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The Worst of Both Worlds: Youth’s Eroding Right to Self-Determination and the “Parents’ Rights” Revolution

Frank D. LoMonte

The Worst of Both Worlds: Youth’s Eroding Right to Self-Determination and the “Parents’ Rights” Revolution
RichVintage via Getty Images

In its latest foray into determining schools’ disciplinary authority over student speakers, the U.S. Supreme Court took pains to balance all of the participants’ interests—except the speakers’.

The Court’s 2021 opinion in Mahanoy Area School District v. B.L. expressed deep concern for the interest of school authorities in maintaining order and responding to cyberbullying, and equally great concern for the interest of parents in raising their children free from governmental interference during out-of-school hours. Strikingly absent was any recognition that a young person’s complaint about unfair treatment by a coach might have intrinsic worth—for the speaker’s own self-actualization or for the larger audience.

As described in Justice Stephen Breyer’s majority opinion, and in Justice Samuel Alito’s influential concurrence, the case of a 15-year-old cheerleader disciplined for profanely criticizing her school on Snapchat was not about freedom of speech but about control. In their view, the case was about drawing a line where the school’s authority to control speech gave way to the parents’ authority to control speech. “Geographically speaking,” Justice Breyer wrote, “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” That a teenager might control her own speech was not even within the range of possibilities.

The Mahanoy ruling is part of a larger contemporary drift toward depriving young people of agency over self-determination. The reality of the contemporary legal system is that courts are increasingly choosing between two competing visions—“what is best for the government is best for the child” and “what is best for the parent is best for the child”—without much consideration of “what is best for the child.”

Across the country, state legislators and school policymakers—at times with the acquiescence of judges—are moving to strip away the discretion of young people to make their own decisions about what books they read, what websites they visit, what they wear to school, and what gender identity they adopt among their schoolmates. For instance, at least seven states (Arkansas, Louisiana, Mississippi, Montana, Texas, Utah, and Virginia) have recently enacted statutes requiring website operators to verify the ages of their users, if the sites contain content deemed “harmful” to minors. An eighth state, California, is being sued over a 2022 statute that requires operators of any website “likely to be accessed by children” to track which of their users are minors and to store those data. Lawmakers were unpersuaded by arguments that such aggressive screening might well result in websites that carry valuable news content “age-walling” their sites so that they will not be accused of serving harmful material to minors.

This selective infantilization of young people—treating minors as incapable of making rational decisions when it suits the regulator’s ideological objective to do so—is the predictable product of decades’ worth of aggressive lawyering by public schools, which have convinced federal courts that constitutional rights for young people are an impediment to well-meaning authority figures concerned for their safety. Thus, young people no longer have any ability to resist suspicion-less drug testing in school or—with the very extreme exception of a strip search—to resist being searched in school on the most minimal of justifications.  

The notion that constitutional rights should apply with less rigor to the class of people most vulnerable to government overreaching—“for their own good”—fundamentally misconceives the role of a declaration of rights in a free society. Nevertheless, this “training-wheels” level of constitutional protection for minors is increasingly the law. Consequently, the only muscular check on schools’ authority is the counterweight of parental due process rights, recognized in the Supreme Court’s 1972 Yoder v. Wisconsin ruling, which gave parents the constitutionally protected right to withdraw their children from school on religious grounds, notwithstanding state attendance laws.

In such a climate, it is unsurprising that youth autonomy rarely enters the discussion when elected officials are formulating policy or when judges are adjudicating the legality of it.

The anti-censorship organization PEN America reports that, since the beginning of 2022, schools in at least 32 states are known to have removed books from school libraries in response to challenges alleging age-inappropriate discussion of race or gender issues, with the bulk of those disputes concentrated in Florida, Missouri, South Carolina, Texas, and Utah. The explosion of these book-banning controversies is part of a larger activism movement in which conservative parents, and their allies in state legislatures and on local school boards, are seeking greater control over the ideas children are exposed to in public schools.

