level, they should likewise fail under the FreeExercise Clause. Their flimsy justifications cannot withstand a close judicial look. If prohibitionson medical treatment for gender dysphoria survive due process and equal protection review inthe courts, theories of parents’ religious freedom should be next up.181 Relief for religiouslymotivated parents seems better than relief for none at all.182182 Perhaps the parents’ religious liberty claim would need accompaniment from a medical professional’scomparable religious liberty claim to be free to provide the treatment as a matter of conscience. See MicahSchwartzman & Richard Schragger, Religious Freedom and Abortion, 108 Iowa L. Rev. 2299, 2339-2340 (2023). Seegenerally Elizabeth Sepper, Taking Conscience Seriously, 98 Va. L. Rev. 101 (2012) (arguing for medical professionals’rights of conscience to provide controversial services, including abortion).181 If the religious exemption claims were presented only after a full-scale challenge to these laws failed, they wouldnot be vulnerable to the criticism offered (in general terms) by Professor Schwarzschild that the parents wereseeking special treatment rather than working to defeat the policy as a whole. See Maimon Schwarzschild, DoReligious Exemptions Save?, 53 San Diego L. Rev. 185, 194-198 (2016) (expressing concern that religiousexemptions lead to political Balkanization).180 See, e.g., Tenn. Code sec. 68-33-103(b)(1)(B).179 Fulton v. City of Philadelphia, 593 U.S. ___, 141 U.S. 1868, 1881-1882 (2021).178 See, e.g., Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam); Fulton v. City of Philadelphia, 593 U.S. ___ ,141 S. Ct. 1868 (2021). For useful analysis of these developments, see James Oleske, Free Exercise Uncertainty:Original Meaning? History and Tradition? Pragmatic Nuance?. __ Wayne State L. Rev. ___ (forthcoming 2024);Andrew Koppelman, The Increasingly Dangerous Variants of the Most Favored Nation Theory of Religious Liberty,108 Iowa L. Rev. 2237 (2023); Zalman Rothschild, Individualized Exemptions, Vaccine Mandates, and the New FreeExercise Clause, 131 Yale L.J.F. 1106 (2022); Christopher Lund, Second Best Free Exercise, 91 Ford. L. Rev. 843(2022); Ira C. Lupu & Robert W. Tuttle, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v.City of Philadelphia, American Constitution Society Sup. Ct. Rev., 5th ed., 221-256 (2021); Nelson Tebbe, ThePrinciple and Politics of Equal Value, 121 Colum. L. Rev. 2397 (2021); Douglas Laycock and Thomas Berg, FreeExercise Under Smith and After Smith, 2020-21 Cato Sup. Ct. Rev..177 See, e.g., Tenn. Code sec. 4-1-407 (c) (state imposed burdens on religious exercise are unlawful unless essentialto a compelling interest and the least restrictive means of furthering that interest)176 Tennessee, Kentucky, Arkansas, Alabama, Florida, Kansas, and Oklahoma all have RFRA’s as well as prohibitionson gender affirming care for minors. Other, similar overlaps are likely.37B. Matters of Educational ChoiceMeyer, Pierce, and Farrington involved state efforts to limit parental choices ineducation. Whether the question involved language, culture, or religion, each of those germinaldecisions protected the right to add perspective and information to a child’s upbringing. AsJustice Douglas in Griswold later re-rationalized Meyer and Pierce under the First Amendment,those decisions forbade the state from restricting the spectrum of knowledge that parentsprovided to their children.In contrast, many contemporary parents’ rights claims present the opposite character.They involve parental efforts to restrict what their children will learn about controversialsubjects. Some of these disputes do not involve claims of constitutional right at all; rather, theyrepresent efforts to subtract from what children are taught, including the children of others.This section of the paper first considers parental efforts to control public school curricula, andthen evaluates efforts by parents to withdraw their children from certain assignments in thepublic schools.Next, the paper turns to an issue that seems particularly knotty and difficult. Do publicschools have a duty to disclose information to parents about their child’s presentation of genderidentity? This question pits parental rights to learn what school officials already know abouttheir children against their children’s rights to physical security and control over information.The paper’s final section focuses on claims that Meyer and Pierce buttress an affirmativestate duty to fully finance schools with a religious character. Of late, aided by a sudden andhighly questionable set of interpretations of the Free Exercise Clause, these arguments havetaken on a new resonance under the mantle of nondiscrimination. By mid-2023, theArchdiocese of Oklahoma City had obtained state approval for a charter school that will teachthe Roman Catholic faith as truth. The school’s proponents are asserting the right to full andequal financing with other charter schools, while also claiming free exercise exemptions fromnondiscrimination conditions with which other charter schools must comply. Not long ago, thecase for comprehensive state financing of religious education would have faced nearlyinsurmountable Establishment Clause objections, deeply rooted in the very history and traditionthat now represent the Supreme Court’s constitutional reference point for many matters.183Meyer-Pierce alone cannot possibly account for the sudden inversion of constitutional concerns.Each of the subjects discussed in this Part II B. invites a fully developed law journalarticle. In the interests of brevity, I am providing only a glance at each context, offering insightsas they seem appropriate.Example 1. Parental Control Over Curricula in the Public Schools183 For extended discussion of how we arrived at this new and very different situation, see Lupu & Tuttle, TheRemains, at 1774 -1781.38In a number of states, assertions by parents’ groups and government officials that publicschools had been defying the rights of parents have proved politically potent. The Covid-19pandemic provoked the first round of such complaints. Switching to virtual education in gradesK-12, and imposing mandates of masking and/or vaccination once in-person educationresumed, were quite unpopular with significant portions of the electorate.On top of that pandemic-related discontent, conservative factions and supportiveofficials continued to build a political movement centered on rhetoric of parents’ rights.184 Thefocus shifted to matters of curricular substance and cultural atmosphere. Led chronologically byFlorida’s perversely labeled Individual Freedom Act,185 states began to exclude from instructionin elementary and secondary schools (and sometimes beyond)186 various themes on matters ofrace, sexual orientation, and gender identity. Building on a right-wing media campaign againstwhat was labeled as “critical race theory,” several states legislated against the teaching of whatthey labeled as “divisive” concepts of race and racial history in America.187The crude inconsistency between support for collective parents’ rights over curriculumand suppression of individual parents’ rights to attend to their own children’s gender dysphoriais deeply revealing. The crucial conceptual point is not, however, the popular right-leftdichotomy between traditional and progressive values. Rather, the conservative version ofparents’ rights with respect to curricular content is not about Meyer-Pierce rights or any othertheory of constitutional freedoms. The claims cannot be sustained in court on any plausibletheory of rights. The arguments involve conflict between political interests, not rights againstthe state.188This simple point has been apparent since the pre-Meyer common law decisions aboutparental authority. As discussed in Part I, common law judges recognized parental rights toinfluence their own children’s curricular choices – e.g., should a child study Latin or grammar –but recognized that the limit of such rights was the point at which a parent’s choices affectedthe educational interests of others. No individual, progressive or conservative, has a claim of188 Id. at 6.187 For leading examples and analysis, see La Toya Baldwin Clark, The Critical Racialization of Parents’ Rights, 132Yale L.J. 2139 (2023); Cahn, Eichner, and Ziegler, Erosion by Misdirection, note ___ sura, at ____.186 In Pernell v. Fla. Bd. of Governors of the State Univ. Sys., 641 F. Supp. 3d 1218 (N.D.Fla. 2022), a district court granted, on free speech grounds, a preliminary injunction against enforcement incolleges and universities of the portions of the Individual Freedom Act Florida law banning “divisive topics” relatedto race. The prevailing view of government speech will make it exceedingly difficult to succeed on a similar claim ingrades K-12. For a comprehensive discussion of the speech rights of teachers in higher education as compared tothose in K-12 education, see Keith Whittington, Professorial Speech, The First Amendment, and LegislativeRestriction on Classroom Discussion, 58 W.F. L. Rev. 463 (2023).185 Florida Statutes (2022), § 1000.05(4)(a).184 For a comprehensive account of the ways in which this parents’ rights movement did little for the autonomy ofparents and instead undermined progressive cultural change and rights of minors, see Naomi Cahn, Mary E. Ziegler,& Maxine Eichner, Erosion by Misdirection: The New Uses and Abuses of Parental Rights, Va. Public Law & LegalTheory Paper No. 2023-62, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4552363.39legal right to impose their preferred version of the public-school curriculum on other, dissentingparents and children. Parents who want increased attention to matters of racial history andequity, or more resources for students wrestling with issues of sex and gender, are on the samepolitical plane as those who want to move in the opposite direction. To prevail, each side mustwin the struggle for political control of state and local offices that have authority to setcurriculum. Accordingly, the rhetoric of parents’ rights is just that – a framing of politicalinterests in the jargon of legal entitlements.The few litigated cases about attempts by parents to alter the content of a public-schoolcurriculum confirms this narrative. In the 1980’s, in the context of a successful challenge toschool sponsored prayer in Alabama,189 a group of intervenor parents alleged that a widenumber of books approved for use by the Alabama Board of Education unconstitutionallypromoted a religion of secular humanism. These parents argued that the challenged booksshould be excluded from the curriculum, or that books promoting theistic religion should begiven “equal time.” Although District Court Judge Brevard Hand famously accepted some ofthese claims and enjoined the use of forty-four books in the public-school curriculum,190 the 11thCircuit reversed and ended the litigation. In an opinion by Judge Frank Johnson, the 11th Circuitreasoned that the challenged books were not being used to indoctrinate anyone in secularhumanism, whether or not secular humanism qualified as a religion under the FirstAmendment.An inch beneath the surface of the 11th Circuit opinion is the notion that the publicschools cannot survive assertions by one set of parents that other groups of parents had takencontrol, and that the courts should force a balance among them in the curriculum. Repeatedly,the 11th Circuit emphasized the need for judicial deference to duly elected and appointed schoolofficials. Without that deference, any choice of curriculum, or books in support of curriculum,would invite endless attack from parents who believed that someone else’s world view, ratherthan their own, had taken over the public schools. Where would that stop? How would judgesever confidently conclude that the aggrieved parents’ view had been given “equal time”?191Would there not always be still other sets of parents to complain that their views had beendenigrated by the curriculum and deserved a pro rata share of time?The dynamics of Smith v. Board of Commissioners have recently been re-played, drivenby different causes. The claims have relied primarily on norms of non-discrimination, freedomof speech, and age-appropriateness of instruction, but the conceptual problems of assertingand enforcing parents’ rights are very similar. Challenging county-wide or state-wide policiesabout the content of a curriculum may be an effective way to bring attention to alleged vices ofa policy, but these challenges are highly unlikely to produce favorable rulings or appropriate191 Cf. Edwards v. Aguilllard, 482 U.S. 578 (1987) (invalidating Louisiana’s requirement for “Balanced Treatment” inhigh school biology classes of Creationism and Darwinian theories of evolution of species).190 Smith v. Board of School Commissioners of Mobile County, 655 F. Supp. 939 (SD Ala 1987), rev’d 827 F. 2nd 684(11th Cir. 1987).189 The lawsuit ultimately resulted in the decision in Wallace v. Jaffree, 472 U.S. 38 (1985) (invalidating legislationrequiring moments of silence in public schools for meditation or prayer).40remedies for the