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May 30, 2024 Feature

Restating the Law Governing Children’s Education

Emily Buss

In 2015, the American Law Institute (the ALI) undertook an ambitious project, to create a Restatement addressing the law affecting children. It was a massive undertaking, and some worried that addressing the many bodies of law affecting children in a single Restatement would be no more coherent than restating the famously lampooned “Law of the Horse.” Those of us who took on the project as reporters saw the value imbedded in this concern: A Restatement of the Law of Children and the Law offered an opportunity to look across these diverse sources of law, tying them together by highlighting overlapping histories and common rationale. The several sections of the Restatement addressing the law governing children’s education is a good example, both of the challenges of bringing distinct strands of law together and the value of doing so.

In this article, I begin with a brief overview of the Restatement sections addressing education before turning to the historical context that accounts for the law’s allocation of the duty and the authority to educate children first to parents and then, in addition, to the state. I will then set out the duty and authority of both state and parent to educate, noting their distinct origins and underscoring the connections the Restatement draws between them. I will end with a consideration of children’s constitutional rights in public schools, noting the threat state deference to parental authority in this context poses to children’s meaningful exercise of these rights.

I. Education in the Restatement

The education law included in the Restatement focuses on the content of children’s education, and the law’s assignment of responsibility and authority to provide that content. It also addresses children’s constitutional rights in public schools at considerable length. The sources of the relevant law restated in these sections are remarkably diverse, spanning federal constitutional law, state constitutional law, state common law, federal and state statutes, and local school board policies. As with all Restatements, this Restatement focuses largely on cases, and on areas of the law in which courts will be required to engage in legal interpretation in their resolution of cases. Because the important area of special education law is governed by detailed federal statutory and regulatory provisions, the Restatement addresses this topic more briefly and in a manner that integrates the material into the discussion of other education topics.

The law’s treatment of education is unusual in its allocation of responsibility and authority to both the state and the parent through divergent sources with a common rationale. This divided authority is reflected in the Restatement’s divided treatment of children’s education between Part I, Children in Families, and Part II, Children in Schools. The Restatement draws these distinct treatments together by using common language across both Parts and noting the interrelationship between the assignment of educational duties and powers to parent and state. These interrelationships, express and implied, are complicated and incompletely defined. Beginning with history helps capture this interrelationship and set the stage for my discussion of specific Restatement sections below.

II. The Evolution of the Duty and Power to Educate Children

The story begins with the law’s recognition of parents’ duty and power to educate their children. The roots of parents’ authority and responsibility date back to English common law, best captured in William Blackstone’s chapter on the “Rights of Parent and Child,” in his Commentaries. Significantly, Blackstone emphasizes the duties, rather than the power, of parents, and describes parents’ duty to educate their children as “of far the greatest importance of any.” Blackstone also recognizes parents’ “power . . . over their children” but suggests that this power “derive[s] from” their duty, explaining that power is given to parents “partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it.” Despite the importance of the duty recognized, however, the common law provided no mechanism of enforcement, leaving parents in total control of their children’s education, with no cost to bear for a failure to meet their duty, except the costs of “labour[ing] under [the] griefs and inconveniences” that come with raising a child “to lead a life useless to others, and shameful to himself.”

A concern for the threat an uneducated populace created for the stability of their new Republic led early American statesmen and educators to press for the development of “common schools” that would ensure that children received an education adequate to prepare them to participate as effective members of a democratic polity and live harmoniously and productively together. As this movement gained momentum through the 19th century, states added to their constitutions provisions imposing on themselves an obligation to provide a free education to school-aged children within their jurisdictions, although states’ failure to provide equally for, or even include at all, children of color in public schools reflected a persistent and serious deficiency in their commitment to universal education. As public schools became more prevalent, states began enacting compulsory attendance laws to require parents to send their children to these schools. Thus, over the course of the 19th century, states took considerable strides both to enforce parents’ duty to educate (through their common schools and compulsory attendance laws) and to assign themselves a parallel duty to educate children (through state educational provisions).

