Balancing Civic Values and Parents’ Free Exercise Rights

Darryn Cathryn Beckstrom, Balancing Civic Values and Parents’ Free Exercise Rights, 45 Gonz. L. Rev. 149 (2010).

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Federal courts, legal scholars and parents alike are currently debating the presence of controversial topics in public school curricula, including topics related to homosexuality and sex-education, and whether such topics are suitable for young children. Parents increasingly claim the teaching of controversial topics in the classroom violates their free exercise rights under the First Amendment. These parents experience varied success in federal courts when seeking relief under such a claim. This Article attempts to balance the state’s interest in inculcating students with civic values and parents’ right to control the religious upbringing of their children. While the state should promote the inculcation of civic values, the state must be careful to prevent values indoctrination. Parents should have some control over their child in the public school realm in order to uphold the values of self-governance and limited government in a liberal democracy and pluralistic society. This Article defines and evaluates values indoctrination, a legal theory that is underdeveloped in the Free Exercise Clause jurisprudence. This Article argues that courts should permit parents, when raising a free exercise claim, to contend that values indoctrination in public schools places a burden on their free exercise rights, therefore allowing them to meet the threshold requirement for raising a free exercise claim. When this occurs, society can uphold both the interests of the state and parents.

I. Introduction

In a suburb of Boston, several parents of kindergarten, first and second-grade students objected to the Lexington Public School’s recent introduction of material endorsing homosexual relationships.[1] In one of the classrooms, a teacher read from a book, King and King, which depicted a prince who wanted to marry another prince instead of a princess.[2] Other students received “Diversity Book Bags.”[3] These bags contained a book discussing different families, including families led by same-sex couples.[4] One family requested the school provide them with notification about the curriculum and allow their children to opt-out.[5] The Superintendent of Schools, though, refused the family’s request.[6] %CODE2%
Issues related to homosexual marriage and sex education, for example, are becoming increasingly controversial in public schools.[7] Federal courts struggle with determining where the authority of the parent to raise a child ends and where the authority of the state commences,[8] especially in the realm of public education.[9] Though the U.S. Supreme Court has stated that parents have a fundamental right to control the upbringing and education of their children,[10] the Court has not explained conclusively how to allocate authority between the state and parents.[11]

The right of parents to direct the upbringing of their children under a theory of substantive due process is currently unclear.[12] While the Supreme Court has stated this parental right is fundamental, it has not stated whether it is worthy of strict scrutiny review.[13] Given the constant fluctuation in the robustness of this right, parents may have better success relying on the First Amendment’s Free Exercise Clause, an enumerated right under the Constitution, when protecting their right to direct the upbringing of their children.[14] However, for parents to be successful in their free exercise claim, they must first pass a threshold issue—whether a specific state action places a burden on their free exercise rights.[15]

This Article analyzes the relationship between values inculcation and indoctrination. It also examines when inculcation within public schools becomes indoctrination, therefore placing a burden on parents’ free exercise rights.[16] This is a crucial but underdeveloped issue in Free Exercise Clause jurisprudence.[17] While previous scholarship considers the existence of values inculcation in public schools when providing children with a civic education,[18] this scholarship does not consider when values inculcation becomes indoctrination and therefore burdens a parent’s free exercise rights. This Article argues that a theory of pluralism and existing First Amendment jurisprudence demonstrates that indoctrination in public schools places a burden on parents’ free exercise rights.

This Article proposes a balancing test for determining when indoctrination occurs and argues that courts should apply this test when determining whether parents meet the threshold level of establishing a burden on their free exercise rights. Without exercising control over public school curriculum,[19] the recognition of values indoctrination would allow the state to pursue its interests in promoting civic education while similarly promoting the liberal ideals of pluralism, self-governance and limited government. Finally, this Article applies the balancing test to a sex education curriculum to illustrate how courts can apply this test. This Article finds that when applying the indoctrination test, courts would likely conclude that parents, especially those with young children, are able to demonstrate that values indoctrination in public schools burdens their free exercise rights. In sum, courts should recognize that indoctrination constitutes a burden on the free exercise rights of parents. This would allow society to balance the First Amendment rights of parents to raise their children in a manner conducive to their religious beliefs with society’s interest in creating educated citizens learned in the democratic values unique to this country.

II. State Interests in Providing Young Children with a Diverse

Civic Education

The Supreme Court has explained this nation’s public schools should inculcate students with fundamental values that are “essential to a democratic society.”[20] Determining what constitutes a fundamental value, though, is difficult to discern, especially when there are competing values in society.[21] This conundrum frequently leads to a debate between parents and the state in determining which values further children’s best interests.[22] Equally difficult is determining who should be responsible for determining these values. This debate often creates concerns that values inculcation can easily become values indoctrination.[23] This Part discusses the interests of the state in the realm of public education and various theories used to justify state intervention in the public education arena. This Part concludes that the inculcation of democratic values is indeed important for children’s success in a democratic society. But pluralism, a value that influenced the founding of this nation,[24] is attainable by recognizing conflicting opinions and values in public schools.

A. The Interests of the State in Educating Children

The state has several interests in controlling children’s education. These interests include promoting civic and democratic values, emphasizing community instead of individual interests, and socializing children to interact in a democratic society.

Through public education, the state attempts to inculcate civic and democratic values in children in order to create productive citizens.[25] Some scholars suggest the requirements of civic education include “exposure of children to a diversity of world views and values,” as these requirements are “essential to fostering the democratic virtues of critical thinking, openness to diversity, mutual respect and tolerance.”[26] Under this view of thinking, “[e]xposing children to diverse positions and attitudes assimilates them into a pluralistic society and prepares them for participation in our democracy.”[27] While the state promotes these values, occasionally, these values conflict with the values parents seek to instill in their children. In this situation, some advocate for state intervention when parental values or beliefs “collide with the requirements of civic education in democratic values.”[28] When this occurs, “the parents’ values must yield to the demands of the state”[29] because the state is in the best position to inculcate children with civic values as parents may not always provide a solid foundation for civic education.

The state is also interested in educating children to focus on their responsibilities to the community.[30] Suzanna Sherry argues that under a neo-republican theory, citizens are entitled to certain rights under the Constitution, but with these rights come responsibilities.[31] Unlike liberalism, neo-republicanism focuses on “community values as the antidote to liberal individualism.”[32] Because individuals in a constitutional democracy have responsibilities, they must receive an education that educates them on these responsibilities and “enable[s] [them] to exercise both the rights and the responsibilities of citizenship.”[33] Sherry explains that both historians and legal scholars are unable to agree on a definition of civic republicanism.[34] Despite this disagreement, Sherry advocates for the practice of civic republicanism throughout our society.[35] Sherry believes children should be educated about their responsibilities because they are “future citizens,” and they are “the ones who have suffered most from the loss of both individual and community responsibility.”[36] She argues that educators “must prepare children to become responsible and deliberative citizens in a diverse republic of rights.”[37] In order to fulfill these responsibilities, teachers must instruct students in “moral character, critical thinking, and cultural literacy (that is, a knowledge of and attachment to their own culture).”[38]

The state is also interested in promoting socialization among children in an effort to increase civic values. When the state can regulate a child’s upbringing, this regulation promotes “peer interactions” between children.[39] Emily Buss argues that children should be able to engage in “identity exploration,”[40] and this can occur when children have the ability to engage in “peer interactions.”[41] Because diverse peer interactions are most likely to occur in a public school setting, some question parents’ choice to home school their children or place their children in parochial schools during their teenage years.[42] Overall, the lack of involvement by the state in the associational interests of children can be detrimental to children’s development.

B. Balancing the Interests of Deliberative Democracy and Political Pluralism

The state premises the need for values inculcation on the assumption that civic education is necessary for a well-functioning society. Some suggest deliberative democracy best achieves values inculcation while others suggest political pluralism (while giving consideration to values pluralism and expressive liberty) provides a better answer.[43] This section discusses these theories and explains how, in the realm of education, the state uses these theories to justify the scope of civic education in public schools.

Some suggest that states should engage in a deliberative democracy approach to civic education. Amy Gutmann, a strong advocate of this approach, argues that the state should rely on democratic theory when “determining educational purposes, authority, and the distribution of educational goods for our society.”[44] Gutmann’s thesis rests on the premise that parents must not impose their values onto their children.[45] Children are members of both families and the state, and, as such, “neither parents nor a centralized state have a right to exclusive authority over the education of children.”[46] Rather, “[c]hildren are no more the property of their parents than they are the property of the state.”[47] In determining what children should be taught, Gutmann explains that neither the state, individuals, or families “provide[] an adequate foundation for educational authority.”[48] Rather:

A democratic state of education recognizes that educational authority must be shared among parents, citizens, and professional educators even though such sharing does not guarantee that power will be wedded to knowledge, that parents can successfully pass their prejudices on to their children, or that education will be neutral among competing conceptions of the good life.[49]

This view of state involvement in children’s education has implications for parents’ religious beliefs. Gutmann and Dennis Thompson, a fellow political theorist, rely on deliberative democracy theory to suggest that parents’ religious views should not inform society’s view of what forms “good citizenship.”[50] This argument suggests that parents’ religious beliefs should have only a minimal influence on their children’s education.

Finally, when it comes to morals education, a subject that creates a significant amount of discussion among state and parental rights advocates, Gutmann explains that, in a democracy, this education is “best viewed as a shared trust of the family and the polity, mutually beneficial to everyone who appreciates the values of both family life and democratic citizenship.”[51] More simply, parents, when seeking to instill morals into their children, must share this role with the state—even if the state’s view of morals is different from that of the parents.

Political pluralism provides an alternative theory to deliberative democracy.[52] Under a political pluralism approach to liberal theory, “different forms of human activity and association generate different kinds of claims, both to liberty and authority,” and because of this, “no single ensemble of claims dominates the rest for all purposes or in all circumstances.”[53] More specifically, political pluralism is derived from “multiple sources of authority” in society.[54] These sources include “parents, civil associations, faith-based institutions, and the state, among others . . . .”[55] None of these sources is “dominant in all spheres, for all purposes, or on all occasions.”[56]

Political pluralism suggests that while the state may “regulate the terms of the relationship among social agents,” individuals must have the ability to engage in “expressive liberty.”[57] This liberty allows individuals to determine which values they regard as important and gives them an opportunity to express these values.[58] But, society can limit the expression of these values.[59] For example, the family limits the scope of political authority.[60] In the sphere of child rearing, Galston acknowledges that the Supreme Court, in Pierce v. Society of Sisters, explained that parents have some authority over their children.[61] However, this authority does not trump the authority of the state to engage in “political regulation” when such regulation is “manifestly inimical to the public welfare,”[62] and reasonable “to ensure that ‘certain studies plainly essential to good citizenship’ are taught . . . .”[63] In discussing the role of the state when engaged in civic education, Galston explained: “In securing the cultural conditions of its survival and perpetuation . . . [the state] may legitimately engage in civic education, carefully restricted to the public essentials—the virtues and competences that citizens will need to fulfill diverse roles in a liberal pluralist economy, society, and polity.”[64] Political pluralism, in this situation, provides more deference to parents in controlling the upbringing of their child than a deliberative democracy theory.