problem. Below, I offer and analyze two examples, one from the right and onefrom the left. I intend these examples to be typical rather than exhaustive of the field.Anti-racism and Ibanez v. Albemarle County School Board. After the violence of the“Unite the Right” rally in August 2017 in Charlottesville, Virginia,192 the Albemarle County (hometo Charlottesville) School Board responded to the white supremacist aggressions of the rally byadopting an Anti-Racism Policy.193 The Policy is highly detailed, and commits the Board and itsPublic School Division to “establishing and sustaining a school community that shares thecollective responsibility to address, eliminate, and prevent actions, decisions, and outcomesthat result from and perpetuate racism.”194 The Policy requires that administrative staff andteachers be trained under the policy, and that “[c[urriculum and instructional materials for allgrades shall reflect cultural and racial diversity and include a range of perspectives andexperiences, particularly those of underrepresented groups of color.”195Almost three years later, in late 2021, Alliance Defending Freedom filed a lawsuit inVirginia state court on behalf of several families with children in the County schools. Thecomplaint alleged that the Anti-Racism Policy had been implemented in ways that infringed theplaintiffs’ rights under various provisions of the state constitution, including those dealing withnon-discrimination and freedom of speech.196 Notably, the complaint also included allegationsthat implementation of the Policy violates the plaintiffs’ parental rights under stateconstitutional law, statutory law, and common law.197 In particular, the complaint alleged that a“parent’s fundamental right prohibits schools from indoctrinating their children against theparent’s wishes.”198 Moreover, the complaint included a request for an injunction againstimplementation of allegedly unlawful educational practices, and (in the alternative) a requestfor parents to be allowed to opt their children out of the complained of practices.The County moved to dismiss the complaint on justiciability grounds, including lack ofstanding. In the Spring of 2022, as reported in the news,199 Circuit Court Judge Worrellresponded to the plaintiffs’ arguments about injury to white students in this way:“You never make an argument about the problem with teaching a child this way. You tell me thatthe policy discriminates against white students and it’s just not true. I’ve read all the manyhundreds of pages [of briefings] and I don’t see it. You just assert there is discrimination. Whycan’t Albemarle County teach its students about racism? . . . There is no compulsion here. Whyis this actionable? . . .199 Lisa Martin, School Board Lawsuits Ebb and Flow,https://www.crozetgazette.com/2022/05/06/school-board-lawsuits-ebb-and-flow/.198 Id. at par. 333.197 Id. at pars. 324-337 (citing, inter alia, Meyer, Pierce, and Troxel v. Granville, without stating any federalconstitutional claims).196 The complaint is available here: https://adfmedialegalfiles.blob.core.windows.net/files/CIcomplaint.pdf.195 Id.194 Id.193 https://www.k12albemarle.org/our-division/anti-racism-policy/policy (adopted February 28, 2019).192 https://www.vox.com/2017/8/12/16138246/charlottesville-nazi-rally-right-uva41I reject your premise that the structure of the policy is pejorative. Your parents [plaintiffs in thecase] simply don’t like that [the school board] has chosen this way to teach [anti-racism]. Youdon’t have standing to complain. The Albemarle County School Board doesn’t exist to create acurriculum that’s particular to any student. If we take that claim to its endpoint then we have tohave a separate curriculum for each student, separate from others, because this student feltbad.”200The Circuit Court dismissed the complaint on justiciability grounds,201 and the case isnow on appeal.202“Don’t say Gay” and Equality Florida v. Florida State Board of Education. In lateMarch, 2022, the Florida legislature enacted and Governor DeSantis enthusiastically signed a bill“relating to parental rights in education.” Some portions of it were about parental rights, asproperly understood – for example, the provisions about the rights of parents to be informed ofvarious changes in the school records of their own children, which I discuss in a separate sectionbelow. What received the most immediate attention by far, however, was the so-called “Don’tSay Gay” provision:“Classroom instruction by school personnel or third parties on sexual orientation orgender identity may not occur in kindergarten through grade 3 or in a manner that is notage-appropriate or developmentally appropriate for students in accordance with statestandards.”203Unlike the school records provision, this prohibition on instruction was not an attempt toenforce the rights of all parents. More precisely, it did not enforce the rights of any parents.Rather, it vindicated the concerns of some parents while undermining the interests of others. Inits focus on “sexual orientation or gender identity,” it excluded from explicit classroom attentionmatters of homosexual orientation and transgender identity, and thereby implicitly normalizedmajoritarian patterns of heterosexual orientation and cisgender identity.Within a few days of the signing, Equality Florida and several students, teachers, andparents of children in the Florida public schools filed suit, seeking to enjoin enforcement of this203 Codified at Fla. Stat. 1001.42(8)(c)3. Other sections of the so-called Individual Freedom Act prohibitedinstruction and training designed to advance various concepts that the legislature associated with Critical RaceTheory. Id. at 1000.05(4)(a)1. – 8.202 The appeal was argued in the Court of Appeals of Virginia on September 12, 2023.https://www.vacourts.gov/courts/cav/dockets/Region%202%20-%20Central%20Virginia%20Writ-Merit%20Dockets/091123_web_central_region_docket.pdf201 Ibanez v. Albemarle Cty. Sch. Bd., No. cl21001737-00 (Va. Cir. June 1, 2022). The precise language of the order ofdismissal is “Plaintiffs lack standing to bring their claims, and . . . Plaintiffs have not stated a cause of action arisingunder Virginia law because their claims under the Constitution of Virginia are not self-executing and the statute onwhich they rely does not create a cause of action.”200 Id.42provision, in the federal district court for the Northern District of Florida.204 The essence of thelengthy Equality Florida complaint seemed to be that the very enactment of the “Don’t Say Gay”provision was constitutionally injurious because it would inhibit or intimidate students, parents,teachers, and school staff from acknowledging the existence of LGBT identity. Teachers andstaff, in particular, would rightly fear that their jobs might be jeopardized if they made theslightest reference to LGBT identity – for example, in noting that one or more children in theclass had a same sex couple as parents. LGBT parents would fear that consciousness of theirexistence among school children would be erased by compliance with the law, to their detrimentas well as that of their children.The litigation problem for the plaintiffs, however, was the difficulty in tracing these fearsto any enforcement of the law.205 The law had been enacted only days earlier. It prohibitedcertain instruction and did not by its terms prohibit any and all references to LGBT identity. Andits addressees were public school districts, not their employees, however reasonable thoseemployees’ apprehension of negative job actions might be. These concerns about whether thelaw caused material injury to the plaintiffs, fairly traceable to the defendants’ actions inenforcing the law, and susceptible to effective judicial remedy – all standard Article III concernsabout justiciability – led Judge Winsor to dismiss the case in September 2022.206 He gave theplaintiffs leave to re-file the complaint, which they did months later, but in March 2023, thatcomplaint too was dismissed on justiciability grounds.207 The dismissal has now been appealed tothe 11th Circuit Court of Appeals.207 M.A. v. . Florida State Bd. of Educ. 2023 U.S. Dist. Lexis 52144 (N.D. FL 2/15/2023). A separate lawsuit withmultiple plaintiffs and claims arising out of the “Don’t Say Gay” law similarly failed on justiciability and othergrounds. Cousins v. Sch. Bd. of Orange Cty., 2023 U.S. Dist. LEXIS 162782 (M.D. Fla. Aug. 16, 2023). For a similarresult in a case challenging the restrictions on teaching about race in grades K-12, see Falls v. DeSantis, 609 F. Supp.3d 1273 (ND Fla 2022). Note the very different outcome in Pernell v. Fla. Bd. of Governors of the State Univ. Sys.,641 F. Supp. 3d 1218 (N.D. Fla. 2022) (preliminary injunction against the enforcement of restrictions on teachingabout race in colleges and universities). Chief Judge Mark Walker presided in both Falls and Pernell.206 Equality Florida v. Florida State Bd. of Educ. 2022 U.S. Dist. Lexis 240375 (N.D. FL 9/29/2022).205 The presence of such a threat is what distinguishes Equality Florida from GLBT Youth in Iowa Schools Task Forcev. Reynolds, Case No. 4:23-cv-00474, S.D. Iowa, Dec. 29, 2023, slip op. available here:https://s3.documentcloud.org/documents/24245982/injunction-1.pdf. In May 2023, the Iowa legislature enactedSenate File 496, Iowa Code Sec. 279.80(2), which provided that ““[a] school district shall not provide any program,curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientationto students in kindergarten through grade six.” Slip op. at 8. The statute defined gender identity as covering allidentities (cisgender or transgender) and sexual orientation as “actual or perceived heterosexuality, homosexuality,or bisexuality.” Id. The district court concluded that teachers in grades K-6 had standing to challenge theenactment, because they had shown a credible threat of enforcement against them. In contrast, GLBT Youth andits members, all in grades 7 and above, lacked standing to challenge the provision. On the merits, the court heldthat the provision was a violation of the due process clause on grounds of vagueness. On its face, it seemed toprohibit all mentions of any orientation or gender identity, including calling a boy a boy, or using Mr. or Miss as anappellation. Although the statute would likely be applied more narrowly, it was impossible for teachers to knowexactly what was forbidden, Id. at 41-44, and enforcement would inevitable by arbitrary and unpredictable.204 The complaint is available here:https://www.nclrights.org/wp-content/uploads/2022/03/Equality-Florida-et-al.-v.-DeSantis-et-al.-Complaint.pdf.43Their political valence aside, the lawsuits in Ibanez, attacking the Albemarle County’sAnti-Racism Policy, and Equality Florida, attacking Florida’s “Don’t Say Gay” law, are in someways strikingly dissimilar. Ibanez is a suit against a county school board, objecting to a countypolicy, on state constitutional grounds. The plaintiffs filed suit almost three years after theCounty adopted the policy, and the allegations include many details about its trainingrequirements and its implementation. Equality Florida is a case against a variety of statedefendants, generated by a state legislative policy, on federal constitutional grounds. The suitappeared immediately after enactment, which led inevitably to more speculative allegationsabout the harms caused by its eventual enforcement.Still more deeply, the Albemarle County policy represents an affirmative inclusion ofcontroversial material, spelled out in considerable detail, in the curriculum and staff training inthe County’s public schools. In contrast, the Florida enactment represents a complete exclusionfrom the curriculum in kindergarten through 3rd grade, and a partial exclusion in higher grades(“classroom instruction on sexual orientation and gender identity . . . that is not age-appropriateor developmentally appropriate for students in accordance with state standards.”) Thesedifferences between the Albemarle County policy and the Florida policy help explain why theAlbemarle plaintiffs had litigation specifics in which to sink their teeth, while the Floridaplaintiffs had to rely on allegations of chilling effects and atmospheric harms.208And yet, at least as of this round of the litigations, the outcomes are essentially the same.Judges have dismissed both complaints on grounds of justiciability – lack of standing and/orremedial incapacity in the judiciary to cure the alleged harms. Though I am sure that advocatesin each of these cases could explain intelligently why I am wrong about theirs and right about theother, both cases structurally resemble Smith v. Board of Commissioners of Mobile County.209Both alleged that a general policy designed to broadly influence the curriculum violated theconstitutional rights of parents and their children attending the public schools. Both of thosepolicies, despite their structural differences, are designed to shape the content and socio-politicalatmosphere of public education. They affect the learning of every child – to be sure, some morethan others.210Moreover, if either piece of litigation succeeds on its substantive