*183 PEOPLE v. BENNETT: ANALYTIC APPROACHES TO RECOGNIZING A FUNDAMENTAL PARENTAL RIGHT UNDER THE NINTH AMENDMENT [FNa]
Copyright © 1996 by the Brigham Young University Law Review; Daniel E. Witte; cite as: Daniel E. Witte, Comment, People v. Bennett: Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183.
Table of Contents
I. INTRODUCTION ........................................................ 186
II BACKGROUND: THE HISTORICAL EVOLUTION OF UNITED STATES PARENTAL
RIGHTS JURISPRUDENCE .............................................. 190
A. English and Early American Common Law Pertaining to Parental
Rights ............................................................ 190
B. Analysis of Parental Rights Under the Constitution ............... 193
C. Emergence of an Alternative Education Subculture ................. 195
III. PEOPLE V. BENNETT ................................................... 198
A. Facts ............................................................ 199
B. Reasoning of the Michigan Supreme Court .......................... 201
1. The Ruling ....................................................... 201
2. Points of disagreement between majority and dissent .............. 203
a. Bennett majority analysis characterizing parental right as
nonfundamental..................................................... 204
b. The dissent in Bennett ........................................... 205
IV. A NINTH AMENDMENT ANALYSIS OF THE BENNETT DECISION RESPECTING THE
EXISTENCE AND SCOPE OF A FUNDAMENTAL RIGHT TO DIRECT THE
UPBRINGING OF A CHILD ............................................. 206
A. Introduction: The Analytic Difficulty ............................ 206
B. A Teleological Interpretation of the Ninth Amendment ............. 208
C. Approach #1: Natural Law Theory .................................. 210
1. Precedent for protecting as a natural parental right under the
Ninth Amendment ................................................... 210
2. A unitary, expansive parental right .............................. 212
3. The Bennett rebuttal to the unitary right approach: redefining
one parental right into an indeterminent collection of fragmented,
illusory rights ................................................... 215
D. Approach #2: Original Intent ..................................... 217
1. Analytical framework of original intent approach ................. 217
2. American common law afforded strong and unquestioned deference to
parental decisions respecting the upbringing of a child ........... 218
3. Original intent analysis supports granting strong deference to
parental authority, because American common law afforded the
rebuttable presumption that parents were acting out of an interest
shared with their child ........................................... 219
4. Public policy scrutiny specific to the modern relevance of early
American common law: criticism of the common law presumption of a
common parent-child interest ...................................... 221
5. The principles of early American common law respecting parental
rights are clear and constitute sound policy today ................ 228
E. Approach #3: Public Policy and the State's Compelling Interest ... 235
1. Nature of policy analysis ........................................ 235
2. Policy arguments justifying a rational basis standard of
protection for parental rights .................................... 236
3. Preservation of a democratic republic based on social diversity
and pluralism ..................................................... 239
a. The totalitarian elimination of parental rights: an ideological
alternative to the American common law approach.................... 244
b. The alternative to parental rights used for historically
unpopular American subcultures: United States campaigns of
cultural genocide ................................................. 249
4. Options for redress of government agencies' errors in overriding
parental decisions ................................................ 255
5. Summary of public policy analysis ................................ 258
V. CONCLUSION .......................................................... 259
APPENDIX A: TEXT OF THE BILL FOR THE PARENTAL RIGHTS AND RESPONSIBILITIES
ACT OF 1995 ............................................................. 263
APPENDIX B: DEALING WITH DIVERSITY ........................................ 267
APPENDIX C: LIST OF PRINCIPAL SOURCES ..................................... 271
*186
The hand that rocks the cradle is the hand that rules the world.
--William Ross Wallace
I. INTRODUCTION
The bond between parents and their children is one of the most powerful of human relationships. Policies respecting parent-child relationships have profound ramifications for society as a whole. Thus, it comes as no surprise that parental rights issues have become a hotly debated area of legal jurisprudence. The heart of the debate is the question of how to resolve situations in which the state attempts to override parental decisions respecting the upbringing and care of a child.
People v. Bennett, [FN1] a Michigan Supreme Court case set in an education factual context, capsulates in microcosm the fierce, divisive, erratic, yet strangely low-profile legal debate that has raged over parental rights for most of the twentieth century. As a result, Bennett affords an important occasion to consider an issue that is rarely addressed directly by the courts: whether, under the Ninth Amendment, parents have a fundamental right [FN2] to direct the upbringing of their children. [FN3] If such a fundamental right exists, state attempts to override parental decisions [FN4] respecting the upbringing of a child are *187 subject to the strict scrutiny test. [FN5] Typical application of strict scrutiny would require the state to provide compelling evidence to justify state interference.
Part II of this Comment compares the standard of deference accorded parental rights under early American common law and the deference granted parental rights in recent court decisions such as People v. Bennett. Part II also sets forth three interpretive theories of the Ninth Amendment that have emerged in support of a fundamental right of parents to direct the upbringing of their children.
In addition, Part II highlights the disparity that some perceive between the expansive language higher courts have used to characterize constitutionally protected parental rights and the lack of deference many lower courts actually show when applying parental rights within specific fact settings. The failure of many courts, as in Bennett, to accord strict scrutiny deference to parental rights has evoked a grass-roots parental rights movement. One manifestation of grass-roots frustration *188 is the Parental Rights and Responsibilities Act of 1995, [FN6] proposed in the 104th Congress.
Part III sets forth the facts in People v. Bennett. It summarizes the majority's rationale for determining that parents do not have a fundamental constitutional right to direct the upbringing of their children, and also examines the dissent. The Comment traces the difference of opinion as to the existence of a fundamental right back to three sources: (1) disparate interpretations of convoluted legal precedent; (2) divergent views as to whether there is one unified parental right, or a collection of mini-rights collectively known as parental as parental rights; and (3) conflicting opinions over whether public policy favors the existence of a fundamental parental right.
This Comment will not attempt to explore the nuances in language contained in all the potentially applicable case law. Nor does this Comment attempt to identify every scholarly writing on parental rights issues. Instead, it approaches parental rights by considering these rights in light of pertinent legal interpretive philosophies and policy considerations. [FN7] This facilitates the establishment of a consistent, alternative framework for judicial evaluation of parental rights. *189
Part IV of this Comment adopts a teleological view of the Ninth Amendment; it assumes that the Ninth Amendment is to have practical efficacy in constitutional jurisprudence. Part IV then sets forth three independent interpretive theories of the Ninth Amendment that have been used by parental rights advocates in support of a fundamental right to direct the upbringing of a child: natural law theory, original intent interpretation, and public policy analysis. Arguments in opposition to each of these three theories are recognized, as are the implications of using the strict scrutiny test in matters implicating a fundamental parental right to direct the upbringing of a child. The Comment suggests that derogation of family relationships is at least as destructive [FN8] to a culture as the seizure of natural resources, a denial of free expression, or a denial of political representation.
