Toni Morrison’s Nobel Prize winning novel, The Bluest Eye, and Maia Kobabe’s Gender Queer: A Memoir, topped the list of the 2022-2023 school year’s banned books. Certain groups of parents invoke their rights to restrict their children’s access to viewpoints different from their own about history, race, gender identity, and reproductive health. Anne Dailey’s important article, In Loco Reipublicae, provides a different take: parents should have a constitutional duty to their children to expose them to ideas outside the home to prepare them for democratic citizenship.
In a salute to children’s rights, In Loco Reipublicae claims a new middle ground in a constitutional framework that has far too long abdicated to parents a “unique and near-absolute custodial authority for children’s citizenship rights.” (P. 428.) According to Professor Dailey, an expansive parental rights doctrine limits young people’s exercise of their own rights because it fails to recognize that parents have constitutional duties to their children. The article turns to children’s well-established First Amendment right to exposure to the “marketplace of ideas” as an opening salvo and a means to illustrate what could be a paradigm-shifting parental obligation to steward children on the path to becoming independent rights-holders. (P. 426.)
The Supreme Court and democratic theorists have highlighted the importance of children’s free speech rights to “foster their development as democratic citizens.” (P. 421.) Yet, the unchecked role of parents in stifling children’s rights operates as a constitutional jurisprudential gap between these First Amendment aspirations and children’s actual ability to realize those rights. (Pp. 436-38.) As Dailey explains, “protection for relatively unrestricted parental authority over children’s exposure to ideas fortifies a system of family governance that effectively negates children’s rights to engage with ideas outside the home.” She provides a more normative vision:
Parents may seek to inculcate their beliefs in their children, but they cannot deprive children of the basic knowledge that other belief systems exist, a knowledge critical to developing the skills of democratic life. Parents are not obligated themselves to instill democratic norms, or agree with them, but they are obligated to respect and facilitate children’s opportunity to become democratic citizens by exposing children to the world of ideas outside the home. (P. 426.)
A significant hurdle to closing the child-rights limiting gap is the well-established notion that parents are private actors free from constitutional duties to their children. In Loco Reipublicae begs to differ and persuasively argues for a more evolved understanding of the role of parents in a democracy. (Pp. 449-50.) Resting on the proposition that “children are different by virtue of their in-custody status,” the article relies on Supreme Court jurisprudence to powerfully argue that “children cannot effectively exercise their rights without the approval, tacit or otherwise, of their custodial caregivers.” Just as the state assumes constitutional duties attendant to its lawful custody of children as in loco parentis (“in the place of the parent”), in loco reipubulicae claims the inverse, “parents standing in the place of the state” must also assume constitutional duties to children (Pp. 451.)
Homeschooling provides an area of childrearing that might breach a parental duty to expose children to ideas—if homeschooled children are not exposed to the world of ideas. This type of isolation at the hands of parents if allowed to go unchecked by the state restricts children’s exposure to different ideas and democratic values, limits their critical thinking skills, and denies children identity-formation needed to develop their own independent citizenship rights.
The article not only provides the benefits of imposing parental duties, it also directly tackles some of the challenges such as: defining what constitutes a “harmful idea,” addressing concerns about increased state power to intervene in family life and the risks it poses, and the possibility of infringing on the exercise of parents’ religious beliefs. With these concerns in mind, Dailey seeks to “fortify the parent-child relationship while, at the same time, respect[ing] children as developing democratic citizens in their own right.” (P. 419.) She provides four ways to achieve this more balanced vision, including: requiring courts and legislatures to set limits on parents’ rights when they stand in the way of children’s development of citizenship rights; affirming state authority to enforce parental duties to children outside the home; recognizing children’s independent decisionmaking in certain contexts; and providing parents with the support they need to fulfill their in loco reipublicae duties. (P. 426.)
In Loco Reipublicaie boldly centers children’s rights and adeptly fills an existing jurisprudential gap by infusing parental rights with important duties to respect and facilitate children’s exercise of their own citizenship rights. It is a children’s-rights-forward shot across a heavily prioritized parents’ rights bow. It’s about time.
