Are states moving toward constitutional protections for parents’ rights?

• Even if states do not include specific language in their own state constitutions stating that parents’ rights (and specifically in education) are protected, they ultimately are.
• However, the extent to which government institutions protect parents’ rights in practice can be significantly influenced by the specific language that exists in state laws and the state constitution.
• States can further strengthen protections of parents’ rights in their constitutions, which creates a unique space of opportunity for policymakers to improve the law to benefit and serve the needs of families.

Recently, I published a piece on the power and differences between state statutes and constitutional amendments in protecting rights, particularly parents’ rights in education.

Now, we take a closer look at what’s already been accomplished or proposed for state constitutional amendments that do just that.

Federal-level incorporation and state-level interpretation

First, it’s essential to recognize the legal principle of “incorporation,” which is understood to mean that certain provisions of the Bill of Rights are incorporated (or applied) to states through the 14th Amendment of the U.S. Constitution. A related legal principle is a “liberty interest,” which is a right that someone has to do or not do something through the Due Process Clause of the 14th Amendment. This essentially means that states cannot deprive these “liberties” without due process. 

Through U.S. Supreme Court rulings in 1923 (Meyer v. Nebraska), 1925 (Pierce v. Society of Sisters), 1979 (Parham v. J.R.), and 2000 (Troxel v. Granville), the right of a parent to direct the “care, custody and control of their children” – including their education – was established as a liberty interest under the U.S. Constitution and incorporated to the states.

Therefore, even if states do not include specific language in their own state constitutions stating that parents’ rights (and specifically in education) are protected, they ultimately are. However, the extent to which government institutions protect parents’ rights in practice can be significantly influenced by the specific language that exists in state laws and the state constitution.

In this way, the U.S. Constitution sets the minimum for protecting fundamental rights, and states can add upon these protections in their own laws and constitutions. This creates a unique space of opportunity for policymakers and voters.

State constitutional language and proposals

Generally, state constitutions do not contain explicit language that specifically protects parents’ rights in education. However, some include language that has been interpreted at the state level to protect parents’ rights broadly.

For example, in the Florida Constitution, Article I, Section 23, says, “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life…” This state-level constitutional provision’s right to privacy has been interpreted to cover parents’ rights.

Utah Constitution, Article I, Section 7, says, “No person shall be deprived of life, liberty or property, without due process of law,” and section 25, which says “This enumeration of rights shall not be construed to impair or deny others retained by the people,” have been interpreted to protect parents’ rights.

Another has more direct language about where to send a child to school. Kentucky’s Bill of Rights in its state constitution says, “nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed.”

Many more states have tried to pass constitutional amendments to explicitly protect parents’ rights in education. One source says that between 2013 and 2023, 38 state constitutional amendments related to parental rights were proposed. In 2023, the number of attempts climbed significantly. In 2021, there was one; in 2022, there were four; but by 2023, there were 13 constitutional amendments proposed in nine states. Looking at proposals that deal specifically with parental rights in education, introduced in 2023 and beyond, we see some similar language being proposed.

2023

In 2023, Arizona’s Senate passed SCR 1025 that would have added to the state constitution that parents have a fundamental right “to direct the upbringing, education, health care, and mental health of their children.”

That same year, Texas proposed and passed through its Senate, SJR 70 to amend the constitution to include a right for parents or guardians “to exercise care, custody, and control of the parent’s child and to make decisions for the upbringing of the parent’s child, including but not limited to decisions regarding the education, moral and religious training, and health care of the child.”

Likewise, in 2023, Louisiana introduced HB 152 to amend the constitution to say, “Parents have the paramount right to raise their children in accordance with their own values and traditions. Parents shall make the decisions regarding where and with whom the child shall reside, the educational, moral, ethical, and religious training of the child, the medical, psychiatric, surgical, and preventive health care of the child, and the discipline of the child.”

2024

In 2024, Alabama tried to pass a constitutional amendment that would say parents have “a fundamental right to direct the upbringing, education, care, and control of their children.”

New Hampshire also introduced CACR17, a proposal to amend the constitution in 2024 that would say, “parents shall have a fundamental right to direct the upbringing, education, and care of their minor children.”

2025

In 2025, Colorado introduced HCR 25-1003, a constitutional amendment, which would add to the nonexclusive list of inalienable rights of all persons the right of “directing the upbringing, education, and care of their children.”

Maine also proposed a constitutional amendment in 2025, that would have said, “This State, its political subdivisions and all governmental entities may not infringe on the authority of parents to direct the upbringing, education and care for the physical, mental and spiritual health of their children, absent abuse or neglect by the parent or guardian or criminal acts by the minor.”

In 2025, Minnesota proposed an amendment that would say, “The liberty of a parent to direct the education of their child is fundamental and includes the right to choose, as an alternative to public education, a private, religious, or home school, and the right to make reasonable choices within a public school for their child. The state must not infringe these rights.”

What’s happening in Utah

The Utah state code protects parents’ rights in education; however, no constitutional amendment has been passed to further articulate what this means or requires of the state.

A few sections of Utah code (statutes created by the legislature) make it clear that parents’ rights are constitutionally protected and considered fundamental in Utah. These can be reviewed below.

In Section 62A-4a-201 of the Utah Code, it says, “Under both the United States Constitution and the constitution of the state of Utah, a parent possesses a fundamental liberty interest in the care, custody, and management of the parents’ children.” According to this statute, the state constitution itself includes these protections.

Likewise, Section 80-2a-201, among many things says, “The fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child is recognized,” and “a parent has the right, obligation, responsibility, and authority to raise, manage, train, educate, provide and care for, and reasonably discipline the parent’s child.”

Further, Section 53E-2-201 says, “In the implementation of all policies, programs, and responsibilities adopted in accordance with this public education code, the Legislature, the state board, local school boards, and charter school governing boards shall respect, protect, and further the interests of parents in their children’s public education.”

Furthermore, other statutes support the rights of parents in education through other measures. For example, Utah law provides for parental rights to academic accommodations, waivers of participation if any aspect of school that violates students’ or their parents’ religious liberty or conscience rights, or a requirement that districts provide parents with curriculum to view.

A possible framework for a constitutional amendment

If Utah considers a constitutional amendment to strengthen parents’ rights, with some explicit emphasis on education, the proposal should seek to achieve several things:

1. Elevating parental rights by recognizing they are “fundamental” or “inalienable”.
2. Expressly mention that a parent’s right to direct or guide a child’s education includes the ability to access information about the curriculum in a public school and the right to enroll in any public school administered by a public school district that can reasonably accommodate additional students.
3. Include additional specific elements essential to parents’ liberty interest, such as parents’ right to direct their child’s religious upbringing.

There are many ways to draft this constitutional language, but the ultimate goal should be to elevate, specify, and strengthen parents’ fundamental rights in education.

Dallyn Edmunds contributed research to this article.