merits, judges will beobliged to craft and supervise remedies that will intrude deeply and continuously on theadministration of the public schools. In Albemarle County, would judges have to decide whatinstruction about race and history is constitutionally permitted? In Florida, would judges have todecide whether the state could ever impose any less severe boundary in discussing sexualorientation or gender identity?210 Investigations by journalists in several Florida counties have identified the negative effects on the climate ofrespect for librarians, teaches, parents, and children in various school districts. See Reshma Kirpalani and HannahNatanson, The Lives Upended by Florida School Book Wars, Washington Post, Dec. 21, 2023, available here:https://www.washingtonpost.com/education/2023/12/21/florida-school-book-bans-escambia-county/;209 655 F. Supp. 939 (SD Ala 1987), rev’d 827 F. 2nd 684 (11th Cir. 1987).208 I have no doubt that the atmospheric harms are real and substantial, see Cahn, Eichner, and Ziegler, Erosion byMisdirection, note __ supra, at 18-22, but they do not readily translate into justiciable questions.44These are all matters of great import, but they are ordinarily left to the politics ofeducational reform and the discretion of properly constituted government agencies.211 What is atstake in these contexts are concerns about political morality, pedagogical soundness, and thewell-being of children. Parents, children, teachers, school administrators routinely show up on allsides and fight for their preferred outcomes. In most circumstances, none have constitutionalrights, based on Meyer-Pierce or otherwise, to triumph over the others.212Example 2. Opt-out rights.The idea that significant negative effects on third parties should bound parental rightshelps in the analysis of a more authentic and difficult category of parental rights -- opt-outs fromotherwise mandatory school assignments, experiences, or courses. The classic case is therecitation of the Pledge of Allegiance, an ideological rather than a curricular exercise. Restingon a theory of freedom from compelled speech, the decision in West Virginia Board of Educationv. Barnette213 protects the right of individual schoolchildren to refuse to recite the Pledge. Thelogic of Barnette extends to any attempt by a public school to compel an affirmation withideological content.213 319 U.S. 624 (1943).212 The decision in Local 8027 v. Edelblut, 2023 U.S. Dist. LEXIS 5593 (D.N.H., Jan. 12, 2023) suggests the possibilitythat a teacher dismissal based on a law banning the teaching of divisive racial concepts might be subject tochallenge on due process vagueness grounds. Id. at *38-*51. Curriculum challenges based on the EstablishmentClause concerns, reflected in The School Prayer Cases and in the fights over teaching Darwinism, see Epperson v.Arkansas, 393 U.S. 97 (1968), involve matters of structure, not matters of individual right, and so fall outside thisanalysis. Under the Constitution, local school boards lack jurisdiction to authorize a curriculum that promotesbelief in a religious faith. Of course, as a matter of right, all parents can control what is taught to their own childrenin their own home or in private tutorials. With respect to all venues of learning, parents have rights of entry andexit (e.g., from a school, religious community, or a voluntary association like Scouts or a sports league) but no legalrights of control over the teaching once they enter. For a very different take on parents’ rights against public schoolpolicies, see Helen Alvare, Families, Schools, & Religious Freedom, 54 Loyola Univ. Chicago, No. 2 (forthcoming),available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4119844.211 Decisions by school officials to remove books or films from a school library invite the possibility of a differentoutcome re: justiciability and the merits. See island Trees Sch. Dist. v. Pico, 457 U.S. 853 (1982). Even in thatcontext, proving that the removals are viewpoint discriminatory (rather than based on age appropriateness) is verydifficult. Nevertheless, book bans have an impact on the climate of equal respect and support for various groupswithin a school system. See Hannah Natanson, Half of challenged books return to schools. LGBTQ books are bannedmost, Washington Post, Dec. 24, 2023, available here:https://www.washingtonpost.com/education/2023/12/23/school-book-challenges-shelves-lgbtq-authors/. For arecent decision striking down a statutory ban on books that address sexual matters in grades K-6, see GLBT Youth inIowa Schools Task Force v. Reynolds, Case No. 4:23-cv-00474, S.D. Iowa, Dec. 29, 2023, slip op. available here:https://s3.documentcloud.org/documents/24245982/injunction-1.pdf, at 22-41. The law “require[d] the removalof any book from Iowa public school libraries that contains a description or visual depiction of a ‘sex act.” Id. at 3.Teachers, affected students, and publishers of the books banned all had standing to sue. Id. at 13-22. The districtcourt concluded that the ban violated the First Amendment because it was vastly overbroad. Id. at 38. It “hasresulted in the removal of hundreds of books from school libraries, including, among others, nonfiction historybooks, classic works of fiction, Pulitzer Prize winning contemporary novels, books that regularly appear onAdvanced Placement exams, and even books designed to help students avoid being victimized by sexual assault.”Id. at 3.45In cases where the school does not require students to engage in affirmation of an idea, doparents have constitutional rights to withdraw their children from otherwise mandatory courses,reading assignments, or substantive lessons?214 Over the past fifty years, disputes over such optout rights have typically been centered on the Free Exercise Clause of the First Amendment. Themost likely explanation for that is two-fold. First, opt-out requests are usually driven by religiousbeliefs, though the compelled speech doctrine does not include any requirement that the relevantbeliefs be religious.215 Second, in the context of schools, the decision in Wisconsin v. Yoder216 –exempting the Old Order Amish from compulsory education laws for their children who hadcompleted eighth grade -- adds constitutional fuel to the withdrawal engine.Despite the decision in Yoder, however, successful opt out claims based on theConstitution are rare. Most states now legislatively recognize a right to home education, butcourts have been reluctant to find a constitutional right to home educate a child. They tend todistinguish Yoder as a case about the long-term survival of a religious community, rather than anindividual right to withdraw children from all accredited schooling.217What about opt-outs from specified reading assignments? The most prominent judicialdecision about opt-outs of this character has long been Mozert v. Hawkins County.218 In Mozert,a group of public-school students and their parents objected on free exercise grounds to theCounty’s adoption of the Holt, Rinehart, and Winston series of basic reading materials forgrades 1-8. The families described themselves as fundamentalist Christians, and theycomplained that books in the series promoted ideas in conflict with their faith – for example,evolution, mental telepathy, secular humanism, pacifism, and magic. They sought relief in theform of exemption for their children from the readings they found objectionable. Although theysuggested that an entirely different set of books for all children might alleviate their concerns,the particular remedy sought was excuse of individual children from the room when theirclasses read the complained-of books.218 827 F. 2d 1058 (6th Cir. 1987).217 See, e.g., Care and Protection of Charles, 399 Mass. 324, 504 N.E. 2nd 592 (1987); Duro v. Dist. Att’y, SecondJudicial Dist., 712 F. 2d 96 (4th Cir. 1983), cert. denied 465 U.S. 1006 (1984). For a comprehensive appraisal andcritique of the home education movement, see James G. Dwyer & Shawn F. Peters, Homeschooling: The Historyand Philosophy of a Controversial Practice (2019), and Elizabeth Bartholet, Homeschooling: Parents RightsAbsolutism vs. Child Rights to Education and Protection, 62 Ariz. L. Rev. 1 (2020). I discuss home education ingreater detail in Ira C. Lupu, The Separation of Powers and the Protection of Children, 61 U. Chi. L. Rev 1317,1356-1359 (1994); Ira C. Lupu, Home Education, Religious Liberty, and the Separation of Powers, 67 B.U. L. Rev 971(1987).216 406 U.S. 205 (1972).215 In addition to Barnette, where religious beliefs provided the motivation for the opt-out claim but not grounds ofdecision, 319 U.S. at 634-635, see the recent decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (religiouslymotivated objector prevailed on speech grounds).214 Compare the common law cases about parental rights to withdraw a child from a particular course, cited in thediscussion of Meyer in Part I, supra. In Hamilton v. Regents of the Univ. of California, 293 U.S. 245 (1934), the U.S.Supreme Court held that the Free Exercise Clause did not provide grounds to exempt university students fromcompulsory military training.46The district court ruled for the plaintiffs, but the 6th Circuit reversed. The panel wasunanimous on the outcome, but the three judges each wrote lengthy and careful opinions.Chief Judge Lively (writing for himself and Judge Cornelia Kennedy) argued that the readingassignments did not substantially burden the religious freedom of the plaintiffs or theirchildren, because the school did not require the children to affirm the truth of the ideasadvanced in the books, or to engage in a devotional exercise.219 Reading these books involvedexposure to new ideas, not indoctrination in them. The panel readily distinguished Yoder as acase involving complete withdrawal from school and the survival of a long-standing religiouscommunity.220Judge Kennedy, concurring, agreed on the burden point but went on to argue that thereading curriculum is justified by a compelling state interest. “Teaching students about complexand controversial social and moral issues,” she wrote, “is just as essential for preparing publicschool students for citizenship and self-government as inculcating in the students the habits andmanners of civility.”221Mozert remains the template for evaluating parent demands that their children bepermitted to opt out of reading assignments to which parents object on constitutional grounds.The reasoning of Mozert proved decisive in a recent case in my home jurisdiction ofMontgomery County, Maryland.222 In Mahmoud v. McKnight,223 several families challenged theinclusion of their children in portions of the reading program in grades K-5. The County SchoolBoard had recently added books to its reading curriculum to further goals of nondiscriminationwith respect to LGBTQ persons. After a careful review, a committee of experts recommendedstorybooks with that goal in mind.The plaintiff families claimed rights under the Free Exercise Clause and the parents’rights wing of substantive due process to opt their children out of “readings and discussions ofbooks that included lesbian, gay, bisexual, transgender, and queer characters because thebooks' messages contradict their sincerely held religious beliefs about marriage, humansexuality, and gender.”224 As described by the district court judge, the books attached to thecomplaint were the following:“Pride Puppy! chronicles a family's visit to a "Pride Day" parade and their search for arunaway puppy, using the letters of the alphabet to illustrate what a child might see at a pride224 Id. at *1-*2. The plaintiffs include Muslim, Roman Catholic, and Greek Orthodox parents. Id. at *( - *10.223 2023 U.S. Dist. Lexis 150057 (D. Md. 8/24/2023).222 The County is adjacent to the District of Columbia. Two of my children attended County schools, elementary andsecondary, but graduated long before this dispute arose.221 Id. at 1071. Judge Boggs took an entirely different direction from his colleagues on the panel. Boggs argued thatthe County had imposed a substantial burden on these families’ religious beliefs. Nevertheless, as a matter ofjudicial restraint and respect for the authority of the elected school board over matters of educational policy, JudgeBoggs concluded (reluctantly) that the curriculum of the public schools was entirely in the control of schoolofficials, constrained only by the Establishment Clause. Id. at 1079-1081.220 Id. at 1068.219 Id. at 1063-67.47parade. Uncle Bobby's Wedding tells the story of a girl who is worried that hersoon-to-be-married uncle will not spend time with her anymore, but her uncle's boyfriendbefriends her and wins her trust. Intersection Allies: We Make Room for All features ninecharacters who proudly describe themselves and their diverse backgrounds and connects eachcharacter's story to the collective struggle for justice. My Rainbow tells the story of a motherwho creates a rainbow-colored wig for her transgender child. Prince & Knight tells the story of ayoung prince who falls in love with and marries a male knight after they work together to battlea dragon. Love, Violet chronicles a shy