LET THE PARENTS DECIDE: ALABAMA PARENTS' RIGHT TO DECIDE WHETHER TO MASK THEIR CHILDREN OR NOT IN THE AGE OF COVID.

• Author: Clark, Matthew J.

In 2020, COVID-19 brought many challenges to Alabama, the United States, and the world. The fear of severe sickness and the sense of urgency to combat it led to executive-branch overreach on an unprecedented level. (1) This led even to the shutting down of "nonessential" businesses (2) and even houses of worship. (3)

In Alabama, one hotly-contested issue was whether it was wise--or proper--for local school boards to require masks for children in public schools. While the Alabama Department of Public Health recommended masks for children in 2021, Governor Ivey rejected calls for state-wide masking, leaving the decision up to each local school board. (4) Some school boards passed on implementing a mask mandate, while others imposed it. (5)

Unsurprisingly, several lawsuits arose in Alabama challenging the legality of the school boards' orders to implement mask mandates: Vann v. Homewood Board of Education, (6) Rizo v. Nichols, (7) Ogstad v. Cullman City School District, (8) Waldrop v. Jefferson County Board of Education, (9) and Ulrich v. Huntsville City Board of Education, (10) In each of these cases, the plaintiffs sought only equitable relief. All of these cases were dismissed either for lack of subject-matter jurisdiction or because the case became moot when the school districts voluntarily dropped their mandates. Therefore, the question of whether such mandates were legal in Alabama was never settled.

While various theories were presented for challenging the mandates, the author wondered whether the constitutional right of parents to make decisions regarding the upbringing and education of their children had any bearing on the dispute. The author's research, which will be presented below, led him to conclude that it does. In addition, five justices of the Alabama Supreme Court have held that such rights are based not just on the history and traditions of our Nation, but on the God-given right of parents to control the upbringing of their children. Thus, both the constitutional and natural rights of parents would have a bearing on this question if this issue were to arise in Alabama again. The objective of this article is to explore what those rights are and how they would affect a legal challenge if mask mandates were implemented in schools again.

1. THE SUPREME COURT'S DECISIONS CONCERNING PARENTAL RIGHTS

   1. The U.S. Supreme Court's Precedents

      Beginning with Meyer v. Nebraska, the United States Supreme Court held that the Fourteenth Amendment's Due Process

      Clause protected the fundamental rights of parents to control the education of their children. (11) In Meyer, a teacher was convicted of breaking a Nebraska criminal law that prohibited teaching a foreign language to students before they entered high school. (12) Nebraska attempted to justify this law under the claim that "an emergency exist[ed]." (13) The nature of the so-called emergency is unknown. However, since the teacher was convicted of teaching German, and because the law was passed during World War I, (14) Nebraska apparently believed that teaching the languages of our enemies could be a gateway to children gaining sympathy for the countries that the United States had spilled so much blood to defeat. (15) The Court appeared to believe so, noting that the purpose of the statute was to "foster a homogenous people with American ideals... . " (16) Even though the legislature found that an emergency necessitated this law during the bloodiest war the world had seen in modern times, the Supreme Court still took the case to determine "whether the statute as construed and applied unreasonably infringe[d] the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment: 'No State shall... deprive any person of life, liberty, or property, without due process of law.'" (17)

      While the Court did not attempt to "define with exactness the liberty thus guaranteed," it held that the Fourteenth Amendment guaranteed the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (18) Finding that "[m]ere knowledge of the German language cannot reasonably be regarded as harmful," the Court held the teacher's "right thus to teach and the right of parents to engage him so to instruct their children... are within the liberty of the Amendment." (19)

      Two years later, the Court heard a similar case in Pierce v. Society of Sisters. (20) In Pierce, the State of Oregon passed a compulsory education law requiring parents to send their children to public schools with very limited exceptions. (21) The law was challenged by a Catholic society wishing to raise children in parochial schools and by a private military academy. (22) Considering whether this law violated the Fourteenth Amendment, the Court reasoned:

      Under the doctrine of Meyer v. Nebraska... we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control... . The 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 school teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. (23) Thus, Meyer and Pierce stand for the proposition that parents have fundamental rights to control the upbringing of their children because the child is not "the mere creature of the State." (24)

      At this point, it is appropriate to note that during the COVID-19 pandemic, the Supreme Court's decision in Jacobson v. Massachusetts (25) had been used by courts that did not wish to second-guess the decisions of the political branches to dodge the issue. (26) However, Jacobson is inapposite as to the parental-rights issue for two reasons. First, the challenger in Jacobson asserted a general right to be free from vaccinations during a smallpox outbreak, which the Court reasoned was not specifically guaranteed by the Constitution. (27) In contrast, the Supreme Court has held that the fundamental right of parents to control the upbringing of their children is protected by the Constitution. (28) Second, even assuming that Jacobson stands for the proposition that the courts should be deferential to the political branches in managing emergencies (which it does not), Meyer and Pierce were decided after Jacobson and should therefore be viewed as an exception to that rule. (29) The Court gave no deference to Nebraska in Meyer just because the law was passed in a state of emergency; (30) therefore, any purported emergency used to justify mask mandates in schools does not immunize the State from the scrutiny that Meyer and Pierce require.

      Lest one think that Meyer and Pierce are weak precedents because they are nearly 100 years old, (31) it should be noted that the Supreme Court has continued to enforce them, even into the twenty-first century. In Wisconsin v. Yoder, the Court held that state interest in public education must be balanced with fundamental rights of parents, drawing on the precedents of Meyer and Pierce. (32) While religious objections also played a part in that case, it was not only religious objections, but also parental rights that led the Court to invoke strict-scrutiny review of the compulsory education law at issue. (33) And as recently as 2000, the Court in Troxel v. Granville held that a statute guaranteeing grandparent visitation over parents' wishes violated "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (34) Justice Thomas also concurred in the judgment, reasoning that he would leave the question of whether the Constitution protects this right for another day but, in the meantime, giving strict-scrutiny review to the infringement of that fundamental right--which is more protection than the five concurring justices were willing to give. (35)

      The Supreme Court has refined its substantive-due-process jurisprudence in recent times, holding in Washington v. Glucksberg that the Due Process Clause protects "those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition.'" (36) But after Glucksberg, the Court appeared to continue recognizing the validity of Meyer and Pierce in Troxel.

   2. Parental Rights in American History and Traditions

      One reason the Supreme Court may have recognized the continuing validity of its parental-rights jurisprudence after Glucksberg is that parental rights are indeed deeply rooted in this Nation's history and tradition. After all, the standard to which Meyer looked to determine which rights were protected under the Fourteenth Amendment was "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (37) Thus, the key question to ask in assessing the validity of the Court's parental-rights jurisprudence after Glucksberg is whether the notion of parental rights is deeply rooted in our history, from the common law through the passage of the Fourteenth Amendment.

      As the Supreme Court recently reminded the Nation, when it comes to historical analysis, "not all history is created equal." (38) What the common law held at the time of Bracton may not necessarily be the same as what it held when the Constitution was adopted. (39) Instead, "'Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.'" (40)

      The Supreme Court has long held that the best source for understanding the common law at the time the Constitution was adopted is Sir William Blackstone's Commentaries on the Laws of England.

      Blackstone's Commentaries are accepted as the most satisfactory exposition of the common law of...