Parents challenged these compulsory attendance laws and related education restrictions, and the litigation that followed tested parents’ power against that of the state. Early cases brought by parents challenging the state’s authority to require them to send their children to school were unsuccessful, but challenges brought to state laws that constrained parents’ educational choices further were successful, and led to the Supreme Court’s recognition in the 1920s of parents’ federal constitutional right “to direct the upbringing and education of children under their control.” Notably, the Court tied the parents’ power to control their children’s education with their duty to “prepare [their children] for additional obligations,” suggesting, as Blackstone had, that the power “derived” from those important parental duties. Despite this recognition, the core holding of Pierce addressed parents’ power to control their children’s education and suggested it was considerable, though not unlimited. On the other side of the balance, the court made clear, was the state’s power “reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”

It was not until the latter decades of the 20th century that courts expressly recognized that the state’s power over children’s education, too, was linked to an educational duty. This recognition came through entirely distinct litigation, often called the “school finance litigation,” in which school districts and education advocates asserted that states had failed to meet their state constitutional obligation to offer all children an adequate education. This distinct body of cases set out a standard for educational adequacy, often termed a “sound basic education,” that states were required by their constitutions to provide in their public schools. Thus, through this school finance litigation, many courts have imposed on states a duty to educate children parallel to that of parents. And to a far greater extent than in the parental context, these courts have set out the scope of the states’ educational duties and prompted state legislatures to follow through with more precisely defined standards for their schools.

I begin with this history because it captures how the duty and authority of parent and state developed over time and around one another. But the interrelationship between the parent and state’s duty and authority to educate is poorly articulated in the law, and it was a central aim of the Restatement to set out this relationship in a manner that was coherent, while remaining true to the cases, with their distinct legal origins. I begin my account of the Restatement provisions with Section 5.10, The State’s Duty to Provide Free Public Education for All Children, because it is in this chapter that the most comprehensive account of educational duties, and the purposes they serve, are set out. I then turn to consideration of Sections 1.20, Parents’ Duty and Authority to Educate, and 2.26, Educational Neglect, and address how the state’s duties, set out in Section 5.10, relate to parents’ duties and authority, set out in these sections.

III. The State’s Duty to Provide Free Public Education to All Children

Section 5.10 restates the law developed through school finance cases in which school districts and education advocates sued states for failing to meet their state constitutional obligations to provide an adequate education for all children in public schools. This is an unusual body of law, which might be characterized as state constitutional common law. The relevant constitutional language establishing the state’s educational obligations frequently includes similar terms, including “thorough,” “efficient,” “uniform,” and “adequate,” combined into common phrases, and courts readily look across state borders to interpret these phrases. More notably, courts commonly look across state borders in analyzing their own state’s educational duties, even where the constitutional language of other states differs from the language of the state in question.

In resolving the school finance cases, courts commonly invoke the basic aims that motivated states to impose on themselves a constitutional obligation to educate their children. States saw the provision of education as an essential means of ensuring the prosperity of their citizens and the stability of their government, and many courts adopted the term “sound basic education” to describe an education sufficient to ensure the achievement of these aims. This obligation is set out in the blackletter of Section 5.10, which states that the state “has a duty to provide a sound basic education in primary and secondary school to all children living within its jurisdiction at no cost to children or their families” and defines that “sound basic education” as one “that enables children to acquire the knowledge and skills necessary to prepare them to participate effectively and responsibly as adults in the economy, in society, and in a democratic system of self-governance.” The Restatement goes on in its comments to elaborate further on what the sound basic education requires, but it stops short, as the case law does, in dictating, in detail, the scope of required educational programming.