child's efforts to connect with her same-sex crush on awintry Valentine's Day. Born Ready: The True Story of a Boy Named Penelope is about anelementary-aged child who experiences triumphs and frustrations in convincing others what thechild knows to be true—that he's a boy, not a girl. Pride Puppy! is for pre-kindergarten and theHead Start program; the other books are for kindergarten through fifth grade.”225Most of the opinion is devoted to the plaintiffs’ free exercise claims. Citing five circuitcourts and a number of district courts, Judge Boardman writes that “Every court that hasaddressed the question has concluded that the mere exposure in public school to ideas thatcontradict religious beliefs does not burden the religious exercise of students or parents.”226These courts relied on two reasons: “(1) students were not required to behave contrary to theirfaiths or affirm any views contrary to their religious beliefs, and (2) parents were not preventedfrom discussing and contextualizing any contrary views at home.”227 The court in Mahmoudconcluded that the plaintiffs and their children had not experienced the kind of conflictbetween their religious beliefs and the curriculum necessary to satisfy free exerciserequirements. Teachers were not engaged in indoctrinating or coercing children to affirm anybelief about sexual orientation or gender identity. Rather, the program was designed to instillrespect for LGBT people, among others, and the parents had not asserted that their beliefsincluded any disrespect for that group.With respect to parents’ rights norms, Judge Boardman concluded that the fundamentalright of parents to direct the education of their children does not extend to control of “how apublic school teaches their child.”228 This led her to apply rational basis review, which theCounty’s reading program easily satisfied.229The same result on the parents’ rights claim would follow if the first step lined up withthe those taken in free exercise cases. With respect to both, a prima facie case must include ashowing that the state has burdened the right. For example, a school policy that insisted thatchildren specifically denounce their parents or renounce their parents’ belief on some subject229 The plaintiffs in Mahmoud v. McKnight have appealed to the U.S. Court of Appeals for the 4th Circuit. The 4thCircuit heard argument in the case on December 6, 2023. Nicole Asbury & Michelle Boorstein, Religious MD parentsappeal to court to skip books with LGBTQ+ characters, Washington Post, Dec. 5, 2023, available here:https://www.washingtonpost.com/dc-md-va/2023/12/05/opt-out-montgomery-lgbtq-storybooks/228 Id. at *87 (citing and quoting Blau v. Fort Thomas Pub. Sch. Dist., 401 F. 3rd 381, 395 (6th Cir. 2001).227 Id. at *52.226 Id. at *51.225 Id. at *5-*748would burden a parent’s constitutionally protected place. Parents’ rights to control theirchildren’s education are not substantially burdened, however, by everything the school teachesthat may conflict with parental beliefs. The parents maintain control through the options of 1)exit from the school and 2) rivalry with the school for influence with their children. Parents maynot like competition from the school, just as teachers sometimes dislike competition fromparents. Nevertheless, as I wrote many years ago, when such rivalries are maturely managed,they can enrich children’s understanding of the world, help protect children from abuse or otherforms of domination, and foster the development of children as independent adults.230In addition, the opinion in Mahmoud v. McKnight, though correct in its result, mighthave been strengthened by the approach taken by Judge Cornelia Kennedy, concurring inMozert. She argued that even if the plaintiff families had demonstrated the requisite conflictbetween the reading curriculum and their religious beliefs, the state’s interests in maintainingthe goals of its curriculum were sufficient to prevail.On the facts in Mahmoud, those interests were both substantive and administrative. Thesubstantive interests revolve around the goals of this aspect of the reading program. Asdescribed by the district court, the no opt-out policy serves the School Board's interest in"’[f]oster[ing] social integration and cultural inclusiveness of transgender and gendernonconforming students’ by ensuring all students are exposed to [relevant] instructionalmaterials.”231 Opt outs reduce the number of students exposed to the lessons of inclusion andequal respect for LGBT persons and families. Moreover, the opt out students are not selected atrandom. They come from families which do not teach normalization of such families and mayindeed teach against it. In addition, for students from LGBT families as well as all others, the optout and attendant disruptions may become a focal point among children at school. Of course,students whose parents want the opt out may initiate such discussion about these books in anyevent, but allowing an opt out will draw special attention at the school to the reasons for it.The administrative interests relate to the number of students seeking the opt outs. If itwere only a handful, as was the case in Montgomery County when the initial objections fromparents arose, it may have been possible to accommodate the objectors. They would beexcused from the class during the objectionable readings and would have to go elsewhere in theschool where they could be given alternative readings, or at least be supervised. This wouldrequire school resources, but perhaps the re-allocation would be manageable if the numberswere small and the requests infrequent.After a few months of the new reading program being in place in the County, however,the number of objectors mounted swiftly.232 Accommodating so many objectors would involvea significant reallocation of resources, involving space and personnel. At some point – farsmaller than a majority of students – the accommodation burdens would become so great that232 Id. at *31 (“In one instance, for example, parents sought to excuse dozens of students in a single elementaryschool from instruction.”)231 Mahmoud, at *93230 Ira C. Lupu, The Separation of Powers and the Protection of Children, 61 U. Chi. L. Rev 1317 (1994).49the County might well abandon this portion of the reading program. Opt out requests, insufficient number, may turn into program vetoes.In this regard, note that the complaint in Ibanez v. Albemarle County re: the anti-racismcurriculum, analyzed in the section above, included an opt out remedy as an alternative toinjunctive relief against the anti-racism program as a whole. Opt outs appear to function atretail, protecting dissenters only.233 Program vetoes operate at wholesale, eliminating programsand practices for all subject to them. In certain circumstances, however, they operate toreinforce each other, even if the opt-outs seem at first glance to be less intrusive.Moreover, opt outs may be partial (e.g., some objected-to lessons but not all), andinjunctive relief against a program is likely to invite controversy about exactly what anti-racist(or LGBT respectful) messages would still be allowed as part of ordinary instruction. Monitoringthe allegedly objectionable content of public education will be intrusive at best, and a chronicadministrative nightmare for judges and schools at worst. The scope of available remedies, andthe precision with which they can be deployed, thus represents an especially crucial question inany litigation by parents against curricular choices.234Example 3. Parents’ rights to know vs. children’s informational privacy.Several of the most difficult dilemmas about the appropriate scope of Meyer-Piercerights arises from questions about conflicts between parental control, on the one hand, and theprivacy and liberty interests of minors, on the other. As minors approach adulthood in age andphysical capacity, these problems become more acute. Recall the discussion in Part I, above,about the rights of pregnant unmarried minors. The issues involve both information andautonomy. Must a minor who seeks to terminate a pregnancy notify her custodial parents? Therelevant law, not yet disturbed by Dobbs and its aftermath, is that states may not authorize aparental veto, and must provide a procedure for judicial bypass of notice requirements forminors who are mature, or whose best interests would not be served by parental notice.235Thus, parental rights to control this extremely serious medical and emotional decision are235 Planned Parenthood v. Danforth, 482 U.S. 52 (1976) (holding parental consent requirement unconstitutional);Bellotti v. Baird, 443 U.S. 622 (1979) (constitution requires judicial bypass to parental notice policy). Thesedecisions are discussed in Part I, supra, as well as in Huntington & Scott, Conceptualizing Legal Childhood, note ___supra, at 1443-1444: Cahn, Eichner, and Ziegler, Erosion by Misdirection, note __ supra, at 12-13.234 For more detailed discussion of the remedial problem that would have been proposed by an opt-out remedy inthe context of Mozert, see Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise ofReligion, 102 Harv. L. Rev. 933, 949-953 (1989). The plaintiffs had requested the remedy of public payment oftuition for their children at a private, religious school, which would have presented quite different problems underthe Establishment Clause. See id. at 952, note 71 (citing Richard Epstein, The Supreme Court, 1987 Term–Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 5, 87 (1988).)233 History suggests that opt-outs from the Pledge of Allegiance will rarely if ever be large enough to end theenterprise of Pledge recital in public schools, but one can imagine a political climate in which larger numbers ofopt-outs occur. In any event, the number of refusals cannot alter the right of each individual to be free ofcompulsion to recite the Pledge.50limited by the rights of privacy and reproductive autonomy of their child, who has the most atstake.In several respects, pregnancy presents an unusually compelling case about informationprivacy and reproductive autonomy. Minors who seek to avoid notice to parents may want tokeep the fact of their sexual activity, as well as the pregnancy, hidden from their parents. Andthey want to make the abortion decision free of parental coercion. This context, in which thecrisis of decision is temporary, acute, and potentially life-changing, therefore involves needs forboth secrecy and medical independence from parents.Compare the more subtle, triangulated problem of the role of public schools whenminors present a case of gender dysphoria. The school is involved on many levels because theminor may request the use of a different name, pronouns, gender-based athletic competition,and/or facilities for changing clothes or using toilets. Inescapably, schools are actors in thedrama of gender transition. Under what circumstances should school officials disclose signs oftransgender presentation to parents? Should disclosure be mandatory, because parents have aright to know what their child is experiencing and to participate in any relevant decisions abouthow the school reacts? Or should disclosure depend entirely on the minor’s consent becauseminors have privacy rights to control who has access to the information, and may reasonablyfear an unsupportive or abusive parental reaction?In light of the heated quality of issues of transgenderism in the culture wars, it is notsurprising that legal and political battles have broken out over the question of school policiesrelated to disclosure of transgender presentation. Attempts to mandate disclosure against thewill of the minor and the judgment of school officials have appeared at state as well as locallevels.At one extreme, consider the Virginia model policy, promulgated in 2022 as a “guidingprinciple” during the administration of Governor Youngkin:“Schools shall keep parents informed about their children’s well-being: To ensureparents are able to make the best decisions with respect to their child, school personnel shallkeep parents fully informed about all matters that may be reasonably expected to be important toa parent, including, and without limitation, matters related to their child’s health, and social andpsychological development.”236236 VA. DEP'T OF EDUC., 2022 MODEL POLICIES ON THE PRIVACY, DIGNITY, AND RESPECT FOR ALL STUDENTS ANDPARENTS IN VIRGINIA'S PUBLIC SCHOOLS (2022), Guiding Principles, Section B.3. Other states have enacted similarpolicies. See, e.g., SB 184, Alabama Statutes 2022, sec. 5 (prohibiting nurses , teachers, counselors, principals, andother officials at a public or private school from withholding from a parent or legal guardian, or encouraging aminor to similarly withhold, information related to a minor's perception that his or her gender or sex isinconsistent with his or her sex. Plaintiffs in Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1311 (M.D. Ala. 2022) did notchallenge the Alabama notice provisions. Id. at1139, n. 5. See also the policy enacted in Florida’s recent legislationon parental rights in education: “[Schools must] adopt procedures for notifying a student’s