Mr. Chairman and honorable Members of the Committee:
My name is Michael Farris. I am the president of the Home School Legal Defense Association. Our organization is the largest home schooling organization in the nation representing over 51,000 member families, made up of some 200,000 children (home school families are twice as large as the national average).
I have been involved in the field of constitutional litigation for most of the nineteen years I have been engaged in the practice of law. The vast majority of my cases have involved parental rights and religious liberty, particularly in the field of education. In recent years I have done an increasing number of cases involving parental rights in the context of social services investigations as well.
In 1993, this Congress passed the Religious Freedom Restoration Act to ensure that the free exercise of religion would be accorded appropriate treatment in the federal and state courts as a fundamental constitutional right. That bill passed unanimously in this chamber and with only two dissenting votes in the Senate. I was the co-chairman of the drafting committee for the coalition which backed that legislation. And I have worked closely with Senator Grassley and Congressman Largent in the drafting of the Parental Rights and Responsibilities Act.
This bill is very much like the RFRA. That 1993 Act was enacted to ensure that the free exercise of religion was treated as a fundamental right. This 1995 Act is similarly designed to ensure that the right of parents to direct the upbringing of their children is also treated as a fundamental right.
Support for this legislation means that a sponsoring member embraces the notion that the right of parents to direct the upbringing of their children is one of the most important principles of constitutional liberty in our nation and should be accorded the same high level of treatment as freedom of speech, freedom of the press, freedom of assembly, and the free exercise of religion.
None of these freedoms are absolute. And the bill before you today is not written in terms of an absolute right. But like the freedoms of press, speech, assembly, and religion, the freedom of a parent to direct the upbringing of his or her child is one of the central freedoms our nation has protected and enjoyed throughout its existence. Parental rights should be protected from government intrusion at the same high level as these other fundamental freedoms.
To hold parental liberty against government intrusion at this high level of esteem and protection is not a novel concept. In fact, the most significant difference between the PRRA and the RFRA is the fact that the Supreme Court has upheld parental rights to be a fundamental freedom. Unlike the RFRA, we are not trying to reverse a Supreme Court decision.
Any legitimate reading of Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Wisconsin v. Yoder, 406 U.S. 205 (1972); leads to the conclusion that the right of parents to direct the upbringing of their children is a fundamental constitutional right.
In Parham v. J.R., 442 U.S. 584 (1979), the Supreme Court gave an extremely strong endorsement of parental authority to control the important decisions which concern their minor children. In that case, Chief Justice Burger wrote for the majority:
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) ... [other citations omitted]. . . . The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. I W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190.
Despite this ringing endorsement from the Supreme Court, lower courts are a little more mechanistic. They will search this passage and say, "Well, yes, the Supreme Court said parental rights are very important, but they did not use the magical phrase 'fundamental rights.'" Simply put, the Supreme Court has failed to use explicit enough language, and has failed to take enough parental liberty cases in the past twenty years. Lower state and federal courts, and the countless government agencies just don't seem to understand that parental rights should be accorded this high level of legal protection.
Religious liberty was undermined by a single stroke of a Supreme Court guillotine in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Parental liberty is dying from the cuts of a thousand switch blades. Congress responded to its constitutional duty to protect the liberties of Americans with the Religious Freedom Restoration Act. We earnestly urge that this body do the same thing to protect parental liberty against government intrusion.
There is no question that parental liberties are being undermined because lower courts and numerous government agencies steadfastly refuse to employ the correct legal standard in evaluating a claim of parental liberty against a governmental intrusion.
In 1980, the Supreme Court of Washington issued perhaps the most infamous decision in the history of American parental rights. In the case of In re Shiela Marie Sumey, 94 Wash. 2d 757, 621 P.2d 108 (1980), parents lost custody of their young teen-aged daughter to the state. What had they done wrong? They tried to stop their daughter from using drugs and stop engaging in premarital sexual activity. Their rules were reasonable, and their methods of enforcing those miles were also reasonable.
However, when they had difficulty getting their daughter to obey, the parents asked the state for assistance. Rather than telling this girl she was required to follow her parents' instructions, the State of Washington took this girl from her parents. The grief that ensued for both parent and child is incalculable.
Shiela Marie Sumey is now in her thirties. She is supporting this legislation because she knows that her life has had substantially greater difficulties because the courts in Washington state sided with government agencies and against her parents.
The dissent in Sumey makes it clear that the majority reached the wrong conclusion because a failure to employ the fundamental rights standard. If the PRRA law had been on the books in 1980, in all likelihood Shiela Marie would have been directed back to her parents instead of to the street.
After the Sumey case came down, I personally handled another case in Oak Harbor, Washington, where a child was removed from his mother because he didn't want to go to church on Sunday night and Wednesday night. He was willing to go to church Sunday morning. The social workers took the position that three church services a week was too much. Unfortunately, the court sided with the social workers not the parents.
In 1993, the Supreme Court of Michigan considered two home schooling cases which were consolidated for oral arguments. I argued both cases before that court. There were two families who claimed that the Michigan law which required all teachers to be certified was an unconstitutional infringement on their rights.