The Restatement endorses the “Rose factors,” so called for the highly influential Kentucky case that established function-focused standards designed to foster the development of key capacities in children, and sets these factors out, with some alterations reflecting variations in other courts’ standards, in the commentary in Section 5.10. These functional standards were designed by courts to describe the scope of the state’s educational duties, while leaving to the state legislature and executive the details of funding, curriculum, and other educational programming. Legislatures and local educational authorities have, in turn, developed comprehensive standards in an effort to satisfy these aims, and therefore their educational duty to their children. States’ records of achievement are clearly mixed, reflecting the limit of the courts’ power to enforce the states’ educational obligations.

Although the obligations set out in state constitutions and interpreted by state courts are considerable, they are limited in two important ways that circumscribe their value to children. The first is that they only apply to public schools. The state constitutional obligation is an obligation to provide, that is, make available, a free public education to all students. It is not an obligation to enroll and educate all children in public school, which, as noted, the U.S. Supreme Court has held unconstitutional, nor, on its terms, is it an obligation to ensure that all children, wherever they go to school, are adequately educated. Whether states can properly be understood to have a duty, from whatever legal source, to ensure that all children are adequately educated is an important contemporary question that is currently unanswered in the law. After considering the scope of parents’ right to educate their children outside the public school setting, I highlight the importance to children of how this question is answered.

The second limitation is that, although the law imposes an obligation on states to offer this sound basic education to all school-aged children attending public school, it does not create a right that individual children can enforce when their public education falls below this standard. For this reason, the Restatement frames the black letter as an obligation of the state rather than the right of the child, though the Restatement uses this rights language, as it is used in many of the cases, in Comment b’s discussion of the sound basic education states are required to provide.

There are some exceptions under federal law to this general prohibition against children’s individual enforcement of their right to be provided with an adequate education in public schools. One exception is in the context of special education, which is governed by federal statutes that require schools to provide a “Free Appropriate Public Education” or “FAPE” and gives children a private right of action to enforce that obligation. A second exception applies where the state attempts to keep some children out of school altogether. In such circumstances, children can bring an action under the Equal Protection Clause of the U.S. Constitution to challenge that exclusion. Courts have also allowed individual children to challenge their exclusion from school altogether after they were suspended or expelled.

As a general matter, the state’s educational duty is a duty to children, as a group, and it is a duty to offer them all a sound basic education in public school. Where parents believe their individual child’s education falls below the sound basic education required, they generally cannot assert a cause of action challenging the school’s failure and seeking an improvement. Instead, their options are generally limited to moving to another school district or removing their children from public school altogether. In the next section, I discuss Restatement Sections 1.20 and 2.26 which address parents’ educational duty and authority, and how that duty and authority relate to the duty and authority assigned to the state.

IV. Parents’ Duty and Authority to Educate Their Children

Although the law’s recognition of parents’ duty to educate their children predated any recognition of a state educational duty by centuries and was declared by Blackstone to be a parent’s most important duty, the details of parents’ educational obligation to their children were largely undefined at common law. With the enactments of compulsory schooling laws, states gave parents one clear option for fulfilling their educational duties: They can send their children to public schools. But for parents who choose not to send their children to public schools, and instead choose private school or homeschooling, their duty has largely been defined through their tests of state power. Where parents challenge aspects of states’ educational requirements, set out in statutes or local school district policies, as violations of their constitutionally protected parental rights, courts have sorted among those requirements to determine which requirements the state can appropriately impose and which it cannot. In this context, as set out in Section 1.20 of the Restatement, the scope of parental duties is defined through a combination of the courts’ protection of some of their educational choices and the courts’ allowance of some state constraints on those choices. In cases in which a court finds parents educationally neglectful, cases addressed in Section 2.26, the court makes a more affirmative finding of the parents’ duties. Even these cases, however, focus on omissions and identify parental behavior that falls below what is required, rather than defining, in more affirmative terms, what parents’ educational duties entail.