Under a political pluralism approach to democratic decision-making, both policy-makers and judges must engage in a balancing approach to determining what authority parents, children and the state should have in determining the limits of parental authority.[65] When considering the proper scope of the state in the realm of civic education under this approach, it is important to recognize that “the state cannot rightly resolve educational disputes with parents by asserting the comprehensive authority of its conceptions over theirs.”[66] When applying a political pluralism approach to public school curriculum, Galston suggests that there are circumstances when courts should be more deferential to the concerns of parents.[67]

There are differences between deliberative democracy and political pluralism. Galston suggests that Gutmann and Thompson’s theory of deliberative democracy is incompatible with “an understanding of liberalism based on expressive liberty and moral and political pluralism.”[68] Rather, deliberative democracy cannot necessarily be squared with liberal democracy because, among other things, deliberative democracy “suggest[s] a common course of action that all citizens (must) pursue.”[69] This is an incorrect assumption because individuals in society can mutually agree to disagree.[70]

Galston also disagrees with Gutmann and Thompson on the issue of accommodation. While Galston explains there is some truth in Gutmann and Thompson’s assertion that parents cannot define “good citizenship” by deferring to their religious beliefs, parents should still have some ability to have their beliefs accommodated.[71] The question to be asked is whether “accommodation sought by . . . parents would significantly impair the development of democratic citizens.”[72] Galston asserts that parents who believe their religious beliefs are not being accommodated by public schools could always place their children in private schools.[73]

However, accommodating parents’ religious beliefs, and therefore maintaining children in public schools, is better for democratic citizenship than the alternative of not accommodating such beliefs.[74] Overall, Galston suggests that to obtain the benefits of civic education, “a genuinely liberal society will organize itself around the principle of maximum feasible accommodation of diverse ways of life, limited only by the minimum requirements of civic unity.”[75] When the state relies on a theory of deliberative democracy to provide civic education to children, they fail to recognize the diversity of American society and its tradition of pluralism. When the state relies instead on a theory of pluralism, parents, regardless of their views, are able to raise their children in a society that is more conducive to their beliefs, including their established religious beliefs.

III. Parents’ Interests in Controlling the Upbringing of Their Children

Parents, like the state, have an interest in raising their children to become productive citizens in a liberal democracy. However, many parents also have an interest in preventing public schools from subjecting their children to values indoctrination. State regulation of education can infringe on parents’ right to control the upbringing of their child.[76] Subsequently, this regulation can burden parents’ free exercise rights.[77] Part III does not advocate for neutrality in the public school curriculum, as such a result is most likely not plausible.[78] Rather, Part III provides a partial retort to the interests of the state discussed in Part I. Part III argues that the state’s interest in inculcating children with civic values is valid; however, parents’ interests limit the state’s engagement in values indoctrination.

A. Recognition of Parental Autonomy

Parents have a constitutional right to control the upbringing of their children,[79] and deference to this right can be beneficial to children.[80] Such deference is important because parents, unlike other individuals, are in the best position to determine the emotional needs of their child, and they are the “most qualified to assess and pursue their children’s best interests in most circumstances.”[81] Conversely, state intervention “should be limited to those circumstances in which the state deems intervention necessary to protect a child from harm and, again, o[n]ly from harm the state has some special expertise to assess.”[82] For example, the state has expertise in child abuse and neglect.[83]

If parents believe the state is violating their constitutional right to control the upbringing of their child, they may pursue other educational alternatives, such as parochial schools and home schooling. Yet, this could have negative consequences for public schools and the goal of providing every child with a civic education, as public education can increase civic values.[84] Some suggest that parents have the right to opt their children out of specific curricula within the public schools.[85] As such, state legislatures and local school boards, when attempting to promote interactions among children, should recognize the authority of the parent when creating the curricula. When parents have more opportunities to participate in curriculum devolvement, they may be less likely to take their children out of public schools—therefore, allowing these students to engage in a diverse number of peer interactions.[86] Parents would also be more likely to send their children to public schools when states allow parents to opt-out of certain types of curriculum such as sex education.[87]

B. Diversity of Children’s and Parents’ Views Increases Pluralism

Merriam-Webster’s Dictionary defines pluralism as “a state of society in which members of diverse ethnic, racial, religious, or social groups maintain an autonomous participation in and development of their traditional culture or special interest within the confines of a common civilization.”[88] Pluralism is important to maintaining a democratic society.[89] American society was created on a notion of pluralism,[90] and when parents are able to raise their children with values specific to their religious tradition, society is able to recognize the benefits of pluralism through this accomodationist approach. This behavior “refers to an approach to the Religion Clauses that values individual religious practice, the autonomy of religious groups, and the presence of religion in public life,”[91] can be reconciled with pluralism.[92]

C. Parents Have Children’s Best Interests in Mind

Scholars debate whether the state or parents should decide which values are important to children in a democratic and pluralistic society.[93] Stephen Gilles explains that it is difficult for society to agree on what a proper education would look like, and as such, if society cannot agree on determining which values the state should teach to young people, then it is equally difficult to determine who should decide what values the state should teach.[94] Gilles argues that individuals should always strive to determine what is in a child’s best interest,[95] yet determining what is in a child’s best interest is difficult.[96] Given this conundrum, the decision-making authority should reside with the parents instead of democratic majorities, as parents are more likely to act in their children’s best interests.[97] The reason for this is that most parents “identify their children’s interests as an important part of their own interests.”[98]

Parents have several incentives to act in their children’s best interests.[99] These incentives include the creation of an emotional attachment to their children, the fear that society will blame parents for the wrongdoings of their children, the fear of physical harm or financial liability because of their children’s actions and the possibility that parents need to rely on their children in their old age.[100] Parents’ incentives to act in the best interests of their children outweigh those of teachers.[101] Unlike parents, teachers only spend a limited amount of their day with children.[102] Further, teachers have a large number of students and are often with these students for less than a year.[103] Finally, unlike parents, society does not hold individual teachers accountable for the wrongdoings of children.[104]

Parents’ incentives to act in their children’s best interests are also stronger than the interests of parental majorities.[105] Relying on parental majorities violates the principles of liberalism.[106] Gilles explains that even though parental majorities are composed of parents, these parents do not all share the same values.[107] Nor do they agree on what constitutes the best interests of children.[108] Further, parents, under a liberal government, have a right of self-governance, and therefore, even if they are in a minority, “[m]ajorities cannot legitimately override an adult’s right to self-governance absent either tangible harm to others or consensus that the person’s choices or opinions are unreasonable.”[109]

Gilles explains that there are certain things most people can agree upon.[110] In providing a child with a “basic education,” the child must be able to “speak, read write, calculate, and reason”—therefore allowing them to become a “normal human flourishing in our society.”[111] Other scholars suggest that “it is still possible to identify core values to which the overwhelming majority of parents appear willing to subscribe.”[112] When attempting to determine these shared values, individuals can consider the history of the Constitution and federal statutory law.[113] Statutory law can mandate these basic values.[114]

In sum, Part III demonstrates that parents have various interests in controlling the upbringing of their children. Although at first glance some of these values compete with the interests of the state, overall, the parents’ interests promote the value of pluralism in our society.

IV. The Supreme Court and the Free Exercise Clause

Part IV discusses why parents should consider raising a claim under the Free Exercise Clause instead of a substantive due process claim for violations of their parental rights. Further, Part IV discusses the viability of a Free Exercise Clause claim when parents believe public schools infringe on their free exercise rights. Part IV explains that parents must meet the threshold for establishing a constitutional burden before their Free Exercise Clause claim can continue.[115] The threshold issue is whether the state action constituted an unconstitutional burden on their free exercise rights.

A. Why Raise a Free Exercise Claim?

Children are not entitled to the full protection of the First Amendment because of their dependent status.[116] Despite the limitations on children’s First Amendment rights, parents have rights under the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause[117] to protect their ability to control the upbringing of their children.

Courts do not consistently embrace the use of substantive due process to protect the right of parents to control the upbringing of their children.[118] Because of this inconsistency, parents are less likely to have success claiming they have a substantive due process right to control the education and upbringing of their children and more likely to have success in raising a Free Exercise Clause claim. The Supreme Court recently demonstrated this in Troxel v. Granville where Justice Scalia, explained in his dissent that, while parents’ rights to control the upbringing of their children are “unalienable,” judges do not have the authority to invalidate laws that infringe on this right.[119] The use of the doctrine of substantive due process in protecting parents’ rights troubles Justice Scalia: “The sheer diversity of today’s opinions [concerning parental rights] persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection.”[120] He concluded, “A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance.”[121] Interestingly, in a footnote, Justice Scalia notes the possibility of a Free Exercise Clause or free association claim under the First Amendment.[122] But he states that, because the parent in Troxel did not raise such an enumerated claim, he did not “have occasion to consider whether, and under what circumstances, the parent could assert the latter enumerated rights.”[123]

Justice Scalia’s opinion strongly suggests he is hesitant to allow the judiciary to develop and enforce unenumerated rights—those which are found in the Ninth Amendment.[124] Rather, a statue should create and enforce such unenumerated rights.[125] Given some judges’ reluctance to enforce the unenumerated right of parents to control the upbringing of their children, parents seeking to exercise some control over their children’s education in public schools may experience better success relying on enumerated rights such as those found in the First Amendment. While Justice Scalia focused on unenumerated rights under the Ninth Amendment, Justice Kennedy, in his dissent, started from the premise that the right of parents to control the upbringing of their children “stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment.”[126] Despite this conclusion, a parent’s right to control the upbringing of a child would still be an unenumerated right.

In sum, the unpredictable history of the right to control the upbringing of children suggests that raising a free exercise claim would be beneficial for parents who believe the state has infringed on their parental rights—mainly, the right to raise their children with the values that stem from their religious tradition. The next question is how to raise such a claim.

B. Free Exercise Clause Claims after Employment Division v. Smith

Prior to Employment Division v. Smith,[127] it was not difficult to demonstrate the state violated an individual’s free exercise rights.[128] Under the old standard, “a government act that substantially infringes a sincerely held religious belief is unconstitutional [under the Free Exercise Clause] unless justified by a compelling state interest pursued by the least restrictive means.”[129] This standard changed in Smith. In Smith, Justice Scalia, writing for the majority, wrote, “[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”[130] After the Supreme Court decided Smith, many believed it would be difficult to raise a Free Exercise Clause claim against the government.[131]

Even though the standard may be high, the Smith standard “does not necessarily doom free exercise claims by public school students.”[132] In Smith, the Court made a distinction between conduct and belief.[133] While the state can regulate conduct that is part of an individual’s religion, they cannot infringe on an individual’s beliefs.[134] In the public school context, “attendance and participation in school are conduct.”[135] However, this conduct also constitutes belief. Rather, “[t]he most common religious objection to public schooling is that it subjects students to indoctrination hostile to their faith.”[136] Further, in addition to the content and belief distinction, the Court explains that the “only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections . . . .”[137] While this may allow for a hybrid rights claim,[138] at a minimum, “the Supreme Court has not diluted the standards for free exercise clause claims, at least in the context of public schools.”[139] This is especially true given the fact that the Court has not overruled Wisconsin v. Yoder,[140] where it held that a state law requiring children to attend school until age sixteen violated the free exercise rights of Amish parents.[141]

Nonetheless, despite the higher standard articulated in Smith for raising a Free Exercise Clause claim, the Court failed to address what is needed to demonstrate that government action constituted a burden on an individual’s free exercise rights. This is the threshold issue, and if individuals cannot demonstrate that government action placed a burden on their free exercise rights, then there is no need to analyze the claim under Smith’s heightened standard for Free Exercise Clause claims.[142]

