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The Journal of Contemporary Legal Issues

Michael Bindas

Abstract

For a century, the U.S. Supreme Court has provided substantive protection, through the Due Process Clause of the Fourteenth Amendment, to a parent’s liberty interest in directing the education and upbringing of her children. The seminal cases for this protection—Meyer v. Nebraska and Pierce v. Society of Sisters—are widely considered part of the Court’s canon, and the Court has long referred to the liberty interest, or right, that they recognized as “fundamental.” But despite the long pedigree and significance of this right—and despite the Court’s common application of strict scrutiny to laws that restrict or draw classifications impacting rights it deems fundamental—the level of scrutiny applicable to a law that infringes the liberty interest recognized in Meyer and Pierce remains a mystery. Lower courts continue to struggle with this issue, and in many—perhaps most—instances, they apply the most government-deferential level of scrutiny available: rational basis review. This article aims to show why that approach cannot be reconciled with the jurisprudence of the Supreme Court itself.

Part I examines the Supreme Court’s opinions in Meyer and Pierce—as well as their oft-forgotten Progressive Era cousins, Bartels v. Iowa and Farrington v. Tokushige—and attempts to distill the essentials of the scrutiny that the Court applied to the laws at issue in those cases. Part II discusses four significant developments that occurred after Meyer, Bartels, Pierce, and Farrington and that, in some ways, significantly altered the Supreme Court’s approach to scrutinizing the constitutionality of legislation: (1) the adoption of a legal presumption of constitutionality in the late 1920s; (2) the bifurcation of fundamental (mostly enumerated) and nonfundamental (mostly unenumerated) rights in the 1930s; (3) the adoption of the modern rational basis test in the 1950s; and (4) the reemergence of meaningful protection for fundamental unenumerated rights in the late 1960s. Part III then surveys the significant parental rights cases that arose contemporaneously with or after these developments in order to assess the extent to which, if at all, these developments altered the approach that the Supreme Court had taken in Meyer, Bartels, Pierce, and Farrington. Part IV, in turn, presents a “best read” on the Supreme Court’s current approach to cases involving the right to direct the education and upbringing of one’s children and shows how the troubling trend among lower courts—application of mere rational basis review to laws abridging this right—is untenable. Finally, Part V provides some brief thoughts regarding possible alternative approaches that the Supreme Court might take in future cases in this area, including a more categorical “text, history, and tradition”-based approach or a return to the type of robust, searching scrutiny that the Court applied in Meyer and Pierce themselves.

Volume

26

Issue

1

Start Page

281

Faculty Editor

Maimon Schwarzschild

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