Although these cases fail to define a parent’s educational duty explicitly, they tie the parent’s duty to the state’s better-defined educational duty in two ways, one indirect and one direct. The indirect connection runs through the court’s acknowledgment of a state’s compelling interest to ensure that children receive an education “necessary to prepare citizens to participate effectively and intelligently in our open political system” and to prepare children to be “self-reliant and self-sufficient participants in society” and the state’s related authority to impose limits on parents’ independent educational choices. In effect, this analysis endorses the state’s authority to impose narrowly tailored regulations to achieve those interests, and whatever those regulations require becomes the parents’ educational duties. Thus, for example, where the state is found to have the power to require children to be taught by people who have certain qualifications, the court is allowing the state to define the parents’ obligation to include the provision of an education that meets those teaching standards. And such requirements are justified, the court concludes, because they are well tailored to achieve the important functional goals identified as in the state’s interest, which echo the functional standard of the “sound basic education” the state is required to provide.

More directly, many state compulsory attendance laws require that parents either send their children to public schools or provide them with a “substantially equivalent” or “comparable” education, or capture this obligation to provide a comparable education through a list of required subjects and a detailing of class hours. Enforcement of compulsory attendance laws is accomplished either by confirming a child’s attendance at a public school or by testing the alternative being provided against the standards that apply to the public schools to achieve a sound basic education.

Reflecting these links in the analysis, the Restatement describes the parents’ educational duty, in Part I, with terminology that mirrors the state’s educational duty, set out in Part II. Like the state, parents are required to provide a “sound basic education,” and that education is defined in identical functional terms, to “enable[] children to acquire the knowledge and skills necessary to prepare them to participate effectively and responsibly as adults in the economy, in society, and in a democratic system of self-governance.” Sections 1.20 and 2.26 then set out the law that has been developed through cases assessing parental rights claims and state allegations of neglect that offer considerable detail about how this broad functional standard has been applied by courts.

The Restatement divides its consideration of parents’ educational duty and authority into two sections, which comport with the overall organization of Part I of the Restatement. Section 1.20, entitled “Parental Duty and Authority to Educate,” is one of several topics in Chapter 1 addressing “Parental Authority and Responsibilities.” This Chapter also includes a parent’s duty to provide economic support, parents’ duty and authority to provide medical care, and parents’ duty to protect children from harm, among other topics. And Section 2.26, addressing Educational Neglect, is discussed along with Physical Neglect and Medical Neglect, within a comprehensive Chapter 2 addressing “State Intervention for Abuse and Neglect.”

There is necessarily considerable overlap between the material covered in Sections 1.20 and 2.26, as parental resistance to allegations of educational neglect requires the court to consider the reach of parental authority to make educational choices for their children. Here, I highlight some distinctions. Section 1.20 focuses on cases in which parents challenged state regulations constraining their ability to exercise educational choice on constitutional grounds. All of these cases focus on rules that apply exclusively to parents educating their children in private schools or home schools, and all of these cases consider the extent of the state’s authority to intervene where parents have made a conscious choice to educate their children in a manner that does not conform with state requirements. The Restatement’s discussion of the law in this area is well supported by current case law, but some of the important detail of the law in this area has been put into flux by recent Supreme Court decisions. The Restatement avoided taking a position on issues determined to be the most unstable, including the precise standard to be applied to these state regulations, generally, and also, particularly, the standard to be applied when the parent’s challenge combined a parental rights claim with a religious liberty claim.

The Restatement notes that the courts have recognized the state’s authority to impose constraints on parents’ educational choices since the earliest cases recognizing and protecting parents’ educational authority over their children. The general guidance in those cases has been given shape in lower court cases that have upheld the state’s authority to impose conditions on private schools and home schooling. Courts draw a line between requirements designed to ensure basic educational achievements (such as teacher qualifications, standardized testing, and curriculum monitoring) and regulations that “give affirmative direction concerning the intimate and essential details of [private schools] . . . and deny both owners and patrons reasonable choice and discretion” in educational choices. The Restatement captures this distinction by including in the black letter to Section 1.20 the statement that “[p]arents have broad authority to choose among educational institutions and approaches . . . so long as they provide their children with a sound, basic education” and explaining in the comments that this gives parents control over the “how, where and by whom,” or the “manner” by which children are educated.

