Montgomery County, Maryland police and Child Protective Services officials recently detained 10 year old Rafi Meitiv and his 6 year old sister Dvora, for hours merely because they were seen walking home from a local park alone (including a lengthy period when they were not allowed to contact their parents). They were picked up by police just three blocks from their home. CPS previously detained the children for exactly the same reason in December, investigated the parents for supposed “neglect,” and tried to pressure them into changing their parenting practices. The parents, who believe in following a “free range” approach to child-raising that fosters autonomy and responsibility, intend to file a lawsuit against CPS.
I. Parental Rights and the Fourteenth Amendment.
I don’t yet know for certain what issues will be raised in the suit. But I hope the Meitivs will make the case that the state has violated parental rights protected by the Fourteenth Amendment. Longstanding Supreme Court precedent strongly suggests that “free range” parents are entitled to protection against the kind of state interference with their child-raising decisions that happened here.
In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents’ and guardians “to direct the upbringing and education of children under their control.” In Pierce, the Court applied that right to strike down an Oregon law requiring all children aged 8 to 16 to attend public schools rather than private ones, despite the state’s argument that standardized public schooling would ensure that all children get a good education.
In the 2000 case of Troxel v. Granville, the Court reaffirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” which it called “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The plurality opinion by Justice Sandra Day O’Connor (joined by three other members of the Court) emphasized that state officials must apply a strong presumption that parents’ decisions about the upbringing of their children are correct, and cannot abridge parental control over child-raising based on “mere disagreement” with the parents’ choices. In a concurring opinion, Justice Clarence Thomas argued for even stronger protection of parental autonomy, noting that laws that infringe on “fundamental” constitutional rights are usually subject to “strict scrutiny” – the highest standard of judicial review. Justice John Paul Stevens’ dissenting opinion also advocated a strong presumption in favor of parental control.