Texas A.G. Opinion Strongly Backs Parental Rights, Home Schooling

In a wide ranging and strongly worded opinion, Texas Attorney General Ken Paxton says neither the courts nor state or local bureaucrats may interfere with the basic right and ability of parents to raise their children as they see fit, especially in decisions regarding religious instruction, education, or health care, News Radio 1200 WOAI reports.

"The Due Process Clause "protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children," Paxton wrote, citing several court precedents.

The opinion states that neither the courts nor bureaucrats may attempt to 'standardize' children by, for example, "forcing them to accept instruction by public school teachers only."

"Lower courts expanding on this right have explained that Meyer and Pierce "evince the principle that the state cannot prevent parents from choosing a specific educational program," whether it be religious instruction at a private school or instruction in a foreign language," the opinion continued.

The opinion also established the right of parents to make decisions for children when it comes to medical care, a key point at a time when parental rights to 'opt out' of mandatory vaccinations are being reconsidered.

"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder," Paxton wrote, citing several court precedents dating back to 1944.

Paxton's key U.S. Supreme Court ruling cited was Troxel v. Greenville, a 2000 case, where the court held unconstitutional a Washington statute that allowed any person to petition for visitation rights at any time if it was in the best interests of the children.

"Overturning the decision to grant a grandparent access to a child over the objection of the parent, the Court emphasized that if a parent "adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children," Paxton said.

Paxton said the 'strict scrutiny' standard, among the strongest of legal standards, must be applied by courts to any decision which attempts to come between a parent and a child.

"Recognizing that the statute implicated the fundamental liberty interest of parents in the care, custody, and control of their children, the court underscored the appropriate standard of review: "Because a fundamental right is implicated here, we apply strict scrutiny and will uphold the statute if it is narrowly tailored to serve a compelling government interest."

Mason Prewitt of the Texas Home School Coalition Association praised the opinion, and said the Legislature must now move to enact into law many of the rights the Attorney General outlined in the opinion.

"As this AG opinion outlines in detail, the courts have found repeatedly that the best interest of children and families is protected by allowing only limited state intervention into the parent-child relationship and that any interference with that relationship has to be strictly scrutinized by the courts," Prewitt said.

"Today’s AG opinion outlines clearly the constitutional rules that are required, many of which Texas law is currently lacking. The opinion states in summary that: 'The Due Process Clause of the Fourteenth Amendment protects certain fundamental parental rights, including the right of the parent to make decisions concerning the care, custody, and control of their children, to direct the upbringing and education of their children, and, in conjunction with the First Amendment, to guide the religious future and education of their children'."

READ: THE ATTORNEY GENERAL'S OPINION https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/op/2019/KP-0241.pdf

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