parent if there is achange in the student’s services or monitoring related to the student’s mental, emotional, or physical health orwell-being and the school’s ability to provide a safe and supportive learning environment for the student.” Fla. Stat.51The new policy, which replaced the progressive policy of Youngkin’s predecessorGovernor Northam,237 is without question directed at policies related to treatment of studentswho present as transgender. Beyond that, the Youngkin Administration policy creates significantdilemmas for guidance counselors and other personnel at public schools. What is covered by thereference to “all matters that may be reasonably expected to be important to a parent, including,and without limitation, matters related to their child’s health, and social and psychologicaldevelopment”? Are schools obligated to fully inform parents about any consensual sexualexperiences, with a person of different sex or same sex, that may come to the attention of ateacher or counselor? Any performance on a test or school exercise that is beneath the student’susual performance? The policy is purposely vague, a quality that increases the pressure todisclose. Nondisclosure may lead to official trouble for an employee; excessive disclosure willrarely if ever violate the Virginia policy, though at times it may be inconsistent with a schoolcounselor’s professional ethics.238In California, controversies over policies of mandatory disclosure of transgenderpresentation have arisen at the local level and have generated conflict with state law.239 Forexample, the Chino Valley Unified School District recently enacted a policy that requires schoolpersonnel to notify parents whenever a student asks to be identified or treated as a genderdifferent from that identified as the sex assigned at birth on the student’s birth certificate.240 TheCalifornia Attorney General quickly brought suit against the District. The Attorney General’scomplaint asserted that the District’s Policy violated the California Constitution’s provisions onequal protection and the right of privacy, as well as the state’s Education Code.241 The complaintasserted that the District’s policy “has placed transgender and gender nonconforming students in241 Complaint in The People of the State of California v. Chino Valley Unified School District, Superior Ct. of CA, Cty.of San Bernardino, available here:https://oag.ca.gov/system/files/attachments/press-docs/Stamped%20-%20CVUSD%20Complaint.pdf.240 California Attorney General Challenges School District’s Policy on Disclosure to Parents of Student’s GenderDysphoria, http://religionclause.blogspot.com/2023/09/california-ag-challenges-school.html. See also Melissa GiraGrant, The Christian Right Wants to Force Teachers to Out Trans Kids, The New Republic, Nov. 30, 2023, availablehere: https://newrepublic.com/article/177180/christian-right-wants-force-teachers-trans-kids.239 Jill Cowan, California Republicans Target School Boards on Gender Identity Policies, New York Times, October 30,2023, available here: https://www.nytimes.com/2023/10/30/us/california-school-transgender-policy.html238 See American School Counselor Association, Ethical Standards for School Counselors, section A.2.g. (recognizingprimary obligation to student but recognizing need for balance with rights of parents to have information and makedecisions for their child). The Standards are available here”:https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1).237 VA. DEP'T OF EDUC., MODEL POLICIES FOR THE TREATMENT OF TRANSGENDER STUDENTS IN VIRGINIA'S PUBLICSCHOOLS 2 (2021) (reflecting concerns about bullying, privacy, and respect for students’ sense of their own genderidentity, and requiring respect for the student’s views about sharing information with their family). ProfessorHuntington compares the Northam and Youngkin policies in Pragmatic Family Law, 136 Harv. L. Rev 1501,1579-1583 (2023) (advocating a pragmatic, empirically based resolution of the problem rather than one basedstrictly on rights or values).sec. 1001.42(8)(c)(1). The Florida policy is narrower than Alabama’s or Virginia’s in the duty to disclose, because itis triggered only by a “change in the student’s services or monitoring . . .” A request by a student for a change ofname or gender pronouns would presumably be such a trigger.52danger of imminent irreparable harm from the consequences of forced disclosures. Thesestudents are currently under threat of being outed to their parents or guardians against theirexpress wishes and will.”242As a matter of federal constitutional law, are the diametrically opposed, statewide policiesof either Virginia or California required? Do parents have a federal constitutional right toimmediate disclosure from public schools under Meyer-Pierce? Or, completely to the contrary,do students have a right to keep the information away from their parents, under the due processand privacy principles the Supreme Court has applied in the decisions about abortion access forunmarried minors?243Comparing the issue of notice of a minor’s abortion choices to the question of schoolduties to disclose transgender presentation is illuminating in several respects. First, the state’srole in the two settings is quite different. In the abortion context, the state is acting as a regulator.Its policies limit non-emergency medical treatment for minors without parental notice andconsent. The addressees of such policies are medical providers, private and public, as well asminors and their parents. In this setting, the pregnant minor seeking to bypass parental notice istrying to maximize secrecy.In contrast, in the context of public-school disclosure to parents, the state is an actor,running its own institutions. Student who present as transgender may be doing much more thandisclosing information; they are likely requesting revisions in records, changes in names andpronouns used to refer to them, and access to school facilities like sports teams, restrooms, andlockers. For any of that to work smoothly, there must be dissemination of information tocoaches, teachers, and many students in the school. None of this can be characterized overall interms of secrecy.Second, transgender status involves identity, rather than conduct alone. A minor’s privateconduct, including sexual activity and termination of a pregnancy, can be kept secret fromparents, perhaps forever. In contrast, a minor’s gender identity will eventually manifest itself inphysical appearance, choice of dress, social relations, and other ways appearance that will bevery difficult to hide. Disclosure to family ultimately may be about timing and circumstance –questions of how and when rather than whether a minor will consult with parents.With these distinctions in mind, consider the opposing constitutional claims of parents’Meyer-Pierce rights and minors’ privacy rights in the context of school disclosure policies. As Iargued in Part II.A. parents have very strong Meyer-Pierce rights to make decisions aboutmedical treatment, together with their children and medical professionals. But Meyer-Pierce andtheir progeny have never been about the state’s duty to provide information to parents. Theparents’ decision-making autonomy will without question be enriched by more information andimpoverished by less. But this observation proves too much. Government and its employeescannot function under a constitutional duty to report every bit of information that parents, even243 Planned Parenthood v. Danforth, 482 U.S. 52 (1976) (holding parental consent requirement unconstitutional);Bellotti v. Baird, 443 U.S. 622 (1979) (constitution requires judicial bypass to parental notice policy).242 Id. par. 11. A state Superior Court has issued preliminary injunctive relief against the policy.https://oag.ca.gov/news/press-releases/attorney-general-bonta-san-bernardino-superior-court’s-decision-protects53reasonable ones, want to know. The boundary problems would be endless. The proper concernswill be not only what parents should know, but also what information might lead to parentalabuse. The judgments here are too granular to be subject to a constitutionally mandated rule ofimmediate and compulsory disclosure.244What of the privacy rights of minors, concerned about responses from parents that areunsupportive or far worse? In the context of transgender presentation, it is reasonable to assumethat the parents will eventually learn of their child’s identity crisis. Whether or not that isaccurate, the school is being asked to do much more than hold the information in confidence. Itis being asked to create a supportive plan, which requires affirmative steps and the distribution ofinformation within the school to teachers, staff, and other students. With such a plan in place,the information will eventually be widely known. Only the parents will remain in the dark. Ajudicial bypass system cannot be effective when the relevant matter is not a secret, and parentsmay learn of their child’s gender transition through ordinary networks of information.Neither side has a strong case for constitutional rights in this context, but better andworse policy choices exist. In this regard, consider the case of John & Jane Parents 1 v.Montgomery County Board of Education.245 Several parents challenged the policy inMontgomery County, Maryland on disclosure to parents of transgender presentation. Thepolicy reads as follows:246“Prior to contacting a student's parent/guardian, the principal or identified staff membershould speak with the student to ascertain the level of support the student either receives oranticipates receiving from home. In some cases, transgender and gender nonconformingstudents may not openly express their gender identity at home because of safety concerns orlack of acceptance. Matters of gender identity can be complex and may involve familial conflict.If this is the case, and support is required, the Office of School Support and Improvement or theOffice of Student and Family Support and Engagement (OSFSE) should be contacted. In suchcases, staff will support the development of a student-led plan that works toward inclusion ofthe family, if possible, taking safety concerns into consideration, as well as student privacy, andrecognizing that providing support for a student is critical, even when the family isnonsupportive.”The district court entered judgment in favor of the County on the merits in Parents 1,although the 4th Circuit later vacated the judgment on standing grounds.247 The district court247 2023 U.S. App. LEXIS 21097 (4th Cir., Aug. 14, 2023). The three plaintiff-parents in the case did not allege that anyof their children presented at County schools as transgender or were planning to do so. For a decision denyingstanding to LGBT students and an LGBT student group the right to challenge a state law with strict requirementsthat teachers and other school personnel disclose requests for gender transitions to parents, see GLBT Youth inIowa Schools Task Force v. Reynolds, Case No. 4:23-cv-00474, S.D. Iowa, Dec. 29, 2023, slip op. available here:246 Id. at 125-126.245 622 F. Supp. 3d 118 (D. Md. 2022), vacated on standing grounds, 2023 U.S. App. LEXIS 21097 (4th Cir. 2023).244 In Regino v. Staley, 2023 U.S. Dist. LEXIS 118967 (ED Ca, July 10, 2023), a federal district court arrived at the sameconclusion – that the due process rights of parents do not give them a right of immediate disclosure from theschool district of gender transition discussion with their child.54rejected the notion that Meyer-Pierce rights extended to the flow of information from schoolsto parents. The court relied on Circuit and District Court precedents involving parental attemptsto control curricular choices. Those decisions quite correctly excluded attempts at curricularcontrol from the ambit of Meyer- Pierce rights, which are designed to keep government frominterfering with individual family decisions, rather than to empower families to underminegovernment policies for the administration of schools.248Applying rational basis review to the County policy, the district court upheld it asconsistent with the County’s interests in providing a safe and supportive environment for itsstudents. It emphasized the textured quality of the policy, which the court describes as one thatencourages family involvement even as it protects the student against forced disclosure:249“The Guidelines do not aim to exclude parents, but rather anticipate and encouragefamily involvement in establishing a gender support plan. . . . Even where family support islacking, the inclusion of family is identified as an eventual goal. The Guidelines, on their face,are noncoercive, and serve primarily as a means of creating a support system and providingcounseling to ensure that transgender children feel safe and well at school. And, importantly,they apply to each student on a case-by-case basis. By advising that school personnel keep atransgender or gender nonconforming student's gender identity confidential unless and untilthat student consents to disclosure, they . . . protect the student's privacy and create . . . "azone of protection . . . in the