Michael P. Farris, J.D.

Let me begin with some stories drawn from my personal experience. 

In Oak Harbor, Washington, a blended family struggled with the mom’s thirteen-year old son.  The boy didn’t want to attend church with his family.  He was content to go to church on Sunday morning, but the family attended also on Sunday night and Wednesday night. 

A government social worker informed the boy that if he was having conflict with his family that he could get legal protection from the state. 

I defended the parents and their wishes in court.  But, a Superior Court judge made the decision for this child.  He decided that once a week was enough for children to attend church and he ordered the boy to remain in foster care.

Another family came to me with a similar experience.  They discovered that their middle school daughter was sleeping with her boyfriend and smoking marijuana.  They grounded their daughter in an attempt to urge her toward more appropriate behavior. 

A social worker told this girl about her rights also.  She told her that under Washington law, a child could request intervention whenever there was conflict between parent and child.

Before they came to me, their case went to court and up on appeal to the Washington State Supreme Court.  The courts found that the parents had adopted reasonable rules of behavior and had enforced them in a reasonable manner.  Nonetheless, because of the conflict between parent and child the state had the power, the court ruled, to remove this child from the home and place her in foster care.

This family came to me on the last day to file a petition in the Supreme Court of the United States.  It was simply too late.

On October 27, 1994, someone made an anonymous call to social workers in Yolo County, California—near Sacramento.  This tipster had heard a child’s voice yelling “no, no, no” from the back yard of Robert and Shirley Calabretta.  The tipster told the social workers that another unnamed neighbor had heard a child’s voice yell “no, daddy, no” from the Calabretta home in the middle of the night.

Four days later a social worker knocked on the door of the Calabretta home.  She demanded entry to investigate the family and question the children.  Shirley Calabretta, who had appeared at the door with her children, refused.  In her written report the social worker noted that the children did not appear to be abused or neglected. 

Twelve days later, the social worker appeared again at the Calabretta home, this time with a police officer.  They forced their way into the home.  Backed by the presence of the armed officer, the social worker took two girls, aged 12 and 3, into a bedroom alone.  The investigator demanded answers to questions concerning the family’s discipline practices from the 12-year old.  The social worker was clearly bothered by the fact that 12 year old defended the family’s practices on the basis of the Bible.

When the 3 year old volunteered that she was sometimes spanked with what turned out to be a piece of Lincoln Log roofing, the social worker demanded that the little girl be stripped by her older sister.  The 12-year old refused and the younger girl began to scream hysterically. 

Upon hearing her little one scream, Shirley Calabretta entered the room despite prior orders.  In the face of the social worker’s continued demand to disrobe the younger girl, Shirley took off the little one’s clothes to reveal a perfectly clean and bruise-free bottom.

I represent the Calabrettas in ongoing civil rights litigation arising out of this incident.

The one story that I wish to tell you that does not come from my personal experience arose from East Stroudsburg, PA.  In a highly publicized incident in March 1996, 59 sixth grade girls were forced by school officials to undergo compelled gynecological exams.  Screaming girls were not allowed to call their parents.  They were forced by those who had been entrusted with their academic education to disrobe and submit to an invasive examination for genital warts and other diseases.

Even after a public outcry began, school leaders persist in their position that the behavior of the local officials was reasonable and appropriate.

The effect on the girls was understandably traumatic.  One girl refused to change clothes or bathe for three weeks afterwards.  Another blamed her mother for not being there to prevent it.  One asked her father “to kill someone” after she was forced to allow Dr. Ramlah Vahanvaty to invasively examine an area that girls are taught to keep private.

These tales from the front lines of parental rights battles in America illustrate the contours of the lines that are being drawn.  Those who believe that “it takes a village to raise a child” are willing to use coercion, threats, raw police power, and intimidation to enforce their agenda.  Parents who raise children in a manner that the village doesn’t like have learned to fear the knock on the door lest they hear the dreaded words, “I’m from the government and I’m here to help raise your children.”

We need to understand that one of the most important policy battles over parental rights is being waged on the international stage.  In Geneva, Switzerland, the United Nations ten-member Committee on the Rights of the Child sits in judgment over those nations who have signed and ratified the Convention on the Rights of the Child.