C. The Burden Requirement in Free Exercise Clause Cases

The Supreme Court has not been consistent or clear in explaining what constitutes a significant burden on individuals’ free exercise rights to satisfy the threshold issue in Free Exercise Clause claims.[143] The Court’s treatment of the burden requirement was seen early on in Sherbert v. Verner.[144] In Sherbert, the appellant was a Seventh-day Adventist, and was required to work Saturdays as a condition of her employment.[145] However, because of her religious beliefs, she was unable to work Saturdays, and consequently she was fired from her employment.[146] When she applied for employment benefits with the state, she was denied because she failed “without good cause, to accept ‘suitable work when offered . . . by the employment office or the employer . . . .’”[147] Sherbert claimed that the denial of benefits violated her rights under the First Amendment’s Free Exercise Clause.[148]

In considering this case, the Supreme Court explained that “[w]e turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion.”[149] The Court explained that the unemployment compensation program, as applied to Sherbert, violated her free exercise rights because “not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable.”[150] The Court continued, “[t]he ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”[151] Despite the Court’s application of the burden standard, Ira Lupu explains that this opinion does not provide “any express guidelines for future courts to employ in deciding the threshold question whether a burden on free exercise exists.”[152] The lack of any clear guidelines creates confusion regarding the correct application of the burden standard.[153] Despite this confusion, the need to establish a burden has “become prominent in free exercise adjudication.”[154]

As mentioned previously, when pleading a free exercise claim, plaintiffs must first demonstrate that the state’s actions unconstitutionally burdened their ability to practice their religion before analyzing the claim under the Smith standard.[155] Yet, increasingly in the public school context, courts are making it difficult to argue successfully that the plaintiffs suffered an unconstitutional burden.[156] This difficulty can be attributed to the “tendency [of federal courts] to construe the concept of ‘coercion’ narrowly in claims for religious exemptions.”[157]

In Mozert v. Hawkins County Board of Education, both the federal district and circuit courts considered the burden issue, emphasizing that this was a threshold issue to be determined before analyzing the case under the Smith free exercise standard.[158] In Mozert, a group of parents sued the school district, alleging that a curriculum series students were required to read violated their free exercise rights under the First Amendment by infringing on their right to control the religious upbringing of their children.[159] The parents did not seek for the removal of the textbooks from the public schools or for the school district to change its curriculum.[160] Rather, they sought a waiver from the curriculum for their children.[161] The district court first considered whether the parents met the threshold issue of establishing a burden on their free exercise rights.[162] More specifically, “the Court must first determine whether the beliefs are religious and whether they are sincerely held by the individual asserting them.”[163] The court determined that “it seems hardly possible to question the fact that the plaintiffs’ free exercise rights have been burdened . . . [t]he [School] Board has effectively required that the student-plaintiffs either read the offensive texts or give up their free public education.”[164] Though the district court held that the textbooks constituted a burden on the parents’ free exercise rights, the Sixth Circuit disagreed in Mozert, and stated “absent direct coercion by the school in the form of compelled or prohibited belief or practice, the religious rights of students and parents are not unconstitutionality burdened.”[165]

The Sixth Circuit, in Mozert, stated:

The requirement that students read the assigned materials and attend reading classes, in the absence of a showing that this participation entailed affirmation or denial of a religious belief, or performance or non-performance of a religious exercise or practice, does not place an unconstitutional burden on the students’ free exercise of religion.[166]

Since Mozert, other courts relied on the decision to narrow the definition of coercion.[167] Recently, in Parker v. Hurley, the First Circuit, citing Mozert, denied the plaintiffs’ free exercise claim because the plaintiffs did not suffer from a burden on their religious beliefs.[168] The court explained:

The heart of the plaintiffs’ free exercise claim is a claim of “indoctrination”: that the state has put pressure on their children to endorse an affirmative view of gay marriage and has thus undercut the parents’ efforts to inculcate their children with their own opposing religious views.[169]

In Parker, there were two sets of families—the Parkers and the Wirthlins.[170] The court explained that while the parents’ children were both exposed to books discussing homosexuality, the Wirthlins had a better case of indoctrination than the Parkers.[171] However, in the end, the court rejected the plaintiffs’ indoctrination claim.[172]

In the Wirthlin’s claim, Joey Wirthlin’s teacher read his second-grade class a book titled King and King.[173] The book was a variation of a popular fairytale.[174] Although in this book, the prince did not kiss a princess—rather, he kissed another prince.[175] The story ends with the princes marrying each other and a heart censoring their kiss.[176] The parents asked that their child either receive an exemption or, at a minimum, notice that this subject would be discussed.[177] The school denied these requests, and the parents subsequently sued.[178] The court explained that Joey was “required to sit through a classroom reading of King and King and . . . that book affirmatively endorses homosexuality and gay marriage”[179] and acknowledged that “[i]t is a fair inference that the reading of King and King was precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used.”[180] Even with this evidence, the parents could not successfully demonstrate the school imposed an unconstitutional burden on their religious exercise rights.[181] The court stated:

Public schools are not obligated to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them. . . . On the facts, there is no viable claim of “indoctrination” here.[182]

Two years earlier, the United States District Court for the Eastern District of Kentucky also used the reasoning in Mozert in applying a narrow definition of the burden standard.[183] In Morrison v. Board of Education, middle school and high school students were required to attend mandatory diversity training, which focused heavily on sexual orientation and gender discrimination.[184] The plaintiffs objected to the training as a violation of their free exercise rights, among other constitutional claims.[185] The court, relying on Mozert, rejected the free exercise claim. The court explained:

Following Mozert, it is not enough that Plaintiffs’ claim that the mandatory student training offends their religious beliefs. They must establish that it created a burden upon the exercise of their religion . . . Plaintiffs’ claim falls short. There is no evidence that the student-Plaintiff, or any other student, was compelled to disavow his or her religious beliefs. Nor is there evidence that the student-Plaintiff, or any other student, was called upon to endorse homosexuality, bisexuality or transgendered persons.[186]

Parker and Morrison demonstrate the willingness of courts to adopt Mozert’s narrow definition of a burden.[187] The problem with such a narrow definition is that it creates a practically insurmountable threshold for parents desiring to bring a free exercise claim against their children’s school district. Under this definition, almost all free exercise claims would likely fail because parents could not demonstrate that indoctrination constitutes a burden on their religious beliefs. Schools would essentially need to force students to affirm a specific belief, such as evolution, before a free exercise claim could meet the burden threshold. However, as Part V will explain, the threshold for demonstrating a burden under the Free Exercise Clause does not require schools to require affirmation of a belief. Rather, for plaintiffs to meet the threshold requirement of demonstrating a burden on their religious beliefs, it is enough to demonstrate “that the state has put pressure on their children to endorse an affirmative view of [a specific behavior or belief] and has thus undercut the parents’ efforts to inculcate their children with their own opposing religious views.”[188]

V. The Indoctrination Theory

Part V discusses the foundations of the indoctrination theory, specifically in the realm of public education.[189] Part V reveals that, while the Court stresses the importance of inculcating students with values conducive to a civic education, inculcation of students is impermissible when it becomes indoctrination. Finally, Part V delineates the indoctrination test. This test would allow parents to argue that values indoctrination in public schools violates their free exercise rights by placing a burden on their right to engage in their respective religious practices and hold specific religious beliefs. When parents are able to claim that values indoctrination constitutes a burden on their free exercise rights, they are able to meet the threshold requirement for claiming a violation of their rights under the Free Exercise Clause.

A. Defining an Indoctrination Test

1. What is Indoctrination?

Indoctrination requires parents to prove “the state has put pressure on their children to endorse an affirmative view of [a specific behavior or belief] and has thus undercut the parents’ efforts to inculcate their children with their own opposing religious views.”[190] This view of indoctrination does not require the student to affirmatively adopt a specific viewpoint. Further, under an indoctrination test, affirming a specific belief is not required for parents to claim a burden on their free exercise rights.[191] Recent federal cases considering the free exercise rights of parents to control their children’s upbringing have found parents could not claim that indoctrination in the public schools placed a burden on their free exercise rights.[192] Rather, parents must argue that the school coerced their children to affirm a specific belief.[193] The Supreme Court’s past First Amendment jurisprudence demonstrates that the burden requirement is much broader.

2. Current Use of the Indoctrination Theory in the Federal Courts

When discussing rights allocated to individuals under the First Amendment, it is important to discuss briefly the free exercise rights of both parents and children. Parents’ free exercise rights are often more expansive than their children’s free exercise rights, as some suggest children’s First Amendment rights are limited.[194] Given this limitation, it is often more feasible for parents to raise a Free Exercise Clause claim. The indoctrination theory is premised on the notion that indoctrination violates the parents’ free exercise rights.

In Parker v. Hurley, the parents raised an indoctrination claim under the First Amendment’s Free Exercise Clause and claimed that “the state . . . put pressure on their children to endorse an affirmative view of gay marriage and thus undercut the parents’ efforts to inculcate their children with their own opposing religious views.”[195] Despite this claim, the Third Circuit rejected this argument, explaining that they were unaware of the Supreme Court’s utilization of an “indoctrination test under the Free Exercise Clause, much less in the public school context.”[196] Nonetheless, given the parents’ claims, the court explained that they “[did] not address whether or not an indoctrination theory under the Free Exercise Clause is sound.”[197] While the court did not discuss the validity of an indoctrination theory under the Free Exercise Clause, such a test is in keeping with Supreme Court’s past jurisprudence under the Free Exercise Clause, and more narrowly, in the public school context.[198]

B. Using Establishment Clause Jurisprudence to Create an Indoctrination Test

The Supreme Court’s coercion test, in the Establishment Clause context, provides support for an indoctrination test in the free exercise realm.[199] In Lee v. Weisman, the Supreme Court discussed coercion in the context of the First Amendment, specifically the Establishment Clause.[200] In Lee, a student, along with her father, sued her school district after a rabbi delivered a benediction at a middle school graduation ceremony.[201] The Court held that the deliverance of invocations and benedictions at public school graduation ceremonies was unconstitutional because the deliverance of such speeches amounted to coercion.[202] Even though students could choose not to attend the graduation ceremonies if such speeches offended their beliefs, students should not be limited to non-participation.[203] Notably, “in our society and in our culture high school graduation is one of life’s most significant occasions.”[204] Further, “absence [from graduation ceremonies] would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.”[205] Therefore, the deliverance of such speeches has a coercive effect on students who disagree with the messages being presented in these invocations and benedictions.[206]

Justice Kennedy, writing for the majority, relied on psychological studies to explain that coercion has a large effect on children. Specifically, Justice Kennedy explained, “Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.”[207] Children are not only “susceptible to pressure from their peers towards conformity,” but also their teachers’ views.