hopefully rare circumstance when disclosure of [the student's]gender expression while at school could lead to serious conflict within the family, and evenharm." . . . A transgender child could hardly feel safe in an environment where expressing theirgender identity resulted in the automatic disclosure to their parents, regardless of their ownwishes or the consequences of the disclosure.”This time-sensitive policy emphasis seems salutary.250 School personnel must beconfident they are not inviting harm to the student by disclosure.251 At the same time, school251 In Mirabelli v. Olson, 2023 U.S. Dist. LEXIS 163880(S.D. Ca. Sept. 14, 2023), the district court ruled that the FreeExercise Clause protected several public-school teachers against dismissal for defying school district policyregarding notice to parents about their children’s gender dysphoria. Id. at *40-*49. This decision invites harm to250 The Montgomery County Policy is a striking example of the kind of win-win solutions to conflict advocated inProfessor Martha Minow’s recent article, Walls or Bridges: Law’s Role in Conflicts over Religion and EqualTreatment, 48 BYU L. Rev. 1586 (2023).249 622 F. Supp. 3d at 138-139 (internal citations omitted). A very different situation would be presented in a casewhere school officials take repeated and affirmative steps to conceal information from parents about gendertransition, as is alleged to have occurred in the recently filed lawsuit in Mead v. Rockford Public School District. Thecomplaint in Mead, alleging free exercise and due process violations, is linked here:http://religionclause.blogspot.com/2023/12/parents-sue-school-for-using-teens.html.248 622 F. Supp.3d at 130-134. The court in Parents 1 distinguished cases involving allegations that school staffencouraged or facilitated abortions for students, and strenuously discouraged them from notifying parents. Id. at133-134, citing Arnold v. Bd. of Educ. of Excambia Cty, AL, 880 F. 2d 305 (11th Cir. 1989). But see Mirabelli v. Olson,2023 U.S. Dist. LEXIS 163880, at *27-*31 (S.D. Ca. Sept. 14, 2023) (relying on Meyer-Pierce rights as justification forteachers’ religious liberty claims to be free to disclose gender dysphoria to parents).https://s3.documentcloud.org/documents/24245982/injunction-1.pdf, at 18-19. The court relied on the fact thatthe students were already “out” and therefore were not injured by the disclosure requirements. Id.55staff (and the students themselves) will realize that an elaborate plan of school support, acrossa range of facilities and activities, will eventually come to the attention of all but the mostinattentive parents. The Montgomery County policy, though not required by the federalconstitutional right of privacy, is supportive of the student’s well-being while taking seriouslythe concerns, interests, and possibility of beneficial inputs from other family members.252Moreover, the parents of a public-school child in gender transition retain the right toremove the child from the school, so long as they have a substitute plan that satisfiescompulsory education requirements. Abrupt removals inflict their own species of harm. Ifearlier rather than later disclosure to parents helps to limit the removal possibility, schoolofficials might counsel the child accordingly.Example 4. Parents’ rights, school choice, and religious education.Do Meyer and (more directly) Pierce have anything to do with the public financing ofschool choice, including the choice of religious schools? The courts have never deployed thedoctrine of Meyer-Pierce to demand full state financing of religious instruction, or to justifyreligion-based exemption from conditions on that financing. The libertarian premises ofMeyer-Pierce – that is, that the state should stop interfering with parental choice of how toeducate their children – do not readily connect with the demand that the state pay for thesechoices.This is consistent with the general understanding that most constitutional liberties arenegative, protecting rights to act without state interference rather than rights to affirmativestate support. For example, the state has no obligation to put newspapers in the public libraryand can select reasonably among newspapers if it chooses to stock them. Even in contexts inwhich the state is obliged to provide constitutionally significant services, such as counsel incriminal cases, the state is under no obligation to equalize resources among criminal252 In March 2023 the Republican controlled U.S. House of Representatives passed on a narrow, party line vote H.R.5, a “Parents Bill of Rights,” https://www.congress.gov/118/bills/hr5/BILLS-118hr5ih.pdf. The focus of the Bill isentirely on federally funded public schools, and most of its provisions relate to access to general information oncurriculum, library books, and school budgets. Several provisions, however, adopt the strict “parents’ rights” policyof requiring schools to disclose to parents if their children have requested a change in pronouns or a change in thelocker rooms or bathrooms they use at schools. See Annie Karni, Divided House Passes G.O.P. Bill on Hot-ButtonSchools Issues, New York Times, March 24, 2023, available here:https://www.nytimes.com/2023/03/24/us/politics/parents-bill-of-rights-act.html. The Bill received no attention inthe Senate, and appeared to be primarily a Republican messaging bill. See Lexi Lonas & Michael Schnell, HouseRepublicans Pass Parents Bill of ights, The Hill, March 24, 2023, available here:https://thehill.com/homenews/house/3916114-house-republicans-pass-parents-bill-of-rights/the affected students and undermines the trust between the school district and its students. The district court’sopinion suggests that the teachers’ claims are in service of the constitutional rights of parents. Id. at *27-*31(citing cases from Meyer and Pierce through Troxel).56defendants, or otherwise to empower them all to choose counsel from among the membershipof the Bar.Does any of this analysis change when the state excludes only the religious option fromconstitutionally important opportunities available at public expense? In the case of publicspeech forums for private speech, exclusion of religious viewpoints is appropriately a matter ofconstitutional concern.253 But the provision of an open public forum for private speech of manyviewpoints is a far cry from full and direct state support of religious education. States mayreasonably regulate the content of curriculum in an accredited school. For example, states neednot guarantee that schools teaching astrology as science, or white supremacy as civics, cansatisfy accreditation criteria.254As Professor Tuttle and I have explained, Pierce, Everson, and the School Prayer Cases forfifty years “formed a hard triangle around educational choices. First, parents have the right toselect private or public schools for their children. Second, the state will not subsidize private,religious education. Third, for those who choose or are compelled to attend the public schools,the state will not engage in religious indoctrination of students. Religious training will be left tofamilies and religious institutions.” 255 With respect to elementary and secondary schools, thiscombination of free exercise and non-establishment norms has been the church-statesettlement for a full half-century.256More recently, however, developments in the Supreme Court have begun to underminethose arrangements. Pierce remains solid,257 but Kennedy v. Bremerton School District258 hasdestabilized the authority of the School Prayer Cases. What remains of Everson, and itsonce-unanimous view that the Establishment Clause prohibits direct state support of religiouseducation?259Within the context of education, the constitutional exclusion from state support ofschools that promote worship and religious indoctrination has attracted considerable criticism259 The prohibition pertains to direct state support of the activities of worship and religious education, not to statesupport of religious institutions per se. Bradfield v. Roberts, 175 U.S. 291 (1899); Lupu & Tuttle, Remains, note ___supra, at 1775-76.258 142 S. Ct. 2407 (2022). For discussion of the impact of Kennedy on the School Prayer Cases, see Lupu & Tuttle,Remains, note ___ supra, at 1799-1805.257 In the past 100 years, challenges to the Pierce proposition that parents have constitutional rights to direct andcontrol their children’s education, including the right to choose a private, religious school instead of a public schoolhave been extremely rare. James Dwyer is the most conspicuous critic of that proposition. See, e.g., James G.Dwyer, Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights, 82 Cal. L. Rev. 1371(1994).256 As one would expect, this settlement had its critics, including most prominently Professor Steven Douglas Smith.See Steven Douglas Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38Pepperdine L.Rev. 945 (2011).255 Lupu & Tuttle, Remains, note ___ supra, at 1800.254 See Runyon v. McCrary, 427 U.S. 160 (1976) (parents do not have constitutional right to send their children to“white academies”).253 See, e.g., Rosenberger v. University of Virginia, 515 U.S. 819 (1995).57over the years.260 Among the critics, Professor Nicole Stelle Garnett has published recent,important, and well-respected work about school choice.261 She acknowledges the existence ofpossible Establishment Clause constraints,262 unlike some other scholars who have inveighedagainst selective funding of schools.263 But her writing tends to treat those constraints asnothing more than impediments to realization of her preferred policy goals, rather than mattersof substantive constitutional commitment.264 In the name of free exercise andnondiscrimination, the Supreme Court has moved quite far in her direction, as discussed furtherbelow.Norms of free exercise, even when hinged to the legacy of Meyer-Pierce, are notsufficient to resolve the discrete controversy over direct state support for religious education.For a period far longer than the 100 years since Meyer-Pierce, the conventional arrangement inthe United States has been one of separation of government from that enterprise. The state issecular, and its jurisdiction is limited accordingly.265 It may not appoint priests, prescribe criteriafor the priesthood, or disqualify anyone from that status.266 The state’s values are not justifiedby appeal to Divine guidance. Its power comes from the People, not from any conception of theLord. Since the School Prayer Cases of the early 1960’s, these norms have included a promise toparents that the public schools will not sponsor or promote prayer. The state leaves religioustruth to families and religious communities.With respect to the constitutional norms against state financing of religious education,the substantive concerns have been multiple – among others, avoiding competition amongreligious sects for state resources, eliminating state favoritism among religious denominationsand their worship traditions, and minimizing the corruption of religious teaching by the need tosatisfy state authorities. These norms have never precluded state support for enterprises on266 See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012). For explication of thebest theory of Hosanna-Tabor, see Ira C. Lupu & Robert W. Tuttle, The Mystery of Unanimity in Hosanna-TaborEvangelical Lutheran Church & School v. EEOC, 20 Lewis & Clark L. Rev. 1265 (2017) (explaining that the ministerialexception rests on the constitutional disability of government to answer exclusively ecclesiastical questions).265 Professor Tuttle and I develop this argument fully in Secular Government, Religious People (Eerdmans Pub. Co.2014), at 16-29. For a comprehensive appraisal of its historical underpinnings, see Steven K. Green, SeparatingChurch and State: A History (Cornell Univ. Press 2022).264 Garnett, Religious Charter Schools, at 10-15 (analyzing ways of working around Establishment Clause limitationson state support of religious education).263 Stephen Gilles, Selective Funding of Education: An Epsteinian Analysis, 19 Quinnipiac L. Rev. 745 (2000); PhilipHamburger, Education is Speech: Parental Free Speech in Education, 101 Tex. L. Rev. 415 (2022).262 Garnett, Religious Charter Schools, at 7-13.261 Among many other works, see Nicole Stelle Garnett, Religious Charter Schools: Legally Permissible?Constitutionally Required?, Manhattan Inst. Policy Report (hereafter cited as Garnett, Religious Charter Schools),available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3744246; Nicole Stelle Garnett, SectorAgnosticism and the Coming Transformation of Education Law, 70 Vand. L. Rev. 1 (2017).260 See Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 Harv. L. Rev.989 (1991); Thomas C. Berg, Anti-Catholicism and Modern Church-state Relations, 33 Loy. U. Chic. L.J. 121 (2001). Itis telling that no one seems to challenge the exclusion of worship per se – usually in the material form of supportfor the building of houses of worship and payment of the salary of clergy -- from the permissible objects of statesupport. This category of prohibition of state support has