The Supreme Court of the United States in 2000 declared that “the liberty interest…of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by [the] Court.” Troxel v. Granville, 530 U.S. 57 (2000), at 65. In fact, this right of parents to direct the upbringing, education, and care of their children predates the Court itself. It is a right that was already understood and acknowledged long before the United States came to be.
Consider the following from John Locke’s Second Treatise of Civil Government, first published in 1690 – that’s 97 years before the ratification of the U.S. Constitution:
Adam was created a perfect man, his body and mind in full possession of their strength and reason, and so was capable, from the first instant of his being, to provide for his own support and preservation, and govern his action according to the dictates of the law of reason which God had implanted in him. From him the world is peopled with his descendants, who were all born infants, weak and helpless, without knowledge or understanding: but to supply the defects of this imperfect state, till the improvement of growth and age hath removed them, Adam and Eve, and after them all parents were, by the law of nature, under an obligation to preserve, nourish, and educate the children they had begotten; not as their own workmanship, but the workmanship of their own maker, the Almighty, to whom they were to be accountable for them….
This is that which puts the authority into the parents’ hands to govern the minority of their children. God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it.
Locke’s understanding of the right and obligation of parents to direct the upbringing of their children appears to reflect the Common Law understanding of his day. It is a view that was shared, at least in its essential components, by the United States Supreme Court in one of its first articulations of parental rights in 1925:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Pierce v. Society of Sisters, 268 U.S. 510 (1925), at 535.
Further, his assertion that God (or nature, if the reader prefer) “hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it… to the children’s good” is echoed in a ruling by the Court in 1979:
The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children…
Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.
Parham v. J.R., 442 U.S. 584 (1979), at 602-3.
Thus, the understanding presented by Locke in the 17th Century was recognized by the Supreme Court in the 20th Century as the foundation upon which our nation’s parental rights law had been built.
It is no wonder, then, that in 1972 the Court also declared:
The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
Wisconsin v. Yoder, 406 U.S. 205 (1972), at 232.
Unfortunately, it is a right that no longer enjoys the highest protection and respect of America’s politicians, the legal community, state and federal bureaucracies, state child protection agencies, and even the courts. It is a right that is under attack at some of the highest levels, such as at the United Nations, and international courts in the Hague and elsewhere. But it is a right worth protecting, and that is why the Parental Rights Foundation exists.
https://parentalrightsfoundation.org/legal/parental_rights_history/
Meyer v. Nebraska, 262 U.S. 390 (1923)
Justia Opinion Summary and Annotations
Annotation
Primary Holding
Due process does not allow a state to prohibit teaching children any language other than English.
Facts
Meyer, a teacher, taught German to a 10-year-old child. He was convicted of violating a Nebraska law that prohibited teaching any language other than English.
Opinions
Majority
- James Clark McReynolds (Author)
- William Howard Taft
- Joseph McKenna
- Oliver Wendell Holmes, Jr.
- Willis Van Devanter
- Louis Dembitz Brandeis
- Pierce Butler
- Edward Terry Sanford
- George Sutherland
The Fourteenth Amendment vision of liberty includes the right of a teacher to teach German and the right of parents to control the upbringing of their children as they see fit. While the state has a legitimate interest in encouraging the growth of a homogenous population that can engage in discussions of civic matters, the means that it has chosen to pursue this objective is excessive.
Case Commentary
This law probably derived from the First World War, when nationalist sentiment ran high. It could be constitutional during wartime or emergency to ban teaching foreign languages in the interest of protecting American ideals.
U.S. Supreme Court
Meyer v. Nebraska, 262 U.S. 390 (1923)
Meyer v. State of Nebraska
No. 325
Argued February 23, 1923
Decided June 4, 1923
262 U.S. 390
Syllabus
A state law forbidding, under penalty, the teaching in any private, denominational, parochial or public school, of any modern language, other than English, to any child who has not attained and successfully
passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment and exceeds the power of the State. P. 262 U. S. 399.
So held where the statute was applied in punishment of an instructor who taught reading in German, to a child of ten years, in a parochial school.
107 Neb. 657, reversed.
ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for infraction of a statute against teaching of foreign languages to young children in schools.
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U.S. Supreme Court
Meyer v. Nebraska, 262 U.S. 390 (1923)
Meyer v. State of Nebraska
No. 325
Argued February 23, 1923
Decided June 4, 1923
ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA
Syllabus
A state law forbidding, under penalty, the teaching in any private, denominational, parochial or public school, of any modern language, other than English, to any child who has not attained and successfully
Page 262 U. S. 391
passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment and exceeds the power of the State. P. 262 U. S. 399.
So held where the statute was applied in punishment of an instructor who taught reading in German, to a child of ten years, in a parochial school.
107 Neb. 657, reversed.
ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for infraction of a statute against teaching of foreign languages to young children in schools.
Page 262 U. S. 396
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained
and successfully passed the eighth grade. The information is based upon “An act relating to the teaching of foreign languages in the State of Nebraska,” approved April 9, 1919, which follows [Laws 1919, c. 249.]:
“Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.”
“Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides.”
“Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense.”
“Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.”
The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It declared the offense charged and established was “the direct and intentional teaching of the German language as a distinct subject to a child who had not passed the eighth grade,” in the parochial school maintained by Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefor. And it held that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid exercise of the police power. The following excerpts from the opinion sufficiently indicate the reasons advanced to support the conclusion.
“The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permitting foreigners,
who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state. The enactment of such a statute comes reasonably within the police power of the state. Pohl v. State, 132 N.E. (Ohio) 20; State v. Bartels, 181 N.W. (Ia.) 508.”
“It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the state and arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and prevents them, without reason, from having their children taught foreign languages in school. That argument is not well taken, for it assumes that every citizen finds himself restrained by the statute. The hours which a child is able to devote to study in the confinement of school are limited. It must have ample time for exercise or play. Its daily capacity for learning is comparatively small. A selection of subjects for its education, therefore, from among the many that might be taught, is obviously necessary. The legislature no doubt had in mind the practical operation of the law. The law affects few citizens, except those of foreign lineage.
Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of importance to teach their children foreign languages before such children have reached the eighth grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction upon the citizens generally, which, it appears, was a restriction of no real consequence.”
The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S. 313; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v. Children’s Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered
with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. 137.
The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares,
“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by compulsory laws.
Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.
The challenged statute forbids the teaching in school of any subject except in English; also the teaching of any other language until the pupil has attained and successfully passed the eighth grade, which is not usually accomplished before the age of twelve. The Supreme Court of the State has held that “the so-called ancient or dead languages” are not “within the spirit or the purpose of
the act.” Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian and every other alien speech are within the ban. Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.
It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and “that the English language should be and become the mother tongue of all children reared in this State.” It is also affirmed that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the most useful type, and the public safety is imperiled.
That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution — a desirable end cannot be promoted by prohibited means.
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
“That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child,
nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.”
In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training 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 upon the people of a State without doing violence to both letter and spirit of the Constitution.
The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every characteristic of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the State and conflict with rights assured to plaintiff in error. The interference is plain enough, and no adequate reason therefor in time of peace and domestic tranquility has been shown.
The power of the State to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the State’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v.
Tanner, supra, p. 244 U. S. 594, pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State.
As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.
The judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed. [See the separate opinion of MR. JUSTICE HOLMES, concurred in by MR. JUSTICE SUTHERLAND, in the next case, at p. 262 U. S. 412, infra.]
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
U.S. Supreme Court
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Pierce v. Society of Sisters
Nos. 583, 584
Argued March 16, 17, 1925
Decided June 1, 1925
268 U.S. 510
Syllabus
1. The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. P. 268 U. S. 535.
2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, requires every parent, guardian or other person having control of a child between the ages of eight and sixteen years to send him to the public school in the district where he resides, for the period during which the school is held for the current year, is an unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children, and in that respect violates the Fourteenth Amendment. P. 268 U. S. 534.
3. In a proper sense, it is true that corporations cannot claim for themselves the liberty guaranteed by the Fourteenth Amendment, and, in general, no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power by the State upon the ground that he will be deprived of patronage;
4. But where corporations owning and conducting schools are threatened with destruction of their business and property through the improper and unconstitutional compulsion exercised by this statute upon parents and guardians, their interest is direct and immediate, and entitles them to protection by injunction. Truax v. Raich, 239 U. S. 33. P. 268 U. S. 535.
5. The Act, being intended to have general application, cannot be construed in its application to such corporations as an exercise of power to amend their charters. Berea College v. Kentucky, 211 U. S. 45. P. 268 U. S. 535.
6. Where the injury threatened by an unconstitutional statute is present and real before the statute is to be effective, and will
become irreparable if relief be postponed to that time, a suit to restrain future enforcement of the statute is not premature. P. 268 U. S. 536.
296 Fed. 928, affirmed.
APPEALS from decrees of the District Court granting preliminary injunctions restraining the Governor, and other officials, of the State of Oregon from threatening or attempting to enforce an amendment to the school law — an initiative measure adopted by the people November 7, 1922, to become effective in 1926 — requiring parents and others having control of young children to send them to the primary schools of the State. The plaintiffs were two Oregon corporations owning and conducting schools.
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
U.S. Supreme Court
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Pierce v. Society of Sisters
Nos. 583, 584
Argued March 16, 17, 1925
Decided June 1, 1925
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF OREGON
Syllabus
1. The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. P. 268 U. S. 535.
2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, requires every parent, guardian or other person having control of a child between the ages of eight and sixteen years to send him to the public school in the district where he resides, for the period during which the school is held for the current year, is an unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children, and in that respect violates the Fourteenth Amendment. P. 268 U. S. 534.
