Document Type

Article

Publication Date

2024

Status

Forthcoming

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 legacy of Meyer and Pierce expanded to include First Amendment concerns of religious exercise and knowledge acquisition; 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 topic where Meyer-Pierce rights seem exceptionally strong -- regulation of parental consent to gender-affirming medical care for minors suffering from gender dysphoria. Petitions for certiorari in cases on this subject, arising out of Kentucky and Tennessee, are now pending at the Supreme Court, and a grant seems likely. Part II. B. analyzes issues in education. These include 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 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 varying degrees of relevance and strength. Comparison among them illuminates the current scope and likely future of parents’ constitutional rights.

GW Paper Series

2024-01

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