“The child is not the mere creature of the state…”

In 1925, in Pierce v. Society of Sisters of the Holy Names Jesus and Mary, the Supreme Court unanimously affirmed the right of parents in Oregon to have their children educated where they wished. Officials in a Catholic elementary school and a private military academy had filed suit because they feared that the state’s compulsory attendance law, which largely limited where students could study, violated their Fourteenth Amendment rights by putting them out of business without due process of law.

The Pierce Court both upheld the right of non-public schools to operate and famously reasoned that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Seventy-five years later, in Troxel v. Granville, a controversy from Washington over visitation rights, the Justices added that “the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

As clear as the Supreme Court’s rulings remain, however, conflicts continue to arise that have stood Pierce, in particular, on its ear. In particular, educators in public schools have undermined the right of parents to direct the education of their children about sexuality. Public school officials in recent years have often ignored the rights of parents to direct the education of their young by not seeking or simply ignoring their input in subjecting students to sexually explicit material with which their caregivers disagree or they believe is not age appropriate.

In 1995, in Brown v. Hot Sexy & Safer Productions, parents unsuccessfully challenged an explicit sex-education/AIDS awareness program for high school students. Controversy arose because even though the policy of the school committee in Massachusetts (as boards are known there), based on an underlying statute, specified that parents had the right to be notified if such explicit programs were to occur, but officials failed to perform their duty. Even so, the First Circuit affirmed that educational officials had no duty to notify parents who wished to have their children excused from attending the program, which included sexually explicit monologues and suggestive skits with minors chosen from the audience. Ignoring the plain language of the policy ad statute, the court determined that the commonwealth’s right to set curriculum trumped the parental concerns.

Eight years later, in Fields v. Palmdale School District, the Ninth Circuit was of the opinion that public school officials in California had the authority to distribute a sexually explicit survey to children in the first, third, and fifth grades. Sexually explicit questions in the survey included: “8. Touching my private parts too much; 17. Thinking about having sex; 22. Thinking about touching other people’s private parts; 23. Thinking about sex when I don’t want to; 26. Washing myself because I feel dirty on the inside; 44. Having sex feelings in my body; 47. Can’t stop thinking about sex.”

Relying on the previous case, the Ninth Circuit held that “once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished.” Accordingly, the court declared that the right of parents to direct the education of their children as identified in Pierce “does not extend beyond the threshold of the school door,” essentially eviscerating parental rights.

The latest controversies over sexuality involve different aspects dealing with “transgender” ideology, whether teaching about it in classes, including books in school libraries, or (as in the focus of this essay) assisting minor students to “transition”, often without the knowledge or consent of their parents. Moreover, Iowa, recently banned instruction about gender identity while removing books depicting sex acts from school libraries.

Concerns over issues associated with “transitioning” have led parents in Iowa, Maryland, Wisconsin, and Virginia to file suits challenging school board policies allowing students to express their gender identities at school while not informing their caregivers about what is happening. Because school officials have sought to keep information about what their children are doing confidential, parents filed suit on the basis that such policies interfere with their rights to direct the upbringing of their young. As reflected by an unsuccessful proposed bill in New Hampshire, some supporters of parental rights are seeking to have laws enacted that would require educators in public schools to inform them if their children wish either to be referred to by names other than those they were given at birth, or to be referred to as being a different gender.

These disputes can also involve the rights of educators who do not support such policies. For instance, McCord v. South Madison Community School Corporation involved a dispute on the perspective that school-aged children are not “mere creatures of the state.”

On May 18, 2023, Mrs. Kathy McCord, a well-respected, accomplished thirty-seven-year educator in Indiana (who began her career as a teacher before becoming a counselor in her district at the start of the 1998-1999 academic year) sued her school board. She raised five constitutional and statutory claims after officials fired her in retaliation for her having disagreed with, and refusing to support, its Gender Support Plan policy. The board terminated Mrs. McCord’s employment because she spoke on the record with a newspaper reporter in her capacity as a private citizen (not on behalf of the board), in confirming the accuracy of what the policy required of staff members. Mrs. McCord disagreed with the policy because it denied parents of their the right to be informed when their teenage children express interest in “transitioning” socially to the opposite sex. She also said, notably, that the way school officials treated her have violated her First Amendment rights to the free exercise of religion and free speech.

In the first of three closely related claims, Mrs. McCord alleged Free Speech Retaliation because officials threatened, and did, discipline her and other employees for not speaking its message about “transitioning” after she expressed her views about the board’s the Gender Support Plan policy. The policy obligates staff members in the district to “transition” students socially and can, in some instances, require them to hide it from their parents, Although the complaint did not mention Pierce, this clearly stands it on its ear as the counselor sought to protect both parental interests in the upbringing of their young and her own constitutional rights as set forth in her remaining counts.