Section 1.20 also makes clear that courts have rejected parental rights claims that seek to alter the public school curriculum. For the most part, parents’ educational authority under the Constitution protects their right to opt out of the public school curriculum, not to alter it. And while some parent advocacy groups have sought a greater role in influencing curricula in recent years, their focus has been on a change in school policies through legislative and school district–level political activism, rather than through an assertion, in court, of a constitutional right to exercise this influence.

Section 2.26 addresses the law that governs the state’s power to intervene and impose consequences for parents’ failure to meet their educational duty, ranging from child protection interventions to criminal penalties. These cases fall into two categories, depending on whether the parents have opted out of the public school system or not. If they have opted out, the analysis in Section 2.26 tracks the analysis in Section 1.20, Comment c, addressing home schooling. The state has the same authority, with the same limits, to find parents educationally neglectful for failing to comply with its regulations as it does to impose the regulations in the first place. Because neglect requires a finding of harm, however, there are occasional cases in which a court finds that a parent who has violated a lawful regulation nevertheless does not qualify as neglectful because the child’s educational progress is deemed adequate.

For parents in the second category, who have enrolled their children in public school, or who have failed to enroll them with no plan to provide an alternative education in a home or private school, neglect is tied more simply to the extent of the child’s nonattendance, and particularly to the number of days the child is absent without a legitimate excuse. As noted, neglect requires a finding of harm, but, in this context, frequent absences generally create a presumption of harm. In these cases, educational neglect is rarely the only cause for concern about the quality of parenting. School absences are often one of several indicators that parents are failing to meet their child’s needs.

This is often not true of cases in which parents face neglect allegations because they are home schooling their children. There are, however, circumstances where the claim of home schooling masks broader failings to conform with standards of proper parental care that are addressed throughout Chapter 2, and one concern raised by opponents of home schooling is that it allows parents to conceal their own behavior, and their children’s condition, from public scrutiny.

Because parents can meet their educational duties by sending their children to public school, and most parents follow this path, educational neglect investigations are generally triggered by school absences. Parents can then defend against the allegations of neglect by challenging the claimed number of absences, by offering recognized excuses for absences, or by claiming they have opted out of public school and are meeting their educational obligations in another way. Where contesting the absences or offering justified excuses, parents concede the intention to send their children to public school and it is just a question of whether they have met the requirements for doing so. On the other hand, if the defense is that they are educating their children elsewhere, or on their own, the question becomes whether the education they are providing their children suffices to meet their educational duty.

The Restatement clarifies the alignment of the educational duty of parent and state by harmonizing the terminology in the sections addressing both parent’s and state’s educational duty in Parts I and II respectively and requiring both parent and state to provide a “sound basic education” to children. But the coordination of parent’s and state’s achievement of these parallel duties is poorly addressed in law. As Section 2.26 makes clear, parents can satisfy their educational duty by sending their children to public school, even a poor-performing school that violates the state’s educational duty. And while the converse has never been expressly addressed, no court has ever found a state to have violated its educational duty by failing to intervene when parents opt out of the public school system and fail to meet their educational duty by other means. The cases set out in Section 1.20 recognize the power of the state to intervene in such circumstances, but a court has never found the state in violation of its duty where it fails to exercise this power. Thus, in some circumstances, a failure of either a parent or school to meet its educational duty may eliminate the duty of the other, creating a sort of “immunity” from responsibility. Excusing parents who send their children to poorly performing public schools seems fair, as our shift to public control of schooling has eliminated our expectation that parents will have the wherewithal to assess, let alone replace, public schooling. But it is not clear why we should excuse the state from ensuring that children are educated when their parents fall short.

