April 17, 2015

ILYA SOMIN: How the Constitution protects “free range” parents.

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 childrens’ 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.

Tar. Feathers.

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