The article, Parental Rights and Public School Curricula: Revisiting Mozert after 20 years, by Professor Eric A. DeGroff of Regent University School of Law, has been reposted to SSRN.  Originally published in 2009, Prof. DeGroff’s article revisits the jurisprudence of balancing parents’ recognized right to direct their childrens’ education and upbringing under the Due Process and Free Exercise clauses against states’ interest in compelling school attendance and determining their own curricula.  See Mozert v. Hawkins County Bd. Educ., 827 F.2d 1058 (6th Cir. 1987).  See also Wisconsin v. Yoder, 406 U.S. 205 (1972).  Detailing recent circuit inconsistency on the issue, DeGroff argues that courts should exercise heightened judicial scrutiny when state curricular requirements conflict with parental rights.

Please see the abstract after the jump.

The Supreme Court has long noted that the right of parents to direct the education and upbringing of their children is fundamental to American culture and law and therefore worthy of respect. The Court, however, has never explicitly held that it is a fundamental right which, if threatened, merits strict scrutiny. State and lower federal courts therefore remain divided on this issue.

This article traces the history of parental rights and responsibilities in the Western legal tradition. The author concludes that such rights reflect some of the oldest and most venerated values of Western culture, and that their preservation is fundamental to maintaining individual freedom. The author therefore suggests that the right of parents to have their children excused from curricular requirements in public schools that are hostile to the family’s religious faith deserves heightened judicial scrutiny.