NC Family Staff | May 6, 2022 | SHARE: 
What exactly does the law say about parental rights, and how far do they extend? These are important questions to answer, as more and more parents are finding themselves faced with violations of their fundamental rights to parent their children.
The North Carolina Institute for Constitutional Law (NCICL) recently released a resource for parents to help answer these questions (and more) about parental rights. Jeanette Doran is president and general counsel for NCICL, and she joins host Traci DeVette Griggs on this week’s episode of Family Policy Matters to discuss this resource, entitled “Parents Constitutional Right to Parent Without Government Interference: What Every Parent Needs to Know.”
Doran explains that while the U.S. Constitution does not expressly discuss parental rights, this does not mean these rights don’t exist. “In fact,” she goes on, “when we talk about these sort of fundamental liberty interests, fundamental liberty rights, the right to parent your own children has been described as the oldest of the fundamental liberty interests.”
“We have at least a century of U.S. constitutional jurisprudence explaining that the history and culture of Western civilization reflects a strong tradition of parental rights,” Doran continues, and the U.S. Supreme Court has described parental rights as “beyond debate as an enduring American tradition.”
Doran says that parents often simply are not aware of how the Constitution and Supreme Court jurisprudence protect their rights to parent. To avoid challenges to their rights before the challenges arise, parents need to research and educate themselves.
“Sometimes parents get scared when they talk with schools or even neighbors; they feel bullied, so they back down. […] What we want to do here at NCICL is make sure that parents know what their rights are, so they can stand up for them and not get bullied by government bureaucrats.”
Tune in to Family Policy Matters this week to hear Jeanette Doran share more about how parental rights are protected in a variety of ways.
And keep an eye out of the newest edition of NC Family’s Family North Carolina magazine, hitting mailboxes this month, to learn more about the fight for parental rights and how you can be informed and prepared!
TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. Astonishingly, we’re seeing numerous challenges across our nation regarding a parent’s rights to decisions about their own children. Well, what exactly does the law say about parental rights, how far they extend, when they are legally limited, and what should parents know about their rights before engaging with schools, doctors, and politicians?
Well, with answers to those questions, we’re pleased to have with us today Jeanette Doran, president and general counsel of the North Carolina Institute for Constitutional Law. That organization recently published a helpful parental rights guide, and she’s here to talk to us today about that.
Jeanette Doran, welcome to Family Policy Matters.
JEANETTE DORAN: Well, thank you so much for having me.
TRACI DEVETTE GRIGGS: So, North Carolina has been involved in some pretty high-profile parental rights cases. Can you tell us a little bit about those?
JEANETTE DORAN: The big North Carolina cases have usually revolved around custody disputes between parents or between parents and grandparents. We had one pretty significant one that was in the adoption context. We haven’t had North Carolina cases, though, developing the issue in the context of government attacks on parents. That’s for the most part. There have been a few tangential matters; those have arisen in kind of abuse cases, and that’s a good sign. We haven’t seen cases where the government has just said, “Hey, we’re taking over because we like our way better.” But we do need to be vigilant. We need to make sure that things stay that way and that we don’t end up becoming one of those states where every time we turn around, government is trying to tell us how to raise our kids and how to be moms and dads.
TRACI DEVETTE GRIGGS: Okay. Give us a few examples of the ways that government is trying to take over in other states.
JEANETTE DORAN: I’m sure the folks listening to your podcast have probably heard some of the horror stories, where we’ve got schools coming in and trying to really micromanage things that are going on in the home, on the grounds that they’re being picked up in the background on Zoom, for example, when so many schools were transitioning to remote learning. We also see it when we have these constant attacks on statutes that require parental notification where a minor girl is seeking an abortion. So we see a lot of that kind of litigation all across the country, but fortunately we’re not yet seeing a ton of that here in North Carolina. But that doesn’t mean that we shouldn’t be or don’t need to be vigilant about it.
Sometimes parents get scared when they talk with schools or even neighbors; they feel bullied, so they back down. That’s also a trend that’s harder to track in terms of litigation because people just give up; they get scared and give up. So, what we want to do here at NCICL is make sure that parents know what their rights are so they can stand up for them and not get bullied by government bureaucrats.
TRACI DEVETTE GRIGGS: Well, it’s probably good for us to know, then, that the U.S. and North Carolina Constitutions both have something to say about parental rights. Tell us what that is.
JEANETTE DORAN: If we look first to the U.S. Constitution, a lot of the cases that we see rely on the Due Process Clause of the 14th Amendment, and that the state equivalent of that in the North Carolina Constitution is Article 1, Section 19 in our Declaration of Rights. We also see some case law that talks about the 9th Amendment to the U.S. Constitution—that’s something a lot of folks don’t hear much about, but that’s a constitutional amendment in the Bill of Rights—it says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people. So, just because there isn’t a specific portion in the U.S. Constitution or the state constitution that says there is a constitutional right to parent, doesn’t mean it doesn’t exist. In fact, when we talk about these sort of fundamental liberty interests, fundamental liberty rights, the right to parent your own children has been described as the oldest of the fundamental liberty interests.
We have at least a century of U.S. constitutional jurisprudence explaining that the history and culture of Western civilization reflects a strong tradition of parental rights. In fact, even in 1972, the U.S. Supreme Court said that right was so well-established that it was “beyond debate as an enduring American tradition.” So, fortunately because we have all of this jurisprudence that this is a constitutional right, most of the time when we look at statutes, we’re seeing statutes that comply with the constitutional right to parent. Sometimes, we’re seeing either current or proposed legislation that would sort of highlight what is already a constitutional principle.
