There are multiple ways that fundamental rights, such as parents’ rights, are protected, including constitutional provisions, statutes, case law, and even rules and regulations.
All of these exist at both the federal and state levels (i.e., we have the U.S. Constitution and individual state constitutions, and we have Acts of Congress and state legislation).
There have been a few key U.S. Supreme Court cases that speak to fundamental parents’ rights, but these holdings are few and far between. In recent years, we’ve seen an increase in states attempting to bolster parents’ rights at the state level by passing new laws through their legislative bodies.
Both state statutes and state constitutional amendments are options to accomplish this. Below, we explore both as opportunities for state policymakers to consider.
State constitutions and amendments
While the U.S. Constitution is the supreme law of the United States, state constitutions are the supreme law of the state. A constitution at either level can be changed through an amendment process, which at the state level, usually requires the legislature to pass a bill and for voters to approve it at the ballot box.
In Utah, both chambers have to approve the proposed amendment by a two-thirds majority vote. If this condition is met, the proposed amendment must be published in a newspaper in each county for a specified number of months prior to the next general election, at which point a simple majority of voters must approve it.
Just as a constitutional amendment is harder to establish in the first place, it is also harder to change later, which is what makes its protection stronger and more enduring than simply a statute. For something as crucial as protecting parents’ rights, a state constitutional amendment might be a particularly robust way to accomplish that.
From a political perspective, if a constitutional amendment is feasible, it’s the better route for lasting change. If a constitutional amendment is not feasible, statutes can be a great way to protect rights.
State statutes
The state’s legislative body creates state statutes when one of its members introduces a bill and both chambers (State House and State Senate) pass it, usually with a simple majority. This is the case in Utah.
Most statewide education policy is made through state legislation. Creating a statewide law requires a reasonably robust threshold to pass, but it’s still easier than a constitutional amendment, which is why legislation is a more likely path to achieve policy changes. At the same time, the downside is that it’s easier to change (or ultimately get rid of) if the tides of politics and policies alter in the future.
Statutes also give authority to rules and regulations in other government bodies. In Utah, for example, the Utah State Board of Education’s rulemaking power is derived directly from the statutes it has created.
Thus, state statutes are an effective means of protecting and bolstering rights.
Other state efforts and legal concepts
According to a tracker compiled by the Heritage Foundation, there are 25 states with parents’ bills of rights – or statutory provisions or executive orders that outline parents’ rights – including Utah. While states may have state constitutional language that supports parents’ rights in education, state constitutional language that explicitly protects parents’ rights specifically in education is very limited, indicating that this is a relatively new area.
This presents an interesting reality and opportunity in the context of something called “new judicial federalism.” It’s a concept that emerged during the 1970s, and according to Center for the Study of Federalism scholar G. Allan Tarr, it refers to “state courts relying on state bills of rights to provide broader protection for rights than was available under the federal Constitution.”
Previously, the courts didn’t rely on state constitutions, specifically state bills of rights, as much as they did on federal law. Although the U.S. Constitution remains the supreme law of the land, and state protections cannot be less than those provided by the U.S. Constitution and its case law, states can go above and beyond to add additional protections in their constitutions and statutes.
According to James A. Gardner, constitutional scholar from the University of Buffalo School of Law, this idea of judicial federalism holds that the U.S. Constitution and state constitutions are “jurisprudentially independent” and that “state supreme courts consequently may, and often should, interpret state constitutions differently from how the U.S. Supreme Court interprets the federal Constitution.”
Whether that understanding and trend continue or not, it may be worth considering the critical role that state constitutional language plays in protecting parents’ rights in education.
The opportunities for Utah
Utah should consider whether to pursue more protections for parents’ rights in the state, using either or both options. There is more work to be done.