The Court in Weisman used a “broad definition of compulsion,” when holding that an invocation and benediction at a middle school graduation constituted coercion.[208] This expansive definition of compulsion has positive implications for broadening the burden requirement under the Free Exercise Clause realm.[209] Because of mandatory attendance laws, children must receive an education.[210] However, when schools engage in indoctrination, the “combination of compulsory attendance laws and the huge financial penalty placed on attendance at non-government-run schools places a strong coercive burden on religious exercise.”[211] This burden is even more significant on parents in lower socio-economic classes, as they are less likely to afford private alternatives, such as parochial or private schools.[212] Further, these parents are also less likely to have the opportunity to educate their children at home because they likely need to work outside the home to support the family financially.[213] Therefore, parents who are not able to choose a non-public educational option must have their children attend public schools under state law.[214] Consequently, parents do not have the same opportunities to avoid the values indoctrination as those who are able to afford private education.[215]

This situation inherently creates a problem by creating a tension between parents and the state. Parents who have no choice but to send their children to public schools will not have to concern themselves with the possibility of indoctrination occurring in the classroom. This constitutes a burden on their free exercise rights. However, a burden would still occur even for those who could afford non-public alternatives, as they must choose between either financing their children’s education or allowing their children to be indoctrinated with values contrary to their own.

When determining whether a state action violates the Free Exercise Clause, the coercion test is also applicable because of children’s impressionability and maturity.[216] Some courts suggest that if children disagree with the values and ideas within the public schools, they should engage in a dialogue with other students. This alternative requires at least two assumptions. First, the argument assumes that children have the intellectual capacity to discern the values that are being conveyed in the classroom and can discuss articulatey why they agree or disagree with these values.[217] Most often, young children do not have the intellectual capacity to make such a choice because the values are being discussed at such a young age.[218] For example in Parker, teachers read kindergarten students books that discussed homosexuality and homosexual relationships.[219] At this age, it is difficult to argue how the child could have the capacity to engage in a values discussion with their peers and teacher regarding homosexuality and homosexual relationships. Therefore, at a minimum, the public school environment coerces young students because of children’s inability to comprehend competing ideas. Such a limitation easily places a burden on parents’ rights, especially when the material discussed is contrary to the religious teachings of the parents.

Second, preventing indoctrination through dialogue among students and teachers assumes that there are “many opportunities for students with minority perspectives to present their views in class or other instructional settings.”[220] However, this alternative is once again premised on the assumption that students will be capable of engaging in a debate on a particular topic, that students are willing to speak up in a classroom of their peers and that students will not face retaliation for speaking their views on certain subjects—especially on controversial topics such as homosexual marriage and sex education.

The aforementioned discussion assumes that a marketplace of ideas exists for children to converse with each other about differing viewpoints.[221] Even if young children had the intellectual capacity to participate in the marketplace of ideas, public schools do not represent the perfect marketplace of ideas.[222] Unlike a street corner or a city sidewalk—areas which are deemed by the Supreme Court to be traditional public forums and therefore subject to the highest amount of First Amendment protection[223]—the public school is traditionally viewed as a limited or non-public forum.[224] Therefore, the state has a significant amount of latitude in regulating speech within this forum.[225]

Further, even though students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”[226] students’ First Amendment rights are substantially limited in the public school context.[227] In Tinker v. Des Moines School District, the Supreme Court considered the limits of students’ speech rights under the First Amendment for the first time.[228] Under the standards articulated by the Court, public schools could restrict students’ free speech rights when the speech either causes a substantial or material disruption in the regular “operation of the school”[229] or infringes on the rights of others.[230]

In Hazelwood School Dist. v. Kuhlmeier, public school officials censored material from a student newspaper because the content addressed controversial and personal issues.[231] Student members of the Spectrum subsequently sued the school district for violating their First Amendment rights.[232] The Supreme Court applied the public forum analysis and held that the student newspaper was a closed forum.[233] Because the newspaper was a closed forum, the school did not infringe on the students’ First Amendment rights because schools have the right to censor students’ speech when there is a legitimate pedagogical purpose.[234]

While Tinker and Hazelwood demonstrate that school administrators can substantially limit students’ free speech rights where the school exercises control, schools are also allowed to exercise a substantial amount of control over the content of student speech. In Bethel School District v. Fraser, the Supreme Court considered whether school officials could discipline a student for an obscene speech he delivered at a school-wide assembly.[235] The Court held: “The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech . . . would undermine the school’s basic educational mission.”[236] The Court, in Morse v. Frederick, reaffirmed the ability of schools to censor student speech when the speech is contrary to the goals of the school.[237] In this case, a student held a sign that read, “BONG HiTS 4 JESUS,” at a school-sanctioned event.[238] The school contended the sign violated the school’s anti-drug policy.[239] The Court agreed, holding that “[t]he First Amendment does not require schools to tolerate at school events student expression that contributes to [the dangers of illegal drug use].”[240]

Although students’ free speech rights are substantially limited in the public school context, students receive greater protection of their free speech rights in institutions of higher education.[241] Most often, while colleges and universities can place reasonable time, place and manner restrictions on student speech, they cannot place restrictions on the content of such speech.[242] In the elementary and secondary school realm school administrators can usually regulate the content of student speech. Schools can accomplish this if there is a legitimate, pedagogical purpose for the regulation of “school sponsored expressive activities.”[243] While in the higher education context, colleges and universities must demonstrate a compelling state interest when regulating the content of students’ speech and the regulation of this speech must be narrowly tailored to achieve this compelling interest.

This section demonstrates that the Establishment Clause’s coercion test provides some justification for the broadening of the burden standard under free exercise jurisprudence to include indoctrination. Notably, “[i]f the two religion clauses are symmetrical protections of dual aspects of religious liberty . . . then the concepts of ‘burden’ on religious exercise and ‘coercion’ of religious exercise must be accorded the same breadth.”[244] Given the existence of mandatory attendance laws, the inability of children to discern between competing ideas and participate fully in an intellectual dialogue and the limited, if non-existent, free speech rights of children in public schools, there is good reason to apply the principles of the Establishment Clause’s coercion test to the Free Exercise Clause realm.

C. Using Free Speech Jurisprudence to Create an Indoctrination Test

Free speech jurisprudence also provides justification for the broadening of a burden to include indoctrination under the Free Exercise Clause. The captive speech doctrine “posits a situation in which the listener has no choice but to hear the undesired speech.”[245] In Public Utilities Commission of District of Columbia v. Pollack, the Supreme Court began to articulate the captive speech doctrine.[246] In Pollack, the petitioners argued that their free speech rights under the First Amendment were violated when the Public Utilities Commission played music and commercial advertisements through speakers in public streetcars.[247] The majority held that the petitioners’ free speech rights were not violated,[248] but Justice Douglas, in dissent, argued that individuals on the streetcars constituted a captive audience.[249] Justice Douglas explained that while individuals always have a choice to engage in a behavior, riding a streetcar during this period was a “necessity” since “this mode of transportation . . . [was] essential for many thousands” at the time.[250] This is similar to the public school setting. Douglas remarked that “[w]hen we force people to listen to another’s ideas, we give the propangandist a powerful weapon.”[251]

Children in public schools, especially young children in the pre-adolescent stage, can be a captive audience.[252] These children are captive because of state imposed compulsory attendance laws.[253] Because children must attend school, they forcibly receive a government message unless their parents or guardians place them in a private educational setting.[254] The Supreme Court is more likely to be protective of captive audiences, therefore the Court limits the amount of First Amendment protection afforded to individuals speaking within these contexts.[255] Further, because of their age, young children may be more susceptible to being captive than older students.[256] Given this situation, the indoctrination theory would be especially applicable to an audience that spends most of the week in a classroom. When young children are in a public school classroom, this audience is “captive” to the information being revealed by the teacher, and more broadly, the state. Therefore, when the state instructs children with a view that is contrary to their parents’ religious beliefs, the state has the potential ability to indoctrinate the students because of their “captive” nature.

While the captive speech doctrine in free speech jurisprudence is underdeveloped,[257] this doctrine can still provide support for the creation of an indoctrination theory in free exercise jurisprudence.

D. Creating a Balancing Test to Determine the Existence of Indoctrination

In the aforementioned Parts, this Article discussed the foundations for establishing that indoctrination constitutes a burden on parents’ free exercise rights. This section discusses a test to determine when indoctrination is present in the public schools. This context driven test involves careful consideration of the facts involved. When considering the context, courts should balance the following factors in determining whether indoctrination constitutes a burden on parents free exercise rights: (1) whether the parent has a sincerely held religious belief; (2) the age of the child involved; (3) the subject-matter and presentation of the curriculum; (4) the requirements of the student when the curriculum was in use; and (5) whether parents had the opportunity to receive prior notice or opt-out. This test does not require the parent to prove the school forced a child to affirm a specific belief. This would require something the Free Exercise Clause does not require.

1. Sincerely Held Religious Belief

Parents will never be able to establish a burden on their free exercise rights unless they are able to demonstrate that they have a sincerely held religious belief.[258] The Supreme Court established this in Wisconsin v. Yoder.[259] A religious belief does not have to be central to the parents’ faith, but it must be grounded in religion.[260] Religion is at the heart of the free exercise clause, and if parents cannot demonstrate a sincerely held religious belief, then they cannot demonstrate that the government action constituted a burden on their free exercise rights. Unlike the other factors in this test, this factor is dispositive.

2. The Age of the Child

The court should consider the age of the child when determining whether the school engaged in impermissible indoctrination. The heart of the indoctrination theory is that the school has put “pressure on . . . children to endorse an affirmative view” of a specific behavior or belief.[261] Given the discussion of the coercion test in the Establishment Clause jurisprudence and its application to the Free Exercise Clause realm, this test strongly suggests that children are more likely to be coerced than adults are, and the same can be said for indoctrination: younger children are more likely to be indoctrinated than older students.

Young children are extremely impressionable to competing ideas, and therefore, while the school may not have required students to affirm a specific belief, “requiring impressionable children to exhibit adherence to beliefs that they do not (yet) hold is an effective way of cultivating adherence to those beliefs.”[262] Further, younger children are less likely to have the intellectual capacity to discuss competing ideas or challenge their teacher. Previous sections of this Article discussed the fact that students have limited First Amendment rights. As such, the younger the child, the more likely the court is to find in favor of indoctrination.

3. Subject-Matter and Presentation of the Curriculum

Public schools must teach certain subjects to assure that students are receiving a basic education, including learning how to read and write. Further, schools need to educate children in civic values, which occurs in a civics class. During this class, students learn about the history of the United States and the structure of our government. Students also learn about how to fulfill their civic duty, including voting, running for public office, or pursuing a career in public service. However, other areas of teaching, such as sex-education, can create controversies.

In areas that traditionally stir debate between school districts and parents, courts should engage in a more searching inquiry to determine whether the teaching of these subjects could place a burden on parents’ free exercise rights. These subjects should be inherently suspect.

Further, in addition to the actual material, the presentation of the curriculum is also important. Indoctrination can occur when neutrality is not present in the curriculum. Neutrality of the curriculum is not necessarily easy or even possible in certain circumstances. When neutrality is possible, it would be constitutionally suspect if the school did not discuss the other side. For example, when the teacher in Parker read the book discussing a prince kissing another prince, the reading automatically suggested that such conduct is normal behavior and endorsed by the school. However, the teacher did not mention that some families disagree with the fact that same-sex couples can marry in the state of Massachusetts based on sincerely held religious beliefs. Courts should consider whether the school could present the curriculum in a neutral manner. If the school could present the curriculum in a neutral manner but did not, then this factor should weigh in favor of the parents.