A failure to recognize the state’s obligation (rather than simply its power) to ensure that all children are educated, including those whose parents opt out of the public school system, has allowed for the deregulation of home schooling and contributed to recent difficulties enforcing minimal secular curricular content in religious schools. Neither of these movements to shield children’s education from state oversight and assessment have been found to be constitutionally required, nor should they be. Rather, in some jurisdictions, these movements have been protected through legislative processes that prevent the state from engaging in that oversight and assessment. It will take a determination that such legislation, itself, violates the state’s duty to educate all its children to compel state educational intervention that goes against the will of the politically powerful minorities responsible for the legislation. It is not at all clear, however, that the law supports the finding of any such duty. Although courts emphasize that the state has a compelling interest that corresponds with its “parens patriae” power to ensure children’s well-being, courts rarely speak of a state’s duty to do so. And when courts do invoke the language of “duty,” they do so to justify a state’s power, which is the only actual issue being addressed in the case.

V. The Constitutional Microcosm of Public Schools

In light of this allocation of educational responsibility and what I am calling educational immunity between parent and state, the distinction between public and private education is significant, and, notably, parents have authority to choose between the two. A central aspect of this choice is its impact on children’s opportunity to exercise their constitutional rights. Because only public schools qualify as state actors, only students in public schools have constitutionally protected rights of expression, religious exercise, and due process and rights against unreasonable searches and seizures during the school day. Most of Part II of the Restatement, Children in Schools, addresses these constitutional rights, which are among the most important constitutional rights afforded to children.

In analyzing the scope of students’ constitutional rights in schools, courts have highlighted the state’s duty to educate children both to support and to oppose the recognition of children’s constitutional rights. On the one hand, courts have pointed to the state’s duty to educate children to justify affording significant deference to schools’ exercise of authority over their students in rights restricting ways. This analysis has justified, among other things, punishing students who use lewd language or promote drug use, applying a more deferential standard to school searches, and limiting the process afforded to students threatened with disciplinary action. On the other hand, courts have pointed to the state’s obligation to create opportunities for students to practice exercising their rights and to demonstrate the state’s commitment to protect those rights as an aspect of the state’s educational obligations. In conferring children’s constitutional rights in school, courts frequently invoke the importance of students’ experience there to their developing understanding of American society and government, and their place in it. Perhaps the most quoted example of this is the Supreme Court’s statement in West Virginia State Board of Education v. Barnette: “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

Although the educational value of affording children rights is frequently offered in support of the court’s rights protective rulings, the core underlying message is simply that children, like adults, are protected by the Constitution. The Court’s analysis generally reflects an assumption that children are persons with constitutional rights and considers how the special context of the school might justify a modification of those rights. Indeed, these cases often frame their analysis of students’ rights as if children’s rights outside of school are clearly protected and the only issue is whether these rights are also protected in schools. In Tinker v. Des Moines Independent Community School District, for example, which protected students’ right to wear black armbands to protest the Vietnam War, the Supreme Court famously declared that children do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, in fact, it was in the school context that children’s First Amendment rights were first recognized, and it has been near exclusively in the school context that these rights have been addressed and protected. Even in the recent case of Mahanoy, in which the Court addressed minors’ right to engage in “off-campus” social media speech, the issue only reached the Court because the school had asserted a right to punish the speech. Moreover, these school-based cases that laid the groundwork for rights recognition surely increased courts’ willingness to recognize children’s rights, particularly First Amendment rights, on the rare occasions when those rights were pressed in other contexts. In this sense, all children, wherever they attend school, have benefitted from these rulings.

But, in another sense, because the school context so dominates most children’s engagement in extra-familial society, it is primarily in the school context that many children will have the opportunity meaningfully to exercise their rights as individuals. In this second sense, the difference in the protections and therefore the opportunities afforded children in public and private schools are considerable. And parents, in exercising control over whether their children attend public or private schools, are controlling children’s opportunity to exercise, and experience other children exercising, their constitutional rights. Whatever regulations states may impose on parents’ private educational choices, they are unlikely to require them to afford the level of protection of their children’s individual rights of expression, religious exercise, personal privacy, and due process required by the U.S. Constitution if they attend public school.