significant pre-constitutional antecedents. See VirginiaBill on Religious Liberties, set out in the Appendix to Everson v. Bd. of Educ., 330 U.S. 1 (1947),58grounds of religious affiliation alone. State support of religious hospitals, and other religiouscharities, has a long history.267 Rather, these constitutional norms have been the source of aprohibition on state support of religious uses – in particular, preaching and teaching a particularset of religious beliefs as true.Several decades ago, the principal controversy about state funding of religious schoolsinvolved state financed vouchers for use at private schools. Building on a wide base of workabout government partnerships with faith-based organizations, Professor Tuttle and I arguedthat the central constitutional question concerning such vouchers was whether they renderedthe state responsible for religious indoctrination.268 We offered qualified approval of theCleveland school voucher program, upheld in Zelman v. Simmons-Harris,269 with caveats thatfocused on whether the program steered parents into choosing unwanted religious educationfor their children as the price of escaping troubled public schools. The Cleveland system wouldhave been far better if it had included more secular choices, including public schools insurrounding suburban counties. The bottom-line question, however, remained whether familieshad an authentic choice to pursue or avoid a religious education. The Zelman opinion effectivelyleft the states with policy discretion over the creation and scale of such programs. They haveexpanded, but not as far or quickly as proponents had hoped.As the title of this Symposium reveals, however, the legacy of Meyer and Pierce hangsover the school choice conversation. Drawing on that legacy, Professor Stephen Gilles andProfessor Philip Hamburger have argued that state support limited to secular public schoolsshould be viewed as an unconstitutional condition on the provision of a public benefit.Professor Gilles asserts that “the unconstitutional conditions doctrine seems tailor-made forselective educational funding: although the Federal Constitution does not entitle parents tostate subsidies to help them educate their children, the state cannot condition such subsidies onthe parents' abandonment of their free speech and free exercise rights to communicate theirpreferred educational messages to their children.”270 More recently, Professor Hamburger wrote270 Stephen G. Gilles, Selective Funding of Education: An Epsteinian Analysis, 19 Quinnipiac L. Rev. 745, 748 (2000).Professor Gilles concedes that the current state of constitutional law does not support his arguments. Id. at748-49. In keeping with the title of his essay, Gilles quotes Professor Epstein: “. . . even if a state has absolutediscretion to grant or deny any individual a privilege or benefit, it cannot grant the privilege subject to conditionsthat improperly "coerce," "pressure," or "induce" the waiver of that person's constitutional rights. Thus, in thecontext of individual rights, the doctrine provides that, at least on some occasions, receipt of a benefit to whichsomeone has no constitutional entitlement does not justify making that person abandon some right guaranteedunder the Constitution.” Id., citing Richard A. Epstein, Bargaining with the State (Princeton Univ. Press 1993), at 5.269 536 U.S. 639 (2002).268 Ira C. Lupu & Robert W. Tuttle, Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round ofConstitutional Battles, 78 Notre Dame Law Review 917 (2003); Ira C. Lupu & Robert W. Tuttle, Sites of Redemption:A Wide-Angle Look at Government Vouchers and Sectarian Service Providers, 18 J. L. & Politics 537 (2002). Ourbroader work on the faith-based and community initiative begun under President George W. Bush includes Ira C.Lupu & Robert W. Tuttle, Government Partnerships with Faith-Based Service Providers: The State of the Law, TheRoundtable on Religion and Social Welfare Policy, Nelson A. Rockefeller Institute of Government, SUNY (December,2002) (first in a series of annual reports, 2002-2007); and Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiativeand the Constitution, 55 DePaul L. Rev. 1 (2005).267 See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899).59that “[p]ublic education is a government benefit and so cannot come with a condition thatabridges the freedom of speech. All the same, states offer this subsidy on the condition thatparents accept government educational speech in place of their own. In other words, parentsare being pressured in a way that abridges their own educational speech and compels them toadopt the government’s.”271Neither Professor Gilles nor Professor Hamburger bothered to mention theEstablishment Clause as a possible source of constraint on their arguments, which invite statesubsidy of religious education. Independent of that concern, they both ignore a crucialconsideration. As the Court explained in Regan v. Taxation with Representation,272 "[A]legislature's decision not to subsidize the exercise of a fundamental right does not infringe theright."273 Parents who send their children to public schools retain all their speech rights, and alltheir Meyer-Pierce rights to instruct their children in the family’s faith. They can bring theirchildren to worship services, and they can animate their children’s lives with faith in theplentiful hours away from the public-school day. Early mornings, post-school afternoons,evenings, weekends, periods of school breaks – all are available for religious instruction fromparents. Moreover, public schools are forbidden from offering instruction or guidance onquestions of faith, so the parents will not be facing competition from the state on religiousmatters.274Taken on its terms, the unconstitutional conditions argument against exclusive statesupport for secular schools is unpersuasive. Within the past decade, however, the constitutionalconversation about school choice has shifted enormously. The Supreme Court has -- with littleor no explanation -- subverted the major premises of longstanding separationist norms. In whatbecame a decisional Trilogy about state legal restrictions on support of religious institutions, theCourt has recharacterized longstanding separationist concerns as violations of the Free ExerciseClause of the First Amendment.In this piece, I will do no more than quickly summarize the three episodes in thetrilogy.275 Trinity Lutheran Church of Columbia, Inc. v. Comer276 (2013) invalidated Missouri’srefusal, on state constitutional grounds, to consider a church run pre-school for a grant to install276 137 S. Ct. 2012 (2017).275 For considerably more detail, see Lupu & Tuttle, Remains, note ___ supra, at 1781–1792.274 As Professor Epstein described the Establishment Clause, it “prohibit[s] the state from going into the business ofreligion.” Richard A. Epstein, Bargaining with the State, note __ supra, at 255.273 461 U.S. at 549. Regan provides an instructive comparison. The Court upheld the restriction on lobbying by IRCsection 501(c)(3) non-profit organizations (to which contributions are tax deductible) while noting that the samenon-profits could organize a separate arm under IRC sec. 501(c)(4) to engage in lobbying. Contributions to the(c)(4) would not be deductible. No one has a constitutional right to make tax deductible contributions to candidatecampaigns or lobbying activities.272 461 U.S. 540 (1983). The Court has cited Regan with approval in Rust v. Sullivan, 500 U.S. 173, 193 (1991) andlater in United States v. American Libraries Ass’n, 539 U.S. 194, 212 (2003).271 Philip Hamburger, Education is Speech: Parental Free Speech in Education, 101 Tex. L. Rev 415, 419 (2022) (citingBrown v. Board of Education and Pierce as support).60safe playground surfacing. A footnote in Trinity Lutheran suggested that grants for educationaluse might stand on a different, weaker constitutional footing.277 A few years later, however, theCourt in Espinoza v. Montana Department of Revenue278 (2020) held that Montana’sconstitutional exclusion of religious entities from a system of tax credits in support of educationlikewise violated the federal Free Exercise Clause. Trinity Lutheran and Espinoza bothemphasized the vice of status discrimination against religious enterprise. Most recently, inCarson v. Makin279 (2022), a six Justice majority rejected the use-status distinction, holdingunconstitutional a state law restriction on using tuition benefits at private schools thatmaintained a religious curriculum. Religious uses, wrote Chief Justice Roberts, were just a proxyfor religious status, and therefore the state may not impose funding disabilities on religioususes.280The primary trope in the Court’s development of the Trilogy has been the recasting oflongstanding, state-created separationist policies as invidious discrimination against religion. Tobe sure, these state constitutional provisions, like the federal Establishment Clause, single outreligion for special treatment, but they burden all religious denominations equally.281 Thesudden claim of invidiousness demands a full-blown narrative, especially when it is sharplycontrary to the history and tradition the Court otherwise has recently elevated as sources ofdecision.282 Other than a passing suggestion in Espinoza that state separationist principles aresystematically corrupted by anti-Catholic animus,283 that narrative has been remarkably absent.The [old] Trilogy of the 1920’s protects parents’ rights to choose various educationaloptions, but nothing in it presented any tension with longstanding church-state norms. The[new]Trilogy, in sharp contrast, has brought church-state law to a dramatically new place.Although the Court has not yet extended this anti-discrimination principle to a case of full anddirect support for the teaching of religion as truth, not a syllable in the new Trilogy suggests theCourt would stop short of that position.284284 The plurality opinion in Mitchell v. Helms, 530 U.S. 793 (2000) would have eliminated the current EstablishmentClause bar on direct state support for religious education, so long as government provided the same assistance toreligious entities as it provided to their secular counterparts. For now, however, the concurring opinion in Mitchell283 140 S. Ct. at 2259.282 As we wrote in “Remains,” “. . . the Court’s turn to originalism has been notoriously selective. See generally, e.g.,Richard H. Fallon, Jr., Selective Originalism and Judicial Role Morality (Feb. 3, 2023) (unpublished manuscript),http://ssrn.com/abstract=4347334; Caroline Corbin, Opportunistic Originalism and the Establishment Clause, 53WAKE FOREST L. REV. 617 (contrasting Trinity Lutheran with Town of Greece v. Galloway). Only in the Trilogy,however, has the Court managed to achieve a trifecta—radically change the law, totally ignore the original publicmeaning of the text, and repudiate the relevant constitutional history.” Lupu & Tuttle, Remains, note __ supra, at1787, n. 31.281 Id. at 1781-1784.280 Id. at 2001. The faith-based initiative has for the past twenty years rested on the contrary and constitutionallycorrect premise that government is free to partner financially with religious institutions so long as it does notdirectly finance their specifically religious activities, including worship, religious indoctrination, and proselytizing.Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1, 75-102 (2005).279 142 S. Ct. 1987 (2022).278 140 S. Ct. 2246 (2020)277 Id. at 2024, note 3.61This intuition about the rate and trajectory of constitutional change has begun tocrystallize in the context of charter schools. Charter schools are fully funded by the state, andsubject to extensive state regulation about admission of students, among other subjects,though they are typically free of the tight control over labor relations found in conventionalpublic schools. If states are now constitutionally required to give charters to schools thatpromote worship, teach religion as truth, and exclude students, families, and prospectiveteachers who do not conform to the school’s religious identity, we will be witnessing a completerevolution in constitutional norms.This possibility is now being tested concretely in Oklahoma, where a state agency in2023 approved a charter for a virtual school to be operated by the Archdiocese of OklahomaCity.285 As proposed, the school would reach out to various populations of indigenous people onreservations and would inculcate students in traditional principles of the Roman Catholic faith.The approval flies in the face of several provisions in the Oklahoma Constitution – one barringall state financial support of “any sect, church, denomination, or system of religion,”286 andanother requiring that public schools be “free of sectarian control and open to all students.”287Defenders of the charter school have insisted that those provisions violate the federal FreeExercise Clause, as construed in the new Trilogy.288Moreover, the Supreme Court’s decision in Fulton v. City of Philadelphia289 invites theschool to resist any state law obligations that would compromise the school’s religiousidentity.290 These include the requirement of a secular curriculum, and norms ofnon-discrimination generally imposed on charter schools in Oklahoma. The latter, which protect290 In Colorado, religious pre-schools eligible for state funds have filed suit, asserting that the Free Exercise Clauseexempts them from funding conditions inconsistent with their religious identity, see(http://religionclause.blogspot.com/2023/10/christian-pre-school-may-get-state-aid.html). A similar suit is pendingin Maine in light of post-Carson v. Makin charges in state law. Christian School Sues Over “Poison Pill” Provision thatExcludes It from Maine’s Tuition Payment Program,https://religionclause.blogspot.com/2023/03/christain-school-sues-over-poison-pill.html.289 141 S. Ct. 1868 (2021) (Catholic Charities entitled to a religious exemption from the City’s contractualnondiscrimination provisions for nonprofits screening prospective foster parents).288 The Oklahoma Attorney General agreed with this assessment, Okla. Att’y Gen., Attorney General OpinionLetter, https://oklahoma.gov/content/dam/ok/en/governor/documents/Attorney%20General%20Opinion%202022-7.pdf. His successorsoon after disagreed. “Drummond says Religious Charter School Approval is Unconstitutional,” OFF. OKLA.ATT’Y GEN. (June 5, 2023),https://www.oag.ok.gov/articles/drummond-says-religious-charter-school-approval-unconstitutional. Thenewly developed free exercise doctrine of nondiscrimination, profoundly ahistorical and nonoriginalist, isdoing all the work in Oklahoma. Pierce is cited only once in the trilogy, in passing in Espinoza. 