Before this Committee began issuing these nation-by-nation judgments, the policy debates on Capitol Hill largely consisted of our reading the Convention and making predictions of how it might be interpreted.  Supporters of this treaty would then deny or excuse our interpretations as being outlandish mischaracteri-zations. Once we obtained the Committee of 10’s report and judgment concerning Great Britain, we realized two things: first, our predictions had been much too mild; and second, that all we needed to do was to put copies of the judgments of the Committee in front of members of the Senate to defeat this treaty.

Consider these examples of the judgments rendered by the UN Committee against nations that have ratified this Convention:

• The United Kingdom violates article 12 since “the right of the child to express his/or her opinion is not solicited” concerning parental decisions to withdraw a child from a sex education in the public school or to choose an alternative to the public schools.  (This means that the Convention prevents private schools and home schools unless the government solicits and weighs the child’s opinion in the matter.)

• The U.K. violates articles 3, 19, and 37 by allowing parents to exercise “reasonable [physical] chastisement.” 

• Any nation which permits spanking or fails to aggressively prosecute spanking is held to have violated the treaty including Austria, Belize, Canada, Belgium, Yemen, Spain, and Poland. 

• The U.K. violates articles 3, 37, 39, and 40 of the Convention by placing juvenile criminals into institutions which appear, to the UN, to have the goal of incarceration and punishment.

• Belize was criticized because its “law does not allow children, particularly adolescents, to pursue, medical or legal counseling without parental consent.”

• Canada, Belize and a number of other nations were criticized for their failure to have a proper system for data collection concerning children.  Belize was specifically criticized for failing to ensure that all children would be registered with the national government.

• Norway was told to “reconsider its policy on religious education for children in light of the general principle of non-discrimination and the right to privacy.

• Pakistan was directed to expand its health care system with greater emphasis on “family education, including family planning….”

• Austria was criticized for its balance of power between local and national governments concerning issues regarding children.  It was directed to increase the use of national power to ensure compliance with the treaty.

• The U.K., Austria, Belize, Sweden, Indonesia, and others were criticized for failing to spend enough tax dollars on social welfare for children.  Yes, Sweden.

• Government workers were ordered to receive better training on the content and principles of the UN Convention in almost all nations.

• Several nations were ordered to include instruction on the principles of the Convention in their schools.

I could go on.  But I think I have made the point.  Anyone who believes in the sovereignty of either their family or their nation should be deeply offended and alarmed at the findings of this UN tribunal. 

But, the gravest danger in the UN Convention on the Rights of the Child is not any specific provision or decision made in application.  Rather, it is the general principle of law upon which all of these decisions rest. 

Article 3 of the Convention says:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Any lawyer from the United States who does any litigation involving children—such as divorce, child custody, juvenile delinquency, or child abuse and neglect—is very familiar with the use of the “best interests of the child” standard.  Since the beginning of our Republic our law has demanded the use of the best interests of the child as the standard in such cases.

Why then would I suggest that Article 3 of the Convention was actually the most dangerous provision of all?

Listen again to the kind of cases in which American courts employ the “best interests of the child” standard.  Divorce, child custody, abuse and neglect, and juvenile delinquency. In all of these cases, the family is broken. 

Divorce and child custody cases involve cases where mom and dad are tearing the family apart and judges are called on to make decisions on how to dispose of the issues involving the children. 

The same thing is true in all the other relevant categories.  Before the “best interests” standard becomes relevant, there must be a prior factual determination that the family is broken.  The family is broken when mom and dad divorce, the family is broken when dad or mom are convicted of abusing their children, the family authority is broken and the law must intervene when the child has committed a crime and must be dealt with.

The “best interests of the child” standard is a dispositional standard.  It can only be invoked after there has been a factual finding of a broken family which entitles the government to assert its jurisdiction over the child. 

The UN Convention on the Rights of the Child allows the use of this standard in all decisions concerning children.  Thus, it assumes that all families are presumptively broken and the government has the right to decide for them in every case.

Remember the Washington State case involving “too much church.”  The critical failure of that court was its assertion of jurisdiction over the child without any predicate finding that the family was broken.  

Make no mistake about it.  The goal of the UN Convention on the Rights of the Child is to completely erase every important precept of parental rights that is a part of the Anglo-American legal tradition.

Blackstone sets out the historical legacy on this subject which are in turn rooted in the Word of God. 

The duties of parents, Blackstone says, “principally consist in three particulars; their maintenance, their protection, and their education.”  The UN demands more government spending for the social welfare of children.  Blackstone says, “It is a principle of law, that there is an obligation on every man to provide for those descended from his loins.” 

