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Marriage & Family Parental Rights

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Overview

Parents have the right, as well as the responsibility, to direct their children’s education and upbringing in a manner consistent with their beliefs and with their knowledge of each child’s unique needs, talents, and abilities. Arizona statutes recognize the critical role of parents and spell out specific rights they have to help them in directing their child’s education and upbringing.

The United States Supreme Court has recognized the importance of parental rights and has repeatedly held that parents possess the “fundamental right” to “direct the upbringing and education of their children.” The Court said: “[T]he 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.”[1]

However, a 2000 Supreme Court case weakened the standard that the courts use to evaluate infringement on parental rights by the government.[2] Additionally, a push to adopt the United Nations Convention on the Rights of a Child could jeopardize the traditional American understanding of the fundamental role of parents in children’s lives.[3]

Issue Analysis

Parents’ Bill of Rights

Recognizing the need to specifically protect parents’ rights in state law, Center for Arizona Policy (CAP) worked with the Arizona Legislature in 2010 to pass the Parents’ Bill of Rights. This statute sets forth the broad rule of parents’ rights: “The liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right.”[4] The law also specifies that the government may not interfere with parental rights unless it demonstrates a compelling interest of the highest order that is narrowly tailored to meet that interest and that is not otherwise served by a less restrictive means.[5] This standard allows for children to be protected from abusive situations, while still ensuring that parents’ rights are not infringed by government officials who may simply believe they know better than a parent.

In addition to the broadly stated rule, the Parents’ Bill of Rights lists some of the parental rights spelled out in state statutes and guaranteed by the state and federal constitutions. Arizona law recognizes that as a parent, you specifically have the right to:[6]

  • Direct the education of your child.
  • Direct the upbringing of your child.
  • Direct the moral or religious training of your child.
  • Make healthcare decisions for your child.
  • Access and review all records relating to your child.
  • Provide written permission before a biometric scan is performed on your child.
  • Provide written permission before any record of your child’s blood or DNA is created, stored, or shared.
  • Provide written permission before any videos or voice recordings are made of your child, with certain exceptions (for example, security or surveillance of school property).
  • Be notified promptly if there is suspicion that a criminal offense has been committed against your child.
  • Access information about a Child Protective Services investigation involving you and your child.
  • Provide written permission prior to a mental health screening outside of a medical office or any mental health treatment of your child.[7]

The Parents’ Bill of Rights includes several provisions directly related to public education. In public schools, parents have the right to:[8]

  • Opt out of any learning material or activity that the parent finds harmful to the student. This includes material that questions beliefs or practices in sex, morality, or religion.
  • Opt in to sex education curriculum if one is provided by the school district. Without written parental permission, children cannot participate in sex education.
  • Notification in advance if content discussing sexuality is taught in other classes, such as history or literature, and the right to opt your child out of that instruction.
  • Be informed about the nature and purpose of extracurricular student clubs and activities, including clubs organized by groups that advocate homosexual behavior.
  • Access school-supplied information about parental rights and responsibilities.
  • Opt in to any video, audio, or electronic materials that are inappropriate for the age of the student.[9] This means the school cannot show a rated-R movie to students under 18 years old without signed, written permission from the child’s parent.

Parental Rights and Education

Arizona law protects the constitutional rights held by parents in directing the education of their children. This includes the right to select the type of education that the parent deems is best for the child, including public school, charter school, private school, homeschool, or online school.[10]

Public school districts are required to make information about parental rights available to parents. These education-related rights that are spelled out in state law include:[11]

  • Open enrollment rights.[12]
  • The right to homeschool.[13]
  • The right to special education services for the student.[14]
  • The right to gifted programs for the student.[15]
  • The right to receive a school report card.[16]
  • Rights while homeschooling.[17]
  • The right to excuse the student from school attendance for religious purposes.[18]
  • The right to be involved in the student’s education.[19]
  • The right to seek membership on school councils.[20]
  • The right to participate in a parental satisfaction survey.[21]
  • The right to refuse to provide information for the Student Accountability Information System that does not relate to the provision of educational services to the student.[22]
  • The right to access the failing schools tutoring fund.[23]
  • The right to certain procedural protections in student disciplinary proceedings.[24]