This Comment concludes that, based on both legal theory and policy considerations, there is in fact a single expansive, fundamental right to direct the upbringing of one's children protected under the Ninth Amendment. The Ninth Amendment is an independent, though not necessarily exclusive, source of constitutional protection for this right. The parental right to direct a child's upbringing is not absolute. Yet in cases where no clear interests of any party other than state, child, and *190 parent [FN9] are at issue, any attempted governmental curtailment of the parental right to direct the upbringing of one's child should be subjected to strict scrutiny.
Regardless of the nature of the government interference or the particular interest of the child at issue, it should be incumbent upon the state to provide compelling evidentiary justification for interference with parental decision-making. The rational basis rule adopted by Bennett forces parents to provide conclusive evidence that the state's interference has no rational possibility for positively effectuating a legitimate state goal. As a practical matter, this standard is extremely difficult for parents to satisfy.
II. BACKGROUND: THE HISTORICAL EVOLUTION OF UNITED STATES PARENTAL RIGHTS JURISPRUDENCE
A. English and Early American Common Law Pertaining to Parental Rights
Blackstone, the renowned commentator on English common law, "deemed 'the most universal relation in nature . . . [to be] that between parent and child."' [FN10] "At the common law of England, a parent's right to custody and control of minor children was a sacred right with which courts would not interfere except where by conduct the parent abdicated or forfeited that right." [FN11] The home was considered "the keystone of the governmental structure." [FN12] "[T]he fundamental freedom of controlling the education and socialization [FN13] of one's children," [FN14] *191 including the child's "maintenance[,] . . . protection," [FN15] and "'[t]he right . . . to speak for the minor child,"' [FN16] was recognized at common law well into the twentieth century. The economic and political upheaval that accompanied America's post-Civil War Industrial Revolution resulted in a societal trend disfavorable towards parental rights, [FN17] particularly in situations *192 involving the parental rights of unpopular ethnic and religious subcultures. [FN18]
Consistent with the common law's deference to parental acts of maintenance, protection, and representation, early common law also accorded presumptive deference to educational decisions. Broad authority was accorded parents who were not interfering with the activities of anyone but their own child. [FN19] *193 Accordingly, parents retained the right to "withdraw children entirely from the public schools and send them to private schools, or provide for them other means of education." [FN20]
B. Analysis of Parental Rights Under the Constitution
Since the ratification of the Fourteenth Amendment, [FN21] the focus of the parental rights jurisprudence has gradually shifted from common law to constitutional law. Advocates of parental rights often identify the Ninth Amendment [FN22] as one primary source of constitutional protection for parental rights. [FN23] They assert that parental rights fall into the category of "other rights retained by the people," and that the Fourteenth *194 Amendment affords protection against federal or state infringement upon a fundamental parental right. [FN24] If there is a fundamental parental right, strict scrutiny must then be applied to any government interference with decisions made in exercise of that right. [FN25]
Supreme Court decisions such as Pierce v. Society of Sisters, [FN26] Meyer v. Nebraska, [FN27] and Wisconsin v. Yoder, [FN28] all seem to indicate that parental rights in some measure are protected under the Constitution. [FN29] Unfortunately, the Supreme Court cases that most directly support parental rights in the context of constitutional jurisprudence, such as Pierce and Meyer, were decided before the rational basis and strict scrutiny standards had been clearly formulated and uniformly applied. [FN30] Later cases, such as Griswold v. Connecticut [FN31] and Yoder, cited Pierce and Meyer. [FN32] However, these later cases typically provided no general analytical framework, were heavily permeated with other constitutional issues such as Free Exercise [FN33] or privacy rights, [FN34] had curious fact patterns involving rights of third parties, [FN35] restricted the applicability of *195 the holding, [FN36] and/or involved substantial plurality opinion language. [FN37] As a result, the case law language is so confused that it is susceptible to widely divergent interpretations. [FN38]
C. Emergence of an Alternative Education Subculture
In the 1970s and 1980s, a new subculture of alternative educators [FN39] emerged on a widespread basis, affording a new *196 venue for the debate over parental rights. Alternative educators, for an increasingly wide range of religious and secular reasons, elected to educate children at home or in unaccredited private schools, instead of conforming to public school institutional attendance and accreditation policies.
Public educators responded to the alternative education movement by attempting to compel parents to send their children to state-approved institutions. [FN40] Initially, public educators *197 generally prevailed on statutory grounds, usually in lower courts. Typically, prosecutors in the lower courts did not prove or even allege that the children were being inadequately educated because of parental decisions. [FN41] During roughly the same period, lower courts became especially active, in a variety of contexts, in overturning the early American common law precedent that favored broad parental rights. [FN42] However, as alternative educators began to challenge state actions in high courts on various constitutional grounds, the alternative educators began to prevail. [FN43] *198
III. PEOPLE V. BENNETT
It is against this background that Bennett arose. During the 1980s, Michigan public education officials mounted a statewide effort to compel all school-age children to attend accredited educational institutions staffed with certified teachers. This effort met with stiff resistance from private religious schools lacking state accreditation and from home educators. [FN44] The certification and accreditation requirements, if enforced against home educators, effectively would have precluded home education for the vast majority of families due to the narrow criteria applied when granting such status. [FN45] Thus, Bennett was part of what probably was one of the last campaigns to effectively eradicate alternative education on a statewide basis. [FN46] *199
Bennett has evoked widespread grass-roots criticism from alternative educators and family rights advocates. Frustration with Bennett and similar decisions has led to the introduction of the Parental Rights and Responsibilities Act of 1995, [FN47] which is currently under congressional consideration.
