Redefining parental rights: The case of corporal punishment.

• Author: Godsoe, Cynthia

INTRODUCTION

Discussions of the constitutional elements of family law have almost exclusively focused on marriage and adult intimate relationships, particularly recently. (1) In contrast, scholars and reformers alike have given parenthood short shrift. (2) Yet parenthood, not marriage, was the first family relationship found to be constitutionally significant. The United States Supreme Court has repeatedly expressed a parent's fundamental right to raise her child as she sees fit. (3) This line of cases has been used to support significant parental choice in education, medical care, and other aspects of child rearing. (4) Parental autonomy is in large part based on a presumption that parents' and children's interests accord, that "natural bonds of affection lead parents to act in the best interests of their children." (5) It is also animated by the privacy and liberty of choice about intimate relations at the heart of constitutional family law. (6)

In this Article, I argue that this thick conception of parental rights shields significant intrafamilial harms, specifically parental corporal punishment. (7) Since Blackstone's time, the parental discipline privilege has condoned parental assault on children in the name of discipline. (8) Every state has such a privilege. Many are very broad, permitting any caregiver of the child to administer corporal punishment bringing physical injury that stops short of "severe bodily injury or death." (9) Parental corporal punishment continues to be widely practiced, (10) despite the overwhelming research demonstrating that it is ineffective at discipline and has significant negative effects on children's behavior and socialization. (11) These include a greater propensity for future violence, and increased risk of mental health and cognitive outcomes. (12) These empirically proven harms are coupled with injuries to personhood that perpetuate hierarchies along gendered and racialized lines. Indeed, one expert recently argued that corporal punishment, which is disproportionately high in Black families, is a vestige of slavery that continues to operate to subjugate and traumatize Black children and youth. (13)

No rationale supports this forgiveness of significant harm to society's most vulnerable members. A majority of states are silent as to the rationale. Although the Court has never enumerated corporal punishment as a parental right, a number of state and federal courts have found it to be within a parent's childrearing prerogative. (14) The main justifications commentators and judges give include tradition and personal beliefs about childrearing. One court recently acquitted a father for choking his teenaged daughter, emphasizing her "strong belief" that juveniles should be subject to physical discipline, and demonstrating willful blindness to the research and documented injuries in that case. (15) Another recent decision relied heavily on a pre-Civil War case to reverse the conviction of a father who severely beat his son with a paddle after the boy refused to eat his dinner. (16)

Attempts to cabin parental corporal punishment via a mens rea of truly disciplinary purpose or the like have not sufficiently limited it. Instead, the expert consensus against it, and the threats and cursing that often accompany it, reveal that parental corporal punishment is at best a very misinformed attempt at discipline and at worst a use of children as literal "whipping posts" for frustration and rage. (17) Accordingly, I argue that the parental discipline privilege should be abolished as have all other categorical status exceptions to a violent crime. (18)

Parental corporal punishment has been surprisingly ignored in legal scholarship and policy reform. High-profile cases, such as the recent prosecution of NFL star Adrian Peterson for disciplining his five-year-old son with a tree branch, have prompted significant discussion in the media and popular forums. (19) Social scientists have written extensively about the harms of corporal punishments and recommended changed terminology and other reforms. (20) Advocates have succeeded in banning corporal punishment in almost all other settings including daycares and most schools. Yet scholars and reformers have failed to examine the parental discipline privilege, despite its anomalous nature. (21)

This is a particularly propitious time for an examination of the parental discipline privilege. The constitutional analysis of family status and privacy in the context of marriage and adult intimacy has changed significantly in recent years to recognize new equality norms. (22) The constitutional analysis of parenthood should similarly adapt to new empirical data and evolving social norms against the exculpation of intrafamilial harms. I argue that the forgiveness of parental corporal punishment is not just bad policy, but is also an overreading of the parental rights jurisprudence. Parental rights are not infinite; the state parens patriae duty to protect children is a significant limitation on parental choice. Indeed, state and children's interests render parental rights more flexible and context-specific than other family constitutional rights. (23) Abolishing the parental discipline privilege is consistent both with this framework and a more inclusive reading of family privacy. (24)

I begin this Article by delineating the constitutional framework of parental rights to raise children, highlighting the soft nature of these rights and their inextricable connection with a duty of care. In Part II, I chart the breadth of the parental discipline privilege exculpating parental assaults on children. None of the rationales for this ongoing status exculpation are sufficient in light of the social science literature on corporal punishment's extensive harms. Turning to the normative. I argue in Part III that evolving standards of child rearing, and the flexible nature of parental rights, militate towards abolishing the parental discipline privilege. The conclusion flags lessons this examination of the parental discipline privilege has for other parental decisions and conduct.

1. SOFT PARENTAL RIGHTS

   Parental rights were the first family privacy rights to be expressly defined. In a line of cases concerning a parent's right to choose their children's education, the Supreme Court has repeatedly confirmed that "[the] primary role of parents in the upbringing of their children is... an enduring American tradition." (25) Recently, the Court again emphasized a broad swath of parental discretion, holding that parents may decide who may visit their children, including barring other relatives from doing so. (26) Parental rights are based on family privacy, the recognition of a diversity of families, and the parental ability to best care for and nurture future citizens. (27) The last rationale--the presumption that parents act with their children's best interests in mind--is particularly important. (28) As the Court has stated, a parent's "natural bonds of affection lead [her] to act in the best interests of [her] children." (29) Even the early cases remain salient today; Meyer v. Nebraska was cited in Obergefell v. Hodges to support a right to same-sex marriage. (30) Parental control is much stronger in the American legal canon than in other Western countries, a prerogative that I and other scholars have critiqued. (31)

   Despite the rhetoric infusing the parental rights opinions, however, parental rights are more limited than other privacy-based fundamental rights. Tellingly, the Court has declined to apply strict scrutiny to state regulation of parental rights, arguably rendering these rights quasi-fundamental, if that. (32) In Troxel v. Granville, its most recent opinion, the Court outlined a presumption that a fit parent's choices cannot be second-guessed by the state--significantly less than a fully protected right. It also explicitly limited the strongest case of parental rights, Wisconsin v. Yoder. to its unusual facts, involving the insular and self-reliant Amish community. (33) Indeed, courts have clarified that harm is not required for intervention into the parent-child relationship; in contrast, the state may "reasonably" regulate children's education, health, and general care. (34) Even the early cases described parental liberty both as a right and an obligation, "the right, coupled with the high duty, to recognize and prepare [a child] for [his] additional obligations." (35)

   Parental rights are further limited by the state's parens patriae duty to protect children. In Prince v. Massachusetts, the Court limited parental discretion. Proclaiming that the "state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare," the Court upheld a child labor law prohibiting a Jehovah's Witness from taking her ten-year-old ward to proselytize with her on the street. (36) Protection is necessary not only for the child's sake but also for society's, given its need for "the healthy, well-rounded growth of young people into full maturity as citizens[.]" (37)

   Several prescient scholars have highlighted the "tenuous" and relative nature of parental rights. (38) In a recent history of the parental rights cases, Jeffrey Shulman demonstrates that, contrary to popular belief, parental rights have always been limited in the name of societal interests and enlightened childrearing. He quotes nineteenth-century Justice Joseph Story critiquing absolute parental rights as uncivilized and opining that the state has the power "to control the conduct of the [parent] in the education of his children." (39) Similarly, constitutional scholar David Meyer concludes that modern jurisprudence establishes parental rights as "essentially soft" and merely presumptive based on the need to accommodate societal and children's interests. (40)

   As noted above, the Court has never considered whether parental control includes a parental right to...