Across the country, parents are springing into action to defend what they insist are their rights to oversee the education of their children. 

These so-called parental rights activists, animated by prolonged school closures during the Covid pandemic, are challenging the supremacy of the educational bureaucracy in their children’s schools. These parents are calling attention to left-leaning curricular material and literature in classrooms, and are protesting the “gender ideology” and “critical race theory” they say are being taught in schools.

It’s a movement that catapulted Glenn Youngkin to the governorship of Virginia and helped lift Governor DeSantis of Florida to his prominent spot on the national stage. It has galvanized parents to show up in hordes at what were once poorly attended school board meetings, and even propelled some to run for school boards themselves.

Now, parents are turning to lawsuits in an attempt to curb policies they see as discriminatory, harmful, invasive, and even in violation of their constitutional rights. These lawsuits, however, could put conservative parents on a collision course with conservative jurists, including Associate Justice Clarence Thomas.

As the battle for parents’ rights moves to the federal courthouse from the ballot box, it raises a question: Does our Constitution enshrine parents’ rights? 

A lawsuit filed in Iowa by one of the most prominent parents rights groups, Parents Defending Education, alleges that a new policy enacted by the Linn-Mar school district, in a suburb of Cedar Rapids, violates the Constitution. The policy allows students to use new pronouns at school and begin social transition — using the bathrooms, playing on sports teams, and rooming on school trips with the gender of their preference — without parental consent or information.

“Everybody from kindergarten on would be able to have a gender support plan,” the president and founder of Parents Defending Education, Nicole Neily, tells the Sun. “Then beginning in seventh grade, the child’s decision takes precedence over parents’ decisions.”

In a recent study by an activist lab at Princeton, the majority of children — about 60 percent — who socially transitioned between ages three and 12 began a hormone altering regimen within five years.

The lawsuit alleges that the new policy “plainly violates parents’ rights under the Fourteenth Amendment.”

“Nearly a century of Supreme Court precedent makes two things clear: parents have a constitutional liberty interest in the care, custody, and control of their children,” the initial complaint says, adding that the policy also violates the students’ First Amendment rights by way of “compelled speech.”

The 14th Amendment, though, makes no mention of parents or children in its text. Yet the court filings claim that the new policy violates the parents’ constitutional right “to direct the upbringing and education of children under their control,” citing not the text of the Constitution itself, but a 1925 Supreme Court case, Pierce v. Society of Sisters.

The existence of such a right hinges on whether one accepts the legal principle of substantive due process, which has long been the subject of ire from conservative jurists. 

Pierce, along with Meyer v. Nebraska, established a 14th Amendment principle that education law not infringe upon the rights of parents to choose their child’s education. Pierce overturned an Oregon law requiring all students to attend public schools, while Meyer overturned a Nebraska ordinance prohibiting foreign language instruction.

In Pierce, the court ruled that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

The 14th Amendment’s guarantee that no “State deprive any person of life, liberty, or property, without due process of law” includes — or so say advocates of substantive due process — both the right to procedural due process (a fair trial, in other words) and substantive rights to “life, liberty, or property.”

“The view is that the 14th Amendment, which has a provision that says that no one can be deprived of liberty without due process of law … has a procedural component,” a professor of law at Villanova University, Michael Moreland, told the Sun. “There are basic norms of fair procedure, like how a trial was conducted, and so forth.” 

“But it also includes a substantive component of certain liberties that are so fundamental that the government may not infringe upon them,” Mr. Moreland explained. “There’s basically no due process of law that could ever result in their abolition or infringement in a certain way.”

It is the principle of substantive due process that in the past century has been used as a foundation for rights such as abortion, contraception, and gay and interracial marriage. The Supreme Court has noted that rulings based on substantive due process can be a “treacherous field,” and a high standard must be set for the fundamental liberties derived from the 14th Amendment.

The Supreme Court holds that any rights derived from the 14th Amendment must be “deeply rooted in this Nation’s history and tradition” and “essential to our Nation’s scheme of ordered liberty.”

In the recent Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade’s claim to a substantive due process right to abortion, the court ruled that the right to an abortion was not so “deeply rooted” as to merit constitutional protection. The overturning of Roe has led many to question whether all substantive due process precedents may be in danger.

The rights of parents in their child’s education, however, would likely hold up under the historical scrutiny applied in the Dobbs decision, Mr. Moreland of Villanova says — even though he notes that today’s parental rights movement is asking for more than precedent might guarantee.

“Pierce and Meyer were about prohibiting private schooling, prohibiting foreign language instruction, things like that. I think courts are going to be a little cautious about trying to manage school district curricula through litigation,” Mr. Moreland says. “I think the question now is, what are the real limits of that kind of state regulation, and when and to what extent does it infringe on parental liberty?”

These questions are relevant unless one rejects substantive due process altogether, as Justice Thomas has suggested he’s prepared to do. In past opinions, the justice has had harsh words for a principle that he sees as a “legal fiction.”

Justice Thomas — alone among the Nine in his complete rejection of the principle — has referred to substantive due process as an “oxymoron that lacks any basis in the Constitution” based on a “demonstrably incorrect reading of the Due Process Clause.”

Even if Justice Thomas demurs on substantive due process, he — and jurists like him — could flip the question on its head: do children have constitutional rights outside the purview of their parents?

In a lone dissent in Brown v. Entertainment Merchants Association, which ruled children have First Amendment rights to purchase violent video games without parental consent, Justice Thomas made an originalist argument that the First Amendment “does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”

“The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children,” Justice Thomas wrote in 2011.