3. In a proper sense, it is true that corporations cannot claim for themselves the liberty guaranteed by the Fourteenth Amendment, and, in general, no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power by the State upon the ground that he will be deprived of patronage;
4. But where corporations owning and conducting schools are threatened with destruction of their business and property through the improper and unconstitutional compulsion exercised by this statute upon parents and guardians, their interest is direct and immediate, and entitles them to protection by injunction. Truax v. Raich, 239 U. S. 33. P. 268 U. S. 535.
5. The Act, being intended to have general application, cannot be construed in its application to such corporations as an exercise of power to amend their charters. Berea College v. Kentucky, 211 U. S. 45. P. 268 U. S. 535.
6. Where the injury threatened by an unconstitutional statute is present and real before the statute is to be effective, and will
Page 268 U. S. 511
become irreparable if relief be postponed to that time, a suit to restrain future enforcement of the statute is not premature. P. 268 U. S. 536.
296 Fed. 928, affirmed.
APPEALS from decrees of the District Court granting preliminary injunctions restraining the Governor, and other officials, of the State of Oregon from threatening or attempting to enforce an amendment to the school law — an initiative measure adopted by the people November 7, 1922, to become effective in 1926 — requiring parents and others having control of young children to send them to the primary schools of the State. The plaintiffs were two Oregon corporations owning and conducting schools.
Page 268 U. S. 529
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining
appellants from threatening or attempting to enforce the Compulsory Education Act * adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon. Jud.Code, § 266. They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection.
The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides, and failure so to do is declared a misdemeanor. There are
exemptions not specially important here — for children who are not normal, or who have completed he eighth grade, or who reside at considerable distances from any public school, or whose parents or guardians hold special permits from the County Superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.
Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal
property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools, many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee’s charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative — the annual income from primary schools exceeds thirty thousand dollars — and the successful conduct of this requires long-time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.
After setting out the above facts, the Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.
Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged
in owning, operating and conducting for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. The average attendance is one hundred, and the annual fees received for each student amount to some eight hundred dollars. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses of study conform to the requirements of the State Board of Education. Military instruction and training are also given, under the supervision of an Army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers of the State and County, have publicly announced that the Act of November 7, 1922, is valid, and have declared their intention to enforce it. By reason of the statute and threat of enforcement, appellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.
The Academy’s bill states the foregoing facts and then alleges that the challenged Act contravenes the corporation’s rights guaranteed by the Fourteenth Amendment and that, unless appellants are restrained from proclaiming its validity and threatening to enforce it, irreparable injury will result. The prayer is for an appropriate injunction.
No answer was interposed in either cause, and, after proper notices, they were heard by three judges (Jud.Code § 266) on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the
deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property, and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage, and thereby destroy their owners’ business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury, and the suits were not premature.
No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
The inevitable practical result of enforcing the Act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.
Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children
under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf Association v. Greenberg, 204 U. S. 359, 204 U. S. 363. But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action. Truax v. Raich, 239 U. S. 33; Truax v. Corrigan, 257 U. S. 312; Terrace v. Thompson, 263 U. S. 197.
The courts of the State have not construed the Act, and we must determine its meaning for ourselves. Evidently it was expected to have general application, and cannot be construed as though merely intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 211 U. S. 45. No argument in favor of such view has been advanced.
Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived
of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184; Nebraska District v. McKelvie, 262 U. S. 404; Truax v. Corrigan, supra, and cases there cited.
The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well recognized function of courts of equity. The decrees below are
Affirmed.
*
“Be it Enacted by the People of the State of Oregon:”
“Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as follows:”
“Sec. 5259. Children Between the Ages of Eight and Sixteen Years — Any parent, guardian or other person in the State of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day’s failure to send such child to a public school shall constitute a separate offense; provided, that, in the following cases, children shall not be required to attend public schools:”
“(a) Children Physically Unable — Any child who is abnormal, subnormal or physically unable to attend school.”
“(b) Children Who Have Completed the Eighth Grade — Any child who has completed the eighth grade, in accordance with the provisions of the state course of study.”
“(c) Distance from school — Children between the ages of eight and ten years, inclusive, whose place of residence is more than one and one-half miles, and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from public school; provided, however, that, if transportation to and from school is furnished by the school district, this exemption shall not apply.”
“(d) Private Instruction — Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such permission shall not extend longer than the end of the current school year. Such child must report to the county school superintendent or some person designated by him at least once every three months and take an examination in the work covered. If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county superintendent shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year.”
“If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court.”
“This Act shall take effect and be and remain in force from and after the first day of September, 1926.”
Parham v. J.R., 442 U.S. 584 (1979)
U.S. Supreme Court
Parham v. J.R., 442 U.S. 584 (1979)
Parham v. J.R.
No. 75-1690
Argued December 6, 1977
Reargued October 10, 1978
Decided June 20, 1979
442 U.S. 584
Syllabus
Appellees, children being treated in a Georgia state mental hospital, instituted in Federal District Court a class action against Georgia mental health officials. Appellees sought a declaratory judgment that Georgia’s procedures for voluntary commitment of children under the age of 18 to state mental hospitals violated the Due Process Clause of the Fourteenth Amendment, and requested an injunction against their future enforcement. Under the Georgia statute providing for the voluntary admission of children to state regional hospitals, admission begins with an application for hospitalization signed by a parent or guardian and, upon application, the superintendent of the hospital is authorized to admit temporarily any child for “observation and diagnosis.” If, after observation, the superintendent finds “evidence of mental illness” and that the child is “suitable for treatment” in the hospital, the child may be admitted “for such period and under such conditions as may be authorized by law.” Under Georgia’s mental health statute, any child who has been hospitalized for more than five days may be discharged at the request of a parent or guardian, and the hospital superintendent, even without a request for discharge, has an affirmative duty to release any child
“who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable.”
The District Court held that Georgia’s statutory scheme was unconstitutional because it failed to protect adequately the appellees’ due process rights and that the process due included at least the right after notice to an adversary-type hearing before an impartial tribunal.
Held: The District Court erred in holding unconstitutional the State’s procedures for admitting a child for treatment to a state mental hospital, since, on the record in this case, Georgia’s medical factfinding processes are consistent with constitutional guarantees. Pp. 442 U. S. 598-621.
(a) Testing challenged state procedures under a due process claim requires a balancing of (i) the private interest that will be affected by
the official action; (ii) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (iii) the state’s interest, including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirement would entail. Cf. Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335; Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 848-849. Pp. 442 U. S. 599-600.
(b) Notwithstanding a child’s liberty interest in not being confined unnecessarily for medical treatment, and assuming that a person has a protectible interest in not being erroneously labeled as mentally ill, parents — who have traditional interests in and responsibility for the upbringing of their child — retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse. However, the child’s rights and the nature of the commitment decision are such that parents do not always have absolute discretion to institutionalize a child; they retain plenary authority to seek such care for their children, subject to an independent medical judgment. Cf. Pierce v. Society of Sisters, 268 U. S. 510; Wisconsin v. Yoder, 406 U. S. 205; Prince v. Massachusetts, 321 U. S. 158; Meyer v. Nebraska, 262 U. S. 390. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, distinguished. Pp. 442 U. S. 600-604.
(c) The State has significant interests in confining the use of costly mental health facilities to cases of genuine need, in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance, and in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital, rather than to time-consuming pre-admission procedures. Pp. 442 U. S. 604-606.
(d) The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a “neutral factfinder” to determine whether the statutory requirements for admission are satisfied, see Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 271; Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 489, and to probe the child’s background. The decisionmaker must have the authority to refuse to admit any child who does not satisfy the medical standards for admission. The need for continuing commitment must be reviewed periodically. Pp. 442 U. S. 606-607.
(e) Due process does not require that the neutral factfinder be law-trained or a judicial or administrative officer; nor is it necessary that the admitting physician conduct a formal or quasi-formal adversary hearing or that the hearing be conducted by someone other than the admitting physician. While the medical decisionmaking process may
not be error-free, nevertheless the independent medical decisionmaking process, which includes a thorough psychiatric investigation followed by additional periodic review of a child’s condition, will identify children who should not be admitted; risks of error will not be significantly reduced by a more formal, judicial-type hearing. Pp. 442 U. S. 607-613.
(f) Georgia’s practices, as described in the record, comport with minimum due process requirements. The state statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. Georgia’s procedures are not “arbitrary” in the sense that a single physician or other professional has the “unbridled discretion” to commit a child to a regional hospital. While Georgia’s general administrative and statutory scheme for the voluntary commitment of children is not unconstitutional, the District Court, on remand, may consider any individual claims that the initial admissions of particular children did not meet due process standards, and may also consider whether the various hospitals’ procedures for periodic review of their patients’ need for institutional care are sufficient to justify continuing a voluntary commitment. Pp. 442 U. S. 613-617.
(g) The differences between the situation where the child is a ward of the State of Georgia and the State requests his admission to a state mental hospital, and the situation where the child’s natural parents request his admission, do not justify requiring different procedures at the time of the child’s initial admission to the hospital. Pp. 442 U.S. 617-620.
412 F. Supp. 112, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which WHITE BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 442 U. S. 621. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 442 U.S. 625.
Parham v. J.R., 442 U.S. 584 (1979)
U.S. Supreme Court
Parham v. J.R., 442 U.S. 584 (1979)
Parham v. J.R.
