Parental Rights: Florida's Flawed Defense of Book Bans

Historically, the sunshine state has been America’s hotspot for beach-goers and citrus farmers, and now, adding to that list is a new accolade—the epicenter of America’s book ban craze. In 2023, nearly two thousand, seven hundred titles were targeted for restriction or removal in the state, almost double the state with the second-most challenges. [1] The frequency of these bans is likely due to the ease of the removal process which was enacted and implemented by the Florida Senate’s House Bill 1069 (HB 1069). However, it seems some parents are resisting the censorship craze. In June 2024, three Florida parents filed a lawsuit in federal court against the Florida Board of Education. The plaintiffs allege that the State Review Process instituted by HB 1069 violates the First Amendment ban on viewpoint discrimination. [2] These plaintiffs face opposition from state politicians and parent groups, both of which utilize the diction of ‘parental rights’ to establish a basis for their involvement in regulating student curricula. [3] Such uses of ‘parental rights’ usually refer to a nebulous set of rights not defined in any legal context. However, a relevant construction of parental rights is established in prior legal precedents from Meyer v. State of Nebraska and Pierce v. Society of Sisters; this was coined the Meyer-Pierce model. [4] The extent of parental rights in regulating school curriculum is narrowed by Brown v. Hot Sexy and Safer Productions inc. [5] An investigation of legal precedent will show that pro-censorship groups have subverted the legal understanding of parental rights.

Nearly a century ago, Meyer and Pierce set the framework for the country’s modern interpretation of parental rights. Meyer v. State of Nebraska (1923) was a Supreme Court Case ruled against the state of Nebraska, defending the right of a teacher to instruct grade school children in languages other than English. The court reasoned that under the Due Process Clause, the law violated the liberty of the teacher to instruct at their discretion and the liberty of a parent to control their child’s upbringing. [6] Two years later, Pierce v. The Society of Sisters (1925) went to the Supreme Court. The case focused on the issue of Oregon’s Compulsory Education Act of 1922, which required parents to send children from ages eight to sixteen to public school, in doing so the law delegitimized the institution of private and religious schools. A unanimous court held that the law was unconstitutional and reaffirmed the parental rights established under Meyer. Famously, the Opinion of the Court stated, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right...to recognize and prepare him for additional obligations.” [7] Here, the court solidified the relationship between the parent, child, and the State; while the child is not ‘merely’ the creature of the State, it is a subject to the State and the rights of the parent ideally coexist with the priorities of the State. [8] In an educational context, the shared priority of the State and parent is to prepare the child for additional obligations. It is relevant to note that both cases were originally framed as issues on

property rights; however, they were later reinterpreted under the First Amendment. This change occurred in Griswold v. Connecticut, where the opinion of the court was, “...the state may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” [9] Griswold is especially relevant when examining current issues concerning school curriculum, which explicitly exercises the state’s will regarding the flow of knowledge. These three cases establish the rudimentary construction of parental rights, but the extent to which parents can enforce these rights was established through a later case, Brown v. Hot Sexy and Safer Productions Inc.

In 1995, the First Circuit of the United States Court of Appeals adjudicated Brown v. Hot Sexy and Safer Productions Inc. The plaintiffs, a group of parents and students, alleged that students were made to attend an indecent sex education program that violated their privacy rights and their rights to an educational environment free of harassment. The court granted the defendant's motion to dismiss and provided a relevant discussion of parental rights in the context of regulating curriculum in public school settings. The discussion took a pragmatic approach to parental rights in education, alleging that allowing parents complete control over the school curriculum would necessitate highly individualized lessons that would place an undue burden on the State. [10] This provokes a relevant mention of Griswold, which would disprove the use of the State as the parent's means to restrict the flow of knowledge, or vice versa in which the State mobilizes parents to accomplish such goals. Thus, the state tends to defer the inclusion of material along the lines of these two cases. However, under the Meyer-Pierce model, parents do have some right to regulate these materials. Justice Powell found a middle ground between these tenets in Smith v. Board of Commissioners.

In Smith v. Board of Commissioners (1987), the 11th Circuit Court overturned the district court's ruling and decided that the current curriculum would be retained despite objections that it promoted secular humanism. The case was originally framed as an issue of religious freedom, but in the view of the 11th Circuit Court, these claims were not substantiated. The opinion of the court was that the state and locally elected school boards should be responsible for public school practices but that these institutions' practices must align with the principles set out in the First Amendment. [11] Ira Lupu’s The Centennial of Meyer and Pierce: Parents’ Rights, Gender Affirming Care, and Issues in Education details the need for these agencies to strike a balance between different parent groups to avoid the centering of political interests. [12] Thus, the parental right to regulate school curriculum would be ideally exercised through institutions like a local school board, where the rights of all parents are held equal to conform with the implications of the First Amendment.

Therein lies the problem. According to the current Florida lawsuit, such a system does not exist under HB 1069. The Bill outlines the required processes and forms to be implemented by each county’s school board. [13] The pertinent detail is the State Review Process, the formal means by which parents can challenge the Florida State Board of Education to remove specific materials

from public schools. To initiate this process, parents fill out a standardized objection form legally required to be accessible through the homepage of the school district’s website. Additionally, objectors are provided with a school district point of contact for their complaints. Any material charged as pornographic or depicting sexual content is mandated for removal within 5 days of the complaint being filed. Afterwards, special hearings will be assembled to hear contests to adopt specific instructional material [14]. HB 1069 ensures parents challenging the use of materials have a platform to do so; however, the same can not be said for parents seeking to retain materials.