4. Requirements of the Student during the Curriculum

The requirements of the student in the curriculum are important in determining whether the indoctrination constituted a burden on parents’ free exercise rights. The information causing the indoctrination is likely to have less of a burden on parents’ rights when it is posted to a bulletin board than if the children are required to perform some action, such as reading the material aloud to the class.[263] Further, parents may be more likely to feel burdened when the information is conveyed through a teacher reading the material to the students as was the case Parker.[264]

5. Opportunity to Receive Prior Notice or Opt-Out

Indoctrination potentially rises to the level of a constitutional violation when parents are not given the opportunity to receive prior notice—so they are able to discuss such issues with their children—or they are not able to opt-out their children from the instruction. When determining whether indoctrination constitutes a burden on parents’ free exercise rights, courts should consider, at a minimum, whether parents had prior notice. The First Circuit, in Parker, explained that when determining whether a public school’s activity amounted to a burden on parents’ free exercise rights, the “outcome does not turn . . . on whether the parents had notice.”[265] However, parents and schools alike benefit when the school district (or teachers) give prior notice. If the school district provides prior notice to parents on controversial subjects, then schools place themselves in a better position of insulating themselves from lawsuits filed by parents claiming the school violated their Free Exercise Clause rights. Parents also benefit from prior notification because they are able to discuss such topics with their children before their presentation at school. Further, they may be less likely to feel the school violated their free exercise rights.

VI. Application of “Indoctrination” under the Free Exercise Clause

Part VI applies the proposed indoctrination test to sex education curriculum and returns to the question originally raised in the beginning of this article regarding how parents adequately plead a burden to the exercise of their religion at the hands of a public school. Given this obstacle, Part VI focuses exclusively on the threshold issue of establishing a burden.

Before applying the indoctrination test to the following situations, it is important to reiterate the test. Under an indoctrination theory, parents must demonstrate that “the state has put pressure on their children to endorse an affirmative view of [a specific behavior or belief] and has thus undercut the parents’ efforts to inculcate their children with their own opposing religious views.”[266] When considering whether this occurred, courts should consider the following factors: (1) whether the parent has a sincerely held religious belief; (2) the age of the child involved; (3) the subject-matter and presentation of the curriculum; (4) the requirements of the student when the curriculum was in use; and (5) whether parents had the opportunity to receive prior notice or opt-out.

Sex education curriculum is a contentious issue among parents, educators and policy makers, alike. This debate places supporters of comprehensive sex education against supporters of abstinence-only education. Increasingly, school districts are considering expanding sex education to elementary school children.

When applying the indoctrination test, consider the following hypothetical: Julie and Mark are Catholic parents trying to raise their children with a Catholic upbringing. In accordance with their faith, they believe that individuals should abstain from sex until marriage, and the use of contraception is contrary to the teachings of the Church. They have two children who are in fourth and seventh grade, respectively. Julie and Mark become concerned about their school district’s recent change to teach sex-education to both elementary and secondary students. This program is required for all students and takes place in the classroom. They believe the sex-education curriculum violates their Catholic beliefs regarding who has the authority to instruct the children on issues related to sex and how much information their children should be exposed to at such a young age.

The question is whether the sex education curriculum creates a burden on Julie and Mark’s free exercise rights to raise their children with a Catholic upbringing. First, there is the question of whether the parents have a sincerely held religious belief. This is straightforward. Julie and Mark are Catholics, and, under their faith, they have strongly held beliefs regarding sex education.

Julie and Mark believe that, under their faith, they have the primary responsibility of educating their children about sex.[267] They also believe that, in accordance with their faith, their children should not be exposed to unnecessary sex education prior to their adolescent years. These years, as Pope John Paul II explained, are considered the “years of innocence”:

It can be said that a child is in the stage described in John Paul II’s words as “the years of innocence” from about five years of age until puberty — the beginning of which can be set at the first signs of changes in the boy or girl’s body (the visible effect of an increased production of sexual hormones). This period of tranquility and serenity must never be disturbed by unnecessary information about sex.[268]

Further, the Pontifical Council for the Family, a branch of the Vatican, in The Truth and Meaning of Human Sexuality, explained:

In some societies today, there are planned and determined attempts to impose premature sex information on children. But, at this stage of development, children are still not capable of fully understanding the value of the affective dimension of sexuality. They cannot understand and control sexual imagery within the proper context of moral principles and, for this reason, they cannot integrate premature sexual information with moral responsibility.[269]

Therefore the first factor would weighs in favor of the parents.

The next factor to consider is the age of the children involved. In this hypothetical, the children are in fourth and seventh grade. Undoubtedly, the court will likely consider the introduction of sex education material on the fourth-grader to be suspect. The case of the seventh-grader is a bit more difficult as the child is at or near the adolescent stage. If the children were in high school, this factor would weigh more heavily with the school, as children at this age are better able to analyze the information that is being presented to them, and they are more aware of their religious values at this point. This is not suggesting that sex education at the high school level does not place a burden on parents’ free exercise rights. Rather, this is to say that a court would be more inclined to weigh this factor in favor of the school.

The next factor is the subject matter and presentation of the curriculum. The subject matter of the curriculum weighs against the school and in favor of the parents. Sex education, unlike mathematics, is a controversial subject, and as such, courts need to acknowledge that, because of its controversial nature, the curriculum is more likely to create a burden on individuals’ free exercise rights. As for the presentation of the material, there would need to be more information about the material presented. If the school presented the material in a neutral manner, this factor would weigh more in favor of the school, but not much given the nature of the material. Yet, given the difficulty in presenting sex-education curricula in a neutral manner, this factor, overall, would likely weigh in favor of the parents.

Another factor to consider is the requirements of the student when the curriculum was in use. In this hypothetical, the students were required to listen to the material in the classroom as part of a required activity. This Article suggested earlier that the classroom could become a coercive environment as students are required to attend public schools. Further, unlike merely handing the material to the children to bring home to their parents, the students are active listeners in the classroom. This factor is likely to weigh in favor of the parents.

Finally, the court must consider whether there was an opt-out or parental notification policy. If there was an opt-out policy, then the court would likely find this factor dispositive (on behalf of the state), and determine that the parents’ free exercise rights were not infringed upon by the government action because the parents could have removed their children from the classroom during the sex education unit. If there was only a parental notification policy, the court would still look at the parents’ claim with a keen eye as the state gave them the opportunity to discuss the matter with their children before their children were exposed to the material within the classroom. Further, the older the child, the less likely a school would infringe on a parent’s free exercise rights because older children are able to listen to their parents and understand the competing interests of the state and the parents. While the indoctrinating material at school would undoubtedly still present a problem for parents attempting to instill their religious values into their children, parents would be less likely to establish a burden. Conversely, for young children, especially those in kindergarten, receiving notification of the material before the school presents the material may not be enough to prevent a burden on parents’ free exercise rights, as it is probably very difficult for parents to discuss with their children the competing values of the parents and the state. Younger children are less likely to understand or comprehend such a discussion.

Massachusetts, along with other states, has opt-out and parental notification statutes that allow parents to remove their children from the classroom during sex education. Under Massachusetts’ parental notification law, schools must notify parents and guardians “about any curriculum that primarily involves human sexual education or human sexuality issues, and permitting them to exempt their children from any portion of that curriculum without penalty.”[270] This notification occurs during the beginning of the school year, and the school principal must receive the request for exemption. Further, under this law, parents have the right “to inspect and review program instruction materials for these curricula. The notice should describe the school district’s process for ensuring reasonable access to the instructional materials.”[271] If such a statute were present, then parents would have a difficult time arguing that sex education constitutes a burden on their free exercise rights.

Unfortunately, even when these statues are present, litigation occurs because of the difficulty in defining “human sexual education or human sexuality issues.”[272] For example, some may believe these terms include surveys with sexual content and curriculum discussing homosexual relationships, and the school district may not read the statute that broadly. Given the difficulty in defining what these statutes cover, legislatures need to be explicit about defining “human sexual education” and “human sexuality issues.” This would save parents, schools and the courts a significant amount of time.

In this hypothetical, it is likely that the parents would be able to prove the sex education curriculum amounted to indoctrination of their children, and this indoctrination constituted a burden on their free exercise rights. The outcome of this hypothetical may be different if the children involved are older and more detail is discussed regarding the actual sex education program.

VII. Conclusion

This Article has explored the tension between the right of parents to control the upbringing of their children in accordance with their religious beliefs and the interests of the state in creating citizens educated in the democratic values of our society. While the Free Exercise Clause allows for the inculcation of civic values in the public schools, inculcation can easily become indoctrination. When raising a free exercise claim parents have experienced varied success in the federal courts. Under such a claim, parents must first meet the threshold test of establishing that a government action placed a burden on their free exercise rights. Many courts are reluctant to find that indoctrination constitutes a burden on parents’ free exercise rights. Relying on Establishment Clause and Free Exercise jurisprudence, along with pluralist theory, this article demonstrates that indoctrination can indeed place a burden on parents’ free exercise rights. When parents are able to contend that indoctrination in public schools places a burden on their free exercise rights, they are able to conquer the threshold test and subsequently analyze the claim under Smith’s free exercise standard. More generally, this Article suggests the Supreme Court needs to clarify what constitutes a burden under the Free Exercise Clause, and this clarification should err on the side of creating a broad definition of “burden.”


* B.A., University of Minnesota; M.A., M.P.A., University of Wisconsin-Madison; Ph.D. candidate, Department of Political Science, University of Wisconsin-Madison; J.D. candidate, University of Minnesota Law School (expected December 2009). The author would like to thank her parents for their love and support.

[1]. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008), cert. denied, 129 S.Ct. 56 (2008).

[2]. Id. at 93 (referencing Linda de Haan & Stern Nijland, King and King (2000)).

[3]. Id. at 92.

[4]. Id.

[5]. Id. at 93.

[6]. Id.

[7]. See William G. Ross, The Contemporary Significance of Meyer and Pierce for Parental Rights Issues Involving Education, 34 Akron L. Rev. 177, 188–89 (2000) (“To some degree or another, many schools have succumbed to the latest trends in political correctness and/or to promoting sexual license.”); see also Diana Jean Schemo, Lessons on Homosexuality Move Into the Classroom, N.Y. Times, Aug. 15, 2007, at B6, available at 2007/08/15/education/15education.html (discussing increased dialogue regarding homosexuality and homosexual relationships within the public school curriculum).

[8]. Compare Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005) (“In sum, we affirm that the Meyer-Pierce right does not extend beyond the threshold of the school door. The parents’ asserted right ‘to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs,’ by which they mean the right to limit what public schools or other state actors may tell their children regarding sexual matters, is not encompassed within the Meyer-Pierce right to control their children’s upbringing and education.”), with C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 185 n.26 (3d Cir. 2005) (citations omitted) (“In reaching this conclusion, we do not hold, as did the panel in [Fields], that the right of parents under the Meyer-Pierce rubric ‘does not extend beyond the threshold of the school door.’ Nor do we endorse the categorical approach to this right taken by the Fields court, wherein it appears that a claim grounded in Meyer-Pierce will now trigger only an inquiry into whether or not the parent chose to send their child to public school and if so, then the claim will fail.”).