No. 75-1690
Argued December 6, 1977
Reargued October 10, 1978
Decided June 20, 1979
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Syllabus
Appellees, children being treated in a Georgia state mental hospital, instituted in Federal District Court a class action against Georgia mental health officials. Appellees sought a declaratory judgment that Georgia’s procedures for voluntary commitment of children under the age of 18 to state mental hospitals violated the Due Process Clause of the Fourteenth Amendment, and requested an injunction against their future enforcement. Under the Georgia statute providing for the voluntary admission of children to state regional hospitals, admission begins with an application for hospitalization signed by a parent or guardian and, upon application, the superintendent of the hospital is authorized to admit temporarily any child for “observation and diagnosis.” If, after observation, the superintendent finds “evidence of mental illness” and that the child is “suitable for treatment” in the hospital, the child may be admitted “for such period and under such conditions as may be authorized by law.” Under Georgia’s mental health statute, any child who has been hospitalized for more than five days may be discharged at the request of a parent or guardian, and the hospital superintendent, even without a request for discharge, has an affirmative duty to release any child
“who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable.”
The District Court held that Georgia’s statutory scheme was unconstitutional because it failed to protect adequately the appellees’ due process rights and that the process due included at least the right after notice to an adversary-type hearing before an impartial tribunal.
Held: The District Court erred in holding unconstitutional the State’s procedures for admitting a child for treatment to a state mental hospital, since, on the record in this case, Georgia’s medical factfinding processes are consistent with constitutional guarantees. Pp. 442 U. S. 598-621.
(a) Testing challenged state procedures under a due process claim requires a balancing of (i) the private interest that will be affected by
Page 442 U. S. 585
the official action; (ii) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (iii) the state’s interest, including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirement would entail. Cf. Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335; Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 848-849. Pp. 442 U. S. 599-600.
(b) Notwithstanding a child’s liberty interest in not being confined unnecessarily for medical treatment, and assuming that a person has a protectible interest in not being erroneously labeled as mentally ill, parents — who have traditional interests in and responsibility for the upbringing of their child — retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse. However, the child’s rights and the nature of the commitment decision are such that parents do not always have absolute discretion to institutionalize a child; they retain plenary authority to seek such care for their children, subject to an independent medical judgment. Cf. Pierce v. Society of Sisters, 268 U. S. 510; Wisconsin v. Yoder, 406 U. S. 205; Prince v. Massachusetts, 321 U. S. 158; Meyer v. Nebraska, 262 U. S. 390. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, distinguished. Pp. 442 U. S. 600-604.
(c) The State has significant interests in confining the use of costly mental health facilities to cases of genuine need, in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance, and in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital, rather than to time-consuming pre-admission procedures. Pp. 442 U. S. 604-606.
(d) The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a “neutral factfinder” to determine whether the statutory requirements for admission are satisfied, see Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 271; Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 489, and to probe the child’s background. The decisionmaker must have the authority to refuse to admit any child who does not satisfy the medical standards for admission. The need for continuing commitment must be reviewed periodically. Pp. 442 U. S. 606-607.
(e) Due process does not require that the neutral factfinder be law-trained or a judicial or administrative officer; nor is it necessary that the admitting physician conduct a formal or quasi-formal adversary hearing or that the hearing be conducted by someone other than the admitting physician. While the medical decisionmaking process may
Page 442 U. S. 586
not be error-free, nevertheless the independent medical decisionmaking process, which includes a thorough psychiatric investigation followed by additional periodic review of a child’s condition, will identify children who should not be admitted; risks of error will not be significantly reduced by a more formal, judicial-type hearing. Pp. 442 U. S. 607-613.
(f) Georgia’s practices, as described in the record, comport with minimum due process requirements. The state statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. Georgia’s procedures are not “arbitrary” in the sense that a single physician or other professional has the “unbridled discretion” to commit a child to a regional hospital. While Georgia’s general administrative and statutory scheme for the voluntary commitment of children is not unconstitutional, the District Court, on remand, may consider any individual claims that the initial admissions of particular children did not meet due process standards, and may also consider whether the various hospitals’ procedures for periodic review of their patients’ need for institutional care are sufficient to justify continuing a voluntary commitment. Pp. 442 U. S. 613-617.
(g) The differences between the situation where the child is a ward of the State of Georgia and the State requests his admission to a state mental hospital, and the situation where the child’s natural parents request his admission, do not justify requiring different procedures at the time of the child’s initial admission to the hospital. Pp. 442 U.S. 617-620.
412 F. Supp. 112, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which WHITE BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 442 U. S. 621. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 442 U.S. 625.
Page 442 U. S. 587
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented in this appeal is what process is constitutionally due a minor child whose parents or guardian seek state administered institutional mental health care for the child, and, specifically, whether an adversary proceeding is required prior to or after the commitment.
I
(a) Appellee [Footnote 1] J. R., a child being treated in a Georgia state mental hospital, was a plaintiff in this class action [Footnote 2] based on 42 U.S.C. § 1983, in the District Court for the Middle District of Georgia. Appellants are the State’s Commissioner
of the Department of Human Resources, the Director of the Mental Health Division of the Department of Human Resources, and the Chief Medical Officer at the hospital where appellee was being treated. Appellee sought a declaratory judgment that Georgia’s voluntary commitment procedures for children under the age of 18, Ga.Code §§ 88-503.1, 88-503.2 (1975), [Footnote 3] violated the Due Process Clause of the Fourteenth Amendment, and requested an injunction against their future enforcement.
A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 (1970 ed.) and 2284. After considering expert and lay testimony and extensive exhibits, and after visiting two of the State’s regional mental health hospitals, the District Court held that Georgia’s statutory scheme was unconstitutional because it failed to protect adequately the appellees’ due process rights. J. L. v. Parham, 412 F. Supp. 112, 139 (1976).
To remedy this violation, the court enjoined future commitments based on the procedures in the Georgia statute. It also commanded Georgia to appropriate and expend whatever amount was “reasonably necessary” to provide nonhospital facilities deemed by the appellant state officials to be the
most appropriate for the treatment of those members of plaintiffs’ class, n 2, supra, who could be treated in a less drastic, nonhospital environment. 412 F. Supp. at 139.
Appellants challenged all aspects of the District Court’s judgment. We noted probable jurisdiction, 431 U.S. 936, and heard argument during the 1977 Term. The case was then consolidated with Secretary of Public Welfare v. Institutionalized Juveniles, post, p. 442 U. S. 640, and reargued this Term.
(b) J.L., a plaintiff before the District Court who is now deceased, was admitted in 1970 at the age of 6 years to Central State Regional Hospital in Milledgeville, Ga. Prior to his admission, J.L. had received outpatient treatment at the hospital for over two months. J.L.’s mother then requested the hospital to admit him indefinitely.
The admitting physician interviewed J.L. and his parents. He learned that J.L.’s natural parents had divorced, and his mother had remarried. He also learned that J.L. had been expelled from school because he was uncontrollable. He accepted the parents’ representation that the boy had been extremely aggressive, and diagnosed the child as having a “hyperkinetic reaction of childhood.”
J.L.’s mother and stepfather agreed to participate in family therapy during the time their son was hospitalized. Under this program, J L. was permitted to go home for short stays. Apparently his behavior during these visits was erratic. After several months, the parents requested discontinuance of the program.
In 1972, the child was returned to his mother and stepfather on a furlough basis, i.e., he would live at home, but go to school at the hospital. The parents found they were unable to control J.L. to their satisfaction, and this created family stress. Within two months, they requested his readmission to Central State. J.L.’s parents relinquished their parental rights to the county in 1974.
Although several hospital employees recommended that J.L.
should be placed in a special foster home with “a warm, supported, truly involved couple,” the Department of Family and Children Services was unable to place him in such a setting. On October 24, 1975, J.L. (with J.R.) filed this suit requesting an order of the court placing him in a less drastic environment suitable to his needs.
(c) Appellee J.R. was declared a neglected child by the county and removed from his natural parents when he was 3 months old. He was placed in seven different foster homes in succession prior to his admission to Central State Hospital at the age of 7.
Immediately preceding his hospitalization, J.R. received outpatient treatment at a county mental health center for several months. He then began attending school, where he was so disruptive and incorrigible that he could not conform to normal behavior patterns. Because of his abnormal behavior, J.R.’s seventh set of foster parents requested his removal from their home. The Department of Family and Children Services then sought his admission at Central State. The agency provided the hospital with a complete sociomedical history at the time of his admission. In addition, three separate interviews were conducted with J.R. by the admission team of the hospital.
It was determined that he was borderline retarded, and suffered an “unsocialized, aggressive reaction of childhood.” It was recommended unanimously that he would “benefit from the structured environment” of the hospital, and would “enjoy living and playing with boys of the same age.”
J.R.’s progress was reexamined periodically. In addition, unsuccessful efforts were made by the Department of Family and Children Services during his stay at the hospital to place J.R. in various foster homes. On October 24, 1975, J.R. (with J.L.) filed this suit requesting an order of the court placing him in a less drastic environment suitable to his needs.
(d) Georgia Code § 88-503.1 (1975) provides for the voluntary
admission to a state regional hospital of children such as J.L. and J.R. Under that provision, admission begins with an application for hospitalization signed by a “parent or guardian.” Upon application, the superintendent of each hospital is given the power to admit temporarily any child for “observation and diagnosis.” If, after observation, the superintendent finds “evidence of mental illness” and that the child is “suitable for treatment” in the hospital, then the child may be admitted “for such period and under such conditions as may be authorized by law.”