TRACI DEVETTE GRIGGS: So, why do you think some state governments feel so threatened by parents’ rights to make decisions about their own children?
JEANETTE DORAN: Oh, I think that comes down to a control issue, and that’s unfortunate, but I think we’ve gotten to a point in American politics and culture when we no longer have the same kind of respect for the prerogatives of parents to parent their children. Couple that with agenda-driven activists. Whether they’re liberal or progressive or whatever their ideology is, we’ve got these activist groups that are coming in and they just want power, and because they want so much power and because they have so little respect for the right of parents to parent, so little respect really for the family unit, they’re taking every opportunity they can—either culturally, legislatively, or through litigation sometimes—to gain their power over the current circumstances and even projecting that to future ambitions. They’re looking at a way to say to our young children, “Rely on government; rely on us; rely on the ‘woke’ mob; rely on social justice warriors, what have you. Don’t bother listening to your parents.” And I think that’s a cultural phenomenon that is bleeding over into the law.
TRACI DEVETTE GRIGGS: There are times, of course, when something is going on inside the family that somebody does need to intervene. So, how do we balance the rights of children and the rights of parents, especially in areas like privacy when it comes to medical or school records, but also for other issues such as abuse?
JEANETTE DORAN: Well, that’s a tough one. So many of these issues are really fact driven, and I mean, consider a sad situation where we’ve got a child being abused. Well, a parent shouldn’t be allowed to continue beating their child and tell investigators, “You’re not allowed to examine the child and you’re not allowed access to any medical records of all these countless visits to the emergency room.” But that’s on the extreme end. We also can’t have a government willy-nilly claim—without support—that a child’s record should be turned over to the government. Courts are clear that the right to parent—like other rights—isn’t absolute.
Even back in 1944, the U.S. Supreme Court upheld a conviction of a woman who had been charged with violating child labor laws for allowing her niece and her sons—she had custody over the niece—she was letting them work as street preachers well into the night. The Court said her conviction could stand, or the constitutional right to parent didn’t extend to putting the child in that kind of environment where she’s standing at a street intersection preaching in the middle of the night. But even back then, the Court was clear that it was not, in its words, “laying a foundation for any and every state intervention.”
So, it’s always going to be a balancing test. When we look at case law that talks about this constitutional right to parent, there’s a lot of discussion in those cases about the origin of that constitutional right, and that it comes from not just the right to the comfort and care of and companionship between a parent and child, but also because of the parent’s massive responsibility to bring up their children. As a parent myself, I can tell you that is the biggest responsibility out there. I’m sure parents around the world would agree.
TRACI DEVETTE GRIGGS: What would you say are the most important things for parents to know if they are facing what they consider to be a challenge to their parental rights?
JEANETTE DORAN: I think the first thing that they need to know is before there’s even a challenge. So, try to take a few minutes to take a look at various online resources, including the brief memo that we put together here at North Carolina Institute for Constitutional Law about the rights of parents. But educate yourself about that from our resources, from resources within other organization, and if you are challenged, know what your rights are. Seek out support. There are a lot of groups that exist in various contexts that can help parents find legal assistance—religious liberty groups, education groups, family groups. They often have either formal or even informal networks that can help connect parents in need with legal support. But start before there’s a problem, before there’s a challenge. Just know generally what your rights are as a parent.
TRACI DEVETTE GRIGGS: So, you did mention that we need to remain vigilant, and just because maybe we’re not seeing some of the challenges that other states are seeing right now, we should still keep an eye out. What do you suggest would be ways that our policy makers could strengthen parental rights here in North Carolina?
JEANETTE DORAN: First and foremost is just the basic: they need to be sure that they’re listening to the people; they should consult with the people they represent. But in a more nuts and bolt sense, you look at things like a Parental Bill of Rights that was recently proposed by some friends of mine over at the John Locke Foundation, and similar minded organizations have supported the idea of a Parental Bill of Rights. It shouldn’t be necessary, but times are what they are. I think that’s a good approach for legislators to look at; look at a Parental Bill of Rights just to highlight and reinforce what we already know to be the constitutional framework for the right to parents. But legislation that particularizes that and flushes that out would prove to be very useful in preventing erosion of the constitutional right to parent.
Frankly, voters need to hold officials’ feet to the fire. Follow what’s going on at the local level and at the state level. Also, pay attention to judicial races. Judicial races are critically important if we have activist judges. It doesn’t matter what we have in statute or in the Constitution if we’re going to have some activist judge who just goes out and decides to ignore or rewrite what the law is. So, follow those races as well as school board races and county commission races and state legislative races.
TRACI DEVETTE GRIGGS: We’re just about out of time. Jeanette Doran, where can our listeners go to find a copy of that very helpful guide, “Parents Constitutional Right to Parent Without Government Interference: What Every Parent Needs to Know.”
JEANETTE DORAN: That can be found on our website, which is NCICL.org. That stands for North Carolina Institute for Constitutional Law.
TRACI DEVETTE GRIGGS: Alright. Jeanette Doran, president and general counsel of the North Carolina Institute for Constitutional Law, thank you so much for being with us today on Family Policy Matters.
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