Next, Mrs. McCord alleged that obligating her to participate in the Gender Support Plan policy, officials compelled her to speak or adopt the board’s viewpoint on a matter of public concern rather than permit her to criticize and remain silent in not enforcing the policy. Board officials not only threatened to discipline Mrs. McCord and other employees, but did so because she refused to agree to speak its message about socially “transitioning” students and not informing parents.

Mrs. McCord’s related third claim was that board officials engaged in viewpoint discrimination by requiring her and other employees to express the message that people can have gender identities inconsistent with their sexes. Further, she objected to the Gender Support Plan policy’s directing employees to “transition” students at times without informing their parents as she and her colleagues rejected the board’s approach of not informing parents about important actions taken in the lives of their children. Consequently, because the board terminated Ms. McCord’s employment, she charged it with engaging in the ultimate form of viewpoint discrimination in silencing (or cancelling, to use the current expression).

In her fourth claim Mrs. McCord, a practicing Christian, alleged that officials violated her right to the free exercise of religion by failing to meet their constitutional duty to act in a neutral and generally applicable manner toward her faith-based beliefs when enforcing its policies. The complaint explained that the board lacked the authority to engage in even subtle departures from neutrality on matters of religion, and that so much as a slight suspicion that board’s actions stem from animosity towards Mrs. McCord’s religious beliefs or practices violated her First Amendment rights.

Finally, Mrs. McCord alleged that officials violated Indiana’s Religious Freedom Restoration Act by substantially burdening her right to the free exercise of her sincerely held religious beliefs by adopting and enforcing its Gender Support Plan policy. Ms. McCord maintained that the board’s policy violated this state statute even if the burden it imposed on her beliefs resulted from a rule of general applicability, meaning it did not single out her or others for adverse treatment, because it substantially burdening her right to religious speech.

It is, of course, important for educators and parents alike to recognize that all students should be treated with respect and dignity. Yet, respect must go both ways. The actions of school officials in Mrs. McCord’s case and other districts raise serious concerns about whether educators are demonstrating mutual respect for parents when they usurp their authority to care for and shape their school-aged children, particularly on such intimate matters as sexuality.

Mrs. McCord’s situation also raises important questions about whether school officials are treating their staff members with the respect due professionals with whom there are legitimate differences of opinion, It is unfortunate that, rather than work with Mrs. McCord, board officials terminated her employment, ignoring her legitimate constitutional and statutory objections to their policy in areas where, based on precedent, she has strong arguments likely to prevail. Mrs. McCord probably will succeed, because along with having violated her First Amendment rights to free speech and the free exercise of her religion, officials imposed a substantial burden on her ability to practice her faith when terminating her employment.

A second possible reason why Mrs. McCord is probably going to prevail is grounded in Janus v. American Federation of State, County, and Municipal Employees, Council 31, a 2018 dispute involving compelled speech. The Supreme Court held in favor of a non-union public employee who challenged a law from Illinois that would have required him to pay fair-share representation fees to the union representing him and his colleagues for costs associated with the bargaining process. The Justices pointed out that because the union supported positions with which the plaintiff disagreed, his having to pay the fees violated his First Amendment right as a form of compelled speech. In a similar vein, obligating Mrs. McCord to comply with the Gender Support Plan policy would violate her speech rights because it would require her to adopt a position she cannot support due to her religious beliefs.

How an elected school board and its educational staff could implement a policy that ignores the legitimate wishes, and rights, of parents is, in the immortal words of the late, great Associate Justice of the United States Supreme Court, Antonin Scalia’s dissent in Lee v. Weisman invalidating prayer at public school graduations, “not to put too fine a point on it, incoherent.”

Even if school board members and educational officials believe they have the best interests of students in mind, they must recall that parents are their primary caregivers who support of their children while they are still living at home. The policy at issue is problematic for two other reasons.

First, one would hope that educational officials could work with parents, rather than keep important information from them about the welfare of their children. It is astounding that school officials can ignore the rights of parents in situations that can lead to life-altering consequences.

Second, the board policy at issue violated Mrs. McCord’s religious and free speech rights by seeking to compel her to violate her own deeply held religious beliefs about human sexuality as applied to her students. Further, the policy both suppressed her right to speak freely as a public citizen on a matter of public concern, a right of educators in public schools that the Supreme Court has long recognized, while simultaneously attempting to compel her to support a policy with which she has legitimate disagreements. If anything, Mrs. McCord should be commended for stepping up to keep parents informed as they look after the best interests of their children.

As this dispute wends its way through the courts, short of a mutually acceptable, amicable agreement between Mrs. McCord and her school board, one hopes that educators will recognize and respect proper boundaries. This would include accepting that parents are the primary caregivers for school-aged children, as well as modifying (if not rescinding), the current policy by working with parents rather than keep important information from them. In sum, educators must acknowledge that children must be nurtured under the primary guidance of their loving parents because they are “not mere creatures of the state” subject to the dictates of public school boards and educators qua policy-makers.