A. Facts
John and Sandra Bennett were the parents of four children: Scott, Erika, Jason, and Krista. All four children were between the ages six and sixteen, and thus were subject to the requirements of Michigan's compulsory school attendance law. [FN48] The four children attended public schools in the Plymouth-Canton district in Wayne County, near Detroit. [FN49] However, Scott's academic performance fell below standard, [FN50] and the Bennetts became dissatisfied with the quality of education their children were receiving. [FN51] The Bennetts' dissatisfaction stemmed not from religious conviction, but solely from their disagreement with the school district's pedagogical philosophy. [FN52]
After weighing the option of private school, the Bennetts elected to home educate their children. [FN53] They "believed that they could provide their children a better education than the *200 local public school, even though neither parent was a certified teacher." [FN54] The Bennetts did not re- enroll their children in public school the following academic year. Enlisting the aid of a home education support organization, Clonlara, Inc., they taught their children math, English, spelling, reading, writing, science, social studies, history and art for five hours a day, five days per week. [FN55] At the end of that academic year, standardized achievement test results indicated that Scott had made steady progress towards his proper grade level. Jason was at his proper grade level, while Erika and Krista tested above their grade levels. [FN56]
Despite the fact that the Bennetts were providing an education for their children at home, the Bennetts were criminally convicted of violating Michigan's compulsory attendance laws. [FN57] Prosecutors did not criticize the Bennetts' performance in providing a quality education, but based their case on the fact that the Bennetts did not utilize certified instructors. [FN58] The Bennetts were fined, ordered to subject their children to public school placement tests, and required to utilize certified teachers for their children's education. [FN59]
The Bennetts sought to overturn the convictions on the ground that the certification requirement violated "the power of parents to control the education of their own children" [FN60] mentioned in Meyer v. Nebraska [FN61] and Bartels v. Iowa. [FN62] The Bennetts contended that such power was a component of a fundamental parental right protected by the Fourteenth Amendment of the United States Constitution. [FN63]
Distinguishing Bennett from People v. DeJonge, [FN64] a companion *201 case which involved an additional free exercise defense, the court explained that parental rights alone, as exercised in an exclusively secular manner, were insufficient to prevent the state from overriding parental control concerning the selection of those who instruct their children. [FN65]
B. Reasoning of the Michigan Supreme Court
1. The Ruling
The court in Bennett held "that the teacher certification requirement [was] not violative of substantive due process guaranteed by the Fourteenth Amendment," [FN66] because "a *202 parent's Fourteenth Amendment right to direct a child's education is not . . . fundamental, and, thus, the strict scrutiny test is unwarranted." [FN67] The court added that "state interference with such rights deserves strict scrutiny only within the context of the First Amendment." [FN68] Instead of the strict scrutiny test which it applied in the DeJonge case, [FN69] the court in Bennett applied the "rational relationship" standard. [FN70]
The Michigan Supreme Court defined the "rational relationship" standard as "not requir[ing] the least intrusive or the most creative regulatory scheme." [FN71] The certification requirements need only be "a reasonable means to a legitimate state interest." [FN72] Further, the state need not contest the adequacy of the defendants' instruction or demonstrate that teacher certification bore a reasonable relationship to a legitimate state interest. [FN73] Instead, the court ruled that "it was defendant's burden to prove the unreasonableness of the certification requirement" [FN74] and that "a challenge fails if the relationship between certification or other state mandate and the legitimate state interest is "'at least debatable.""' [FN75]
In contrast to the "rational relationship" standard, "strict scrutiny" in the context of Bennett [FN76] would have demanded that (1) "a state regulation be justified by a compelling state interest," [FN77] (2) "the means chosen be essential to further that interest," [FN78] (3) "a compelling state interest . . . be truly compelling," [FN79] and (4) the state bears the "burden of showing that *203 the teacher certification requirement is the least intrusive means of discharging its interest in the education of the . . . children." [FN80]
2. Points of disagreement between majority and dissent
The key point of disagreement [FN81] between the majority and the dissent in Bennett was the issue of whether the parental right in question was a fundamental right. [FN82] "This issue is crucial because where governmental regulation impinges upon a fundamental constitutional right, the normal presumption of constitutionality accorded to governmental action is inverted. . . T he Court will insist that the governmental action be *204 justified as necessary . . . ." [FN83] Instead of asking the usual question whether the regulation has any conceivable rational basis, the court would have applied strict scrutiny to the state certification requirement if a fundamental right had been initially recognized. [FN84]
The difference of opinion as to whether strict scrutiny should apply to Bennett resulted from different views as to (1) how to interpret and weigh past legal precedent and (2) how to prioritize legal interpretive philosophies and public policy considerations underpinning parental rights.
a. Bennett majority analysis characterizing parental right as nonfundamental. The majority and minority reviewed several Supreme Court decisions, each citing some dicta that appeared to support its view of whether parents have a fundamental right to direct the manner of their children's education.
The majority relied heavily on its interpretation of concepts expressed in two different cases by the United States Supreme Court. In Runyon v. McCrary, [FN85] the Supreme Court stated that parents "have no constitutional right to provide their children with private school education unfettered by reasonable government regulation." [FN86] In another Supreme Court case, Wisconsin v. Yoder, [FN87] Wisconsin sought to enforce compulsory attendance laws over Amish religious objections. After ruling in favor of the Amish, the Court added in dicta that "subjective evaluation and rejection of the contemporary secular values . . . is philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses." [FN88]
Noting Runyon and Yoder, the Bennett majority asserted that "defendants have not presented any case that finds the existence of a Fourteenth Amendment fundamental right of parents to direct their children's secular education free of reasonable *205 regulation." [FN89] Furthermore, " no court has held that parents have a fundamental right to direct their children's education under all circumstances." [FN90]
b. The dissent in Bennett. Justice Riley's opinion for the dissent also cited Supreme Court opinions, [FN91] focusing on language favoring "broad parental authority over minor children," [FN92] recognizing that "bonds of affection lead parents to act in the best interests of their children," [FN93] and rejecting "any notion that a child is 'the mere creature of the State."' [FN94] Other quoted opinions stated that "the tradition of parental authority . . . is one of the basic presuppositions of our tradition of individual liberty ," [FN95] espoused the "liberty of parents and guardians to direct the upbringing and education of children under their control," [FN96] and deemed the right to raise one's child as "'essential,' a 'basic civil right of man,' and a ' r ight far more precious . . . than property rights."' [FN97]
Although the majority did not address the point, Justice Riley explained the reason for differing interpretations of legal precedent by the Michigan Supreme Court majority and minority:
[There is apparently] confusion arising from applying Supreme Court pronouncements of the 1920s and 1930s in modern cases. Earlier this century, *205 the Supreme Court had yet to develop the varying degrees of scrutiny ubiquitously applied in the modern era. The recognition of a constitutional right did not necessarily result in a clear specification of the particular degree of scrutiny to be applied. In fact, the Court not only explicitly recognized "fundamental rights of the individual" . . . but at the same time articulated a reasonableness standard. . . . Adding to the confusion was the Court's practice to articulate a reasonableness standard, while the application *206 of that standard often left no doubt that much stronger scrutiny was to be applied. [FN98]
Justice Riley thus recognized that federal and state court decisions, at all levels, have provided only minimal guidance concerning parental rights. Due to the volatility and complexity of the issue, courts tend to render indecisive, inconsistent opinions in major cases respecting parental rights. [FN99]
Justice Riley, acknowledging convoluted legal precedent, argued that sound public policy, in addition to original intent and natural rights analysis, supported broad parental rights. In articulating her principle policy objection, Riley wrote that "not only is family autonomy essential to the transmission of republican values, . . . it is a strong hedge against tyranny." [FN100] The majority did not address either of Justice Riley's above contentions respecting precedent or policy.