[9]. See, e.g., Maxine Eichner, Who Should Control Children’s Education?: Parents, Children, and the State, 75 U. Cin. L. Rev. 1339, 1339–40 (2007) (citing several cases concerning a wide range of controversial school curriculum). This Article does not address the question of who has the authority to control the curriculum in public schools. Rather, it focuses on defining the relationship between state inculcation and indoctrination and discusses how parents can protect their free exercise rights to control the upbringing of their children. This Article does not discuss whether children have rights to control their upbringing. For a discussion on children’s rights, see generally Emily Buss, Allocating Developmental Control Among Parent, Child and the State, 2004 U. Chi. Legal F. 27 (2004) (discussing children’s right to assist in their own education and development).

[10]. See, e.g., Troxel v. Granville, 530 U.S. 57, 66–68 (2000) (invalidating under the Due Process Clause of the Fourteenth Amendment a state statute allowing non-parents to petition for visitation rights of children); Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925) (invalidating under the Due Process Clause a state statute requiring parents to educate their children in a public institution); Meyer v. Nebraska, 262 U.S. 390, 397, 403 (1923) (invalidating under the Due Process Clause a state statute prohibiting public schools from teaching any language other than English).

[11]. See Ridgewood Bd. of Educ., 430 F.3d at 182 (“The Supreme Court has never been called upon to define the precise boundaries of a parent’s right to control a child’s upbringing and education.”).

[12]. See id.

[13]. See Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 533 (1st Cir. 1995) (“[T]he Meyer and Pierce cases were decided well before the current ‘right to privacy’ jurisprudence was developed, and the Supreme Court has yet to decide whether the right to direct the upbringing and education of one’s children is among those fundamental rights whose infringement merits heightened scrutiny.”).

[14]. U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”); see also Troxel, 530 U.S. at 93 n.2 (Scalia, J., dissenting) (arguing the Court did not have an opportunity to address an enumerated claim under the First Amendment because the issue was never presented).

[15]. See Eric A. DeGroff, Parental Rights and Public School Curricula: Revisiting Mozert After 20 Years, 38 J.L. & Educ. 83, 90 (2009) (explaining the high threshold of “direct coercion,” established in Mozert, needed to prove religious coercion by the state under the First Amendment); Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 934 (1989) (“As the law now stands, a prima facie case of a violation of the [free exercise] clause exists whenever government policy creates a burden on a sincerely held religious conviction.”).

[16]. See Lupu, supra note 15, at 934 (explaining that courts have not articulated when government activity becomes a burden on an individual’s free exercise rights). Lupu goes on to say that “[b]efore courts ever reach the rigorous standard of review appropriate to free exercise cases, they must be satisfied that the harm complained of falls within the boundaries of the clause.” Id.

[17]. Id. at 935 (footnote omitted) (“The concept of burden . . . serves as the latest in a series of gatekeeper doctrines, which function to increase the likelihood of failure at the prima facie stage, and thereby to reduce the number of claims that must be afforded the searching inquiry demanded by the free exercise clause.”).

[18]. See, e.g., Amy Gutmann, Democratic Education 52 (1987) (“[T]he development of deliberative character is essential to realizing the ideal of a democratically sovereign society.”).

[19]. This Article does not argue that parents should “control the school’s power to prescribe a curriculum.” Parker v. Hurley, 514 F.3d 87, 102 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008). Like the parent-plaintiffs in Parker, this Article acknowledges that the state “has a legitimate secular interest in seeking to eradicate bias against same-gender couples and to ensure the safety of all public school students.” Id. (internal quotes omitted). Further, like the parent-plaintiffs in Parker, this Article suggests that parents have a “sincere interest in the accommodation of their own religious beliefs and of the diversity represented by their contrary views.” Id.

[20]. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986). Rosemary Salomone suggests that the Supreme Court did not always consider values inculcation to be a high priority. See Rosemary C. Salomone, Common Schools, Uncommon Values: Listening to the Voices of Dissent, 14 Yale L. & Pol’y Rev. 169, 186 (1996) (“[T]he Court has articulated a general view of education which has shifted emphasis from a rights-based to a values-based ideology over time. In particular, the focus has shifted from parental and student rights based in the First and Fourteenth Amendments, to the authority of school officials to make curricular and administrative determinations that reflect community and societal values.”).

[21]. Michael W. McConnell, The New Establishmentarianism, 75 Chi.-Kent L. Rev. 453, 455 (1999) (“[I]t is difficult or impossible for a liberal state to engage in the direct inculcation of public virtue without compromising its liberal commitment to neutrality among the different and competing reasonable worldviews of the society.”).

[22]. While the state often believes values inculcation is justified to provide a child with a civic education, others suggest that parents should determine which values are important to children. Those countering state authority argue that state intervention is unnecessary unless parents are causing harm to their child. See Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 Notre Dame L. Rev. 109, 135 (2000) (“[S]tate supervention of parents’ educational authority is justified only to prevent harm to a child and not to inculcate those values that the State believes will best serve its own, or the child’s, ‘best interests.’”).

[23]. See Lisa Shaw Roy, Inculcation, Bias, and Viewpoint Discrimination in Public Schools, 32 Pepp. L. Rev. 647, 653 (2005) [hereinafter Roy, Viewpoint Discrimination] (“The point at which courts should draw the line between inculcation and indoctrination can be difficult to discern, but a focus on the subject matter of the students’ proposed expression can aid the process.”); see also Fraser, 478 U.S. at 681 (discussing the role of public education in a democratic society, which includes teaching “tolerance of divergent political and religious views, even when the views expressed may be unpopular”) (citing Charles Austin Beard et al., New Basic History of the United States 228 (1968)); Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (“[L]ocal school boards must be permitted ‘to establish and apply their curriculum in such a way as to transmit community values’ . . . .” (citation omitted)).

[24]. See generally The Federalist No. 10 (James Madison) (discussing the concern over factions and the need for a plurality of interests in society).

[25]. See, e.g., Fraser, 478 U.S. at 681; Gutmann, supra note 18, at 50–52.

[26]. Kathleen A. Brady, The Push to Private Religious Expression: Are We Missing Something?, 70 Fordham L. Rev. 1147, 1208 (2002).; see also Rachel Alyson Meltzer, Creating Family-Sensitive Schools, 15 Kan. J.L. & Pub. Pol’y 87, 92 (2005) (“[A]ny defensible standard of civic education must be committed to prepare children for the rights and responsibilities of citizenship, even over opposition to their parents or in the face of impeding some existing way of life. Such an education requires the inculcation of the political virtues of toleration and mutual respect, a sense of fairness and civility.” (citing Amy Gutmann, Civic Education and Social Diversity, 105 Ethics 557, 567 (1995))).

[27]. Meltzer, supra note 26, at 93. Meltzer also explained that “we must embrace ‘indoctrination in tolerance’ as necessary to both democracy and individual self-fulfillment.” Id.

[28]. Brady, supra note 26, at 1208.

[29]. Id.

[30]. See Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. Chi. L. Rev. 131, 148 (1995) (footnote omitted) (“A concomitant of our fascination with rights is the loss of any notion of responsibility. Everyone now has rights, but no one has responsibilities.”).

[31]. Id. at 132, 148–49.

[32]. Id. at 142.

[33]. Id. at 132.

[34]. Id. at 135–36.

[35]. Id. at 137.

[36]. Id. at 155.

[37]. Id. at 157 (emphasis omitted).

[38]. Id.

[39]. See Emily Buss, The Adolescent’s Stake in the Allocation of Educational Control Between Parent and State, 67 U. Chi. L. Rev. 1233, 1242–43 (2000) [hereinafter Buss, Educational Control].

[40]. Id. at 1263.

[41]. Id. at 1270.

[42]. See id. at 1285–86.

[43]. William Galston, a political theorist, suggests that moral pluralism cannot be considered exclusive of other areas of pluralism, including political pluralism. Rather, these views should be understood in conjunction with one another, so that we may better understand “the role of deep pluralism within liberal societies.” See William A. Galston, Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources of Liberal Theory, 40 Wm. & Mary L. Rev. 869, 884–85 (1999) [hereinafter Galston, Three Sources of Liberal Theory].

[44]. Gutmann, supra note 18, at 22. For similar arguments regarding the role of the state in educating children, see Stephen Macedo, Constituting Civil Society: School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values, 75 Chi.-Kent L. Rev. 417, 422–23 (2000). Macedo also relies on democratic theory to argue that the state should have a broad role in the education of children. Macedo argues that requiring public education, rather than allowing for educational choice, provides the best opportunity to educate children in a cohesive, civic-minded fashion. Id. at 423 (“The public school system embodies America’s determination to forge a shared civic culture even in the face of the challenge of deep normative diversity . . . .”). For a discussion of the feasibility of civic education curriculum, see Tyll van Geel, Citizenship Education and the Free Exercise of Religion, 34 Akron L. Rev. 293, 366–372 (2000) (explaining that a civic education curriculum based on a theory of deliberative democracy could face challenges under the Free Exercise Clause).

[45]. Gutmann, supra note 18, at 28–29. Gutmann writes, “[The state of families] places educational authority exclusively in the hand of parents, thereby permitting parents to predispose their children, through education, to choose a way of life consistent with their familial heritage.” Id. at 28. But see Garnett, supra note 22, at 138 (“[T]he Government should neither come to nor act on the conclusion that religious teaching (as opposed to religiously inspired conduct) or religious education is harmful, at least not in a sense analogous to the physical harm that we all agree the Government may act to prevent.”).

[46]. Gutmann, supra note 18, at 30.

[47]. Id. at 33.

[48]. Id. at 42.

[49]. Id.

[50]. Amy gutmann & Dennis Thompson, Democracy and Disagreement 67 (1996) (“There is a public interest in educating good citizens, and no citizen can fairly claim that what constitutes good citizenship is whatever happens to conform to his or her particular religion.”).

[51]. Gutmann, supra note 18, at 54.

[52]. Legal scholars in addition to Galston, including Michael McConnell, argue that pluralism requires diversity of opinions in society. See McConnell, supra note 21, at 475 (“In a pluralistic society, such as ours, common values are not determined by central authorities, but emerge from the overlapping consensus of free private associations.”).

[53]. William A. Galston, Families, Associations, and Political Pluralism, 75 Fordham L. Rev. 815, 826 (2006) [hereinafter Galston, Political Pluralism].

[54]. Id. at 815–16.

[55]. Id. at 816.

[56]. Id.

[57]. Galston, Three Sources of Liberal Theory, supra note 43, at 883–84 (footnote omitted).

[58]. Id. at 877 (“Expressive liberty is an important value because for most people, it is a precondition to leading a life they consider complete and satisfying.”).

[59]. See id. at 877–78.

[60]. Galston, Political Pluralism, supra note 53, at 827.

[61]. Id. (citing 268 U.S. 510 (1925)).

[62]. Id. at 827 (quoting 268 U.S. at 534 (internal quotation marks omitted)).

[63]. Galston, Political Pluralism, supra note 53, at 827 (quoting 268 U.S. at 534).

[64]. Id. at 818.

[65]. See id. at 831.

[66]. Galston, Three Sources of Liberal Theory, supra note 43, at 881.

[67]. See Galston, Political Pluralism, supra note 53, at 830 (arguing that the courts should have afforded more deference to the parents in Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1060–61 (6th Cir. 1987), a case where parents argued that the school violated their free exercise rights in having their children read a series of reading books designed to teach “higher order cognitive skills,” and discussing “mental telepathy”).

[68]. Galston, Three Sources of Liberal Theory, supra note 43, at 897.

[69]. Id.

[70]. Id.

[71]. Id. at 899–900.

[72]. Id. at 900.

[73]. See id.