Georgia’s mental health statute also provides for the discharge of voluntary patients. Any child who has been hospitalized for more than five days may be discharged at the request of a parent or guardian. § 88-503.3(a) (1975). Even without a request for discharge, however, the superintendent of each regional hospital has an affirmative duty to release any child
“who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable.”
§ 88-503.2 (1975).
Georgia’s Mental Health Director has not published any statewide regulations defining what specific procedures each superintendent must employ when admitting a child under 18. Instead, each regional hospital’s superintendent is responsible for the procedures in his or her facility. There is substantial variation among the institutions with regard to their admission procedures and their procedures for review of patients after they have been admitted. A brief description of the different hospitals’ procedures [Footnote 4] will demonstrate the variety of
approaches taken by the regional hospitals throughout the State.
Southwestern Hospital in Thomasville, Ga., was built in 1966. Its children and adolescent program was instituted in 1974. The children and adolescent unit in the hospital has a maximum capacity of 20 beds, but, at the time of suit, only 10 children were being treated there.
The Southwestern superintendent testified that the hospital has never admitted a voluntary child patient who was not treated previously by a community mental health clinic. If a mental health professional at the community clinic determines that hospital treatment may be helpful for a child, then clinic staff and hospital staff jointly evaluate the need for hospitalization, the proper treatment during hospitalization, and a likely release date. The initial admission decision thus is not made at the hospital.
After a child is admitted, the hospital has weekly reviews of his condition performed by its internal medical and professional staff. There also are monthly reviews of each child by a group composed of hospital staff not involved in the weekly reviews and by community clinic staff people. The average stay for each child who was being treated at Southwestern in 1975 was 100 days.
Atlanta Regional Hospital was opened in 1968. At the time of the hearing before the District Court, 17 children and 21 adolescents were being treated in the hospital’s children and adolescent unit.
The hospital is affiliated with nine community mental health centers, and has an agreement with them that “persons will be treated in the comprehensive community mental health centers in every possible instance, rather than being hospitalized.” The admission criteria at Atlanta Regional for voluntary and involuntary patients are the same. It has a formal policy not
to admit a voluntary patient unless the patient is found to be a threat to himself or others. The record discloses that approximately 25% of all referrals from the community centers are rejected by the hospital admissions staff.
After admission, the staff reviews the condition of each child every week. In addition, there are monthly utilization reviews by nonstaff mental health professionals; this review considers a random sample of children’s cases. The average length of each child’s stay in 1975 was 161 days.
The Georgia Mental Health Institute (GMHI) in Decatur, Ga., was built in 1965. Its children and adolescent unit housed 26 children at the time this suit was brought.
The hospital has a formal affiliation with four community mental health centers. Those centers may refer patients to the hospital only if they certify that “no appropriate alternative resources are available within the client’s geographic area.” For the year prior to the trial in this case, no child was admitted except through a referral from a clinic. Although the hospital has a policy of generally accepting for 24 hours all referrals from a community clinic, it has a team of staff members who review each admission. If the team finds “no reason not to treat in the community” and the deputy superintendent of the hospital agrees, then it will release the applicant to his home.
After a child is admitted, there must be a review of the admission decision within 30 days. There is also an unspecified periodic review of each child’s need for hospitalization by a team of staff members. The average stay for the children who were at GMHI in 1975 was 346 days.
Augusta Regional Hospital was opened in 1969, and is affiliated with 10 community mental health clinics. Its children and adolescent unit housed 14 children in December, 1975.
Approximately 90% of the children admitted to the hospital have first received treatment in the community, but not all of them were admitted based on a specific referral from a clinic.
The admission criterion is whether “the child needs hospitalization,” and that decision must be approved by two psychiatrists. There is also an informal practice of not admitting a child if his parents refuse to participate in a family therapy program.
The admission decision is reviewed within 10 days by a team of staff physicians and mental health professionals; thereafter, each child is reviewed every week. In addition, every child’s condition is reviewed by a team of clinic staff members every 100 days. The average stay for the children at Augusta in December, 1975 was 92 days.
Savannah Regional Hospital was built in 1970, and it housed 16 children at the time of this suit. The hospital staff members are also directors of the community mental health clinics.
It is the policy of the hospital that any child seeking admission on a nonemergency basis must be referred by a community clinic. The admission decision must be made by a staff psychiatrist, and it is based on the materials provided by the community clinic, an interview with the applicant, and an interview with the parents, if any, of the child.
Within three weeks after admission of a child, there is review by a group composed of hospital and clinic staff members and people from the community, such as juvenile court judges. Thereafter, the hospital staff reviews each child weekly. If the staff concludes that a child is ready to be released, then the community committee reviews the child’s case to assist in placement. The average stay of the children being treated at Savannah in December, 1975, was 127 days.
West Central Hospital in Columbus, Ga., was opened in December, 1974, and it was organized for budgetary purposes with several community mental health clinics. The hospital itself has only 20 beds for children and adolescents, 16 of which were occupied at the time this suit was filed.
There is a formal policy that all children seeking admission to the hospital must be referred by a community clinic. The hospital is regarded by the staff as “the last resort in treating
a child”; 50% of the children referred are turned away by the admissions team at the hospital.
After admission, there are staff meetings daily to discuss problem cases. The hospital has a practicing child psychiatrist who reviews cases once a week. Depending on the nature of the problems, the consultant reviews between 1 and 20 cases. The average stay of the children who were at West Central in December, 1975, was 71 days.
The children’s unit at Central State Regional Hospital in Milledgeville, Ga., was added to the existing structure during the 1970’s. It can accommodate 40 children. The hospital also can house 40 adolescents. At the time of suit, the hospital housed 37 children under 18, including both named plaintiffs.
Although Central State is affiliated with community clinics, it seems to have a higher percentage of nonreferral admissions than any of the other hospitals. The admission decision is made by an “admissions evaluator” and the “admitting physician.” The evaluator is a Ph.D. in psychology, a social worker, or a mental health-trained nurse. The admitting physician is a psychiatrist. The standard for admission is “whether or not hospitalization is the more appropriate treatment” for the child. From April, 1974, to November, 1975, 9 of 29 children applicants screened for admission were referred to noninstitutional settings.
All children who are temporarily admitted are sent to the children and adolescent unit for testing and development of a treatment plan. Generally, seven days after the admission, members of the hospital staff review all of the information compiled about a patient “to determine the need for continued hospitalization.” Thereafter, there is an informal review of the patient approximately every 60 days. The patients who were at Central State in December, 1975, had been there, on the average, 456 days. There is no explanation in the record for this large variation from the average length of hospitalization at the other institutions.
Although most of the focus of the District Court was on the State’s mental hospitals, it is relevant to note that Georgia presently funds over 50 community mental health clinics and 13 specialized foster care homes. The State has built seven new regional hospitals within the past 15 years, and it has added a new children’s unit to its oldest hospital. The state budget in fiscal year 1976 was almost $150 million for mental health care. Georgia ranks 22d among the states in per capita expenditures for mental health and 15th in total expenditures. [Footnote 5]
The District Court nonetheless rejected the State’s entire system of providing mental health care on both procedural and substantive grounds. The District Court found that 46 children could be “optimally cared for in another, less restrictive, non-hospital setting if it were available.” 412 F. Supp. at 124-125. These “optimal” settings included group homes, therapeutic camps, and home-care services. The Governor of Georgia and the chairmen of the two Appropriations Committees of its legislature, testifying in the District Court, expressed confidence in the Georgia program and informed the court that the State could not justify enlarging its budget during fiscal year 1977 to provide the specialized treatment settings urged by appellees in addition to those then available.
Having described the factual background of Georgia’s mental health program and its treatment of the named plaintiffs, we turn now to examine the legal bases for the District Court’s judgment.
II
In holding unconstitutional Georgia’s statutory procedure for voluntary commitment of juveniles, the District Court first determined that commitment to any of the eight regional
hospitals [Footnote 6] constitutes a severe deprivation of a child’s liberty. The court defined this liberty interest in terms of both freedom from bodily restraint and freedom from the “emotional and psychic harm” caused by the institutionalization. [Footnote 7] Having determined that a liberty interest is implicated by a child’s admission to a mental hospital, the court considered what process is required to protect that interest. It held that the process due “includes at least the right after notice to be heard before an impartial tribunal.” 412 F. Supp. at 137.
In requiring the prescribed hearing, the court rejected Georgia’s argument that no adversary-type hearing was required, since the State was merely assisting parents who could not afford private care by making available treatment similar to that offered in private hospitals and by private physicians. The court acknowledged that most parents who seek to have their children admitted to a state mental hospital do so in good faith. It, however, relied on one of appellees’ witnesses who expressed an opinion that “some still look upon mental hospitals as a dumping ground.'” Id. at 138. [Footnote 8] No specific
evidence of such “dumping,” however, can be found in the record.
The District Court also rejected the argument that review by the superintendents of the hospitals and their staffs was sufficient to protect the child’s liberty interest. The court held that the inexactness of psychiatry, coupled with the possibility that the sources of information used to make the commitment decision may not always be reliable, made the superintendent’s decision too arbitrary to satisfy due process. The court then shifted its focus drastically from what was clearly a procedural due process analysis to what appears to be a substantive due process analysis, and condemned Georgia’s “officialdom” for its failure, in the face of a state-funded 1973 report [Footnote 9] outlining the “need” for additional resources to be spent on nonhospital treatment, to provide more resources for noninstitutional mental health care. The court concluded that there was a causal relationship between this intransigence and the State’s ability to provide any “flexible due process” to the appellees. The District Court therefore ordered the State to appropriate and expend such resources as would be necessary to provide nonhospital treatment to those members of appellees’ class who would benefit from it.
