Judicial Engagement in Practice: Educational Choice

Adam Shelton · October 7, 2020

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms the Constitution guarantees. As part of this work, the Institute has long advocated for judicial engagement; that is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a case in favor of the government.

But what does that mean? What does that look like in the context of actual cases? This is the fourth in a series that seeks to answer just those questions. The first three focused on economic liberty, the First Amendment, and property rights. Today we look at educational choice.

Educational choice highlights another aspect of judicial engagement. Generally, judicial engagement is presented as the idea that judges should look at evidence and analyze facts in every constitutional case. And rightly so! But there is another aspect of judicial engagement: the protection of unenumerated rights.

Unenumerated Rights

The Ninth Amendment states: “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is some debate over whether this amendment means that the Constitution protects unenumerated rights; that is, whether it protects rights not explicitly mentioned in the Constitution, including the amendments. But the text is clear—sweeping and broad, but clear: Unenumerated rights exist.

The Supreme Court agrees and goes further to say that not only do unenumerated rights exist, but the Constitution protects them. Time and time again, the Supreme Court has held that the Constitution protects unenumerated rights. As such, the argument at the Court is often not whether these rights exist, but instead which unenumerated rights the Constitution protects and how much protection those rights should receive from the judicial branch. And that is where judicial engagement comes in.

Judicial engagement means that courts should enforce the Constitution as written. And it means that courts should look at the facts and analyze the evidence in every Constitutional case. This applies equally to enumerated and unenumerated rights. But courts do not always agree with this principle. Some cases involving educational choice exemplify this situation.

The Educational Choice Movement

The right of parents to control the upbringing and education of their children is not explicitly protected by the Constitution. But the Supreme Court has acknowledged time and time again that, even though not enumerated, the Constitution protects this fundamental right. The recognition of this right traces back to a 1923 Supreme Court decision involving a Nebraska law.

In Meyer v. Nebraska, the Supreme Court held that the Constitution protected the liberty of parents to control the upbringing of their children. At issue was a law that prohibited the teaching of any language other than English to grade school students. A teacher at a Lutheran school was convicted under this law for teaching German. She appealed this conviction, which the Supreme Court overturned. In doing so, the Court held that a teacher has a right to teach children and the parents have a right to control the upbringing of their children, which includes determining what languages they want taught.

Just two years later, in 1925, the Supreme Court reaffirmed this principle in Pierce v. Society of Sisters. There, Oregon enacted a law requiring all children between the ages of 8 and16 to attend public schools, thereby effectively prohibiting private schools. Parents, and the schools they wished their children to attend, challenged this prohibition. The Court explained that the Constitution protects “the liberty of parents and guardians to direct the upbringing and education of children under their control,” and that “[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” Thus, the Supreme Court held that prohibition on private education violated the Constitution.

The Rational Basis Test & Educational Choice

Both these decisions were rendered before the Court created the tiers of scrutiny system. Unfortunately, over the years, judges have watered down the protection provided to this “fundamental” unenumerated right by frequently applying the rational basis test unless it is paired with an enumerated right such as the free exercise of religion.

Take for example, two lower court cases (Herndon v. Chapel Hill & Immediato v. Rye Neck) from the 1990s which held that the right of parents to control the education of their children was subject only to rational basis review. In both cases, parents challenged 50-hour community service requirements to graduate from high school. Both courts upheld them. But the result is not the problematic aspect of the decisions. Instead, it is how both the Second and Fourth Circuits came to their conclusions.

In coming to this conclusion, both courts agreed that the Constitution protects the right of parents to control the upbringing and education of their children. But both determined that the right merited only the lowest level of constitutional protection: the rational basis test. They argued that heightened scrutiny is warranted only when free exercise rights are also at issue. They came to this conclusion borrowing “reasonableness” language from Pierce, even though Pierce was decided years before the courts created the “tiers of scrutiny” which include the rational basis test.

Under the rational basis test, courts will only strike down a law if the plaintiffs prove there is no rational relationship to a legitimate government purpose. Under the most deferential form of the test, courts will actually help the government make up reasons and refuse to look at and analyze the actual facts.

To be clear, the rational basis test is not a death knell for constitutional rights claims. IJ attorneys have won several cases under the rational basis test. But too many times, judges employ it in a manner which makes it little better than a rubber stamp and in a way that can hardly be classified as “real judging.”

Hope for the Future

While the two cases determined that this fundamental right only warranted rational basis review, there is hope—hope that comes from a somewhat recent Supreme Court decision (well, recent when compared with the landmark decisions of Pierce and Meyer).

In 2000, the Supreme Court issued its decision in Troxel v. Granville. There, the Court considered a Washington law which allowed people (grandparents in this case) to petition for a court to order visitation rights over the custodial parent’s objection. That is, the statute allowed the courts to order parents to allow certain people time with their children, even if the parents did not want those people to visit. The Supreme Court held that this law was unconstitutional. The Court determined that it violated the rights of parents to control the upbringing of their children—a right the Court first recognized in the 1920s with Meyer and Pierce.

The Court did not explicitly explain what standard of review it used in coming to this decision. But it is clear that rational basis review was not used. Justice Thomas objected to this ambiguity in a concurring opinion. He explained that the right of parents to control the upbringing of their children is a fundamental right. Thus, strict scrutiny should be applied as it is with all other fundamental rights cases.

Since this 2000 case, few educational choice or parental rights cases without a religious component have come before the Court (though it should be noted that IJ prevailed in the Court’s most recent educational choice case, Espinoza v. Montana Department of Revenue, which featured the Free Exercise Clause). As a result, the Supreme Court has yet to clarify what level of scrutiny applies to laws that abridge the right of parents to control the upbringing and education of their children. But, from the opinion in Troxel, it seems clear that rational basis review will not win the day. Moreover, if Justice Thomas has his way, this fundamental right will likely receive strict scrutiny. Only time will tell, but there is hope that the ideas behind judicial engagement will win out in the context of educational choice and protection of unenumerated rights.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.