[74]. See id.

[75]. Id. at 902.

[76]. Cf. Laura A. Rosenbury, Between Home and School, 155 U. Pa. L. Rev. 833, 894 (2007) (stating that state regulation could “potentially infring[e] on parents’ ability to convey their own values to their children.”).

[77]. Cf. Jesse R. Merriam, Why Don’t More Public Schools Teach Sex Education?: A Constitutional Explanation and Critique, Wm. & Mary J. Women & L. 539, 574 (2007) (“[B]ecause a Roman Catholic parent almost certainly has a more difficult time inculcating her child with Roman Catholic beliefs when her child’s school expressly contradicts Roman Catholic teaching, in many situations compulsory sex education will substantially burden the child-rearing interests of Roman Catholic parents, just as Wisconsin’s compulsory school attendance law burdened the child-rearing interests of Amish parents.”).

[78]. For a brief discussion of the infeasibility of curriculum neutrality, see Sherry, supra note 30, at 158–59.

[79]. See supra note 10.

[80]. See Emily Buss, “Parental” Rights, 88 Va. L. Rev. 635, 648 (2002) [hereinafter Buss, “Parental” Rights].

[81]. Id. at 647.

[82]. Id. at 649.

[83]. See id.

[84]. See Gutmann, supra note 18, at 50–52 (explaining the importance of public education in instilling children with civic values).

[85]. Buss, Educational Control, supra note 39, at 1286–87.

[86]. Id. at 1287.

[87]. Id. at 1287–88 (citing Gutmann, supra note 18, at 110).

[88]. Lisa Shaw Roy, Can the Accommodationist Achieve Pluralism?, 32 Seattle U. L. Rev. 361, 361 (2009) [hereinafter Roy, Pluralism] (quoting Merriam-Webster’s Collegiate Dictionary 955 (11th ed. 2005)).

[89]. See Richard F. Duncan, Parental Opt-outs in Nebraska Schools: Respecting Freedom of Thought, Parental Rights, and Religious Pluralism, 79 Neb. L. Rev. 922, 925 (2000) (explaining that liberal opt-out policies “create[] a climate of tolerance and respect for diversity and religious pluralism in the school and the community. . . .”); see also Gutmann, supra note 18, at 33 (“Pluralism is an important political value insofar as social diversity enriches our lives by expanding our understanding of differing ways of life.”). Though Gutmann explains that pluralism is important, she differs from some other scholars in that she does not believe pluralism can be achieved by recognizing different ways of life. Rather, pluralism occurs through a child’s own exposure to differing ways of life. (“To reap the benefits of social diversity, children must be exposed to ways of life different form their parents and—in the course of their exposure—must embrace certain values, such as mutual respect among persons . . . .”) Id.

[90]. See generally The Federalist No. 10 (James Madison) (discussing the need for a plurality of interests in society).

[91]. Roy, Pluralism, supra note 88, at 362 n.2.

[92]. See id. at 366. Cf. Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 Yale L.J. 1647, 1649 (1986) (“Socialization to values through a uniform educational experience necessarily conflicts with freedom of choice and the diversity of a pluralistic society.”).

[93]. See Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. Chi. L. Rev. 937, 953 (1996) (explaining parents’ unique position to determine what is best for their child as they understand it, and explaining the often divergent ideas between parents and the majority of what constitutes the child’s best interest). See generally Linda L. Schlueter, Parental Rights in the Twenty-First Century: Parents as Full Partners in Education, 32 St. Mary’s L.J. 611 (2001) (arguing that statutory law should provide greater protection to parents to control the upbringing of their children).

[94]. See Gilles, supra note 93, at 951.

[95]. See id.

[96]. Id.

[97]. See id. at 953 (“Parents have better incentives to act as faithful agents on their child’s behalf than does the majority (or those, such as teachers, to whom the majority might delegate its authority).”).

[98]. Id. Gilles explains that there are certain situations in which parents do not have their children’s best interests in mind. This often occurs when parents abuse their children. See id. at 954. While the state has the authority to usurp parents’ authority over their children in these cases, “[u]nless parents’ treatment of their child violates widely shared norms of decency . . . we do not intervene.” Id.

[99]. See id. at 954–55.

[100]. See id. at 955.

[101]. Id. at 955–57.

[102]. Id. at 955–56.

[103]. Id.

[104]. Id. at 956.

[105]. Id. at 958.

[106]. See id. at 958–60.

[107]. Id. at 958–59.

[108]. See id. at 959.

[109]. Id. at 960.

[110]. Id. at 952.

[111]. Id.

[112]. William G. Ross, The Contemporary Significance of Meyer and Pierce for Parental Rights Issues Involving Education, 34 Akron L. Rev. 177, 204 (2000).

[113]. Salomone, supra note 20, at 225.

[114]. See Gilles, supra note 93, at 952.

[115]. See DeGroff, supra note 15, at 90 (explaining that parents must prove the threshold issue of government action amounting to a burden on their free exercise rights before bringing a free exercise claim).

[116]. See Brian A. Freeman, The Supreme Court and First Amendment Rights of Students in the Public School Classroom: A Proposed Model of Analysis, 12 Hastings Const. L.Q. 1, 24–31 (1984) (discussing the limitations of students’ First Amendment rights in the public school classroom); Jennifer L. Specht, Note, Younger Students, Different Rights? Examining the Standard for Student-Initiated Religious Free Speech in Elementary Schools, 91 Cornell L. Rev. 1313, 1324 (2006) (discussing the argument that the First Amendment does not apply to children, or alternately, that it applies to children on a limited basis).

[117]. Recent scholarship suggests that if Meyer v. Nebraska and Pierce v. Society of Sisters were before the Supreme Court today, courts could classify them as free speech cases. See Gilles, supra note 93, at 944 (arguing that parents have a free speech right under the First Amendment to educate their children and therefore, such speech “should receive a high level of First Amendment protection similar to that currently afforded to political speech”). However, courts could also classify them as Free Exercise Clause cases. See Troxel v. Granville, 530 U.S. 57, 95 (2000) (Kennedy, J., dissenting) (“Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion.”); William G. Ross, The Contemporary Significance of Meyer and Pierce for Parental Rights Issues Involving Education, 34 Akron L. Rev. 177, 182 (2000) (“[A] court would probably hold that the First Amendment’s Free Exercise Clause compels the state to permit parents to have the option to send their children to a sectarian school.”). This is an important point because current Supreme Court jurisprudence suggests that “parental claims to direct the education of their children, absent any religious grounding, would never be enough to grant an exception to a general law . . . .” Michael E. Lechliter, Note, The Free Exercise of Religion and Public Schools: The Implications of Hybrid Rights on the Religious Upbringing of Children, 103 Mich. L. Rev. 2209, 2219 (2005).

[118]. See C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir. 2005) (“The Supreme Court has never been called upon to define the precise boundaries of a parent’s right to control a child’s upbringing and education.”).

[119]. Troxel, 530 U.S. at 91–92 (Scalia, J., dissenting).

[120]. Id. at 92.

[121]. Id.

[122]. Id. at 93 n.2.

[123]. Id.

[124]. Id. at 91 (“And in my view [the right of parents to control the upbringing of their children] is also among the ‘othe[r] [rights] retained by the people’ which the Ninth Amendment says the Constitution’s enumeration of rights ‘shall not be construed to deny or disparage.’”).

[125]. Id. at 91–92.

[126]. Id. at 95 (Kennedy, J., dissenting).

[127]. 494 U.S. 872 (1990).

[128]. See George W. Dent, Jr., Of God and Caesar: The Free Exercise Rights of Public School Students, 43 Case W. Res. L. Rev. 707, 712 & n.37 (1993).

[129]. Id. at 711 (footnote omitted).

[130]. Smith, 494 U.S. at 879. (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).

[131]. Dent, supra note 128, at 712.

[132]. Id. at 713.

[133]. See id. at 712–13.

[134]. See id. at 712.

[135]. Id. at 713.

[136]. Id. (footnote omitted) (“In some situations students are even compelled or forbidden to express beliefs.”).

[137]. Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 881 (1990).

[138]. See generally Lechliter, supra note 117 (discussing the feasibility of a hybrid rights claim under the Free Exercise Clause).

[139]. Dent, supra note 128, at 723.

[140] See Merriam, supra note 77, at 572.

[141]. 406 U.S. 205, 207, 234 (1972).

[142]. See Lupu, supra note 15, at 934 (narrowing in on the question of what constitutes a burden in such circumstances).

[143]. See id. at 937–46 (explaining that while the Supreme Court speaks of a burden requirement, it has not fully articulated what factors should be considered in determining whether government action constitutes a burden on individuals’ free exercise rights).

[144]. 374 U.S. 398 (1963).

[145]. Id. at 399.

[146]. Id.

[147]. Id. at 401.

[148]. Id.

[149]. Id. at 403.

[150]. Id. at 404.

[151]. Id.

[152]. Lupu, supra note 15, at 942.

[153]. See id. at 942–46 (discussing the current application of the burden standard, including its application in Mozert).

[154]. Id. at 943.

[155]. See, e.g., id. at 934.

[156]. See DeGroff, supra note 15, at 90.

[157]. Id.

[158]. 647 F. Supp. 1194, 1199–1200 (E.D. Tenn. 1986), rev’d, 827 F.2d 1058 (6th Cir. 1987).

[159]. Id. at 1196–97.

[160]. Id. at 1196.

[161]. Id.

[162]. Id. at 1197.

[163]. Id.

[164]. Id. at 1200.

[165]. DeGroff, supra note 15, at 90; see also Lupu, supra note 15, at 944 (“Mozert thus stands for the unattractive principle that compulsory exposure to ideas from which an individual is obliged by religion to dissociate does not even implicate the free exercise clause, much less violate it.”).

[166]. Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1065 (6th Cir. 1987).

[167]. DeGroff, supra note 15, at 90 (“This same high threshold for establishing a burden on religion continues to be applied by the courts.”).

[168]. 514 F.3d 87, 105–06 (1st Cir. 2008), cert. denied, 129 S.Ct. 56 (2008).

[169]. Id. at 105.

[170]. Id. at 92–93.

[171]. Id. at 106 (differentiating between instances where a child is made to read or listen to a book that “affirmatively endorses homosexuality and gay marriage,” and those instances where a child has similar types of books merely “made available to him”).

[172]. Id. at 107.

[173]. Id. at 93.

[174]. See id.

[175]. Id.

[176]. Id.

[177]. Id.

[178]. Id.

[179]. Id. at 106.

[180]. Id.

[181]. Id.

[182]. Id. at 106; see also id. at 107 (“Because plaintiffs do not allege facts that give rise to claims of constitutional magnitude, the district court did not err in granting defendants’ motion to dismiss the [religious exercise] claims under the U.S. Constitution.”).

[183]. Morrison ex rel. Morrison v. Bd. of Educ. of Boyd County, 419 F. Supp. 2d 937, 943–44 (E.D. Ky. 2006), rev’d on other grounds, 507 F.3d 494 (6th Cir. 2007); see also DeGroff, supra note 15, at 90–91 (discussing and highlighting the use of Mozert’s definition of coercion in Morrison).

[184]. Morrison, 419 F. Supp. 2d at 939.

[185]. Id. at 940.

[186]. Id. at 943–44.

[187]. See Parker, 514 F.3d at 105; Morrison, 419 F. Supp. 2d at 943–44.