III
In an earlier day, the problems inherent in coping with children afflicted with mental or emotional abnormalities were dealt with largely within the family. See S. Brakel & R. Rock, The Mentally Disabled and the Law 4 (1971). Sometimes parents were aided by teachers or a family doctor. While some parents no doubt were able to deal with their disturbed
children without specialized assistance, others, especially those of limited means and education, were not. Increasingly, they turned for assistance to local, public sources or private charities. Until recently, most of the states did little more than provide custodial institutions for the confinement of persons who were considered dangerous. Id. at 5-6; Slovenko, Criminal Justice Procedures in Civil Commitment, 24 Wayne L.Rev. 1, 3 (1977) (hereinafter Slovenko).
As medical knowledge about the mentally ill and public concern for their condition expanded, the states, aided substantially by federal grants, [Footnote 10] have sought to ameliorate the human tragedies of seriously disturbed children. Ironically, as most states have expanded their efforts to assist the mentally ill, their actions have been subjected to increasing litigation and heightened constitutional scrutiny. Courts have been required to resolve the thorny constitutional attacks on state programs and procedures with limited precedential guidance. In this case, appellees have challenged Georgia’s procedural and substantive balance of the individual, family, and social interests at stake in the voluntary commitment of a child to one of its regional mental hospitals.
The parties agree that our prior holdings have set out a general approach for testing challenged state procedures under a due process claim. Assuming the existence of a protectible property or liberty interest, the Court has required a balancing of a number of factors:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.”
Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335 (1976), quoted in Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 848-849 (1977).
In applying these criteria, we must consider first the child’s interest in not being committed. Normally, however, since this interest is inextricably linked with the parents’ interest in and obligation for the welfare and health of the child, the private interest at stake is a combination of the child’s and parents’ concerns. [Footnote 11] Next, we must examine the State’s interest in the procedures it has adopted for commitment and treatment of children. Finally, we must consider how well Georgia’s procedures protect against arbitrariness in the decision to commit a child to a state mental hospital.
(a) It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment, and that the state’s involvement in the commitment decision constitutes state action under the Fourteenth Amendment. See Addington v. Texas, 441 U. S. 418, 441 U. S. 425 (1979); In re Gault, 387 U. S. 1, 387 U. S. 27 (1967); Specht v. Patterson, 386 U. S. 605 (1967). We also recognize that commitment sometimes produces adverse social consequences for the child because of the reaction of some to the discovery that the child has received psychiatric care. Cf. Addington v. Texas, supra at 441 U. S. 425-426.
This reaction, however, need not be equated with the community response resulting from being labeled by the state as delinquent, criminal, or mentally ill and possibly dangerous. See ibid.; In re Gault, supra at 387 U. S. 23; Paul v. Davis, 424 U. S. 693, 424 U. S. 711-712 (1976). The state, through its voluntary commitment procedures, does not “label” the child; it provides a
diagnosis and treatment that medical specialists conclude the child requires. In terms of public reaction, the child who exhibits abnormal behavior may be seriously injured by an erroneous decision not to commit. Appellees overlook a significant source of the public reaction to the mentally ill, for what is truly “stigmatizing” is the symptomatology of a mental or emotional illness. Addington v. Texas, supra at 441 U. S. 429. See also Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Archives of General Psychiatry 329 (1974). [Footnote 12] The pattern of untreated, abnormal behavior — even if nondangerous — arouses at least as much negative reaction as treatment that becomes public knowledge. A person needing, but not receiving, appropriate medical care may well face even greater social ostracism resulting from the observable symptoms of an untreated disorder. [Footnote 13]
However, we need not decide what effect these factors might have in a different case. For purposes of this decision, we assume that a child has a protectible interest not only in being free of unnecessary bodily restraints but also in not being labeled erroneously by some persons because of an improper decision by the state hospital superintendent.
(b) We next deal with the interests of the parents who have decided, on the basis of their observations and independent professional recommendations, that their child needs institutional
care. Appellees argue that the constitutional rights of the child are of such magnitude, and the likelihood of parental abuse is so great, that the parents’ traditional interests in and responsibility for the upbringing of their child must be subordinated at least to the extent of providing a formal adversary hearing prior to a voluntary commitment.
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.” Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925). See also Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 213 (1972); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 400 (1923). Surely, this includes a “high duty” to recognize symptoms of illness and to seek and follow medical advice. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law *190.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents “may at times be acting against the interests of their children,” as was stated in Bartley v. Kremens, 402 F. Supp. 1039, 1047-1048 (ED Pa.1975), vacated and remanded, 431 U. S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the
child’s best interests. See Rolfe & MacClintock 348-349. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra at 406 U. S. 230; Prince v. Massachusetts, supra at 321 U. S. 166. Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child’s decision to have an abortion. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976). Appellees urge that these precedents limiting the traditional rights of parents, if viewed in the context of the liberty interest of the child and the likelihood of parental abuse, require us to hold that the parents’ decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal, adversary, pre-admission hearing.
Appellees’ argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. Here, there is no finding by the District Court of even a single instance of bad faith by any parent of any member of appellees’ class. We cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra, would have been different if the children there had announced a preference to learn only English or a preference to go to a public, rather than a church,
school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child. See generally Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L J. 645, 664-668 (1977); Bennett, Allocation of Child Medical Care Decisionmaking Authority: A Suggested Interest Analysis, 62 Va.L.Rev. 285, 308 (1976). Neither state officials nor federal courts are equipped to review such parental decisions.
Appellees place particular reliance on Planned Parenthood, arguing that its holding indicates how little deference to parents is appropriate when the child is exercising a constitutional right. The basic situation in that case, however, was very different; Planned Parenthood involved an absolute parental veto over the child’s ability to obtain an abortion. Parents in Georgia in no sense have an absolute right to commit their children to state mental hospitals; the statute requires the superintendent of each regional hospital to exercise independent judgment as to the child’s need for confinement. See supra at 442 U. S. 591.
In defining the respective rights and prerogatives of the child and parent in the voluntary commitment setting, we conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply. We also conclude, however, that the child’s rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized. They, of course, retain plenary authority to seek such care for their children, subject to a physician’s independent examination and medical judgment.
(c) The State obviously has a significant interest in confining
the use of its costly mental health facilities to cases of genuine need. The Georgia program seeks first to determine whether the patient seeking admission has an illness that calls for inpatient treatment. To accomplish this purpose, the State has charged the superintendents of each regional hospital with the responsibility for determining, before authorizing an admission, whether a prospective patient is mentally ill and whether the patient will likely benefit from hospital care. In addition, the State has imposed a continuing duty on hospital superintendents to release any patient who has recovered to the point where hospitalization is no longer needed.
The State in performing its voluntarily assumed mission also has a significant interest in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance. The parens patriae interest in helping parents care for the mental health of their children cannot be fulfilled if the parents are unwilling to take advantage of the opportunities because the admission process is too onerous, too embarrassing, or too contentious. It is surely not idle to speculate as to how many parents who believe they are acting in good faith would forgo state-provided hospital care if such care is contingent on participation in an adversary proceeding designed to probe their motives and other private family matters in seeking the voluntary admission.
The State also has a genuine interest in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital, rather than to time-consuming procedural minuets before the admission. [Footnote 14] One factor that must
be considered is the utilization of the time of psychiatrists, psychologists, and other behavioral specialists in preparing for and participating in hearings, rather than performing the task for which their special training has fitted them. Behavioral experts in courtrooms and hearings are of little help to patients.
The amici brief of the American Psychiatric Association et al. points out at page 20 that the average staff psychiatrist in a hospital presently is able to devote only 475 of his time to direct patient care. One consequence of increasing the procedures the state must provide prior to a child’s voluntary admission will be that mental health professionals will be diverted even more from the treatment of patients in order to travel to and participate in — and wait for — what could be hundreds — or even thousands — of hearings each year. Obviously the cost of these procedures would come from the public moneys the legislature intended for mental health care. See Slovenko 34-35.
(d) We now turn to consideration of what process protects adequately the child’s constitutional rights by reducing risks of error without unduly trenching on traditional parental authority and without undercutting “efforts to further the legitimate interests of both the state and the patient that are served by” voluntary commitments. Addington v. Texas, 441 U.S. at 441 U. S. 430. See also Mathews v. Eldridge, 424 U.S. at 424 U. S. 335. We conclude that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a “neutral factfinder” to determine whether the statutory requirements for admission are satisfied. See Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 271 (1970); Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 489 (1972). That inquiry must carefully
probe the child’s background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child’s continuing need for commitment be reviewed periodically by a similarly independent procedure. [Footnote 15]
We are satisfied that such procedures will protect the child from an erroneous admission decision in a way that neither unduly burdens the states nor inhibits parental decisions to seek state help.
Due process has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer. See Goldberg v. Kelly, supra at 397 U. S. 271; Morrissey v. Brewer, supra at 408 U. S. 489. Surely, this is the case as to medical decisions, for “neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.” In re Roger S., 19 Cal. 3d 921, 942, 569 P.2d 1286, 1299 (1977) (Clark, J., dissenting). Thus, a staff physician will suffice, so long as he or she is free to evaluate independently the child’s mental and emotional condition and need for treatment.