IV. A NINTH AMENDMENT ANALYSIS OF THE BENNETT DECISION RESPECTING THE EXISTENCE AND SCOPE OF A FUNDAMENTAL RIGHT TO DIRECT THE UPBRINGING OF A CHILD
A. Introduction: The Analytic Difficulty
Parental rights issues are particularly difficult for the courts. Policy concerning parental rights has a profound impact on nearly every aspect of society, so judges face a strong political backlash unless they handle parental rights cases to the satisfaction of entrenched interests. The issue is strongly polarized along ideological lines, is not conducive to compromise, and defies the more conventional methods of legal analysis. In short, parental rights jurisprudence is a legal lightning rod that most courts seek to avoid.
Courts that fall on opposite sides of the parental rights debate frame the issue very differently. Advocates of strong parental rights tend to focus on early American common law, natural law, and the affirmative parental rights language in U.S. Supreme Court decisions. [FN101] Public policy arguments as *207 to parental rights are often not explored in as much detail. Judges that favor constricted parental rights, on the other hand, rarely mention early American common law or natural rights. [FN102] Typically, such courts focus on only those policy arguments which are adverse to parental rights. Courts seeking to limit parental rights utilize more lower court decisions, discussing U.S. Supreme Court case law only in terms of identifying what state activities the language does not explicitly prohibit.
In Bennett, the majority dismissed the minority's legal precedent as "dicta," [FN103] while at the same time downplaying its own conspicuous reliance on dicta to support basic premises of its position. [FN104] As previously noted, advocates on either side of the parental rights debate can extrapolate language, often from the same case cited by their opposition, which appears to support their position. [FN105]
Rather than enmesh itself in such selective semantics, this Comment will utilize an alternative, cohesive framework for ascertaining the existence and scope of a fundamental parental right under the Ninth Amendment. It will discuss natural law, early American common law, and public policy arguments respecting parental rights. The three approaches will be addressed separately, but relationships between the three approaches will also be identified. *208
B. A Teleological Interpretation of the Ninth Amendment
This discussion of parental rights will be premised upon a teleological [FN106] interpretation of the Ninth Amendment. In contrast to former Judge Robert Bork's inopportune view that the Ninth Amendment is simply an "ink blot," [FN107] this discussion will proceed on the assumption that various methods of *209 interpretation can capably effectuate the Ninth Amendment's critical function within the Constitution. [FN108] Although a functionl *210 Ninth Amendment is not necessarily an essential premise to constitutionally derived parental rights, [FN109] such functionality is taken as a necessary premise to the analysis herein.
This Comment will now consider the rationale for broadly or narrowly construing, as applicable, a parental right under the Ninth Amendment, using three independent approaches: (1) natural law theory, (2) original intent interpretation, and (3) public policy analysis. These three approaches, separately or in combination, can colorably support parental rights under nearly any permutation of Ninth Amendment interpretation.
C. Approach #1: Natural Law Theory
1. Precedent for protecting as a natural parental right under the Ninth Amendment
The first Ninth Amendment interpretive framework stems from the premise that Ninth Amendment protection encompasses the natural rights of humanity. [FN110] Such a framework assumes as a "self-evident" truth that people have "certain unalienable Rights," derived from "the Laws of Nature," such as "Life, Liberty, and the Pursuit of Happiness." [FN111] The key question under this framework is whether the United States' constitutionally derived form of government was instituted, in part, to secure the parental rights of those whom it governs. [FN112]
Various courts have recognized that "the right of a parent, under natural law, to establish a home and bring up children is *211 a fundamental one and beyond the reach of any court." [FN113] Such courts acknowledge "the prior and fundamental right of a parent to rear his child , and concomitantly, . . . the right of the child to be reared by his natural parent." [FN114] In the case of In re J.P., [FN115] Justice Oaks of the Utah Supreme Court explained:
The rights inherent in family relationships--husband-wife, parent-child, and sibling--are the most obvious examples of rights retained by the people. They are "natural," "intrinsic," or "prior" in the sense that our Constitutions presuppose them . . . .
. . . .
This parental right transcends all property and economic rights. It is rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct. Thus, the United States Supreme Court has declared that "the liberty interest in family privacy has its source . . . in intrinsic human rights. . . ."
. . . .
. . . In the words of one family scholar:
Men and women in most cultures have long viewed their offspring as somehow being an extension of themselves, and as more than mere "property." . . . Thus, it is not surprising that common law judges refer to parental interests as "sacred," "natural," or "fundamental" rights, especially when the constitutional standard for a "fundamental" right is whatever judges find when they "look to the 'traditions and [collective] conscience of our people' to determine whether a principle is 'so rooted [there] . . . as to be ranked as fundamental.' The inquiry is whether a right involved 'is of such character that it cannot be denied without violating those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.""' [FN116] *212
"The [Supreme] Court has frequently emphasized the importance of the family. The rights to conceive and raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious . . . than property rights."' [FN117] The child's "favored, beneficent status in our social and legal systems does not detract from the well-settled rule that the right of parents to the custody of minor children is both a natural and a legal right." [FN118]
2. A unitary, expansive parental right
As a practical matter, there must be one expansive parental right to direct the upbringing of a child under natural law theory, as well as under the original intent and public policy approaches, if the intimate parent-child relationship is to be protected. This point is crucial and merits further consideration, because a court that explicitly or implicitly identifies a unitary, expansive parental right is very likely to adopt reasoning that favors deference to parental discretion.
