Law uses the term “right(s)” in various ways; in its most common version, the concept includes a sub-species called “power(s),” a word that I will deploy here: We say that a scoutmaster has the right and power to expel (or not) the miscreant young Henry from Troop 40; my drill sergeant had the power to make me do push-ups. In this brief essay I will suggest that, in dealing with children and families, it could be useful to understand the parents’ authority in this way as a subcategory of right, one quite distinct from what I will call a “pure” right.

That latter term will mean the freedom to engage (or not) in some action that does not diminish any right enjoyed by others. I may stand (or not) for the flag; I may read what I please, swim in the creek, choose my dinner, criticize the government, fly to Chicago. Others have their own right to criticize my choices but not to impede their exercise.

Powers are rights but more than this “pure” version; they do, indeed, diminish the rights of others. A contemporary legal dictionary defines power as follows: Dominance, control, or influence over another … the ability … to alter, by an act of will, the rights, duties, liabilities, or other legal relations … of another.

Could there be a clearer image of the parents’ relation to the child? The not-yet-18 boy or girl must obey a parent’s orders, whether they involve dessert, bedtime, prayers, football, driver’s license, or enrolling in the Joe Smith private school. The parent lays down the law.

Of course, parental power is not without limit. The child has pure rights that formal government is bound to protect; we say that the state has the legal duty to intervene under various circumstances such as physical abuse by, or sheer incapacity of, the parent. For such cases, the state, in the idiom of its own law, acts “in loco parentis”; it becomes mom and dad for basic protections until either things are put right at home or legal adoption of the child identifies a new mom and dad, thus relocating and reanimating the parental power.

Does this word play matter to an understanding of family law? I think it clarifies our discourse and helps the family defender portray to the politician and judge the unique role of parent as lawmaker, one quite distinct from, and in fact superior to, that of the state itself within the broad zone of parental sovereignty.

Further, it clarifies the reality that the source of this power, whatever it be, is not some written constitution, state or federal. Parents enjoy their unique status anterior to and quite apart from any “positive” law; formal government recognizes their status and concedes their authority, short of abuse. Not all American law gets enacted by formal government. Parents constitute 80 million true sovereignties over their minor children.

Has this reality any importance for the world of schooling? It should at least help to clarify our public discourse. To begin, all parents have, not merely the duty, but the legal right and power to choose a school for their child. Sadly, this country has arranged the enjoyment of this power-right for only some families, while deliberately frustrating it for others. It is quite fair to say that we have truly “public” schools for middle-class families like my own; we could afford to, and did, move within a block of the splendid John Muir Elementary in Berkeley, California.

A few blocks to the south, in less affluent neighborhoods, the parents’ power to choose was quite unnecessarily frustrated. According to my dictionary, their schools were anything but “a place to which the general public has a right to resort.” For enrollment in such inner-city schools, the appropriate term is not the “right to resort,” but rather, the “conscription” or “abduction” of the child. The parents’ power to choose has been deliberately and unnecessarily frustrated.

This system for drafting the poor had its origin in the class and religious prejudice of the 19^th century. It has survived in large part as the device for protection of the managers of these condemned institutions and the bosses of their teachers unions. As Albert Shanker told me on several occasions, “I will start representing children when they start paying union dues” – which, by the way, each student truly does, providing jobs by his conscripted presence.

It is the lawyers’ duty to help clarify our public discourse about the moral and civic disaster maintained by our very deliberate economic hobbling of the low-income parent for the benefit of a union hierarchy. The power (and right) of every mother and father is a precious thing; and the purposeful confusion about the publicness of these “public” schools that frustrate parental choice needs clarification by the pens and voices of the media and the legal profession.

My wee contribution might be to suggest to the truly “public” lawyer a yet untried constitutional response to the civic tragedy of our schools. The Ninth Amendment in the Bill of Rights purports to protect “rights” that were not “enumerated” in the 1787 text of the Constitution. Some justices of the Supreme Court have taken the Ninth seriously for interests of a sort they felt to be especially deserving of federal protection; others on the court have regarded such “discoveries” as the fruit of an undefinable and dangerously open-ended concept.