It is not necessary that the deciding physician conduct a formal or quasi-formal hearing. A state is free to require such a hearing, but due process is not violated by use of informal, traditional medical investigative techniques. Since well established medical procedures already exist, we do not undertake to outline with specificity precisely what this investigation must involve. The mode and procedure of medical
diagnostic procedures is not the business of judges. What is best for a child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted.
What process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made. Not every determination by state officers can be made most effectively by use of “the procedural tools of judicial or administrative decisionmaking.” Board of Curators of Univ. of Missouri v. Horowitz, 435 U. S. 78, 435 U. S. 90 (1978). See also Greenholtz v. Nebraska Penal Inmates, ante at 442 U. S. 13-14; Cafeteria Restaurant Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). [Footnote 16]
Here, the questions are essentially medical in character: whether the child is mentally or emotionally ill, and whether he can benefit from the treatment that is provided by the state. While facts are plainly necessary for a proper resolution of those questions, they are only a first step in the process. In an opinion for a unanimous Court, we recently stated in Addington v. Texas, 441 U.S. at 441 U. S. 429, that the determination of whether a person is mentally ill “turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.”
Although we acknowledge the fallibility of medical and psychiatric diagnosis, see O’Connor v. Donaldson, 422 U. S. 563, 422 U. S. 584 (1975) (concurring opinion), we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real. See Albers, Pasewark, & Meyer, Involuntary Hospitalization and Psychiatric Testimony: The Fallibility of the Doctrine of Immaculate Perception, 6 Cap.U.L.Rev. 11, 15 (1976). [Footnote 17]
Another problem with requiring a formalized, factfinding hearing lies in the danger it poses for significant intrusion into the parent-child relationship. Pitting the parents and child as adversaries often will be at odds with the presumption that parents act in the best interests of their child. It is one thing to require a neutral physician to make a careful review of the parents’ decision in order to make sure it is proper from a medical standpoint; it is a wholly different matter to employ an adversary contest to ascertain whether the parents’ motivation is consistent with the child’s interests.
Moreover, it is appropriate to inquire into how such a hearing would contribute to the successful long-range treatment of the patient. Surely there is a risk that it would exacerbate whatever tensions already exist between the child and the parents. Since the parents can and usually do play a significant role in the treatment while the child is hospitalized, and even more so after release, there is a serious risk that an adversary confrontation will adversely affect the ability of the parents to assist the child while in the hospital. Moreover, it will make his subsequent return home more difficult. These unfortunate results are especially critical with an emotionally disturbed child; they seem likely to occur in the context of an adversary hearing in which the parents testify. A confrontation over such intimate family relationships would distress the normal adult parents, and the impact on a disturbed child almost certainly would be significantly greater. [Footnote 18]
It has been.suggested that a hearing conducted by someone other than the admitting physician is necessary in order to detect instances where parents are “guilty of railroading their children into asylums” or are using “voluntary commitment procedures in order to sanction behavior of which they disapprov[e].” Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 Calif.L.Rev. 840, 850-851 (1974). See also J.L. v. Parham, 412 F. Supp. at 133; Brief for Appellees 38. Curiously, it seems to be taken for granted that parents who seek to “dump” their children on the state will inevitably be able to conceal their motives, and thus deceive the admitting psychiatrists and the other mental health professionals who make and review the admission decision. It is elementary that one early diagnostic inquiry into the cause of an emotional disturbance of a child is an examination into the environment of the child. It is unlikely, if not inconceivable, that a decision to abandon an emotionally normal, healthy child and thrust him into an institution will be a discrete act leaving no trail of circumstances. Evidence of such conflicts will emerge either in the interviews or from secondary sources. It is unrealistic to believe that trained psychiatrists, skilled in eliciting responses, sorting medically relevant facts, and sensing motivational nuances will often be deceived about the family situation surrounding
a child’s emotional disturbance. [Footnote 19] Surely a lay, or even law-trained, factfinder would be no more skilled in this process than the professional.
By expressing some confidence in the medical decisionmaking process, we are by no means suggesting it is error-free. On occasion, parents may initially mislead an admitting physician, or a physician may erroneously diagnose the child as needing institutional care either because of negligence or an overabundance of caution. That there may be risks of error in the process affords no rational predicate for holding unconstitutional an entire statutory an administrative scheme that is generally followed in more than 30 states. [Footnote 20]
“[P]rocedural
due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”
Mathews v. Eldridge, 424 U.S. at 424 U. S. 344. In general, we are satisfied that an independent medical decisionmaking process, which includes the thorough psychiatric investigation described earlier, followed by additional periodic review of a child’s condition, will protect children who should not be admitted; we do not believe the risks of error in that process would be significantly reduced by a more formal, judicial-type hearing. The issue remains whether the Georgia practices, as described in the record before us, comport with these minimum due process requirements.
(e) Georgia’s statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. The amicus brief for the United States explains, at pages 7-8:
“[I]n every instance, the decision whether or not to accept the child for treatment is made by a physician employed by the State. . . . ”
“That decision is based on interviews and recommendations by hospital or community health center staff. The staff interviews the child and the parent or guardian who brings the child to the facility . . . , [and] attempts are
made to communicate with other possible sources of information about the child. . . .”
Focusing primarily on what it saw as the absence of any formal mechanism for review of the physician’s initial decision, the District Court unaccountably saw the medical decision as an exercise of “unbridled discretion.” 412 F. Supp. at 136. But extravagant characterizations are no substitute for careful analysis, and we must examine the Georgia process in its setting to determine if, indeed, any one person exercises such discretion.
In the typical case, the parents of a child initially conclude from the child’s behavior that there is some emotional problem — in short, that “something is wrong.” They may respond to the problem in various ways, but generally the first contact with the State occurs when they bring the child to be examined by a psychologist or psychiatrist at a community mental health clinic.
Most often, the examination is followed by outpatient treatment at the community clinic. In addition, the child’s parents are encouraged, and sometimes required, to participate in a family therapy program to obtain a better insight into the problem. In most instances, this is all the care a child requires. However, if, after a period of outpatient care, the child’s abnormal emotional condition persists, he may be referred by the local clinic staff to an affiliated regional mental hospital.
At the regional hospital, an admissions team composed of a psychiatrist and at least one other mental health professional examines and interviews the child — privately in most instances. This team then examines the medical records provided by the clinic staff and interviews the parents. Based on this information, and any additional background that can be obtained, the admissions team makes a diagnosis and determines whether the child will likely benefit from institutionalized
care. If the team finds either condition not met, admission is refused.
If the team admits a child as suited for hospitalization, the child’s condition and continuing need for hospital care are reviewed periodically by at least one independent medical review group. For the most part, the reviews are as frequent as weekly, but none is less often than once every two months. Moreover, as we noted earlier, the superintendent of each hospital is charged with an affirmative statutory duty to discharge any child who is no longer mentally ill or in need of therapy. [Footnote 21]
As with most medical procedures, Georgia’s are not totally free from risk of error in the sense that they give total or absolute assurance that every child admitted to a hospital has a mental illness optimally suitable for institutionalized treatment. But it bears repeating that
“procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”
Mathews v. Eldridge, supra, at 424 U. S. 344.
Georgia’s procedures are not “arbitrary” in the sense that a single physician or other professional has the “unbridled discretion” the District Court saw to commit a child to a regional hospital. To so find on this record would require us to assume that the physicians, psychologists, and mental health professionals who participate in the admission decision, and who review each other’s conclusions as to the continuing validity of the initial decision, are either oblivious or indifferent to the child’s welfare — or that they are incompetent. We note, however, the District Court found to the contrary; it was
“impressed by the conscientious, dedicated, state-employed
psychiatrists who, with the help of equally conscientious, dedicated state-employed psychologists and social workers, faithfully care for the plaintiff children. . . .”
412 F. Supp. at 138.
This finding of the District Court also effectively rebuts the suggestion made in some of the briefs amici that hospital administrators may not actually be “neutral and detached” because of institutional pressure to admit a child who has no need for hospital care. That such a practice may take place in some institutions in some places affords no basis for a finding as to Georgia’s program; the evidence in the record provides no support whatever for that charge against the staffs at any of the State’s eight regional hospitals. Such cases, if they are found, can be dealt with individually; [Footnote 22] they do not lend themselves to class action remedies.
We are satisfied that the voluminous record as a whole supports the conclusion that the admissions staffs of the hospitals have acted in a neutral and detached fashion in making medical judgments in the best interests of the children. The State, through its mental health programs, provides the authority for trained professionals to assist parents in examining, diagnosing, and treating emotionally disturbed children. Through its hiring practices, it provides well staffed and well equipped hospitals and — as the District Court found — conscientious public employees to implement the State’s beneficent purposes.
Although our review of the record in this case satisfies us that Georgia’s general administrative and statutory scheme for the voluntary commitment of children is not per se
unconstitutional, we cannot decide on this record whether every child in appellees’ class received an adequate, independent diagnosis of his emotional condition and need for confinement under the standards announced earlier in this opinion. On remand, the District Court is free to, and should, consider any individual claims that initial admissions did not meet the standards we have described in this opinion.
In addition, we note that appellees’ original complaint alleged that the State had failed to provide adequate periodic review of their need for institutional care, and claimed that this was an additional due process violation. Since the District Court held that the appellees’ original confinement was unconstitutional, it had no reason to consider this separate claim. Similarly, we have no basis for determining whether the review procedures of the various hospitals are adequate to provide the process called for or what process might be required if a child contests his confinement by requesting a release. These matters require factual findings not present in the District Court’s opinion. We have held that the periodic reviews described in the record reduce the risk of error in the initial admission, and thus they are necessary. Whether they are sufficient to justify continuing a voluntary commitment is an issue for the District Court on remand. The District Court is free to require additional evidence on this issue.