As an initial matter, it is instructive to note the language courts in support of strong deference tend to use in characterizing what functions "'one of the highest of natural rights"' encompasses. [FN119] For example, one court noted:
As long as parents properly exercise their duty, under their natural rights, to rear, educate, and control their children, their right to do so may not be interfered with solely because . . . some other institution might be deemed better suited for that purpose. The children of the poor cannot be taken from them, and awarded . . . to some rich and powerful institution, merely because such . . . institution might, in the judgment of the court, do a better part by the child than the natural parents. [FN120] *213
Another court identified the link between legal protection of parental custody over a child and legal protection for the parent's control over the child's environment and activity, and advocated uniform protection for both facets of parental discretion:
[A] statute . . . cannot be constitutional . . . because there is only a "little" infringement on family autonomy. Rather, . . . there is no constitutionally permissible infringement of parental rights to custody and control without a showing of harm to the child. [FN121]
Such courts therefore recognize one expansive "fundamental liberty interest of natural parents in the care, custody, and management of their child." [FN122] "Care, custody, and management" of a child necessarily encompasses all aspects of a child's development, which results from the child's upbringing. [FN123]
Care, custody, and management of a child are inextricably interrelated as a practical matter; each is nearly meaningless without the others. [FN124] Cases pertaining to parental rights regarding naturally arising childbearing, custody, companionship, child rearing, and education functions all are properly considered to affect "the basic reason[ [FN125] why certain rights associated *214 with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause." [FN126]
Liberty is "a rational continuum [FN127] which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." [FN128] The implication of one expansive parental right is that when the state challenges a parental decision regarding, for example, the child's education, medical care, or religious upbringing, the state simply challenges one or more facets of the same parental liberty interest in the care, custody, and management of a child. [FN129] This is a practical reality regardless of whether the parental rights arising in conjunction with the naturally arising parental right are deemed to arise from natural law, or from some other source. *215
3. The Bennett rebuttal to the unitary right approach: redefining one parental right into an indeterminent collection of fragmented, illusory rights
As mentioned in Part III, the Bennett majority consistently couched the parental rights issue before them in terms of a "fundamental right in parents to direct the education of their children," [FN130] instead of characterizing the question as a parental rights issue. Since Meyer v. Nebraska [FN131] explicitly mentions "the power of parents to control the education of their own," [FN132] the Bennett majority thus was forced to add even more stipulations to justify its holding. [FN133] The majority did so by asserting that "defendants have not presented any case that finds the existence of a Fourteenth Amendment fundamental right of parents to direct their children's secular education free of reasonable regulation," [FN134] and " no court has held that parents have a fundamental right to direct their children's education under all circumstances." [FN135]
By portraying one constitutional parental right as a collection of myriad, fragmented, distinct individual "mini-rights," the Bennett majority facilitated a framework for according a parent's right to direct a child's education a less deferential *216 standard than, for example, courts have traditionally afforded to the right of child custody. [FN136]
The approach of the Bennett majority essentially allows a court to define every narrow exercise of parental action as a separate right. Each distinct question can then conveniently be accorded a different level of deference according to the sentiment of the court. [FN137] The Bennett majority opened the door for courts to redefine parental rights out of existence.
Parental rights are not a collection of numerous mini-rights, each to be afforded different degrees of scrutiny. Courts should apply strict scrutiny to protect the single, expansive, fundamental liberty interest of natural parents in the care, custody, and management of their child. Strict scrutiny should be applied regardless of what aspect [FN138] of a child's upbringing *217 the state seeks to override or limit. [FN139] Applying strict scrutiny does not create an impractical or unjust absolute parental right, [FN140] nor does it denigrate a child to the same status as "mere chattel;" [FN141] applying strict scrutiny merely insures that adequate procedures operate to prevent unwarranted state intrusion into private family functions.
Theoretically speaking, one need not accept natural right theory as a prerequisite step to finding for the existence of a fundamental Ninth Amendment right to direct the upbringing of one's child. However, it is important to analyze natural right theory, because natural right, original intent, and public policy analysis share many elements of analysis in common. [FN142] As previously discussed, natural right analysis tends to favor strong state deference to parental decisions affecting the parent-child relationship.
D. Approach #2: Original Intent
1. Analytical framework of original intent approach
The Ninth Amendment protects rights "retained by the people." Hence, it is instructive to examine the English and early American common law when evaluating constitutional protection of parental rights. An examination of the rights held by the people at the time the Constitution was adopted can be used to help define what rights were "retained" under the *218 Ninth Amendment. [FN143] Such an inquiry assumes, of course, that "' c onstitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action,"' [FN144] and "the meaning taken to be intended by the people is to be found in their common experience." [FN145]
2. American common law afforded strong and unquestioned deference to parental decisions respecting the upbringing of a child
As noted in Part II, American common law gave strong deference to parental decisions regarding all aspects of a child's upbringing. "The integrity of the family and the parents' inherent right and authority to rear their own children have been recognized as fundamental axioms of the Anglo-American culture, presupposed by all our social, political, and legal institutions." [FN146] "This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." [FN147] Indeed, some cases using the original intent interpretive approach suggest that common law incorporated parental rights as a natural right, [FN148] thereby *219 suggesting that original intent and natural rights analysis are completely congruous as to parental rights.
Ironically, the early American presupposition of the fundamental nature of parental rights is perhaps one of the very factors that has led to its less- honored status relative to other related basic rights such as freedom of expression or religion. Such a fundamental right can be "so generally admitted, and so seldom contested, that there [is] little occasion for its distinct assertion" [FN149] until the time when the right is most needed. Indeed, it probably never occurred to the Framers of the Constitution that parental rights could, as a practical matter, ever be called into question or challenged on a comprehensive scale by state apparatus. [FN150]
3. Original intent analysis supports granting strong deference to parental authority, because American common law afforded the rebuttable presumption that parents were acting out of an interest shared with their child
"It is fundamental to our jurisprudence that 'the custody, care and nurture of the child reside first in the parents."' [FN151] *220 Early common law, as well as many modern common law decisions, protected parental rights by in effect presuming not only that parents shared a common interest with children, [FN152] but that the state shared a common interest with the parent. [FN153]
Under early common law it was incumbent on the state first to show that the child, state, and parental interests were disparate, and second to show that some interest was sufficiently compelling to override parental custody. [FN154] "Simply because the decision of a parent is not agreeable to a child or because it involves risks did not automatically transfer the power to make that decision from the parents to some agency or officer of the state." [FN155] Courts noted that " t he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition." [FN156] *221
4. Public policy scrutiny specific to the modern relevance of early American common law: criticism of the common law presumption of a common parent-child interest
One criticism of the original intent approach that could be advanced is that the resultant decisions are based on outdated principles. Some courts question whether the common law presumption of a common parent-child interest is sound policy today. [FN157]
In the realm of family law, the presumption "that children ordinarily will be best cared for by those bound to them by the ties of nature" [FN158] serves a similar function as the presumption of "innocent until proven guilty" in criminal law, or the property law presumption of rightful possession which the plaintiff must rebut with a stronger claim. [FN159] Without such basic presuppositions, an existing orderly and secure society cannot long maintain itself.
Some criticize the presumption that parents share in and act for the child's best interest and that parents possess "superior opportunities of knowing the physical and mental capabilities . . . of [their] child." [FN160] Few of these critics, however, also scrutinize the instances where the state agency's "temporary interest in a child's welfare" [FN161] is acted upon by the agency *222 in a manner that conflicts with or is indifferent to the child's best interest. [FN162] Bennett is a good example of a situation in which the purported state interest and the child's interest diverged.
