Kentucky lawsuit shows need for parents’ rights constitutional amendment

• Sutherland Institute joined an amicus brief filed in Stovall v. Jefferson County Board of Education, a case pending before the U.S. Court of Appeals for the Sixth Circuit. The lawsuit comes from a parent whose request to review classroom materials in her child’s class was denied.
• One way to protect parents’ rights is through a state constitutional amendment that outlines protections on specific education-related rights.

​This summer, Sutherland Institute joined an amicus brief filed in Stovall v. Jefferson County Board of Education, a case pending before the U.S. Court of Appeals for the Sixth Circuit. The lawsuit comes from a Kentucky parent whose request to review controversial classroom materials in her child’s class was denied.

This case highlights the growing need for stronger parental rights in state statutes and constitutions.

Summary of the case and public policy implications

The Kentucky case arose from a student’s mother who wanted to review a survey given in her child’s class. The survey was administered by an organization that has been accused of pushing “radical ideologies,” and the mom believes it asked personal questions about mental health and sexual orientation. The mother’s request was denied by the school district on the grounds that it would lead to copyright infringement.

The amicus brief filed by Americans for Prosperity Foundation, which Sutherland signed, along with several other groups (including Bluegrass Institute, Goldwater Institute, Freedom of the Press Foundation, Mackinac Center for Public Policy, and more), adds clarity on the Copyright Act and touches on policy implications when claims of copyright infringement are inappropriately used as an obstacle to transparency of classroom materials.

Policy implications of curriculum copyright claims on parents’ rights

An increasing number of states have tried to pass transparency policies so parents can access learning materials. Understanding the potential misuse of copyright law can help defend parents’ rights already written in law, which protect parents’ ability to review curriculum to understand what their child is learning.

In an earlier article, I discussed “fair use,” a defense against copyright infringement, which is when someone can use copyrighted material when it’s being used for criticism, comment, research, teaching, and more. For parents seeking to review classroom materials, this could likely apply.

A quote by the group Right on Transparency, used in the amicus brief, explains it this way:

Aside from school curricular materials qualifying as public records—precisely because they reflect the operations of state and local government—their use falls under “fair use” when used to inform the public on a matter of public debate. Indeed, despite what some schools might argue, parents’ ability to obtain these records is protected by federal and state law. The federal Protection of Pupil Rights Amendment (PPRA), for example, requires parents at least have the right to “inspect . . . any instructional material used as part of the educational curriculum for [a] student.” (20 U.S.C. § 1232h(c)(1)(C)(i)) Freedom of Information laws at the state and local level can and should similarly protect access to and use of curricular materials.

It does not violate copyright to use school materials for “purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.” (17 U.S.C. § 107) Schools invoking copyright—all of which have lawyers giving them taxpayer-funded legal advice—ought to know this. Parents are not trying to profit from the work of authors and publishers; they are seeking information about their children’s education.

If a requester misuses copyrighted materials obtained under public-records laws, that requester risks penalties the same way as any other copyright offender. For instance, if a requester asks for a lesson and then assembles and sells it online, the publisher can sue. Mere fear that a requester may misuse copyrighted documents is not an excuse for overriding public-records laws, disregarding the importance of transparency, and dismissing parental rights.

As a public policy matter, if copyright law blocked opportunities for parents to review classroom materials, meaningful transparency of public schools would essentially be out of reach.

But both common sense and the copyright law itself (including its exceptions) suggest parents have a right to transparent access to see what their kids are learning.

Transparency in public institutions is key to ensuring they are working properly – and for ensuring trust in the institutions on which we rely. This is especially true in public education because parents have a fundamental right to guide their child’s education, which may be in a public school.

Without such an opportunity, an important pressure release valve is missing for conflicts that arise in schools in a variety of areas beyond transparency, including school choice, parental notice, accommodations, and more.

The policymaker opportunity

Policymakers should act to protect specific parental rights in statute and state constitutional amendments.

Protecting parents’ rights in statute is another crucial piece of the policymaking landscape; constitutional amendments add heft to the protections that parents.

An amendment could protect a parent’s right to education choice, nondiscrimination of state funding provided for education scholarships, curriculum transparency, accommodations for students whose parents seek opt-outs of school content or activities inconsistent with their religious beliefs, or others.

It’s important to consider these types of protections now for two reasons: (1) there is a growing number of legal questions that touch on parents’ rights, and (2) there is a growing pro-parent constituency that is becoming more powerful.

This year, the U.S. Supreme Court case in Mahmoud v. Taylor (for which Sutherland Institute filed an amicus brief) upheld the need for parents to have notice and opt-outs from sensitive curricula, which is good news. But the existence of this case demonstrates that the legal fight for parents’ rights in education transparency and accommodations is far from over.

States have tried to pass education-specific constitutional amendments, but so far have not succeeded. States should consider what they can do to protect a parent’s ability to navigate thorny issues in public education before they spring up.

Conclusion

In a time when parents have questions about public schools, and public schools need parents as partners, states should protect parental rights in the strongest ways possible by considering a state constitutional amendment.