North Carolina’s Looming Constitutional Crisis
How a parent’s right to guide their child’s education and a child’s right to information may collide and create shaky ground for educational law in North Carolina.
Photo by Marisa Howenstine on Unsplash.
Imagine in a public school, a seventeen-year-old is searching for the public school’s copy of “The Bluest Eyes.” Unable to find the title, the student asks the librarian where it can be located. The student is informed that the book covering topics concerning race, sexual assault, and internalized beauty standards is no longer available as it has been removed by the school board that week. The student no longer has access to that literature as they live in a rural community where the public library is over 30 minutes away and broadband internet is unavailable, closing any available doors to access this banned book.
Book bans, the Constitution, and caselaw
Banning books in schools has been a hot topic of conversation in the United States for years. In the past year, there has been a total of 3,362 books banned throughout the United States, an increase from the 2,532 instances from 2021 to 2022. From July 2022 to June 2023, North Carolina alone has contributed 58 book bans to that statistic. While removing a few books from schools may seem like a trivial matter, the issue reveals a constitutional question hidden within the river of unenumerated rights for both the parents and the children.
In 1923, the Supreme Court of the United States, in Meyer v. Nebraska, established that parents have a “power…to control the education of their own [children].” The Court discussed whether Nebraska has the right to prevent school children from learning any other language than English until they reach a certain age. The Court in Meyer continued, adding that is it “the natural duty of the parent to give his children education suitable to their station in life.” This sentence would move throughout caselaw and grow to become a parent’s unenumerated right: the right to direct their children’s education and upbringing (see Pierce v. Society of Sisters and Prince v. Commonwealth of Massachusetts).
However, a lesser-known Supreme Court case, Island Trees School District v. Pico, creates a constitutional battleground within public schools. In Pico, a group of students brought a claim against their local school board for removing books from their public school’s library, arguing that this action violated their First Amendment rights. The Court determined that, while the school board was acting within its discretion to remove books from school libraries, the First Amendment imposes limits. The Court found its footing in the First Amendment right to freedom of speech, reasoning that the First Amendment’s protection of self-expression in turn protects the dissemination of information and ideas. The Court connected the right to receive information to a student’s right to access information in school libraries, so removing books from the school library without proper support violates this right.
North Carolina’s recent legislation discussing parent rights
With two competing rights fighting for legitimization, states often step in to clear up discrepancies. In January of 2023, North Carolina Senate Bill 49 was filed. On August 16, 2023, the Bill was enacted into law after overriding Governor Cooper’s veto. Senate Bill 49 became known as the Parental Rights Bill, establishing a parent’s right to direct the education and care of his or her child, to review school unit textbooks and other supplementary instruction materials, and to review all available records of materials their child has borrowed from a school library. While the Parental Rights Bill brought criticism for its disclosure requirements of teachers for matters concerning LGBTQ+ youth, the question remains: where do students’ rights fit into the conversation?
Noticeably, the Parental Rights Bill lacks any diminishing of the rights of parents as their children grow throughout their schooling. For example, a parent of a five-year-old who just started kindergarten has the same right to direct the education of their child as a parent who has a student graduating high school at seventeen. There is no diminishing of the parental right as the child develops and grows into their own autonomous person. This legislation places the exact same parental restrictions on two students who are twelve years apart. Without legislation protecting a student’s rights, there is the possibility that the student’s right to information established in Pico will fade away. Legislative change, especially on a state level, is often a result of active constituents who contact their legislators time and time again until either the funds or dedication sets bills in motion. Legislators will focus on pleasing their constituents to ensure favorable results in upcoming elections, so how will students who are unable to vote until they are 18 years old be able to influence the enactment of similar legislation protecting their rights? By the time a student who is impacted by the Parental Rights Bill overshadowing their educational right to information has the opportunity to make their voices heard through voting, they will be deemed an adult under the law and no longer under the educational restraints of their parents. This circular legislative loophole leaves students and parents begging state legislators to take action on an educational topic that will continue to be a pressing issue. There is also the additional reliance on state legislatures to protect the student’s right to information and the parent’s right to direct the education of their children as these rights cannot be directly pointed to in the Constitution, but rather must be discovered through Supreme Court precedent.
Is there a solution?
A simple answer would be yes, there is a solution between parental and student rights that can be found within the North Carolina Legislature. However, how and when this change may come is uncertain. How can North Carolina tell a parent that they cannot have a say in what their child is learning and has access to during their school day? On the other hand, how can North Carolina say that a student has to set aside their right to information when the opportunities and access may diminish possibilities of educational growth?
The Supreme Court in Meyer explained that schools are to build students into productive citizens of society, who may think for themselves and better the United States through their educated critiques of their representatives and the government. This sentiment is echoed by the Supreme Court once again in Pico. It is a monumental task for North Carolina to respect both parental rights to direct the education of their children and students’ right to information. North Carolina’s solution could possibly lie in how other areas of law treat children and their rights as they age. For example, Tort Law deals with the negligence of minors with the “Rule of Sevens.” This Tort doctrine establishes that in a negligence action brought against a minor, anyone under seven cannot be negligent. From the age of seven to fourteen, there is a rebuttable presumption that the child cannot be negligent. Lastly, from the age of fourteen to twenty-one, there is a rebuttable presumption that the child is capable of negligence. North Carolina could possibly mirror this sliding scale when creating parental rights legislation by gradually stepping back a parent’s right as the child matures throughout their education. This type of legislation would create space for parents to protect their children while they are young and establish guidelines for the students to grow into competent and educated individuals capable of establishing their educational preferences before turning eighteen.
While implementing a similar doctrine to the Rule of Sevens may seem like a reasonable solution, there are additional factors to consider. What if the child wants their parents to make their educational decisions through the age of 17? Lawmakers would have to decide what happens if a child is developmentally delayed or disabled, how the law would be implemented in schools, and a litany of additional issues that have yet to be considered. The task of defining these unenumerated constitutional rights is not a simple one to navigate, but one that must be traversed in order to preserve both a parent’s right to direct the education of their children and the student’s right to access information. These unenumerated rights are so intertwined with one another that it is up to each individual state to protect not only the parent’s right to direct the education of their children but also the student’s right to information.