IV
(a) Our discussion in 442 U. S. Some members of appellees’ class, including J.R., were wards of the State of Georgia at the time of their admission. Obviously their situation differs from those members of the class who have natural parents. While the determination of what process is due varies somewhat when the state, rather than a natural parent, makes the request for commitment, we conclude that the differences
in the two situations do not justify requiring different procedures at the time of the child’s initial admission to the hospital.
For a ward of the state, there may well be no adult who knows him thoroughly and who cares for him deeply. Unlike with natural parents, where there is a presumed natural affection to guide their action, 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law * 190, the presumption that the state will protect a child’s general welfare stems from a specific state statute. Ga.Code § 24A-101 (1978). Contrary to the suggestion of the dissent, however, we cannot assume that, when the State of Georgia has custody of a child, it acts so differently from a natural parent in seeking medical assistance for the child. No one has questioned the validity of the statutory presumption that the State acts in the child’s best interest. Nor could such a challenge be mounted on the record before us. There is no evidence that the State, acting as guardian, attempted to admit any child for reasons unrelated to the child’s need for treatment. Indeed, neither the District Court nor the appellees have suggested that wards of the State should receive any constitutional treatment different from children with natural parents.
Once we accept that the State’s application for a child’s admission to a hospital is made in good faith, then the question is whether the medical decisionmaking approach of the admitting physician is adequate to satisfy due process. We have already recognized that an independent medical judgment made from the perspective of the best interests of the child after a careful investigation is an acceptable means of justifying a voluntary commitment. We do not believe that the soundness of this decisionmaking is any the less reasonable in this setting.
Indeed, if anything, the decision with regard to wards of the State may well be even more reasonable in light of the
extensive written records that are compiled about each child while in the State’s custody. In J R.’s case, the admitting physician had a complete social and medical history of the child before even beginning the diagnosis. After carefully interviewing him and reviewing his extensive files, three physicians independently concluded that institutional care was in his best interests. See supra at 442 U. S. 590.
Since the state agency having custody and control of the child in loco parentis has a duty to consider the best interests of the child with respect to a decision on commitment to a mental hospital, the State may constitutionally allow that custodial agency to speak for the child, subject, of course, to the restrictions governing natural parents. On this record, we cannot declare unconstitutional Georgia’s admission procedures for wards of the State.
(b) It is possible that the procedures required in reviewing a ward’s need for continuing care should be different from those used to review the need of a child with natural parents. As we have suggested earlier, the issue of what process is due to justify continuing a voluntary commitment must be considered by the District Court on remand. In making that inquiry, the District Court might well consider whether wards of the State should be treated with respect to continuing therapy differently from children with natural parents.
The absence of an adult who cares deeply for a child has little effect on the reliability of the initial admission decision, but it may have some effect on how long a child will remain in the hospital. We noted in Addington v. Texas, 441 U.S. at 441 U. S. 428-49, that “the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected.” For a child without natural parents, we must acknowledge the risk of being “lost in the shuffle.” Moreover, there is at least some indication that J.R.’s commitment was prolonged because the Department of Family and Children Services had difficulty finding a foster
home for him. Whether wards of the State generally have received less protection than children with natural parents, and, if so, what should be done about it, however, are matters that must be decided in the first instance by the District Court on remand, [Footnote 23] if the court concludes the issue is still alive.
V
It is important that we remember the purpose of Georgia’s comprehensive mental health program. It seeks, substantively and at great cost, to provide care for those who cannot afford to obtain private treatment, and procedurally to screen carefully all applicants to assure that institutional care is suited to the particular patient. The State resists the complex of procedures ordered by the District Court because, in its view, they are unnecessary to protect the child’s rights, they divert public resources from the central objective of administering health care, they risk aggravating the tensions inherent in the family situation, and they erect barriers that may discourage parents from seeking medical aid for a disturbed child.
On this record, we are satisfied that Georgia’s medical factfinding processes are reasonable and consistent with constitutional guarantees. Accordingly, it was error to hold unconstitutional the State’s procedures for admitting a child for treatment to a state mental hospital. The judgment is
therefore reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
Reversed and remanded.
Pending our review, one of the named plaintiffs before the District Court, J.L., died. Although the individual claim of J.L. is moot, we discuss the facts of this claim because, in part, they form the basis for the District Court’s holding.
The class certified by the District Court, without objection by appellants, consisted
“of all persons younger than 18 years of age now or hereafter received by any defendant for observation and diagnosis and/or detained for care and treatment at any ‘facility’ within the State of Georgia pursuant to”
Ga.Code § 88-503.1 (1975). Although one witness testified that, on any given day, there may be 200 children in the class, in December, 1975, there were only 140.
Section 88-503.1 provides:
“The superintendent of any facility may receive for observation and diagnosis . . . any individual under 18 years of age for whom such application is made by his parent or guardian. . . . If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility and such person may be detained by such facility for such period and under such conditions as may be authorized by law.”
Section 88-503.2 provides:
“The superintendent of the facility shall discharge any voluntary patient who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable.”
Section 88-503 was amended in some respects in 1978, but references herein are to the provisions in effect at the time in question.
Although the State has eight regional hospitals, superintendents from only seven of them were deposed. In addition, the District Court referred to only seven hospitals in its list of members of the plaintiff class. Apparently, the eighth hospital, Northwest Regional in Rome, Ga., had no children being treated there. The District Court’s order was issued against the State Commissioner of the Department of Human Resources, who is responsible for the activities of all eight hospitals, including Northwest Regional.
The source for these data is National Association of State Mental Health Program Directors, State Report: State Mental Health Agency Expenditures (Aug. 1, 1978).
The record is very sparse with regard to the physical facilities and daily routines at the various regional hospitals. The only hospital discussed by appellees’ expert witness was Central State. The District Court visited Central State and one other hospital, but did not discuss the visits in its opinion.
In both respects, the District Court found strong support for its holding in this Court’s decision in In re Gault, 387 U. S. 1 (1967). In that decision, we held that a state cannot institutionalize a juvenile delinquent without first providing certain due process protections.
In light of the District Court’s holding that a judicial or quasi-judicial body should review voluntary commitment decisions, it is at least interesting to note that the witness who made the statement quoted in the text was not referring to parents as the people who “dump” children into hospitals. This witness opined that some juvenile court judges and child welfare agencies misused the hospitals. App. 768. See also Rolfe & MacClintock, The Due Process Rights of Minors “Voluntarily Admitted” to Mental Institutions, 4 J. Psychiatry & L. 333, 351 (1976) (hereinafter Rolfe & MacClintock).
This study was conducted by the Study Commission on Mental Health Services for Children and Youth, and was financed by the State of Georgia. The Commission was made up of eight distinguished scholars in the field of mental health. They spent six months studying the five regional hospitals that were in existence at that time.
See, e.g., Community Health Centers Act, 77 Stat. 290, as amended, 42 U.S.C. § 2689 et seq.
In this part of the opinion, we will deal with the issues arising when the natural parents of the child seek commitment to a state hospital. In 442 U. S. we will deal with the situation presented when the child is a ward of the state.
See also Gove & Fain, The Stigma of Mental Hospitalization, 28 Archives of General Psychiatry 494, 500 (1973); Phillips, Rejection of the Mentally Ill: The Influence of Behavior and Sex, 29 Am.Sociological Rev. 679, 686-687 (1964). Research by Schwartz, Myers, and Astrachan and that of Gove and Fain found “that the stigma of mental hospitalization is not a major problem for the ex-patient.” Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Archives of General Psychiatry 329, 333 (1974).
As Schwartz, Myers, and Astrachan concluded:
“Discharge [from a mental hospital] before disturbed behavior is well controlled may advance the patient into an inhospitable world that can incubate the chronicity that was to be avoided in the first place.”
Id. at 334.
Judge Friendly has cogently pointed out:
“It should be realized that procedural requirements entail the expenditure of limited resources, that, at some point, the benefit to individuals from an additional safeguard is substantially outweighed by the cost of providing such protection, and that the expense of protecting those likely to be found undeserving will probably come out of the pockets of the deserving.”
Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1276 (1975). See also Wheeler v. Montgomery, 397 U. S. 280, 397 U. S. 282 (1970) (dissenting opinion).
As we discuss more fully later, infra at 442 U.S. 617, the District Court did not decide and we therefore have no reason to consider at this time what procedures for review are independently necessary to justify continuing a child’s confinement. We merely hold that a subsequent, independent review of the patient’s condition provides a necessary check against possible arbitrariness in the initial admission decision.
Relying on general statements from past decisions dealing with governmental actions not even remotely similar to those involved here, the dissent concludes that, if a protectible interest is involved then there must be some form of traditional, adversary, judicial, or administrative hearing either before or after its deprivation. That result is mandated, in their view, regardless of what process the state has designed to protect the individual and regardless of what the record demonstrates as to the fairness of the state’s approach.
