How the Constitution protects "free range" parents

Montgomery County, Maryland police and Child Protective Services officials recently detained 10 year old Rafi Meitiv and his 6 year old sister Dvora, for hours merely because they were seen walking home from a local park alone (including a lengthy period when they were not allowed to contact their parents). They were picked up by police just three blocks from their home. CPS previously detained the children for exactly the same reason in December, investigated the parents for supposed "neglect," and tried to pressure them into changing their parenting practices. The parents, who believe in following a "free range" approach to child-raising that fosters autonomy and responsibility, intend to file a lawsuit against CPS.

I. Parental Rights and the Fourteenth Amendment.

I don't yet know for certain what issues will be raised in the suit. But I hope the Meitivs will make the case that the state has violated parental rights protected by the Fourteenth Amendment. Longstanding Supreme Court precedent strongly suggests that "free range" parents are entitled to protection against the kind of state interference with their child-raising decisions that happened here.

In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents' and guardians "to direct the upbringing and education of children under their control." In Pierce, the Court applied that right to strike down an Oregon law requiring all children aged 8 to 16 to attend public schools rather than private ones, despite the state's argument that standardized public schooling would ensure that all children get a good education.

In the 2000 case of Troxel v. Granville, the Court reaffirmed the "fundamental right of parents to make decisions concerning the care, custody, and control of their children," which it called "perhaps the oldest of the fundamental liberty interests recognized by this Court." The plurality opinion by Justice Sandra Day O'Connor (joined by three other members of the Court) emphasized that state officials must apply a strong presumption that parents' decisions about the upbringing of their children are correct, and cannot abridge parental control over child-raising based on "mere disagreement" with the parents' choices. In a concurring opinion, Justice Clarence Thomas argued for even stronger protection of parental autonomy, noting that laws that infringe on "fundamental" constitutional rights are usually subject to "strict scrutiny" - the highest standard of judicial review. Justice John Paul Stevens' dissenting opinion also advocated a strong presumption in favor of parental control.

Admittedly, one can reject the idea that parental rights are protected by the Fourteenth Amendment and claim that Meyer and Pierce were wrongly decided. Justice Antonin Scalia advocated that position in his dissent in Troxel. But Scalia is a rare outlier, and his opinion does not consider the extensive historical evidence indicating that the Due Process Clause and the Privileges or Immunities Clause were intended to protect otherwise unenumerated natural rights and common law rights against violation by state governments. At this point, the correctness of Meyer and Pierce is widely accepted by conservatives, liberals, and libertarians, as well as both originalists and living constitutionalists. In Troxel, conservative originalists Clarence Thomas and William Rehnquist and liberal living constitutionalists Stephen Breyer and Ruth Bader Ginsburg all reached strikingly similar conclusions on the subject (though Thomas differed from the others in basing parental rights on the Privileges or Immunities Clause of the Fourteenth Amendment rather than the Due Process Clause).

II. Why this Should be a Relatively Easy Case.

The Supreme Court has always indicated that parental rights are not absolute. The state can intervene to protect children against serious threats to their health and safety, and to ensure that all children get at least a basic education. But, as Troxel makes clear, the state can't infringe on parental control over child-raising unless they have real evidence showing that there is a genuinely significant threat to the children's safety and well-being. Otherwise, as Justice O'Connor's opinion makes clear, the authorities must respect the "presumption that fit parents act in the best interests of their children."

Forcibly detaining elementary school-aged kids for walking by themselves in a safe, middle-class neighborhood doesn't even come close to meeting the necessary standard. Statistically, such walking is extremely safe, and probably less dangerous than police officers' actions in forcibly detaining the children and driving them to a CPS office. According to the Center for Disease Control, car accidents are a leading cause of death among small children; riding in a car as a passenger is far more dangerous for kids than walking in most neighborhoods. Far from "protecting" the two children, the police and the CPS probably put them at greater risk than they were exposed to before (though the risk was still very low in an absolute sense). The Meitivs' parenting practices are also much safer than numerous typical childhood activities, such as participating in contact sports like basketball and hockey, or going downhill skiing. If the CPS can force parents to stop letting their children walk home from the park, it can similarly target every other comparably risky activity, including numerous sports, and even driving the children in a car.

The bottom line is that the CPS' actions here seem to be the result of exactly the kind of "mere disagreement" with parental choices that the Supreme Court specifically barred as a basis for overriding parents' constitutional right to direct their children's upbringing. Economist Bryan Caplan, an expert on child safety data, sums it up well: "it's crazy, people are being persecuted for doing things that are extremely statistically safe just because other people disagree."

As Megan McArdle points out, today's controversial "free-range" parenting largely consists of practices that were considered perfectly normal throughout most of American history. When I was growing up in the 1980s in a suburb similar to the one where this incident occurred, elementary school kids routinely walked all over the neighborhood by themselves. By the standards of today's Montgomery County, I would have been detained by child welfare officials almost every day.

Sadly, incidents like this one now happen with some regularity, as "helicopter parents" and officious bureaucrats have promoted unrealistic parenting norms that have no real basis in legitimate safety considerations. In an ideal world, we wouldn't need constitutional litigation to put an end to such abuses. Simple common sense should suffice.

But, sadly, common sense is often in short supply on these issues. Until it returns, the Meitivs and other free range parents may need to vindicate their rights in court. Perhaps this case will set a precedent that deters similar government misconduct in the future. Like unruly children, misbehaving government officials sometimes need a dose of external discipline to get them to mend their ways. Thomas Jefferson's famous line may well be appropriate here: "In questions of powers,…. let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

UPDATE: I have added a link to the Supreme Court's opinion in Troxel v. Granville (2000).