Constitutional law - school's use of books depicting same-sex couples does not violate parents' constitutional rights - Parker v. Hurley.

• Author: Thornton, Gabriel T.

At times in United States history, religious freedom and the right to a public education have been at odds, and these disputes have frequently spilled into the federal courts. (1) Particularly, federal courts have often heard claims from parents who argue that public schools violated their First Amendment right to the free exercise of religion and Fourteenth Amendment right to direct the upbringing of their children. (2) In Parker v. Hurley, (3) the United States Court of Appeals for the First Circuit considered whether a public school violated parents' constitutional rights when it exposed young students to picture books depicting same-sex couples without affording parents the opportunity to exempt their children. (4) The First Circuit affirmed the district court's dismissal of the parents' claims, holding that the claims were constitutionally insignificant. (5)

When the suit was filed, David and Tonia Parker and Joseph and Robin Wirthlin were parents in Lexington, Massachusetts, who described themselves as devout Judeo-Christians and who believed that homosexuality violated their religious beliefs. (6) The Parkers' sons, Jacob and Joshua, and the Wirthlins' son, Joseph, Jr. (Joey), attended a public elementary school. (7) In January 2005, kindergarten student Jacob Parker brought home a book depicting many different types of families, including one with two fathers and another with two mothers. (8) Over the following four months, the Parkers thrice asked various school administrators to not mention homosexuality to Jacob, to give the Parkers notice of any upcoming discussions on homosexuality, and to allow them to remove Jacob from such discussions. (9) Not only did the administrators refuse these requests, but the Lexington Superintendent of Schools stated that the school district would not give notice to parents of any activities that referred to the existence of different sexual orientations. (10) After the Parkers learned that the book collection in Jacob's first-grade classroom included two books depicting same-sex parents, they again requested advance notice of the use of such books, and the superintendent again denied their request. (11)

In March 2006, Joey Wirthlin was in second grade when his teacher read his class King and King, a picture book which shows the marriage of two princes, as well as them kissing with a red heart covering their mouths. (12) Joey told his parents about the books, and they met with Joey's teacher and Joni Jay, the school's principal, to object to the school's use of the book. (13) Jay told the Wirthlins that Lexington's policy was not to give parents prior notice of the use of materials like King and King and not to allow parents to exempt their children from such activities. (14)

In April 2006, the Parkers and Wirthlins sued various school officials and the Town of Lexington in the United States District Court for the District of Massachusetts on behalf of themselves and their children. (15) The complaint alleged violations of the parents' First Amendment right to the free exercise of religion and their Fourteenth Amendment right to direct the upbringing of their children. (16) These alleged violations resulted from the school district requiring students to attend activities where they would hear about same-sex relationships. (17) The defendants moved to dismiss the Parkers' and Wirthlins' claims under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, and the district court granted the motion. (18) The Parkers and Wirthlins subsequently appealed to the United States Court of Appeals for the First Circuit. (19) The First Circuit affirmed the order of dismissal, holding that the challenged conduct did not violate the parents' or children's substantive due process rights or their right to freely exercise their religion. (20)

The Fourteenth Amendment to the United States Constitution protects citizens from "government interference with certain fundamental rights" without appropriate justification--a protection known as substantive due process. (21) One of these fundamental rights is a parent's right to control the upbringing of his or her child. (22) Part of controlling a child's upbringing is choosing a specific educational program, such as public or private education, and the state cannot prevent parents from making that choice. (23) A majority of federal courts, including the First Circuit in Brown v. Hot, Sexy and Safer Productions, (24) have held that the Constitution does not, however, give parents control over the methods or materials used by a public school. (25)

The First Amendment to the Constitution prohibits Congress from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof"; the Supreme Court has extended this prohibition to the states. (26) To prove that a state action violates the right to free exercise of religion, a person must show that the action has a coercive effect on the individual practice of religion. (27) When a challenged state action targets a particular religious group, courts must apply "strict scrutiny," and the action is constitutional only if the state can show both a compelling justification and the use of narrowly tailored means. (28) If the challenged action is religiously neutral and generally applicable, however, courts use "rational basis" review and will uphold the action if it is rationally related to a permissible goal. (29) In the context of public schools, the Free Exercise Clause does not require schools to protect students from potentially offensive religious ideas. (30)

The Supreme Court has stated in dicta that rational, neutral, and generally applicable laws violate the Free Exercise Clause only where plaintiffs claim violations of both their free exercise rights and other constitutional rights. (31) This concept, known as "hybrid rights" (because of the combination of a free exercise claim and another, distinct constitutional claim), has generated much discussion and disagreement among both federal appellate courts and scholars. (32) Regardless of the debate, no circuit court opinion has applied strict scrutiny to a hybrid-rights claim without being vacated or resting its holding on other, more substantial grounds. (33)

In Parker v. Hurley, the First Circuit considered whether to dismiss parents' claims that an elementary school's refusal to provide notice to parents of or the opportunity to exempt children from discussion of same-sex couples violated both the parents' free exercise rights and their right to direct the upbringing of their children. (34) Holding that the parents and their children failed to allege constitutionally significant free exercise or substantive due process claims, the court affirmed the district court's dismissal of the claims. (35) Notably, the First Circuit did not consider the two constitutional claims as hybrid-rights claims and thus apply the higher standard of strict scrutiny to Lexington's education policy, but rather considered them as interdependent because the claims informed each other. (36) Significantly, in assessing the merit of the interdependent claims, the court considered the children's young age and the greater potential for their indoctrination, as compared to junior-high or high-school students. (37) Despite its consideration of the children's young age, the court determined that the school's actions did not prevent the Parkers or Wirthlins from freely exercising their religion or directing the upbringing of their children; therefore, the court never determined what standard of review--strict scrutiny, rational basis, or a middle ground--applied. (38) Ultimately, the court upheld the dismissal of all...