One family, the DeJonges, are a Christian family who home schooled their children for religious reasons. In their case, the Supreme Court of Michigan used the fundamental rights test and concluded that the statute was unconstitutional because it violated the principles of religious freedom when combined with parental rights. People of the State of Michigan v. DeJonge, 501 N.W.2d 127 (Mich. 1993). However, the second family, the Bennett family, was home schooling for non- religious reasons. For that family I argued that their right as parents to direct the upbringing of their children was also a fundamental right. The Bennett opinion was issued the same day as DeJonge. But in this second case, the parents lost their constitutional claims because the Court said that the fundamental rights analysis did not apply to a parental rights claim standing alone without a religious component. People v. Bennett, 501 N.W.2d 106 (Mich. 1993).
I try to be a thorough lawyer. Accordingly, I also raised some procedural questions concerning the Bennetts' criminal convictions for home schooling as well. We won on those technical procedural grounds.
But the bottom line is that once those procedural matters are cured, secular families may be criminally prosecuted for home schooling in Michigan. Religious parents may not. We believe that parental liberties should be fundamental so that all parents have equal rights to home school, choose private schools, or choose public schools. This bill will ensure that all parents enjoy this right on an equal and high level.
Two cases I am currently involved in demonstrate that not just courts, but lower level officials as well need to understand that parents have fundamental rights when it comes to government intrusions into their life.
Last week, I attended depositions in a case we have pending in federal court in California. In this case, social workers investigated a family for alleged abuse. What had they done wrong? Only three items appear on the intake report: a person told a neighbor and that neighbor told the social services agency that a child's voice was heard in the night yelling, "no, daddy, no." The other two facts listed under "risk factors" was that this family home schooled and was very religious?
The social worker had been shown the children by their mother at the door. The socialworker concluded that they did not appear to be abused. Despite that observation, and without a warrant, she and a police officer entered the home with threats of breaking down the door. The social worker proceeded to demand a strip search of the children. One child was strip searched. The social worker gave up searching the others after she found nothing.
In their depositions, the police officer and social worker both testified that they always enter a parent's home and they never get a warrant. They care so little about parental rights that they threaten force and simply go in and do what they like-including strip searches.
Last week, we became involved in a bizarre abuse of parents by the government in Pittsylvania County, Virginia.
A family refused to allow a warrantless entry into their home by a social services worker. Consequently, the social worker went to the court clerk, who issued a subpoena demanding that the parents bring their children into to talk with the social worker.
There was a glaring problem with the subpoena. No case had been filed. The social workers and court clerk cared so little about parental rights, that they issued bogus subpoenas for non-existent cases. And when challenged, they simply said, "That is our practice for noncooperative parents."
If this legislation is passed, social workers will still be allowed to conduct investigations-but practices like warrantless searches, threats of force, and bogus subpoenas will have to stop. Right now, parental rights are treated as inconsequential by such agencies. Government agencies need to learn that parental rights are indeed fundamental.
Attached to my testimony you will find excerpts from four briefs filed by high-ranking government lawyer in cases I am handling and have handled in the past. In each of these cases, the government agency came to court and argued that the right of parents to direct the upbringing of their children is a second tier right, and is not a fundamental right. The Attorney General of Michigan, the Attorney General of South Carolina, the Attorney General of Tennessee, and the United States Attorney for the District of Columbia have all argued that parents' rights claims should be evaluated under the lower tier of constitutional protection.
Incidentally, the case involving the U.S. Attorney here in the District is a suit we have filed against the Secretary of Defense for excluding home schoolers from the military. Their enlistment policy is supposedly based on attrition rates. However, home schoolers have better attrition rates than all but one of ten other educational subgroups and slightly better attrition rates than public school graduates. Nonetheless, the United States Military assigns home schoolers to a lower tier for admission, blocking most home school applicants from the military. When we challenged this, the Secretary of Defense has replied, in effect, "our policy of denying entry to children whose parents have chosen home schooling is not a violation of parents' rights."
Government lawyers, government agencies, courts, and the United States Military all need to know that this nation believes that parents' rights are fundamental. They need to know that parents whose rights are threatened by governmental intrusions will receive the highest level of legal protection, not some second tier, lower level of protection. They need to know that the government cannot run over those parents and decide for itself how children should be raised.
I would like to say a final word about federalism. I am a staunch believer in the Tenth Amendment. I believe that Congress should only do those things that are explicitly authorized in the Constitution. I am not a fan of implied congressional power.
But I believe that Congress has a solemn obligation to do its utmost to discharge all of its explicit constitutional duties. One of those duties, pursuant to section five of the Fourteenth Amendment, is to protect the rights of American citizens when state governments diminish or violate those rights. The right of parents to direct the upbringing of their children has been grounded in the Fourteenth Amendment for nearly seventy-five years.
I believe that the Supreme Court was absolutely correct in saying that it was a violation of the Fourteenth Amendment of the United States Constitution for the State of Oregon to ban private education in the 1920s. Pierce v. Society of Sisters, 268 U.S. 510 (1925) was correctly decided.
I would submit that if the Supreme Court correctly discharged its duties as a branch of the federal government to protect the rights of American parents when a state went too far, this Congress has a co-equal duty to protect the constitutional liberties of American parents.
State courts, state agencies, lower courts, bureaucrats, and lawyers are diminishing the rights of American parents. This bill does not create any federal programs. It does not spend a dime of taxpayer money. It does not create a single administrative position. It simply sets a legal standard. Adoption of this bill will indicate that this Congress believes that parents rights are fundamental nothing more, nothing less.
It is on the basis of this principle that this legislation has been drafted, and we respectfully submit that the Parental Rights and Responsibilities Act deserves wide support and rapid approval.