Legal Commentary

One of the oddest "phantom fundamental rights" is the right to raise and educate one's children. The Court repeatedly recognizes it as fundamental under the 14th Amendment, citing Pierce and Meyer, the Ur cases of modern substantive due process. But the right is almost never enforced against some of only state laws that are likely to burden it -- that is, state laws pressuring kids to attend public schools.

But the Court is in conference this morning considering a cert petition that addresses precisely this sort of pressure. In Smith v Barrow, the Fifth Circuit upheld a district court's application of strict scrutiny to a public school official's refusing to consider a teacher for a promotion unless she moved her kid from private religious school to public school. The teacher won a jury verdict of 35k on the theory that her right to Pierce/Meyer right to control the education of her children had been burdened. The jury had expressly found no burden on any right of religious free exercise: the only right at stake was the "pure" parental right, not the "hybrid" parental + free exercise right suggested by Yoder.

Will the Court grant the petition? I think not: This particular issue is impossibly contentious. If the Court were to affirm, then expect a flood of litigation from home-educating parents demanding access to public schools' athletic, musical, and other extra-curricular programs. There already is plenty such litigation rumbling along in the lower courts -- but an infusion of strict scrutiny from SCOTUS would certainly cause organizations like the Homeschool Legal Defense Fund to press more of them successfully. But if the Court does not affirm, then what's left of the vaunted Pierce/Meyer right?

Sometimes it is just easier to decide not to decide.

On the other hand, I've been wrong before in my predictions. I thought, for instance, that the Court would not grant cert in United States v. Lopez, another Fifth Circuit opinion written by Judge Garwood. Maybe Garwood has triggered yet one more revival of a hitherto moribund doctrine.