Concerning education, it is not the duty of government to educate children, rather it is a legal obligation imposed upon the parent.  Government has authority only when parents neglect their God-given duty.  The UN demands that parents seek permission from the government to remove their children from mandatory school programs.  Blackstone would say of such policies much the same thing as the United States Supreme Court in the case of Meyer v. Nebraska in 1923. 

In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent training and education to official guardians.  Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions on the people of a State without doing violence to both the letter and spirit of the Constitution.

On the subject of corporal punishment, contrary to the slanderous accusations of the village people, the Anglo-American legal tradition has never allowed the wholesale, unrestrained beating of children.  Blackstone contrasted the Roman view on the subject with that of Great Britain.  “The ancient Roman laws gave the father the power of life and death over his children; upon the principle that he who gave had also the power of taking away.”  Compare this to the describe of British law.  “The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience.  He may lawfully correct his child, being under age, in a reasonable manner, for this is for the benefit of his education.”

The general theory of reasonable corporal discipline has been that moderate spanking instructs the child, whereas unrestrained beatings do not and only serve to harm the child.

The UN Convention on the Rights of the Child invades every sphere of family life: religion, discipline, education, health care, and provision. 

This convention is of special concern to Americans.  Most nations which ratify this treaty create only moral obligations for compliance.  As a general rule treaties which only create moral obligations are not enforceable as a binding law in the courts of the nation which has so ratified.

The United States has signed the UN Convention on the Rights of the Child under the Clinton administration.  Unsurprisingly, Hillary Clinton made the announcement for the administration.  However, it has never been submitted to the Senate for ratification.

But if it were submitted and if two-thirds of the Senate were to vote to ratify, this treaty would become legally enforceable in the United States by virtue of the Supremacy Clause of the Constitution which gives binding legal status to all ratified treaties.

A county prosecutor could use the treaty to go to a local court and prosecute a dad for spanking his child.

A truant officer could use the treaty to trump state law which expressly recognizes home schooling.  Federal treaties override all state laws.

The slim possibility that the courts would hold the treaties invalid as against federal constitutional rights is not particularly comforting.  The UN Convention on the Rights of the Child creates political problems for governments in nations that have ratified the treaty.  In the U.S. it would create legal problems for families.

This treaty must be opposed not only on the premise that it imposes the most liberal, socialistic, politically correct, anti-biblical philosophy of parenting, but also on the premise that it strikes at the heart of the principle of self-government.  No group of ten experts in Geneva should ever be given the authority to mandate—as a matter of either legal or moral obligation—the laws, policies, and appropriations of any nation.

The good news is that even in the era of the Clinton administration, this treaty has stalled.  The U.S. Senate is seen as a barrier to ratification, not because that body is filled with people who are particularly enlightened on the subject.  Rather, the Senate has become a barrier because pro-family conservatives, particularly home schoolers, have done their homework and have made informed appeals to their elected representatives.  For example, Senator Richard Lugar of Indiana was the chief Republican cheerleader for the treaty until I spoke at the Indiana home school convention to 4,000 people one Saturday.  I asked them to call their Senator on the issue.  By the following Wednesday, I had a letter in my hand from the Senator saying that he would no longer support this UN treaty.  Some become enlightened by feeling the heat.

Another area of good news for parental rights is a handful of recent court decisions that embrace important parental rights concepts.

Earlier this year, the Massachusetts Supreme Judicial Court ruled that school officials do not have the right to enter the homes of home schooling families to conduct compliance inspections.  While I argued both search and seizure law and parental rights, the court chose parental rights as the theory it employed to strike down this invasive practice.

And on August 26th of this year, the United States Court of Appeals for the Ninth Circuit in San Francisco held that the Yolo County social workers and police officers violated the clearly established rights of Robert and Shirley Calabretta when they entered their home to conduct a child abuse investigation without a warrant.

Listen to this language:

There is not much reason to be concerned with the privacy and dignity of the three-year-old whose buttocks were exposed, because with children of that age ordinarily among the parental tasks is teaching them when they are not supposed to expose their buttocks.  But there is a very substantial interest, which forcing the mother to pull the child’s pants down invaded, in the mother’s dignity and authority in relation to her own children in her own home.  The strip search as well as the entry stripped the mother of this authority and dignity.  The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children.  An essential aspect of the privacy of the home is the parent’s and the child’s interest in the privacy of their relationship with each other.

