Commentary: Of rights and powers: state and parent

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Jack Coons, pictured here, co-authored “Education by Choice” in 1978 with fellow Berkeley law professor Stephen Sugarman.

Law uses the term “right(s)” in various ways; in its most common version, the concept includes a sub-species called “power(s),” a word that I will deploy here: We say that a scoutmaster has the right and power to expel (or not) the miscreant young Henry from Troop 40; my drill sergeant had the power to make me do push-ups. In this brief essay I will suggest that, in dealing with children and families, it could be useful to understand the parents’ authority in this way as a subcategory of right, one quite distinct from what I will call a “pure” right.

That latter term will mean the freedom to engage (or not) in some action that does not diminish any right enjoyed by others. I may stand (or not) for the flag; I may read what I please, swim in the creek, choose my dinner, criticize the government, fly to Chicago. Others have their own right to criticize my choices but not to impede their exercise.

Powers are rights but more than this “pure” version; they do, indeed, diminish the rights of others. A contemporary legal dictionary defines power as follows: Dominance, control, or influence over another … the ability … to alter, by an act of will, the rights, duties, liabilities, or other legal relations … of another.

Could there be a clearer image of the parents’ relation to the child? The not-yet-18 boy or girl must obey a parent’s orders, whether they involve dessert, bedtime, prayers, football, driver’s license, or enrolling in the Joe Smith private school. The parent lays down the law.

Of course, parental power is not without limit. The child has pure rights that formal government is bound to protect; we say that the state has the legal duty to intervene under various circumstances such as physical abuse by, or sheer incapacity of, the parent. For such cases, the state, in the idiom of its own law, acts “in loco parentis”; it becomes mom and dad for basic protections until either things are put right at home or legal adoption of the child identifies a new mom and dad, thus relocating and reanimating the parental power.

Does this word play matter to an understanding of family law? I think it clarifies our discourse and helps the family defender portray to the politician and judge the unique role of parent as lawmaker, one quite distinct from, and in fact superior to, that of the state itself within the broad zone of parental sovereignty.

Further, it clarifies the reality that the source of this power, whatever it be, is not some written constitution, state or federal. Parents enjoy their unique status anterior to and quite apart from any “positive” law; formal government recognizes their status and concedes their authority, short of abuse. Not all American law gets enacted by formal government. Parents constitute 80 million true sovereignties over their minor children.

Has this reality any importance for the world of schooling? It should at least help to clarify our public discourse. To begin, all parents have, not merely the duty, but the legal right and power to choose a school for their child. Sadly, this country has arranged the enjoyment of this power-right for only some families, while deliberately frustrating it for others. It is quite fair to say that we have truly “public” schools for middle-class families like my own; we could afford to, and did, move within a block of the splendid John Muir Elementary in Berkeley, California.

A few blocks to the south, in less affluent neighborhoods, the parents’ power to choose was quite unnecessarily frustrated. According to my dictionary, their schools were anything but “a place to which the general public has a right to resort.” For enrollment in such inner-city schools, the appropriate term is not the “right to resort,” but rather, the “conscription” or “abduction” of the child. The parents’ power to choose has been deliberately and unnecessarily frustrated.

This system for drafting the poor had its origin in the class and religious prejudice of the 19th century. It has survived in large part as the device for protection of the managers of these condemned institutions and the bosses of their teachers unions. As Albert Shanker told me on several occasions, “I will start representing children when they start paying union dues” – which, by the way, each student truly does, providing jobs by his conscripted presence.

It is the lawyers’ duty to help clarify our public discourse about the moral and civic disaster maintained by our very deliberate economic hobbling of the low-income parent for the benefit of a union hierarchy. The power (and right) of every mother and father is a precious thing; and the purposeful confusion about the publicness of these “public” schools that frustrate parental choice needs clarification by the pens and voices of the media and the legal profession.

My wee contribution might be to suggest to the truly “public” lawyer a yet untried constitutional response to the civic tragedy of our schools. The Ninth Amendment in the Bill of Rights purports to protect “rights” that were not “enumerated” in the 1787 text of the Constitution. Some justices of the Supreme Court have taken the Ninth seriously for interests of a sort they felt to be especially deserving of federal protection; others on the court have regarded such “discoveries” as the fruit of an undefinable and dangerously open-ended concept.

Recall again that powers are themselves one form of legal “right.” Those of the parent just might escape these very plausible fears of the justices. The parental regime is, by a millennium or two, older than our constitutions, federal and state. It has since the 1920s been specifically recognized by the Supreme Court under the Due Process guarantee of the Fourteenth Amendment but has never quite escaped the shadow of its legal origin among long-discredited judicial protections of business interests under the same language. Still, the reality of the parental sovereignty is plain, both as right and as power. Poverty lawyers could be invoking the Ninth Amendment to challenge the state’s drafting of inner-city children by government strangers who benefit from their captive status.