Download This PaperThe Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education
26 Journal of Contemporary Legal Issues 147 (2025)
95 Pages Posted: 3 Jan 2024 Last revised: 4 Mar 2025
Date Written: July 15, 2024
Abstract
This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious exercise and knowledge acquisition, as well as Fourteenth Amendment themes of minority vulnerability, family privacy, and parental concerns beyond education. Part II searches for lessons from the Meyer-Pierce legacy in several contemporary contexts. Part II.A. focuses on a culture war clash in which Meyer-Pierce rights seem exceptionally strong -- regulation of parental consent to gender-affirming medical care for minors suffering from gender dysphoria. In the October 2024 Term, the Supreme Court will decide United States v. Skrmetti, a case presenting a challenge to the Tennessee legislation on this subject. Part II. B. analyzes issues in education. Among these are parents’ rights to control the content of public-school curricula, including instruction about matters of race, sexual orientation, and gender identity; to receive information about gender-related changes in how their children present themselves at school; and to receive financial support of the state in educational choices, including the possibility of religious charter schools. Comparison among these contexts illuminates the many ways in which other, contemporaneous changes in constitutional law influence the shifting shape of parents’ constitutional rights.
Keywords: LGBTQ rights, transgender, gender-affirming care, public schools, charter schools, due process, religious liberty, Fourteenth Amendment, parents' rights, children's rights
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Ira C. Lupu (Contact Author)
George Washington University Law School ( email )
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