In Bennett, the majority acknowledged that "home schooling attracts some of the most resourceful and dedicated of parents who are often in least need of regulation or supervision in carrying out one of the most fundamental responsibilities of family and state." [FN163] The majority also acknowledged that academic development for at least one Bennett child had clearly been served by leaving public school for home school. [FN164] Yet the Bennett majority and the school districts advocated restrictions on parental rights, even though such restrictions were of dubious relevance, [FN165] and, by the available evidence, actually detrimental to the children. *223
The majority quietly hinted at the Plymouth-Canton school district's true concern in a footnote: "[I]f there were no teacher certification requirements, considerable expense would be required for the state to examine and supervise a wide variety of facilities and individuals, widely scattered throughout the state, who might wish to instruct children at home." [FN166]
Indeed, Bennett, [FN167] DeJonge, [FN168] and several other similar state and federal cases in the state of Michigan, all provoked by a widespread assault on parental rights by the Michigan public education system in the 1980s, demonstrate that education officials were more concerned about channeling money and prestige to their own system by bolstering enrollment figures [FN169] than they were about the best interests of the children in question. [FN170]
The Bennett majority failed to consult Supreme Court language as to the administrative cost issue. In noting the conflict that can arise between government agency interests and the rights of an individual, the Supreme Court has explicitly rejected the idea that the state interest in minimizing costs will independently stand as a sufficient state interest justification for state actions: *224
Procedure by presumption is always cheaper and easier than individual determination. But when . . . the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. [FN171]
The Supreme Court thus concluded that states may not casually deprive individuals of their basic rights to realize "some remote administrative benefit to the State." [FN172] A presumption created for state convenience [FN173] that is in effect "definitely conclusive--incapable of being overcome by proof of the most *225 positive character" [FN174] is "repugnant to the Equal Protection Clause." [FN175]
The conflict of interest between state agency interests and children's interests is national in scope, and is present with a variety of state agencies. It is clear that state agency conflict-of-interest problems are nationwide, and not just confined to Michigan. [FN176] In other states such as California [FN177] and Oregon, [FN178] public schools have shaped their policy [FN179] toward *226 private and home schools to optimize state tax revenue by consolidating power. [FN180] The empire-building mentality and *227 the desire for state funds may induce some public schools to violate state and federal law by recruiting and enrolling illegal aliens, or by otherwise inflating reported enrollment in public schools. [FN181] Questions have also arisen as to the care afforded to children by other state agencies. [FN182] *228
When the organizational pecuniary interests of state agencies are factored into the policy scrutiny of the early American common law principles, the case for dismissing those principles as obsolete becomes considerably less clear-cut than some might expect.
5. The principles of early American common law respecting parental rights are clear and constitute sound policy today
Conflicts of interest within state agencies can lead government institutions to put organizational interests ahead of child and parental needs. [FN183] However, the court system, which *229 usually is positioned to render judgments unencumbered by such conflicts of interest, is not an adequate substitution for the check against institutional abuse that strong parental rights represent.
Many courts have heavy dockets; they cannot allocate the court time and resources needed to identify and meet the individual needs of children in a manner comparable to the service provided by even the marginally involved parent. Additionally, the lack of resources combined with a fear of being second-guessed compels most judges to passively capitulate to state agency demands. [FN184] Without procedural protections arising from the common law policy of deference to parental rights, parents and children with modest means are quite vulnerable to unnecessary and/or harmful state intervention. Until there is a public outcry, judges tend to tolerate questionable evidentiary, [FN185] due process, [FN186] and enforcement [FN187] practices [FN188] *233 against questionably large numbers of vulnerable people [FN189] *234 when state agencies assert that it is necessary to protect a child and prevent chilling their intervention.
To summarize, original intent analysis yields a policy of broad deference to parental rights. [FN190] As demonstrated above by cases concerning parental rights in the education context, there is ample reason for courts to scrutinize not only the interplay between the interest of parent and child, but also the interplay between state and child/parent interests.
Due to inherent organizational design, state agencies have powerful incentives to make managerial decisions for children that are not in the child's best interest. Courts are unlikely to consistently check this organizational bias, because the pressures associated with heavy dockets combined with the professional risk of being second-guessed eliminates much of the incentive for judges to fill such a role. Protections afforded by presumptions favoring parental decisions cannot be adequately replicated with substitutes. The original American approach towards parental rights is sound policy in our modern era. *235
E. Approach #3: Public Policy and the State's Compelling Interest
1. Nature of policy analysis
In evaluating a proposition on the existence and protection of an alleged fundamental right, one should consider the important question of whether it is "a good idea for courts to be engaged in that kind of business." [FN191] In other words, is there a certain interpretation of the Ninth Amendment that is by necessity a logistic implication of meaningfully effectuating other constitutional provisions within the context of modern society? [FN192]
To answer the question posited above, this Comment will first discuss the primary policy rationale justifying the less deferential rational basis standard of protection for parental rights: (1) there is a state interest in having citizens constructively educated, socialized, and raised; and (2) given the realities *236 of the modern world, the traditional, autonomous, nuclear family is an outdated social mechanism for ensuring that children's needs are met.
This Comment will also discuss two public policy reasons why strict scrutiny should be applied to protect parental rights as a fundamental right under the Ninth Amendment. The first policy consideration involves the role that deference to parents plays in protecting the state's interest in preserving social diversity and pluralism. Initially, the Comment examines the effect that treating the parental right to direct the upbringing of a child as nonfundamental has had in selected countries outside the United States. The Comment then shifts the focus to the manner in which lawmakers, law enforcement, and lower courts within the United States have historically performed in the absence of protections derived from a fundamental right. Special emphasis is placed on the treatment of subcultures that have historically been unpopular.
The second policy consideration relates to the fact that the state typically does not provide redress for parents or children who are victimized by erroneous judgments imposed upon them by government agencies. Although parents are held to a high standard of care in a variety of ways, state agencies and employees are shielded from liability associated with many types of negligent activity.
The Comment concludes that policy considerations weigh in favor of strong deference to the right of a parent to direct the upbringing of one's child. Furthermore, any reduction or modification of the parental right has such a profound effect on society that it should be done only after an affirmative decision made by the voice of the people as manifested through their elected legislative representatives.
2. Policy arguments justifying a rational basis standard of protection for parental rights
The Bennett majority argued that the state has an interest in having citizens constructively educated, socialized, and raised. [FN193] Implicitly, by depriving the parents of control over *237 their children's educations, the majority also decided that the traditional, autonomous, nuclear family is an outdated social mechanism for ensuring that the state's interest is satisfied as it pertains to the education, socialization, and upbringing of children. Rather than working to strengthen families where possible, therefore, the majority implied that the emphasis should be on establishing a replacement organization to handle various facets of childrens' needs.
