Narrow Tailoring

In the United States the Right to Direct the Upbringing of One's Own Child, otherwise known as the Parental Liberty Doctrine, is a "fundamental" right protected against both federal and state derogation by the Fourteenth Amendment.

In the parlance of United States constitutional jurisprudence, a "fundamental" right is a civil liberty of paramount importance. Whenever an individual can show that the government is interfering with an exercise of a "fundamental" civil liberty, the government has the burden to prove to a court that the government action can survive the "strict scrutiny" standard of court review.

The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government's compelling interest.

The second and fourth requirements are frequently overlooked by government officials, attorneys, policy-makers, judges, and parents alike. Even when the government can demonstrate that a compelling parens patriae interest in protecting child welfare is actually at stake in a particular circumstance, the government often cannot demonstrate that the posited “solution” is essential, narrowly-tailored, and confined to the least restrictive means available. A limited but legitimate concern for a particular child is all too often reflexively bootstrapped into a justification for overbearing tactics or ulterior agendas.

As illustrations of the "narrow tailoring" principle, abrogation of custody is not usually an appropriately-tailored intervention for a disagreement between parent and government involving one critical incident of medical care for a child. Minor incidents of harm to a child, particularly of an accidental or incidental variety, do not typically justify removal of a child from home. Government evaluation of a child does not usually require removal, nor does evaluation typically justify a removal of extended or excessive duration. Temporary intervention, when appropriate at all, is preferable to permanent interference with parent-child relationships.

In rare instances when parental misconduct necessitates removal of a child, the rebuttable legal presumption should be that the child will be placed with the child’s closest competent, willing, extended blood relative. Adoption by non-relatives, institutionalization, and/or foster care should occur only if a court has made a factual finding that oversight of the child by extended relatives will be infeasible or uniquely problematic.

Broad, continuing government control of curriculum or reading materials is unjustified outside of the government school setting. Home education and private schooling both consistently produce results that are statistically superior to government schools, so regulation of alternative educators is unnecessary to vindicate any bona fide state interest in ensuring that children can read, write, solve mathematical problems, socialize, or understand the basic obligations of citizenship. Attempts to impose standardized curriculum, testing, or attendance patterns upon alternative educators constitute inherent prior restraints which are neither essential nor narrowly tailored.

Prior restraints upon the activities of alternative educators violate 1) the Fourteenth Amendment Parental Liberty Doctrine, 2) the First Amendment rights of expression, association, and religious exercise, 3) the Fourth Amendment right against unreasonable search and seizure, and 4) various other protections of the United States Constitution. All of these rights are “fundamental” and require courts to demand narrowly-tailored solutions.

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