One focus of this movement is on challenging school policies supportive of LGBTQ+ students who might adopt names and pronouns other than those corresponding to their sex at birth, insisting that parents—not students—should decide what names children use at school. Recently, a federal judge in Wyoming refused to dismiss the claims of a parent who argued that a school district policy allowing her 16-year-old to adopt a male name and pronouns in school without parental notification interfered with her constitutional right to raise her child as she chose. And a federal district court in Kansas allowed a middle school teacher to proceed with claims that a school policy, which required her to withhold a student’s transgender status from parents if the student indicated that their parents were unsupportive of the transition, violated the teacher’s constitutional rights.

Increasingly, young people cannot make even the smallest of decisions without parental sign-off. Over the past two decades, at least four states (Georgia, Oklahoma, Tennessee, and Utah) and dozens of local districts have enacted regulations requiring parental consent before a student can join a club, even one that is student-organized and student-led. This movement is widely seen as a backlash against the popularity of Gay-Straight Alliance clubs that became widespread during the 1990s.

Paradoxically, the infantilization of young people in connection with their own education coincides with an ongoing rollback of laws that protect young people from abuse and exploitation in other contexts. Most notably, in just the past year, Arkansas and Iowa have loosened labor laws to allow children as young as 14 to work hours once considered unsuitable for minors. (Tellingly, even the rollback subordinates the will of the young worker to the will of the parents; Iowa’s new law lowers the legal age for serving alcohol to 16, but only if the teen has a parent’s signed permission.)

At common law, the “rule of sevens” has long been established as a line of demarcation at which young people are presumed to have both legal accountability for their behavior as well as legal capacity to consent to certain undertakings. Under this principle, a child of seven or younger is deemed legally incapable of acting with the intent necessary to make decisions of legal consequence. Conversely, a child of 14 or older is presumed to be capable of giving informed consent, subject to some statutory overrides (such as laws mandating a minimum age to consent to sexual activity, purchase alcohol or firearms, or drop out of school).

But this rule has proven opportunistically malleable. Young people’s perceived capacity for rational thought ebbs and flows depending on what judges and policymakers regard as advantageous for their desired outcome. For instance, federal courts have found that children as young as nine years old have the legal capacity to consent to a police search of their family’s homes, even without an adult present. Yet, at the same time, states are racing to enact prohibitions on minors using social media without explicit parental consent, with new bans on the books in Arkansas, Texas, and Utah in just the past year. In other words, a 15-year-old is amply mature enough to admit the police into her parents’ house but not mature enough to post pictures to Instagram.

During the heyday of the Warren Court, when regard for the rights of young people was at its zenith, Justice Abe Fortas lamented the sorry state of constitutional protections in juvenile court, where—in the name of creating a less adversarial process—children received none of the fundamental legal protections that apply in adult court, such as the right to confront the accuser, to be free from self-incrimination, or to have a speedy public trial. In a 1966 ruling, Kent v. United States, Fortas wrote: “[T]here may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” (Notably, Fortas is perhaps best known as the author of Tinker v. Des Moines Independent Community School District, the 1969 Vietnam war protest case declaring that children did not surrender their First Amendment rights at the schoolhouse gate.) If Justice Fortas thought children of the 1960s had “the worst of both worlds,” he would be astonished that, in the year 2023, young people do not have the full benefit of free speech rights even when they are off campus on their personal time.

The Eleventh Circuit’s 2008 decision in Frazier v. Winn, a case undermining the ability of public school students to decide for themselves whether to participate in the Pledge of Allegiance, is emblematic of how courts’ “center of gravity” in terms of decision-making has shifted toward parents and away from children.

Since the Supreme Court’s signature 1943 compelled speech case, West Virginia Board of Education v. Barnette, it has been recognized that schools could not compel young people to stand and recite the Pledge of Allegiance if the students objected to taking part in the ritual. In that case and decades’ worth of cases following it, judges spoke expansively of young people as full beneficiaries of the Bill of Rights. In Barnette, Justice Robert H. Jackson wrote: “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.” Jackson’s stirring opinion gave no inkling that constitutional rights might diminish when the speaker was a student and the government regulator was a school.