Parents’ rights do not end when class begins. Arizona law explicitly protects the rights of parents to direct their children’s curriculum and academic progress by preserving their right to:

  • Opt out of assignments that the parent considers harmful.[25]
  • Opt out of instruction on the acquired immune deficiency syndrome (AIDS).[26]
  • Access and review instructional materials.[27]
  • Waive English language immersion and to pursue legal action for a violation of the English language learner laws.[28]
  • Request an exemption from the law’s requirement that third graders not be promoted if they are not reading at grade level.[29]
  • Review test results.[30]
  • Review new courses of study and textbooks chosen by the school district.[31]

Parents of students enrolled in charter schools have more limited rights than in traditional district schools, but parents of charter school students still have the right to:

  • Withdraw the student from any activity the parent deems objectionable because of sexual content, violent content, or profane or vulgar language.[32] The charter school may require parents to waive this requirement as a condition of enrollment if the school provides a complete list of books and materials to be used during the school year.[33]
  • Opt in to any video, audio, or electronic materials that are inappropriate for the age of the student.[34] This means the school cannot show a rated-R movie to students under 18 years old without signed, written permission from the child’s parent.

Parental Rights and Medical Care

Parents have important rights regarding the medical care of their children, although Arizona law does contain several provisions that undermine parents’ rights in this area.

Under the Parents’ Bill of Rights, parents have the right to:[35]

  • Make healthcare decisions for your child.
  • Access and review all medical records relating to your child.
  • Provide written permission before a biometric scan is performed on your child.
  • Provide written permission before any record of your child’s blood or DNA is created, stored, or shared.
  • Provide written permission before a mental health screening is performed on your child in a non-clinical setting (i.e., outside of a doctor’s office or clinic).[36]
  • Provide written permission before any mental health treatment is performed on your child, unless it is an emergency.[37]

In addition to the medical care provisions of the Parents’ Bill of Rights, Arizona’s parents have specific rights found elsewhere in state law, including:

  • The right to written parental consent before a physician or entity performs or seeks to perform a surgical procedure on a minor.[38]
  • The right to parental consent before a pharmacist administers an immunization to a child.[39]
  • The right to opt out of immunizations at the beginning of the school year.[40]
  • The right to written parental consent before a minor donates blood.[41]

In 2007, at CAP’s urging, the Arizona Legislature passed a law saying that the HPV vaccine may not be one of the vaccinations required for school attendance.[42] This is a relatively new vaccine that protects against certain strains of the human papilloma virus, which can only be received through sexual contact. It is an expensive vaccine and little is known of the risks. Parents should decide whether or not their daughters will receive this vaccine, not the government.

Notarized parental consent is required before a minor can have an abortion, unless the minor obtains permission from a judge to have an abortion without parental consent.[43] If an abortion clinic violates this rule, the parents have the right to sue the clinic for money damages.[44] Parents may also sue any person or entity who helps a minor break the law to obtain an abortion.[45]

Unfortunately, parents’ rights are undermined by two state laws that allow minors to consent to medical treatment without parental consent. State law allows a minor to seek treatment for a sexually-transmitted disease or for substance abuse without parental consent or involvement.[46] No Arizona law requires parental consent for prescription medications for minors, including contraceptives. Additionally, federal law permits minors to obtain birth control through federally-funded programs without parental permission.[47]

Talking Points

  • Parents possess a fundamental constitutional right to direct the upbringing and education of their children. The U.S. Supreme Court has recognized this right, and the CAP-supported Parents’ Bill of Rights acknowledged this right in Arizona law.
  • Parents’ rights do not end when class begins. Arizona law explicitly protects the rights of parents to direct their children’s curriculum and academic progress.
  • State law should reinforce the importance of parents in children’s lives. The role of parents in the lives of their children has, historically, been one of unquestioned value, celebrated in cultures around the world.