Other courts have been more explicit in relying upon this policy rationale. A decision by the New Hampshire Supreme Court succinctly summarizes the argument:
This court has [previously] recognized that "[t]he family and the rights of the parents over it are . . . natural, essential, and inherent" . . . Because of their fundamental importance, great judicial deference has been accorded parental rights. They have been found to operate against the state, against third parties, and against the child.
Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. The family has been seen as the "basic building block of society." Parental autonomy strengthens the family and the entire social fabric "by encouraging parents to raise their children in the best way they can by making them secure in the knowledge that neither the state nor outside individuals may ordinarily intervene."
The realities of modern living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation *238 upon which they are premised, the traditional nuclear family, has eroded. . . .
One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. . . . [O]ther caretakers often form close bonds and . . . become psychological parents . . . .
It would be shortsighted indeed, for this court not to recognize the realities and complexities of modern family life . . . . [FN194]
This rationale is used to justify unilateral judicial alteration of long- standing [FN195] social policies in favor of the family that continue to enjoy wide support from the general population. Because other sections of this Comment demonstrate the continued relevance of the family organization, [FN196] this issue will not be discussed here. *239
Rights pertaining to the family are embedded in the U.S. and state constitutions, as well as in statute and the common law. [FN197] A choice to legally shift from a family-based social structure to some organizational substitute, and to surrender the wide variety of rights accompanying a family structure to shift to an altered social order, is a decision of such tremendous magnitude that it should be affirmatively made by the voice of the people, as manifested by their elected legislative representatives.
3. Preservation of a democratic republic based on social diversity and pluralism
In Bennett, Justice Riley noted that sound public policy, in addition to legal, constitutional, and/or natural rights analysis, supported broad parental rights:
[N]ot only is family autonomy essential to the transmission of republican values, . . . it is a strong hedge against tyranny.
Monolithic control of the value transmission system is "a hallmark of totalitarianism," thus, "for obvious reasons, the state nursery is the paradigm for a totalitarian society." An essential element in maintaining a system of limited government is to deny state control over childrearing, simply because childrearing has such power. Even if the system remains democratic, massive state involvement with childrearing would invest the government "with the capacity to influence powerfully, through socialization, the future outcomes of democratic political processes." [FN198]
The Bennett majority did not, in any manner, address the public policy considerations raised by the dissent regarding plurality, diversity, or the preservation of democracy. [FN199] However, *240 these are important policy considerations that are commonly forwarded in support of strong parental rights; consequently, this Comment will accord them more detailed consideration.
Justice Riley is not the first to express concern about the role of parental rights in preserving intellecutal and cultural pluralism. The policy of strong parental rights inherent in early American common law [FN200] is consistent with the state interest in preserving societal pluralism, a state interest that the courts have consistently reaffirmed. Justice Oaks of the Utah Supreme Court explained:
Any invasion of the sanctity of the family, even with the loftiest motives, unavoidably threatens those [cherished] traditions and values. For example, family autonomy helps to assure the diversity characteristic of a free society. There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children. Much of the rich variety in American culture has been transmitted [FN201] . . . by determined *242 parents who were acting against the best interest of their children, as defined by official dogma. Conversely, there is no surer way to threaten pluralism than to terminate the rights of parents who contradict officially approved values imposed by reformers empowered to determine what is in the "best interest" of someone else's child. [FN202]
The United States Supreme Court appears to have adopted similar reasoning. In Meyer v. Nebraska, the Supreme Court noted:
For the welfare of his Ideal Commonwealth, Plato suggested a law [FN203] which should provide: *243
That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the off-spring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.
. . . Although such measures [to submerge the individual and develop ideal citizens] have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution. [FN204]
After repudiating standardized state socialization for children, the Supreme Court overturned a restriction on the use of foreign languages in private schools. [FN205]
Within the context of Bennett, Michigan's teacher certification requirements were effectively utilized as a means of imposing state dogma on children, over the objections of their parents. [FN206] In a democratic society where pluralism and tolerance for diversity are still widely accepted values, the tactics approved by the Bennett court are inappropriate. *244
a. The totalitarian elimination of parental rights: an ideological alternative to the American common law approach. Events of the twentieth century have verified the wisdom of the Supreme Court in supporting broad parental rights, and show that "[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only." [FN207]
To understand the significance of the Pierce/Meyer doctrine it is helpful to examine as a reference the stance on parental rights evident in the actions and basic political treatises supporting the Ottoman Empire, [FN208] National Socialism, [FN209] *245 Japanese Imperialism, [FN210] Communism, [FN211] and Iraq's Arab *246 Ba'th Socialist Party, [FN212] all of which stand in marked contrast *247 to the parental rights policy adopted by the U.S. Supreme Court in Pierce. [FN213]
Although these totalitarian regimes are dissimilar in many other aspects, they all rely heavily on techniques of mass socialization to maintain control. Consequently, these regimes espouse a common syllogism respecting parental rights, especially pertaining to education: (1) youth are a special community deserving of specialized attention; (2) the state should therefore have absolute power to isolate children from their parents and to train children in state-approved dogma; (3) the state's *248 absolute power is to be maintained by strict control over the selection of curriculum, instructors, caretakers, and academic credentials; (4) therefore, to protect the youth, the state can and should override parental rights, even if such action would offend the American judicial goal of reflecting "'traditional notions of fair play and substantial justice"' [FN214] in the law. [FN215] *249
b. The alternative to parental rights used for historically unpopular American subcultures: United States campaigns of cultural genocide. The totalitarian four-step paradigm is not confined to the realm of theory, even within the United States. Various state or federal entities have used public education to forward various concerted, officially articulated campaigns [FN216] *250 that effectively assaulted and reshaped American ethnic, [FN217] racial, [FN218] and religious [FN219] subcultures. Though the United *254 States has not attacked unpopular subcultures to the extremes effectuated in other countries, the human rights implicated in each case and the means by which those rights are violated are similar. [FN220] Despite the wishful thinking of at least one court, [FN221] public school systems that eviscerate parental rights and family autonomy cannot simultaneously stand as a "bulwark against tyranny" or as a "vehicle for self-reliant citizens." [FN222] Democracy in the context of pluralism and diversity requires a self-reliance that can only be achieved when different groups of people are allowed to decide for themselves how to best meet their own unique needs in the context of their family's singular circumstances. *255
4. Options for redress of government agencies' errors in overriding parental decisions
The Bennett majority inferred that parents sending their children to public school could "demand their [tax] money's worth of quality for their children" and that public school parents would in fact be more likely than home educators to see that their children would receive a quality education, since home education does not have a direct relationship between tuition or taxes paid and the resultant education. [FN223]
The Bennett court erred with its "tax money" theory [FN224] by assuming that students who have no legal alternative to public education [FN225] can always gain adequate redress for their grievances within the public education system. To put it another way, the court implied that the possibility of parental participation *256 and influence in a "democratic" public education process somehow compensates for violating parental rights. [FN226]
Even a cursory examination of the Bennett's alternatives [FN227] after the Michigan Supreme Court decision show that the Bennetts were left without any significant control of their children's education. Compelled to accept public school services, the Bennetts were unlikely to be able to shape their children's public education experience significantly. The school board would likely view any Bennett proposals for change as idiosyncratic, despite the Bennetts' previous successes in educating their children. [FN228] Pursuing a lawsuit in an attempt to override *257 public school internal policies, based on theories related to parental desires, would be an equally unlikely avenue for relief. [FN229]
In the wake of Bennett, families like the Bennetts become not only helpless with regard to shaping their children's educational experience, [FN230] but are also left without a remedy if the public school acts incompetently in teaching their children and/or coordinating with the parents. [FN231] Freed from accountability *258 or checks on their power, government agencies simply move on to generation after generation of children, regardless of the damage suffered by often unwilling participants. Individual families with comparatively limited resources are often powerless to defend themselves against many of the wide range of actions that could possibly be leveled against them. [FN232]
5. Summary of public policy analysis
Even if one rejects natural law and original intent approaches of constitutional interpretation, the public policy considerations in support of a broad, fundamental constitutional right for a parent to direct the upbringing of a child are considerable.