But in 2002, Florida—and, later following its lead, Texas—adopted statutes stripping public school students of the discretion to make that decision for themselves. End-running Barnette, those states decided that refusing to take part in the Pledge of Allegiance could be grounds for discipline unless the student had a signed parental opt-out form. When the Florida law was challenged as irreconcilable with Barnette, the Eleventh Circuit—presaging the Supreme Court’s approach in Mahanoy—framed the issue as one of parental rights. The court simply shrugged off any solicitude for even the most mature students—the Frazier plaintiff was in eleventh grade—to make decisions of conscience for themselves. “We conclude,” the judges wrote, “that the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.”

Not too many decades ago, federal courts recognized that—just like adults’ speech—young people’s speech had value for a larger public audience as well as for the speaker. Thus, in Thomas v. Board of Education, the Second Circuit decided in 1979 that a school lacked authority to discipline students who used personal time and money to create a National Lampoon–styled magazine ridiculing their school district, which they circulated off campus. “When school officials are authorized only to punish speech on school property, the student is free to speak his mind when the school day ends. In this manner, the community is not deprived of the salutary effects of expression,” Circuit Judge Irving R. Kaufman wrote.

That sentiment is barely recognizable in contemporary student-speech jurisprudence. Even when the Supreme Court nominally rules in a student’s favor—as in the Mahanoy cheerleader case—its rationale is rooted in affirming parents’ primacy over the government’s. Justice Alito’s Mahanoy concurrence—which is proving to be influential because, unlike Justice Breyer’s ponderous majority opinion, it is written clearly—presents the issue starkly: The reason that students’ First Amendment rights diminish in the public school setting, he writes, “must be that by enrolling a child in a public school, parents consent on behalf of the child to the relinquishment of some of the child’s free-speech rights.” One can almost envision the parent handing a leash to the principal each morning and then accepting it back every afternoon, with the child having no more say in the transaction than a border collie.

The extent to which minors have any cognizable legal interest in the course of their own education will be tested as legal challenges to state curriculum mandates proliferate throughout the country. In Oklahoma, students are among the plaintiffs in an ongoing federal case, Black Emergency Response Team v. O’Connor, challenging a 2021 state statute that outlaws classroom discussion of “systemic racism” and other concepts identified by conservatives as divisive. The case is being widely followed as a potential trendsetter for other legal challenges to comparable state laws, including one filed in August 2022 challenging Florida Gov. Ron DeSantis’s signature Stop Wrongs to Our Kids and Employees Act, or “Stop WOKE Act.”

Encouragingly for young people, a U.S. district judge in Arizona drew a road map for the O’Connor court to follow, in a dispute over the teaching of Mexican American studies that foreshadowed today’s wave of anti–critical race theory legislation. In that case, Gonzalez v. Douglas, the federal court found that students in the Tucson Unified School District had a valid constitutional challenge to a state law prohibiting K-12 courses “designed primarily for pupils of a particular ethnic group.” The law flunked constitutional muster, Judge A. Wallace Tashima wrote, because it was ideologically, not educationally, based: “Students have a First Amendment right to receive information and ideas . . . a right that applies in the context of school curriculum design.” (The case was not appealed, so we have no binding guidance about the extent to which appellate courts might recognize a constitutionally based interest in receiving a curriculum that deals candidly with matters of race and sexuality.)

Will this contemporary wave of statutes and policies depriving young people of decisional autonomy hold up to constitutional challenge? Whether the ability to make fundamental life choices is protected by the Constitution is very much up for grabs for everyone, not just minors, after the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, repudiating the Roe v. Wade notion of a constitutionally based right to be free from government interference in intimate personal decisions. The wild-card factor in student rights cases is that—while students typically cannot file suit in their own right without a parent or court-appointed guardian to serve as named plaintiff—the constitutional interests of parent and child may diverge in irreconcilable ways when decision-making autonomy is at stake.

That courts continue to decide cases in binary fashion—either rights belong to parents or rights belong to schools or other government regulators—points to a need for minors to have their own representation, either directly (by way of intervention) or indirectly (by way of amicus support). The phrase “nothing about us, without us” is believed to have originated in the disability rights movement of the 1990s, but it has resonance today for the young people whose rights are being legislated and adjudicated as if they are bystanders to their own lives.