The bad news for parental rights court decisions comes primarily from the area of public education.  Public schools have been so uniformly successful in beating back legal claims of parents who seek a meaningful role in the decisions concerning their own children’s education that two expert commentators presented a session at the Education Law Association’s annual meeting entitled: The Parental Right to Direct Their Child’s Education in a Public School Setting: As An Evolving Matter It Is Almost Extinct.[1]

Parents have lost cases which have sought to have their children opt out of curriculum, which are contrary to the family’s faith.  For example, in Mozert v. Hawkins County School District, the 6th Circuit Court of Appeals ruled that parents did not have the right to have their children read an alternative book even though the school district stipulated that the texts in question violated the families’ sincerely held religious beliefs.

The First Circuit held that parents’ rights were not violated when their children were required to attend an assembly called “Hot, Safer, and Sexy” where lewd demonstrations of condoms and more were portrayed.  The claim of parental rights to advance notice of such instruction was also rejected.

The only case of significance to have gone the other way recently is the East Stroudsburg case I mentioned at the beginning of this talk.  A jury verdict was entered against the doctor who performed the gynecological examinations.  The bad news is that the verdict was for a mere $7,500 per girl.

Parents must understand that they are forfeiting most of their expectations of control over their children once they enter the door of the public school.

Conclusion

Although we have seen a number of good decisions recently, the reality is that society is moving further and further away from a traditional understanding of parental rights.

Consider, for example, a recent “study” published by the American Psychological Association.  The APA attacked families in a couple of significant ways this year.  This spring, the APA created a stir by their publication of a report which claims that research showed some positive effects of the sexual abuse of children by adults.  This time, the APA published a broadside against fathers entitled: “Deconstructing the Essential Father” by Drs. Louise Silverstein and Carl Auerbach, both of Yeshiva University.

This APA article claims that a review of the research—no new research was actually done for this article—demonstrates that fathers are not essential for a child’s wellbeing.  Nor is marriage.  Basically, any single or multiple adult groupings can take care of children with equal success.  What research, you ask?

Consider the pioneering work of Smuts and Gubernick (1992) with marmosets.  It seems that marmosets always have twin offspring, and thus the female marmoset has to nurse both, and so the male is needed to take care of one young.  “Male marmosets behave like full-time mothers,” conclude Silverstain and Auerbach.

Our two authors also cite the work of “feminist researchers” who study non-human primates to buttress their theories.  But, they openly acknowledge that even the scientific community which—inexplicably to me—values evidence about marmosets to explain human behavior, has not agreed.  “Unfortunately, this feminist scholarship has not been integrated into most social science literature,” they admit.

Their conclusion:  “Taken as a whole, the empirical research does not support the idea that fathers make a unique and essential contribution to child development.”

Silverstein and Auerbach to make one valuable statement in the midst of their “findings.”  “We acknowledge that our reading of the scientific literature supports our political agenda.  Our goal is to generate public policy initiatives that support men in their fathering role, without discriminating against women and same-sex couples.”  They correctly acknowledge that this propensity for bias is the norm in social science research.

Let’s translate their fancy language into ordinary talk:  “Social scientists are little more than political hacks who manipulate data to suit their political agenda.”

Our organization published very positive findings about home schooling based on the test results of 20,000 children.  This study has received a fair amount of criticism from the social science community because it believes that the sample was unrepresentative—principally because the testing service was operated by a Christian college.  I have yet to hear whether they think that Christian home schoolers are smarter or dumber than secular home schoolers.

Social scientists believe that a study of 20,000 Christian home school students is not a valid indicator of home school success in general.  But, social scientists believe that marmosets are a valid indicator of the role of human fathers.  This is even though there is not showing that the marmosets selected for the study were representative of all marmosets.

Social science should lay no claim to a role in public policy debates in light of such utter nonsense.

But the sad reality is that the attitude of social scientists foreshadows the future attitude of society.  We need to take steps in every possible sphere of government—to ensure that the traditional rights of parents are solidly enshrined as permanent features in our constitutional law.

The founding fathers wrote the Third Amendment which prohibits the quartering of soldiers in private homes based on their experience with British soldiers.  If they had experienced social invasions or lewd instruction regarding condoms being given to their children over their objection, there would have been a provision in the Bill of Rights protecting parental rights against such tyranny.

I believe it is up to this generation of parents to act for the generations to come to ensure that we protect the family in the black and white of our Constitution lest the global village overtake our homes.

Endnotes