Thursday, January 23, 2014

Parental “Liberty” to Direct the Upbringing, Education, and Care of a Child

Sen. Dennis KruseWhat would a session of the Indiana General Assembly be without a crazy bill from Sen. Dennis Kruse (R-Crazytown)? For those who don’t remember Sen. Kruse (actually, he’s from District 14 in Northeast Indiana, not Crazytown…), he is the state senator who wants children to recite The Lord’s Prayer, wants to require federal law enforcement officials to get the consent of country sheriffs before making arrests for federal crimes, and is afraid of the Agenda 21 bogeyman. For the 2014 session of the Indiana General Assembly, Sen. Kruse has introduced Senate Bill 100 (SB100):

Sec. 2. The liberty of a parent to direct the upbringing, education, and care of the parent’s child is a fundamental right.

Sec. 3. A governmental entity may not infringe on the right described under section 2 of this chapter without demonstrating that the governmental entity's governmental interest as applied to the person is of the highest order and not otherwise served.

The bill also includes a definition of “governmental entity” and some other technical elements. But the text above is the “meat” of the proposed legislation.

So what in the world: (a) was SB100 aimed at; and (b) would SB100 actually do?

My initial thought was that SB100 was intended to be a mechanism whereby a parent could opt a child out of certain mandated curriculum in a public school. You don’t want your child to learn about evolution, climate change, world religions, or whatever, then just claim your SB100 parental “liberty” and — boom — your child is excused (unless the state demonstrates that the curriculum in question is “of the highest order and not otherwise served”).

But how else might SB100’s notion of the fundamental right of parental liberty be used in practice? Well, what about vaccinations (Sen. Kruse has also introduced a bill to weaken vaccination requirements)? What about concussion baseline testing or prohibition on athletic participation following a concussion (my child won’t get that football scholarship if he doesn’t play Friday night…)? School uniforms or even a school dress code (I think my kid should be allowed to wear his pants down past his waist)? ISTEP testing (I don’t believe in standardized tests)? Core 40 curriculum credit requirements (my parental liberty is infringed if my kid has to take biology, so gee, Mr. Public School Principal, you have to graduate my kid even though he didn’t take any biology classes). Safety regulations for schools and pre-schools (I should have the right to send my kid to a preschool that doesn’t have fire exits or running water)? Prohibitions on bringing guns into classrooms (I want my kid to be safe, and so what if that makes other kids less safe)? And those are just a few things that I’ve thought about just for schools.

What about elsewhere? Could a parent claim “parental liberty” as a reason that child labor laws couldn’t be enforced (I need the income and my kid needs to learn the value of hard work)? How about car seats for infants and toddlers (I like to have my kid in the front seat next to me so I can tickle him at stoplights)? For that matter think of any of the host of laws that we have regarding parenting and the protection of children. Wouldn’t virtually all of those laws be at risk? Why can’t someone sell nude photos of their child on the Internet or give their child a bottle of vodka and a pack of cigarettes? After all, parental “liberty” is a “fundamental right” … or would be if SB100 is enacted. Curfew? Speed limits? Laws against drugs? I can see someone (probably wearing a tinfoil hat or waving a “Don’t Tread on Me” Gadsden flag) making the argument in almost any of these cases.

For that matter, think of the cases where people elect not to provide medical treatment to sick children (who often die as a result). Under the parental liberty notion of SB100 (which makes specific reference to “care”), it would seem that the government might have a very difficult time forcing the parent to allow medical treatment for the child, especially if the parent said that the interest in the child’s health was “otherwise served” by prayer. Or what about a judge’s ruling in a divorce custody dispute? How might “liberty” be impacted in that situation?

And note that the SB100 says not just that to be enforced the law must be of the “highest order” but also that the calculus is based, not just on application of the law to society in general or a class of people in particular (i.e., children, or children under 8 years old, or whatever), but rather, “as applied to the person”. Thus, it doesn’t matter if protecting children in auto accidents is of the “highest order”; rather, the only query is whether protecting this particular child is of the “highest order” and not otherwise served.

There is one other thing that is missing from this bill and which may be the most important concept: What about the liberty of the child? So we’re recognizing that a parent has a fundamental right to “direct the upbringing, education, and care” of the child, but what about the child’s fundamental right to good upbringing, a quality education, and appropriate care? What about the child’s fundament right to be free of an abusive parent or a parent who is willing to put the child at risk? Why isn’t that liberty interest a fundamental right?

You have to wonder what Sen. Kruse was thinking about when he wrote (or had Legislative Services write) SB100. But then given some of the prior bills that Sen. Kruse has introduced, we probably shouldn't be too surprised that he would offer a bill like SB100. What we should be surprised about (well, maybe not), is that voters in Indiana would elect someone like Sen. Kruse to office in the first place and then continue to reelect him (he’s in his 3rd term, I believe).

Oh, and did I forget to mention that the Republicans who control the Indiana Senate have appointed Sen. Kruse to be the chair of the Education and Career Development Committee? Seriously.

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