Recall again that powers are themselves one form of legal “right.” Those of the parent just might escape these very plausible fears of the justices. The parental regime is, by a millennium or two, older than our constitutions, federal and state. It has since the 1920s been specifically recognized by the Supreme Court under the Due Process guarantee of the Fourteenth Amendment but has never quite escaped the shadow of its legal origin among long-discredited judicial protections of business interests under the same language. Still, the reality of the parental sovereignty is plain, both as right and as power. Poverty lawyers could be invoking the Ninth Amendment to challenge the state’s drafting of inner-city children by government strangers who benefit from their captive status.

An expansive power of parents over their own children has been recognized by the U.S. Supreme Court since the 1926 decision in Pierce v. Society of Sisters. There, Oregon had attempted to make education in State schools compulsory; the court unanimously reaffirmed the independence and supremacy of the parent. This was guaranteed, it said, in the “due process” clause of the 14^th Amendment. This rather mystical phrase - and similar potent, if obscure, clauses - have since been employed repeatedly to reaffirm the broad parental sovereignty. Even loving grandparents need parental permission to visit little Susie.

So parental authority has, in Pierce and its progeny, a certain protected status. Would it, nonetheless, be prudent and helpful - assuming the argument is plausible - for champions of parental authority to assert its reality as a source of law that exists quite independent of the Constitution, but is recognized and protected by it in the Bill of Rights?

Perhaps so. I will argue the institution of parenthood might be considerably more secure under the 10^th Amendment than under the ever malleable “due process.” The court could be grateful for the relative clarity - and judicial restraint - that under the 10^th would mark the boundary between the power of mother and the rights of Susie. Equally important, the child herself could claim this precious parental authority as a right of her own.

The primary example of this possibility could emerge in the effort to make parental school choice a reality for all families. The present economic compulsion experienced by modest and low-income parents to accept the free schools of The State as their mentor could well appear a violation of the child’s own right as well as an unjustified intrusion upon the parental authority which today, in practice, is reserved to our higher-income families. And sheer human dignity could come as a bonus for all. (more…)

Recent election outcomes offer a snapshot of what people really think about education reform, said John Podesta, chairman and founder of the Center for American Progress. And lawmakers, advocates and opponents of school reform should all take note.

This month’s stunner - the ousting of Indiana public schools chief Tony Bennett, who implemented many of the same reforms found in Florida – is proof enough that reform “is not yet on solid ground,’’ said Podesta, the keynote speaker Tuesday during the fifth annual Excellence in Action National Summit in Washington, D.C.

At the same time, he noted, there are plenty of signs of progress, including historic passage of a ballot initiative  in Washington that paves the way for charter schools.

The common ground seems to be a desire to create a system that works for children, he said, and reformers should seize the moment.

“As the lines blur, the movement has to invest in collaboration … ,’’ said Podesta, a former White House chief of staff to President Bill Clinton and longtime policy adviser.

“I think complete division between unions and reform is not helpful,’’ he said. “We have to let this go.’’

He also said reformers can’t “steamroll’’ measures without educating the public. “Stop just focusing on your enemy and start shoring up your allies,’’ he said. (more…)

Much has been written on school vouchers that assumes they are primarily about economic efficiency and increasing the private sector’s role in education - a notion of educational choice that is widespread, understandable … and grossly incomplete.

Fifty years ago, the 18th Century idea of subsidized parental choice was reintroduced as a sub-species of free market theory. To choose a school became equivalent in form and in our discourse to the private procurement of insurance or apples; the parties exchange promises, then they perform.

There is truth to this; the school and the parent do make mutual promises that, by and large, the law will enforce. But to reduce parental choice to a simple bargain has been a tragic contraction of thought - an intellectual and political calamity. Any such contract to educate a child is profoundly more complex than the exchange of promises between A and B. Whether subsidized parental choice is a good idea thus is left an unintelligible question; it cannot be reduced to arguments for and against freedom of contract because children are not free.

This is a decree of nature itself. “Choice” is grown-up dominance of the child. This holds whether the deciding adult is a parent or a government stranger; one or the other will assign Susie to a school. The social and political issue, then, is more complex than a preference for or against free contract. Here in America the question is this: Should government continue to decide for children of have-not families, while the rest of us - as a matter of right - send our children to our own favorite school, whether public, private, or religious? (more…)