140 S. Ct. at2261.287 Id. at Art. I, sec. 5.286 Okla. Const., Art. II, sec. 5.285 Sarah Mervosh, Oklahoma Approves First Religious Charter School in the U.S., N.Y. TIMES (June 7, 2023),https://www.nytimes.com/2023/06/05/us/oklahoma-first-religious-charter-school-in-the-us.html.by Justices O’Connor and Breyer, requiring safeguards against diversion of state support to religious training,represents the controlling law. Id. at 836, 861-866. For further discussion, see Lupu & Tuttle, Remains, note ___supra, at 1775-1781.62employees and students, include prohibitions on religious discrimination and LGBTQdiscrimination. Thus, if the school has its way, it will benefit from 100% state funding whilemaintaining a set of religion-based privileges against the regulation that accompanies thatfunding.A group of state taxpayers has filed suit in Oklahoma state courts, alleging that theapproval of the charter and the terms of approval violate the state Constitution and a variety ofstate laws concerning the operation of charter schools.291 More recently, the OklahomaAttorney General has filed a separate petition, seeking on similar grounds to enjoin the approvalof the charter, directly with the Oklahoma Supreme Court.292Commentators on this situation have argued that the crucial question for the courts todecide in this context is whether charter schools are private schools (and therefore not stateactors), or public schools (and therefore state actors).293 If the schools are private, this line ofthinking holds, they are protected by the Free Exercise Clause. Under the Trilogy, such schoolsmust be treated no worse than secular applicants for charters.294 Their Free Exercise status alsomeans that, under decisions like Fulton v. City of Philadelphia295 and Our Lady of Guadalupe v.Morrissey-Berru,296 the schools may be entitled to free exercise exemptions from various kindsof non-discrimination conditions.297 If, by contrast, the schools are considered state actors, theEstablishment Clause prohibits them from teaching the truth of any religion, and they wouldhave to fully comply with non-discrimination conditions in hiring and admissions.298There are plausible arguments against the state actor label. As Professor Nicole StelleGarnett has explained, charter schools came into being as an option to traditional public298 The leading decisions on the status of charter schools include Peltier v. Charter Day Sch., Inc. 37 F. 4th 104 (4th Cir.2022) (en banc) (holding that charter schools in North Carolina are state actors), and Caviness v. HorizonCommunity Learning Center, 590 F. 3d 806 (9th Cir. 2010) (holding that charter schools in Arizona are not stateactors). Neither Peltier nor Caviness involved questions of Establishment Clause compliance.297 Professor Tuttle and I criticize the growing tendency toward institutional free exercise exemptions in Ira C. Lupu& Robert W. Tuttle, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City ofPhiladelphia, American Constitution Society Sup. Ct. Rev., 5th ed., 221-256 (2021); see Lupu & Tuttle, Remains, note___ supra, at 1805-1809.296 591 U.S. ___, 140 S. Ct. 2409 (2020) (ministerial exemption from non-discrimination laws applies to early gradeteachers in Roman Catholic school).295 593 U.S. ___, 141 S. Ct. 1868 (2021).294 To be clear, this is not my view. I believe that the Establishment Clause precludes direct state support ofreligious indoctrination, regardless of whether the schools are state actors.293 Compare Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion andEducation, 136 HARV. L. REV. 208, 228–33 (2022) (charter schools are state actors) with Nicole S. Garnett,Sector Agnosticism and the Coming Transformation of Education Law, 70 VAND. L. REV. 1, 42–65 (2017)(charter schools are not state actors). See generally Julie F. Mead, Devilish Details: Exploring Features ofCharter School Statutes That Blur the Public/Private Distinction, 49 Harv. J. Legis. 349 (2003).292 http://religionclause.blogspot.com/2023/10/oklahoma-ag-sues-states-charter-school.html. The Brief in supportof the petition is here:https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/2023/sgu_brief_in_support_of_application_and_petition_-_st_isidorefinal-clean.pdf291 “Suit Challenges Oklahoma’s Approval of Catholic Charter School,https://religionclause.blogspot.com/2023/08/suit-challenges-oklahomas-approval-of.html.63schools, operated by local school districts.299 They typically are proposed and operated by somesort of private enterprise, usually but not always not-for-profit.300 By design, they are givenfreedom to innovate denied to conventional public schools.301 Those considerations push awayfrom the notion of charter schools as state actors, and the question of state funding is not itselfwholly dispositive.302In Oklahoma, however, the arguments the other way seem far stronger. As explained inthe Brief by the Oklahoma Solicitor General in support of its application to the state SupremeCourt to enjoin approval of the Catholic charter school, the state legislature has explicitlydesignated charter schools as “public schools.”303 In addition to the 100% state financing ofcharter schools and the State’s role in bringing charter schools into existence, the Briefemphasizes the extensive oversight of charter schools by state authorities.304 This oversightincludes the imposition of accreditation standards stricter than those in force for public schools;requirements regarding health, safety, civil rights, and insurance; and extensive obligations toreport student performance.305Despite this sort of combination of exclusive funding and widespread control by statesover charter schools, I fear that any decision on this point by the U.S. Supreme Court will be theproduct of a rising tide of favor for religious schools rather than any principled view of stateaction. Before the enactment of a broad set of federal civil rights laws in the 1960’s, courts wereincentivized to find state action in ambiguous contexts,306 as a way of triggering the applicabilityof the Equal Protection Clause and thereby outlawing race discrimination in arguably privatecontexts. The charter school problem invites the reverse – refusing to find state action inarguably public, state-infused situations, as a way of de-constitutionalizing them.Even if the Supreme Court were inclined to go this far in a situation of state lawambiguity, there would remain the question of state legislative control over the designation ofcharter schools as state actors. Politically liberal states will be inclined to maintain secularschools while not chartering schools that teach religious faith. These states would be welladvised to designate charter schools as agents of the state. Red states like Oklahoma wouldhave the opposite incentives and might try to weaken state control over charter schools, and/orrelabel them as private,307 to confer upon them a different constitutional status.307 Garnett, Religious Charter Schools, at 14 (recommending this sort of legislative action).306 See, e..g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).305 Id.304 Id. at 13.303 Gentner Drummond, Attorney General vs. Oklahoma Statewide Virtual Charter School Board, Brief in Support ofPetition for Writ of Mandamus and Declaratory Judgment, available here:https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/2023/sgu_brief_in_support_of_application_and_petition_-_st_isidorefinal-clean.pdf, at 11 (citing Okla. Stat. tit. 70, sec. 3-132(D)).302 Id. at 9 (citing Rendell-Baker v. Kohn, 457 U.S. 830 (1982)301 Id. at 10.300 Id. at 9.299 Garnett, Religious Charter Schools, at 8-10.64Leaving the matter to clear statement by the states, however, would recreate thestructure condemned in the new Trilogy, whereby some states expressed clear constitutionalpreference for funding secular over religious enterprise. The Trilogy thus raises the possibilitythat states are powerless to create any option to traditional public schools unless schoolsteaching religious faith are afforded equal opportunity to participate in the scheme. Thisthree-step move – charter schools are presumptively private actors, states may not alter thatstatus for the purpose of excluding religious schools from charters, and states may not excludethickly religious charter applicants – would mean that charter schools teaching religion as truthwill soon appear in many states. Whether all faiths, no matter how unpopular in certain states,will get the opportunity to operate their own charter schools remains to be seen.The charter school arrangements that I am describing represent quite a tumble. Thearchitects of Meyer-Pierce (and their progeny over the next 100 years) never contemplatedanything like this scenario. Indeed, the nine Justices unanimous on the most basic principle inEverson v. Board of Education (1947) would be flabbergasted at the notion that the states couldundermine the basic structure of school finance and Religion Clause policy by the innovation ofcharter schools.308 Perhaps that is where we are headed, though the legacy of Meyer-Pierce sofar appears to have had little to do with this fast-growing trend. Rather, the Court’s recent,rabid, and ahistorical Free Exercise activism is doing all the work.CONCLUSIONAs my work on this paper progressed, I became drawn to the image of the old Trilogy --Meyer, Pierce and Farrington -- as a slow-moving vehicle, traveling across time. The journeybegan with economic freedom and parental rights aboard.Within fifteen years, economic freedom had been jettisoned, and Farrington had beencut loose. But the Meyer-Pierce vehicle for parental rights picked up new cargo along the way,including sensitivity for the vulnerability of minorities, First Amendment concerns about religionand speech, and family privacy. The vehicle eventually grew long and strong enough to carryparental interests in the well-being of their children in matters of health, physical and mental, aswell as in education.Ths metaphor captures the movement and expansion of Meyer and Pierce as of the turnof the Millennium, when the Court decided Troxel, the last decision in the line originating inMeyer. Since then, so much in constitutional law has changed abruptly that scholars mightfruitfully ask whether that vehicle has been abandoned, and others taken its place.Parents seeking treatments, otherwise available for both minors and adults, for theirchildren suffering gender dysphoria have due process claims as strong as any the law has seensince Meyer, Pierce, and Farrington. Yet those claims are at risk of failure. In their place, the308 Justice Breyer raised this precise concern in his dissenting opinion in Espinoza. 140 S. Ct. at 2281, 2291 (Breyer,J., dissenting). Justice Kagan did not join in this part of the dissent.65rhetoric of parents’ rights has been corrupted to justify book banning and various conservativecurricular goals. Moreover, religious schools seeking full state financing of religious education,while trying to stymie enforcement of conditions designed to protect equal educationalopportunity, are finding a legal landscape far more hospitable than any in our history.Culture wars of the 1920’s produced Meyer and Pierce, whose anniversary we mark. Theculture wars of the 2020’s may dramatically undo that legacy and replace it with an entirelydifferent constitutional narrative. Nevertheless, we can expect constitutional lawyers to operatein the name of the ancien regime, pretending to continuity in a world that our forebears wouldscarcely recognize.66 |
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