[188]. Parker, 514 F.3d at 105.

[189]. Previous research addressing indoctrination in public schools considers limitations placed on student speech within the public school classroom instead of indoctrination aimed at motivating the beliefs of the child. See, e.g., Roy, Viewpoint Discrimination, supra note 23, at 651 (examining “free speech clause precedent to determine whether the Court imposes a type of viewpoint neutrality requirement for school policies that exhibit bias against religious opinions, political opinions, or opinions on matters related to race”).

[190]. Parker, 514 F.3d at 105.

[191]. See Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795, 855 (1993) (“The Free Exercise Clause, properly understood, limits the power of government to engage in ‘secular’ indoctrination to the extent that such indoctrination contradicts or undermines a believer’s religious principles.”).

[192]. See, e.g., Parker, 514 F.3d at 105; Morrison, 419 F. Supp. 2d at 943–44.

[193]. See id.

[194]. See, e.g., Alison Lima, Shedding First Amendment Rights at the Classroom Door?: The Effects of Garcetti and Mayer on Education in Public Schools, 16 Geo. Mason L. Rev. 173, 173 (2008) (noting that while in school, children’s First Amendment rights are often even more limited than they would normally be).

[195]. Parker, 514 F.3d at 94, 105.

[196]. Id.

[197]. Id. Although the court did not address the viability of an indoctrination claim under the First Amendment’s Free Exercise Clause, the court explained that even if the parent’s claims were true, they did not rise to the level of coercion to warrant First Amendment protection. Id. Such a finding is debatable when the court did not adequately define the definition of indoctrination.

[198]. Previous scholarship briefly notes that an indoctrination claim may be raised under the Free Exercise Clause after Smith. See Dent, supra note 128, at 713 (“[A] more subtle indoctrination occurs where stories or discussions portray homosexuality or illegitimacy as normal and acceptable. This could be forbidden by Employment Division v. Smith as ‘lend[ing government’s] power to one or the other side in controversies over religious authority or dogma.’”) (quoting Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 877 (1990)).

[199]. See Dent, supra note 128, at 715–18 (discussing the coercion test in Lee v. Weisman and its possible application to Free Exercise Clause claims); Paulsen, supra note 191, at 856 (“‘Burden’ is the Free Exercise analog to ‘coercion’ on the Establishment Clause side. Both concepts address the problem of deciding where the protections of a constitutional provision begin.”).

[200]. 505 U.S. 577, 592 (1992).

[201]. Id. at 581.

[202]. Id. at 594–98.

[203]. See id. at 595.

[204]. Id.

[205]. Id.

[206]. Id. at 595–96.

[207]. Id. at 593.

[208]. Dent, supra note 128, at 715.

[209]. See Paulsen, supra note 191, at 855–58.

[210]. See Michael E. Hersher, “Home Schooling” in California, 118 Yale L.J. Pocket Part 27, 28 (2008), (“The plenary power of a state legislature to provide for the education and welfare of children through compulsory attendance has been affirmed repeatedly since the decision in Pierce v. Society of Sisters.”) (citing 268 U.S. 510 (1925)).

[211]. Paulsen, supra note 191, at 857.

[212]. See Heather M. Good, Comment, “The Forgotten Child of Our Constitution”: The Parental Free Exercise Right to Direct the Education and Religious Upbringing of Children, 54 Emory L.J. 641, 676 (2005) (“[This option] is only available to those few in American society who are able to afford private school in addition to paying for a public school system that is subsidized by American tax dollars.”).

[213]. See id. (“This option is only open to those of higher economic status and almost completely impossible for single parent families.”).

[214]. See Hersher, supra note 208, at 28 (citing California statutes requiring compulsory education in the public school system, and noting exceptions).

[215]. When parents experience greater school choice, the values of pluralism are manifested in society. Cf. Brady, supra note 26, at 1194 (footnotes omitted). As Brady has stated:

[T]he pluralism of modern American society means that we really only have two options. One option is public schools which teach majoritarian values at the expense of minorities, who must either be indoctrinated in these majority values or forgo their right to publicly-funded education. The other option is a publicly funded voucher system which makes education a matter of family choice. The former ‘creates a civic orthodoxy’; the latter allows families to support a diversity of schools reflecting the full pluralism of modern American society.


[216]. Lee v. Weisman, 505 U.S. 577, 592 (1992) (discussing cases challenging prayer in public schools as indirectly coercive); see also Brady, supra note 26, at 1160 (noting that school-sponsored “prayers together with the graduation context also results in a coercion problem”).

[217]. Brady advocates for a forum where students holding minority views are able to express these views with their classmates. Brady, supra note 26, at 1200. Brady explains: “If . . . [students] were permitted to bring their perspectives into classroom activities and other instructional settings, they would be able to reaffirm and defend their own values against the imposition of majoritarian norms by the school.” Id. She continues: “[B]y sharing their views with others in school-sponsored settings, minority students . . . can contribute alternative perspectives to the larger school community.” Id.

[218]. See Kevin W. Saunders, Saving Our Children from the First Amendment 40 (2003) (“Offering [an] idea to children too young to make such rational decisions does nothing to test the rational power of the idea but only its superficial attraction. Allowing attempts to convert children to a particular position, before they are capable of consumer wariness, is to allow a subversion of the marketplace rather than protecting the free market in ideas.”).

[219]. See Parker v. Hurley, 514 F.3d 87, 92 (1st Cir. 2008), cert. denied, 129 S.Ct. 56 (2008).

[220]. Brady, supra note 26, at 1201.

[221]. See Khianna Bartholomew, Avoiding Implicit Acceptance of Bigotry: An Argument for Standardized Testing of Home-Schooled Children, 92 Cornell L. Rev. 1177, 1196 n.178 (2007) (“The use of public schools to instill political and religious values uniformly throughout all schools poses a serious threat to the marketplace of ideas and the integrity of the democratic process. Regulations conforming all schools, including home schools, to the teaching standards, curriculum content, and social levels of public schools destroys diversity and creates a danger of ‘despotism over the mind.’”) (quoting Christopher J. Klicka, The Right to Home School: A Guide to the Law on Parents’ Rights in Education 46 (3d ed. 2002)) (citation omitted).

[222]. See Saunders, supra note 216, at 40 (“[T]he marketplace-of-ideas rationale is best viewed as an adult market. The test of an idea found in the power of the idea to gain acceptance in the marketplace requires the free-market decisions of rational adults.”).

[223]. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988) (“The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that ‘time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)).

[224]. Id. at 267 (“[S]chool facilities may be deemed to be public forums only if school authorities have ‘by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public . . . .’” (citation omitted)).

[225]. See id.

[226]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[227]. See Lima, supra note 192, at 173 (“First Amendment rights for students and teachers have always been more limited in schools than in public generally, as schools have legitimate interests in maintaining order, discipline, and productive pedagogical environments.”).

[228]. Tinker, 393 U.S. at 505–06.

[229]. Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)).

[230]. Tinker, 393 U.S. at 513.

[231]. 484 U.S. 260, 263–64 (1988). One of the articles addressed teen pregnancy within the school and another article described students’ experiences with divorce in their families. Id. at 263.

[232]. Id. at 264.

[233]. Id. at 267–70.

[234]. Id. at 273.

[235]. 478 U.S. 675, 677 (1986).

[236]. Id. at 685.

[237]. 551 U.S. 393, 408–10 (2007).

[238]. Id. at 397 (internal quotes omitted).

[239]. Id. at 398.

[240]. Id. at 410.

[241]. See DeJohn v. Temple Univ., 537 F.3d 301, 316 (3d Cir. 2008) (“[A]lthough ‘[s]peech codes are disfavored under the First Amendment because of their tendency to silence or interfere with protected speech . . . [,] public secondary and elementary school administrators are granted more leeway [to restrict speech] than public colleges and universities . . . .”’ (citation omitted)).

[242]. Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973).

[243]. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

[244]. Paulsen, supra note 191, at 856.

[245]. William D. Araiza, Captive Audiences, Children and the Internet, 41 Brandeis L.J. 397, 400 (2003).

[246]. 343 U.S. 451, 468–69 (1952) (Douglas, J., dissenting).

[247]. Id. at 463 (majority opinion).

[248]. Id.

[249]. Id. at 468 (Douglas, J., dissenting).

[250]. Id.

[251]. Id. at 469.

[252]. See Freeman, supra note 116, at 20 (explaining that children in the classroom must be considered a captive audience, which in turn affects their rights under the First Amendment).

[253]. See id. (footnotes omitted).

[254]. See id.; see also Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007), cert. denied, 128 S.Ct. 160 (2007) (“Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling.”).

[255]. See Freeman, supra note 116, at 20 (“The existence of a captive audience permits government to impose regulations on free expression that normally are not permissible.”); see also Araiza, supra note 243, at 402 (footnote omitted) (“The label ‘captive audience’ thus reflects a value judgment that certain interests, which commentators often identify as privacy and autonomy, are worth protecting in some contexts, even at the cost of suppressing speech.”).

[256]. See Araiza, supra note 243, at 407–09.

[257]. See Marcy Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85, 90 (1992) (“Despite numerous Supreme Court decisions invoking the captive audience doctrine, the Court has failed to shed any meaningful light on the definition of captivity and on the precise burden placed on individuals to avoid the message.”).

[258]. Mozert v. Hawkins County Pub. Sch., 647 F. Supp. 1194, 1197 (E.D. Tenn. 1986), rev’d, 827 F.2d 1058 (6th Cir. 1987) (“In deciding whether plaintiffs’ free exercise rights have been impermissibly burdened by the state, the Court must first determine whether the beliefs are religious and whether they are sincerely held by the individual asserting them.”).

[259]. 406 U.S. 205, 215 (1972) (“[T]o have the protection of the Religion Clauses, the claims must be rooted in religious belief.”).

[260]. See Mozert, 647 F. Supp. at 1198 (“No Supreme Court decision has turned on the issue of whether a particular belief was central to the believer’s faith.”).

[261]. Parker v. Hurley, 514 F.3d 87, 105 (1st Cir. 2008), cert. denied, 129 S.Ct. 56 (2008).

[262]. Nomi Maya Stolzenberg, “He Drew a Circle That Shut Me Out”: Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 Harv. L. Rev. 581, 605–06 (1993).

[263]. See id. at 605–11 (discussing how various methods of communication can have different impacts on school-aged children); id. at 606 (contrasting the act of reading to oneself versus being read to, and positing that the latter may tend to trigger “group think”).

[264]. See Parker, 514 F.3d at 93.

[265]. Id. at 106.

[266]. Id. at 105.

[267]. The Pontifical Council for the Family, The Truth and Meaning of Human Sexuality: Guidelines for Education within the Family, ¶ 43 (Dec. 8, 1995), available at (“Sex education, which is a basic right and duty of parents, must always be carried out under their attentive guidance, whether at home or in educational centres chosen and controlled by them.”).

[268]. Id.

[269]. Id. at ¶ 83.

[270]. Massachusetts Department of Elementary & Secondary Education, Advisory Opinion on the Parental Notification Law (Apr. 7, 1997), c7132adv.html#a2 (hereinafter Advisory Opinion); Mass. Gen. Laws. Ch. 71, § 32A (2002).

[271]. Advisory Opinion, supra note 268.

[272]. Id.; see also Mass. Gen. Laws. Ch. 71, § 32A.

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