This distinction affords children in public schools a special zone of protection for their expression of views, for their religious exercise, and from unreasonable searches and seizures. Public school students also have a right to due process in disciplinary proceedings and protection against the school’s involvement in religious practices. These protections come with several qualifications tied to the workings of the school in achieving its essential educational duties, but the protections afforded have changed the experience of students in schools in important ways. To highlight one particularly notable constitutional protection that has transformed the high school experience of students, particularly adolescents: the Court has provided strong support for students’ right to express their personal views on issues of social or political significance, however controversial, as long as the speech does not “invade the rights of others” or “substantially disrupt the work of the school.”

Students’ constitutional rights are, of course, rights against the state, not against parents, and parents have broad authority to prevent or punish their children’s behavior, including behavior protected by the Constitution from punishment by the state. This distinction between children’s protected rights against the state and lack of protection from parents’ control over their exercise of rights is set out explicitly in Sections 18.10 and 18.11 of Part IV, where children’s civil rights outside the school context are addressed. It is not addressed in the chapters in Part II, concerning Children in Schools, because in this context the litigation addressing children’s constitutional rights has always been framed as a contest between the school (as the state) and the child, with parents supporting the child’s litigation against the state.

Recent legislative developments, however, suggest that courts will need to confront the extent to which parents can modify the state’s obligation to honor students’ exercise of their rights, when parents oppose their exercise. A bill that would require written parental consent before students would be permitted to exercise their right to refuse to say the pledge of allegiance is currently pending before the Arizona legislature; and a Texas law requires parental consent for students to access certain information from the school library. And while the Supreme Court, in Brown v. Entertainment Merchants Association, held that the Constitution imposes some limits on a state’s authority to assist a parent in blocking a child’s access to First Amendment–protected material in the commercial context, it is not at all clear that the Court would extend those limits to prevent schools from deferring to parents who oppose their children’s exercise of rights.

This issue has not yet been addressed by the courts and is therefore beyond the reach of the current Restatement. But the issue is ripe for judicial resolution, and courts addressing the issue will necessarily build upon the law restated in Parts I and II setting out parents’ and the states’ educational duties and authority and the extent and limits of their interrelationship.

Although the sharp division between the public and private spheres of education sanctioned by law come with some serious limitations, discussed above, one product of this division—the creation of a constitutional microcosm for children in the public schools—is a precious development to be protected. Parents may well have an interest in controlling their children’s exercise of their rights by imposing constraints and disciplining disobedience, or by removing their children from the public school altogether. But schools should not be allowed to delegate to parents the imposition of constraints the Constitution prohibits the schools from imposing directly, by requiring parental consent as a condition of the school’s protection of the child’s rights.


A primary virtue of a Restatement is also its limitation: We can only “restate” the law that has support in the cases. Drafting a Restatement is not an opportunity to press beyond the cases to advocate for outcomes we reporters consider desirable, to anticipate trends in legislation and litigation, and to resolve the disputes those developments will ignite. Nor should it be, as the aim is to offer an account of the law that can be relied upon by the courts with confidence, without concern for the reporters’ political or jurisprudential points of view. But the discipline imposed in Restatement drafting also helps to bring into relief the unanswered questions, and in the area of educational rights, those unanswered questions capture areas of vulnerability in the law’s protection of children’s educational rights that may well make their way to the courts. It is my hope that the Restatement will not only aid courts in addressing familiar controversies, but will also equip them with a clear grounding in the law and its underlying rationale to address those new disputes in a manner that protects children’s right to a sound basic education wherever that education occurs, and that preserves the public school system as a microcosm for children’s exercise of constitutional rights.

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    Emily Buss

    University of Chicago Law School

    Mark and Barbara Fried Professor of Law, University of Chicago Law School. Thanks to Anna Hori for her excellent research assistance and to the Arnold and Frieda Shure Research Fund for its financial support.