If parents wish to retain materials, they must ‘request’ that the Commissioner of Education appoint a special magistrate to recommend a resolution to the State Board of Education. [15] But to fulfill this request, the parent must meet a handful of prerequisites, the most pertinent of which only allows for the request of a magistrate if they have attempted to resolve the dispute with the school district using all adopted procedures, a statutory objection. [16] Thus, to object to the removal of a material, the objector must also be the original challenger of the material. One plaintiff underwent this process: her attempt to request a special magistrate was refused by Orange County Public Schools, which replied to her, “...the statute does not expressly give the authority to parents to challenge a removal of a book.” [17] After being refused at the district level, the plaintiff contacted the state to request the appointment of a special magistrate. After an extensive wait, the plaintiff was notified that her request was denied and was not given an explanation for the denial. [18]

The inequality in the treatment of parents under HB 1069 is evident. As established, parental rights are a delicate balance between the priorities of the state and parent, but each parent is held to the same level of control over their child's education: one parent cannot decide to change the curriculum of an entire school and thus infringe on the rights of other parents. Additionally, the state should not unduly restrict the flow of knowledge as this is also an infringement on parental rights. HB 1069 does not respect either of these guidelines. Under the current bill, preference is given to parents who seek to remove materials. This is a subversion of the Meyer-Pierce model of parental rights. The very act of removal is principally different and more impactful than the retaining of material. Removal ensures no child can access specific materials whereas inclusion of materials does not inherently force the use of materials by all students. By removing materials without allowing for proper recourse, the will of a minority of parents infringe upon the rights of the majority of parents.

Under the proper Meyer-Pierce model of parental rights, both the minority and majority parent groups would be afforded the same ability to shape the provided materials in public schools. However, the current situation allocates a disproportionate amount of resources toward only one group, clearly discriminating against parents based on their proximity to the state's views on curriculum.

There seems to be some confusion on the part of pro-censorship groups and state legislators. While Moms for Liberty idolizes ‘standing up for parental rights’ and Florida politicians co-opt this language, the two groups are often prone to violating these aforementioned rights. Under HB 1069, the qualifier for claiming these rights is to be ideologically allied with the state. We return to Pierce, where the child is not a ‘mere creature of the state.’ If the only parents with rights are those that concur with the state, then the parents do not hold primary control of their children. It is the state– a chilling sentiment for those that champion parents as the "...the foremost authority involving their children." [19] Access to a diverse selection of books is vital to encouraging childhood curiosity. However, as book bans increase and target materials by and for marginalized groups, the possibility for intellectual growth is stifled. [20] With such dire consequences, book bans must be approached with caution and clarity, a condition that cannot be reached until the excuse of 'parental rights' is taken out of the hands of its abusers.

Edited by Ashley Zhou

[1] "Censorship by the Numbers," American Library Association, April 20, 2023, https://www.ala.org/bbooks/censorship-numbers, (Accessed August 12, 2024).

[2] Compl. Nancy Tray v. Florida State Board Of Education, C.A. No. 4:24-cv-00238-AW-MAF, at *10 (N.D. Fla, filed June 06, 2024).

[3] “Governor Ron DeSantis Signs Historic Bill to Protect Parental Rights in Education,” Florida Governor Ron DeSantis, March 28, 2022, https://www.flgov.com/2022/03/28/governor-ron-desantis-signs-historic-bill-to-protect-parental-r ights-in-education/, (Accessed August 12, 2024).

[4] Ira Lupu, Forthcoming,“The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education,” Journal of Contemporary Legal Issues (Univ. of San Diego), (2024): 2-3.

[5] William Ross, “The Contemporary Significance Of Meyer And Pierce For Parental Rights Issues Involving Education,” Vol. 34, Akron Law Review, Iss. 1, Article 6, (2001): 17.

[6] Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923)

[7] Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)

[8] William Ross, “The Contemporary Significance Of Meyer And Pierce For Parental Rights Issues Involving Education,” Vol. 34, Akron Law Review, Iss. 1, Article 6, (2001): 12.

[9] Griswold v. Connecticut, 381 U.S. 479, 482 (1965)
[10] Brown v. Hot, Sexy, & Safer Productions, Inc, 68 F.3d 525, 534 (1995)
[11] Smith v. Board of School Com'rs of Mobile County, 655 F. Supp. 939, 947 (S.D. Ala. 1987)

[12] Ira Lupu, Forthcoming,“The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education,” Journal of Contemporary Legal Issues (Univ. of San Diego), (2024): 42

[13] Compl. Nancy Tray v. Florida State Board Of Education, C.A. No. 4:24-cv-00238-AW-MAF, at *10 (N.D. Fla, filed June 06, 2024).

[14] Compl. Nancy Tray v. Florida State Board Of Education, at *4. [15] Compl. Nancy Tray v. Florida State Board Of Education, at *16.

[16] Compl. Nancy Tray v. Florida State Board Of Education, at *9. [17] Compl. Nancy Tray v. Florida State Board Of Education, at *21-22. [18] Compl. Nancy Tray v. Florida State Board Of Education, at *25.

[19] “Governor Ron DeSantis Signs Historic Bill to Protect Parental Rights in Education,” Florida Governor Ron DeSantis, March 28, 2022, https://www.flgov.com/2022/03/28/governor-ron-desantis-signs-historic-bill-to-protect-parental-r ights-in-education/, (Accessed August 12, 2024).

[20] “Banned in the USA: Narrating the Crisis,” PEN America, April 16, 2024, https://pen.org/report/narrating-the-crisis, (Accessed August 12, 2024).