Do Parental Rights Extend Beyond the Schoolhouse Door? Correcting Misinterpretations of Pierce in Light of History and Tradition

Author*

This Article argues that current parental rights jurisprudence is confused, inconsistent, and largely erroneous. As a result of unclear guidance from the Supreme Court, many lower courts have interpreted parents’ educational rights under Pierce to be narrow (limited to the right to send one’s child to a private school at one’s own expense) and weak (not requiring strict scrutiny). Yet when—following Glucksberg and Dobbs—we look to history and tradition to determine the scope and strength of parents’ constitutional rights, it becomes clear that these interpretations are deeply flawed. The Supreme Court should step in to correct these errors at the earliest opportunity. The argument proceeds as follows: Part I will discuss federal circuit court decisions related to parental rights in education that exemplify how the confusion in parental rights jurisprudence has often led in practice to the sidelining of parental rights arguments and/or to narrow and weak interpretations of those rights. Section II.A will examine the Pierce opinion in detail, arguing that a careful reading of the opinion in its historical context indicates that such a narrow and weak interpretation of parental rights under Pierce is not warranted. Next, because Pierce relied explicitly upon Meyer, the first portion of Section II.B will examine the Meyer opinion and conclude that Pierce (along with Meyer) should be read as an explicit affirmation of the understanding of parental rights in the common law tradition, and of previous state supreme court cases decided on the basis of that tradition. Accordingly, the second part of Section II.B will then discuss the string of pre-Meyer state supreme court cases in which parents sought the right to exempt their children from some aspect of the public school curriculum—seven out of eight of which were decided in the parents’ favor—arguing that a correct, historically informed interpretation of parental rights under Pierce should take Pierce (following Meyer) to be implicitly confirming the common law view upon which these decisions were based. And because the common law tradition had a broad and strong understanding of parental rights, the Article will conclude that a careful analysis of Pierce in light of our nation’s history and tradition supports a broad and strong interpretation of parents’ constitutional rights—broad in the sense that parents’ rights to direct their children’s education extends well beyond the right to send one’s child to a private school at one’s own expense, and strong in the sense that violations of those rights ought to trigger strict scrutiny.

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© 2025 Melissa Moschella. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of the Practice in Philosophy at the University of Notre Dame’s McGrath Institute for Church Life, and McDonald Distinguished Fellow in the Center for the Study of Law and Religion at Emory University School of Law. I am grateful to the McDonald Agape Foundation for generously funding this Symposium, to all of the Symposium’s participants for their insightful contributions to this important topic and for their helpful feedback on my article, and also to the editors of Notre Dame Law Review for their help in organizing the Symposium and editing this essay.