The discussion of public policy considerations respecting parental rights in Part IV.E is not meant to be comprehensive. *259 It has, however, hopefully identified some of the major policy considerations implicated by parental rights.
Part IV.E of this Comment is intended to show that the Bennett majority erred when it refused to candidly consider the distinctions between the approach towards parental rights set forth in Meyer v. Nebraska, [FN233] and the totalitarian syllogism articulated in section IV.E.3.a of this Comment. The mistreatment of historically unpopular ethnic, racial, and religious cultures discussed in section IV.E.3.b betrays the dramatic difference that the two approaches have on the family lifestyles of those affected. As section IV.E.2 mentioned, courts should wait for an affirmative signal by the people via their elected legislative representatives before changing policies respecting the legal status of the family that have such a tremendous impact on the nature of society.
Part IV.E.4 of this Comment also raises the concerns in conjunction with the double standard of care for children imposed on the state when compared with parents. Parents have a very taxing legal duty to care for their children. State agencies and officers, however, are accorded immunity as to many actions relative to children because immunity is deemed necessary to make state agency activity possible. The unfortunate side effect is that the best result parents can hope for is to avoid being censured by the state. Children who are harmed by overt abuse or benign neglect resulting from state-imposed decisions are left without recourse. [FN234]
Had the Bennett majority properly considered these policy issues, it would have been more likely to apply strict scrutiny to state intervention. The family is still the popularly preferred social mechanism in this modern era for meeting the needs of individuals.
V. CONCLUSION
This Comment has examined the conclusion in Bennett, discussed in Part III, that there is no fundamental parental right to direct a child's education. If a parental right is not fundamental, strict scrutiny is not applied, and the state does *260 not assume the burden to prove that overriding parental wishes is necessary. [FN235]
Part II of this Comment noted the great deference to parental rights afforded by English and early American common law. The United States Supreme Court also has characterized parental rights in a way that appears to demand deference to parents as a matter of constitutional law. Although this deference often was not accorded equally to parents of historically unpopular subcultures, the general concept of a strong parental prerogative was generally unchallenged until the latter half of the twentieth century.
The clash between a subculture of alternative educators and state agencies has afforded the most recent opportunity to examine parental rights issues. Lower courts often overturned the deferential common law protection of an expansive parental right. However, higher courts and statutory reform are beginning to reverse the erosion of parental prerogative.
Part IV identified the reasons for the muddled state of parental rights jurisprudence. Rather than synthesizing semantic constructions from cases in an attempt to identify a consistency that does not exist, this Comment argued a teleological view of the Ninth Amendment. This Comment then clarified the effect of the three general approaches used by courts to interpret the constitution on the analysis of a parental right derived from the Ninth Amendment. Discussion included the relationships that exist between the three separate, but overlapping, approaches of natural law theory, original intent, and public policy state interest analysis.
Courts favoring strong deference to an expansive parental right often focus on natural law and/or original intent arguments, usually incorporating policy arguments as an after-thought. On the other hand, courts favoring weak deference to ill-defined parental rights typically bypass natural law and original intent entirely and focus instead on public policy justifications related to the state's interest in the well-being of children. Each facet of a child's upbringing is deemed to be a separate right, with different levels of deference accorded depending upon the judge's policy-based sentiments.
When courts work through the maze of arguments addressed in Part IV of this Comment, it is easy for them to forget *261 the larger perspective and get lost amid the detail involved in a particular case. Courts understand that natural law and original intent approaches almost always weigh heavily in favor of strong deference to an expansive parental right. Less widely understood, however, is the fact that sound public policy also weighs in favor of an expansive parental right.
As noted in Part IV.E, courts that erode the parental right to direct the upbringing of a child have generally overstated the strength of their public policy justifications. Often such courts deliver a skewed rationale that fails to acknowledge countervailing policy considerations. Although state, parent, and child have many interests that can superficially be characterized as countervailing, a careful analysis suggests the trio often share a common long- term interest in obtaining the same outcomes.
This Comment has noted with particular concern the issues that arise due to organizational incentives built by design into the bureaucratic system. The pecuniary and power motivations noted in Parts IV.D.4 and IV.E.3-4 suggest that heightened protection for parental rights is warranted because state agencies are not always organizationally inclined to act in the best interest of family members. A democracy based on pluralism, tolerance for diversity, and an information-based economy must necessarily be founded upon state deference to parents who are directing autonomous family units. Most interests that favor conflicting dispositions can be reconciled by thoughtfully analyzing (1) the nature of the rights asserted, and (2) the actual costs and benefits that available alternative resolutions represent relative to the asserted rights.
Natural law, original intent, and public policy approaches all lead to the same inevitable conclusion: substantial justification exists for recognizing a broad, fundamental parental right under the Ninth Amendment of the United States Constitution. As discussed in Part III.B.1, strict scrutiny is the appropriate level of protection for a fundamental constitutional right. The strict scrutiny test dictates that state intervention is proper only if (1) a state regulation can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to interests the state may lawfully protect, and (4) the state fulfills its *262 burden of showing that the tactic used is the least restrictive means of discharging its interest. [FN236]
This Comment urges an interpretation of the Ninth Amendment whereby parental rights, a basic civil right that is as precious as other rights specifically enumerated in the Bill of Rights, can receive more than the erratic and often diminished protection that courts such as the Michigan Supreme Court have accorded it in recent years. *263