Conclusion

Parents have the solemn right and responsibility to raise their children according to their own sincerely held convictions. Government must always recognize this right and make every effort to support parents in the choices they make while raising children. In Arizona, citizens should be aware of the extensive parental rights in state law and their ability to freely exercise them.

 

© January 2014 Center for Arizona Policy, Inc. All rights reserved.
This publication includes summaries of many complex areas of law and is not specific legal advice to any person. Consult an attorney if you have questions about your specific situation or believe your legal rights have been infringed. This publication is educational in nature and should not be construed as an effort to aid or hinder any legislation.


[1]Pierce v. Society of Sisters, 268 U.S. 510, 534-35.

[2] Troxel v. Granville, 530 U.S. 57 (2000) (declining to apply the strict scrutiny test that required proof of harm before the government could interfere with parental rights).

[3] Convention on the Rights of the Child, United Nations (1990), available at www2.ohchr.org/english/law/crc.htm. The Convention was signed by the United States in 1995, but that decision has never been ratified by the U.S. Senate, so the Convention is not considered binding on the United States at this time. For an example of the pressure on the U.S. to ratify the Convention, see The Campaign for U.S. Ratification of the Convention on the Rights of the Child, www.childrightscampaign.org (last visited Oct. 15, 2013).

[4] Ariz. Rev. Stat. § 1-601(A).

[5] Ariz. Rev. Stat. § 1-601(B).

[6] Ariz. Rev. Stat. § 1-602.

[7] Ariz. Rev. Stat. § 36-2273.

[8] Ariz. Rev. Stat. § 15-102.

[9] Ariz. Rev. Stat. § 15-113.

[10] Ariz. Rev. Stat. § 15-802.

[11] See Ariz. Rev. Stat. § 15-102.

[12] Ariz. Rev. Stat. § 15-816.01.

[13] Ariz. Rev. Stat. §§ 15-802, 15-803 and 15-821.

[14] Ariz. Rev. Stat. §§ 15-765, 15-766 and 15-773.

[15] Ariz. Rev. Stat. § 15-779.01.

[16] Ariz. Rev. Stat. § 15-746.

[17] Ariz. Rev. Stat. §§ 15-745, 15-802 and 15-802.01.

[18] Ariz. Rev. Stat. § 15-806.

[19] Ariz. Rev. Stat. § 15-102.

[20] Ariz. Rev. Stat. § 15-351.

[21] Ariz. Rev. Stat. § 15-353.

[22] Ariz. Rev. Stat. § 15-1042.

[23] Ariz. Rev. Stat. § 15-241.

[24] Ariz. Rev. Stat. § 15-843.

[25] Ariz. Rev. Stat. § 15-102.

[26] Ariz. Rev. Stat. § 15-716.

[27] Ariz. Rev. Stat. § 15-730.

[28] Ariz. Rev. Stat. §§ 15-753 and 15-754.

[29] Ariz. Rev. Stat. § 15-701.

[30] Ariz. Rev. Stat. § 15-743.

[31] Ariz. Rev. Stat. § 15-721.

[32] Ariz. Rev. Stat. § 15-113.

[33] Id.

[34] Ariz. Rev. Stat. § 15-113.

[35] Ariz. Rev. Stat. § 1-602.

[36] Ariz. Rev. Stat. § 36-2272.

[37] Id.

[38] Ariz. Rev. Stat. § 36-2271.

[39] Ariz. Rev. Stat. § 32-1974.

[40] Ariz. Rev. Stat. § 15-873.

[41] Ariz. Rev. Stat. § 44-134.

[42] Ariz. Rev. Stat. § 36-672.

[43] Ariz. Rev. Stat. § 36-2152.

[44] Id.

[45] Id.

[46] Ariz. Rev. Stat. §§ 44-132.01 (STDs) and 44-133.01 (substance abuse).

[47] 42 U.S.C. § 300. Court decisions have ruled that minors must be given access to the program without parental consent. See, e.g., Jane Does 1 through 4 v. State of Utah Dept. of Health, 776 F.2d 253 (10th Cir. 1985); State of New York v. Heckler, 719 F.2d 1191 (2d Cir. 1983).