Whose Right Does Barnette Protect: Student or Parent?

[Howard Schweber]

I should clarify what I was saying in my earlier post.  I find the 
argument below entirely persuasive as a policy matter, although of 
course there is room for a great deal of discussion about the 
line-drawing problems.  In addition, I have no doubts whatsoever that 
the Constitution permits states to apply a "best interests of the child" 
standard in a wide range of situations, and permits the relevant lines 
to be drawn in any number of different places.

The question on the table, as I understood it, was whether the 
Constitution also permits states -- however misguidedly -- to assign 
absolute priority to parents' rights a) in general, and b) in the 
specific context of the First Amendment guarantees of free expression 
and freedom of religion.  I would personally advocate an interpretation 
of the Constitution that accords with Marci's policy concerns, but I do 
not find a very strong case for a jurisprudence based on that 
interpretation in currently existing Supreme Court doctrine.

hs



hamilton02 at aol.com wrote:
> I don't think we can avoid line-drawing, but we do have a movement away from a parental rts approach to a more pervasive childs interest approach. Plus harm is an expansive concept. Custody disputes often involve the state not just 2 parents.  Yes cps does and should have capacity to trump a parent's sole det of what is in the interest of the child.  The more we learn about the pervasiveness of abuse within the home and family the less justification there is for a model of parental rts.
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>
> Date: Sat, 26 Jul 2008 12:54:24 
> To: <conlawprof at lists.ucla.edu>
> Subject: RE: Whose Right Does Barnette Protect: Student or Parent?
>
>
> Hmm -- I had thought that the "best interests" standard was justified in
> custody cases precisely by the fact that custody disputes *among*
> parents are different.  I had also thought that the standard for child
> protective services to intervene is that there's some risk of likely
> imminent physical or psychological harm to the child, and not just that
> the child protective services' prescription is more in the child's "best
> interests" than the parents' prescription.  Or is the argument now that
> the child's "best interests," as adjudicated by the government, is the
> standard that should be used whenever there's a dispute between parents
> and children (or perhaps between parents plus children and the
> government)?
>
> Eugene
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> hamilton02 at aol.com
> Sent: Saturday, July 26, 2008 12:07 PM
> To: Howard Schweber; conlawprof-bounces at lists.ucla.edu; Robert Sheridan
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Whose Right Does Barnette Protect: Student or Parent?
>
> This approach fails to take into account child protective svcs and
> custody hearings governed by the best interest of the child.  That is
> not a constitutionally suspect standard but rather one that takes into
> account all of the circumstances. A blanket rule in favor of parents is
> misleading.
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: Howard Schweber <schweber at polisci.wisc.edu>
>
> Date: Sat, 26 Jul 2008 13:11:03 
> To: Robert Sheridan<rs at robertsheridan.com>
> Cc: <conlawprof at lists.ucla.edu>
> Subject: Re: Whose Right Does Barnette Protect: Student or Parent?
>
>
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