The dissenting approach is inconsistent with our repeated assertion that “due process is flexible, and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481 (1972) (emphasis added). Just as there is no requirement as to exactly what procedures to employ whenever a traditional judicial-type hearing is mandated, compare Goss v. Lopez, 419 U. S. 565 (1975); Wolff v. McDonnell, 418 U. S. 539 (1974); Morrissey v. Brewer, supra, with Goldberg v. Kelly, 397 U. S. 254 (1970), there is no reason to require a judicial-type hearing in all circumstances. As the scope of governmental action expands into new areas creating new controversies for judicial review, it is incumbent on courts to design procedures that protect the rights of the individual without unduly burdening the legitimate efforts of the states to deal with difficult social problems. The judicial model for factfinding for all constitutionally protected interests, regardless of their nature, can turn rational decisionmaking into an unmanageable enterprise.
See Albers & Pasewark, Involuntary Hospitalization: Surrender at the Courthouse, 2 Am.J.Community Psychology 287, 288 (1974) (mean hearing time for 21 of 300 consecutive commitment cases was 9.2 minutes); Miller & Schwartz, County Lunacy Commission Hearings: Some Observations of Commitments to a State Mental Hospital, 14 Social Prob. 26 (1966) (mean time for hearings was 3.8 minutes); Scheff, The Societal Reaction to Deviance: Ascriptive Elements in the Psychiatric Screening of Mental Patients in a Midwestern State, 11 Social Prob. 401 (1964) (average hearing lasted 9.2 minutes). See also Cohen, The Function of the Attorney and the Commitment of the Mentally Ill, 44 Texas L.Rev. 424 (1966).
While not altogether clear, the District Court opinion apparently contemplated a hearing preceded by a written notice of the proposed commitment. At the hearing the child presumably would be given an opportunity to be heard and present evidence, and the right to cross-examine witnesses, including, of course, the parents. The court also required an impartial trier of fact who would render a written decision reciting the reasons for accepting or rejecting the parental application.
Since the parents in this situation are seeking the child’s admission to the state institution, the procedure contemplated by the District Court presumably would call for some other person to be designated as a guardian ad litem to act for the child. The guardian, in turn, if not a lawyer, would be empowered to retain counsel to act as an advocate of the child’s interest.
Of course, a state may elect to provide such adversary hearings in situations where it perceives that parents and a child may be at odds, but nothing in the Constitution compels such procedures.
In evaluating the problem of detecting “dumping” by parents, it is important to keep in mind that each of the regional hospitals has a continuing relationship with the Department of Family and Children Services. The staffs at those hospitals refer cases to the Department when they suspect a child is being mistreated, and thus are sensitive to this problem. In fact, J.L.’s situation is in point. The family conflicts and problems were well documented in the hospital records. Equally well documented, however, were the child’s severe emotional disturbances and his need for treatment.
Alaska Stat.Ann. § 47.30.020 (1975); Ariz.Rev.Stat.Ann. §§ 36-518, 36-519 (1974); Ark.Stat.Ann. § 59 405(b) (1971); Cal.Welf. & Inst. Code Ann. § 6000 (West Supp. 1979); D.C.Code § 21-511 21-512 (1973); Fla.Stat. § 394.465(1)(a) (Supp. 1979); Ga.Code §§ 88 503.1, 88-503.2 (1978); Haw. Rev.Stat. § 334-60(a)(2) (1976) (only for child less than 15); Idaho Code §§ 66-318, 66-320 (Supp. 1978) (parent may admit child under 14, but child over 16 may obtain release); Ill.Rev.Stat., ch. 91 1/2, §§ 3-502, 3-503 (Supp. 1978); Ind.Code § 16-14-9.1-2 (1976); Kan.Stat.Ann. §§ 59-2905, 59-2907 (Supp. 1978); Ky.Rev.Stat. § 202 A. 020 (1977); La.Rev.Stat.Ann. § 28:57(C) (West Supp. 1979); Md.Ann.Code, Art. 59, §11(g) (Supp. 1978) (parental consent permissible only to some facilities); Mass.Gen.Laws Ann., ch. 123, § 10(a) (West Supp.1979); Mich.Comp.Laws § 330.1415 (1976) (child may object within 30 days and receive a hearing); Miss.Code Ann. § 41-21103(1) (Supp. 1978) (certificate of need for treatment from two physicians required); Mo.Rev.Stat. §§ 202.115(1)(2), 202.115(2)(2) (1978); Nev.Rev.Stat. §§ 422 A. 560, 433 A. 540 (1975); N.Y. Mental Hyg. Law § 9.13 (McKinney 1978) (parent may admit, but child may obtain own release); N.D.Cent.Code § 25-03.1-04 (Supp. 1977); Ohio Rev.Code Ann. § 5122.02(b) (Supp. 1978); Okla.Stat., Tit. 43A, § 184 (1971); Ore.Rev.Stat. § 426.220(1) (1977); Pa.Stat.Ann., Tit. 50, § 7201 (Purdon Supp. 1978-1979) (only for child less than 14); R.I.Gen.Laws § 26-2-8 (Supp. 1978) (requires certificate of two physicians that child is insane); S.C.Code § 44-17-310(2) (Supp. 1978); S.D. Comp.Laws Ann. § 27A-8-2 (1976); Tenn.Code Ann. § 33-601(a)(1) (1977); Utah Code Ann §§ 647-29, 64-7-31(2) (1953); Wash.Rev.Code § 72.23.070(2) (1978) (child over 13 also must consent); W.Va.Code § 27-4-1(b) (1976) (consent of child over 12 required); Wyo.Stat. § 25-3-106(a)(i) (1977).
While the record does demonstrate that the procedures may vary from case to case, it also reflects that no child in Georgia was admitted for indefinite hospitalization without being interviewed personally and without the admitting physician’s checking with secondary sources, such as school or work records.
One important means of obtaining individual relief for these children is the availability of habeas corpus. As the appellants’ brief explains,
“Ga.Code § 88-502.11 . . . provides that at any time, and without notice, a person detained in a facility, or a relative or friend of such person, may petition for a writ of habeas corpus to question the cause and legality of the detention of the person.”
Brief for Appellants 36-37.
To remedy the constitutional violation, the District Court ordered hearings to be held for each member of the plaintiff class, see n 2, supra. For 46 members of the class found to be treatable in “less drastic” settings, the District Court also ordered the State to expend such moneys as were necessary to provide alternative treatment facilities and programs. While the order is more appropriate as a remedy for a substantive due process violation, the court made no findings on that issue. The order apparently was intended to remedy the procedural due process violation it found. Since that judgment is reversed, there is no basis for us to consider the correctness of the remedy.
MR. JUSTICE STEWART, concurring in the judgment.
For centuries, it has been a canon of the common law that parents speak for their minor children. [Footnote 2/1] So deeply imbedded in our traditions is this principle of law that the Constitution itself may compel a State to respect it. Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of Sisters, 268 U. S. 510. [Footnote 2/2] In ironic contrast, the District Court in this case has said that the Constitution requires the State of Georgia to disregard this established principle. I cannot agree.
There can be no doubt that commitment to a mental institution results in a “massive curtailment of liberty,” Humphrey v. Cady, 405 U. S. 504, 405 U. S. 509. In addition to the physical confinement involved, O’Connor v. Donaldson, 422 U. S. 563, a person’s liberty is also substantially affected by the stigma attached to treatment in a mental hospital. [Footnote 2/3] But not every loss of liberty is governmental deprivation of liberty, and it is only the latter that invokes the Due Process Clause of the Fourteenth Amendment.
The appellees were committed under the following section of the Georgia Code:
“Authority to receive voluntary patients — ”
“(a) The superintendent of any facility may receive for observation and diagnosis any individual 18 years of age, or older, making application therefor, any individual under 18 years of age for whom such application is made by his parent or guardian and any person legally adjudged to be incompetent for whom such application is made by his guardian. If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility and such person may be detained by such facility for such period and under such conditions as may be authorized by law.”
Ga.Code § 88-503.1 (1975). Clearly, if the appellees in this case were adults who had voluntarily chosen to commit themselves to a state mental hospital, they could not claim that the State had thereby deprived them of liberty in violation of the Fourteenth Amendment. Just as clearly, I think, children on whose
behalf their patients have invoked these voluntary procedures can make no such claim.
The Georgia statute recognizes the power of a party to act on behalf of another person under the voluntary commitment procedures in two situations: when the other person is a minor not over 17 years of age and the party is that person’s parent or guardian, and when the other person has been “legally adjudged incompetent” and the party is that person’s guardian. In both instances, two conditions are present. First, the person being committed is presumptively incapable of making the voluntary commitment decision for himself. And second, the parent or guardian is presumed to be acting in that person’s best interests. [Footnote 2/4] In the case of guardians, these presumptions are grounded in statutes whose validity nobody has questioned in this case. Ga.Code § 49-201 (1978). [Footnote 2/5] In the case of parents, the presumptions are grounded in a statutory embodiment of long-established principles of the common law.
Thus, the basic question in this case is whether the Constitution requires Georgia to ignore basic principles so long accepted by our society. For only if the State in this setting is constitutionally compelled always to intervene between parent and child can there be any question as to the constitutionally required extent of that intervention. I believe this basic question must be answered in the negative. [Footnote 2/6]
Under our law, parents constantly make decisions for their minor children that deprive the children of liberty, and sometimes even of life itself. Yet surely the Fourteenth Amendment is not invoked when an informed parent decides upon major surgery for his child, even in a state hospital. I can perceive no basic constitutional differences between commitment to a mental hospital and other parental decisions that result in a child’s loss of liberty.
I realize, of course, that a parent’s decision to commit his child to a state mental institution results in a far greater loss of liberty than does his decision to have an appendectomy performed upon the child in a state hospital. But if, contrary to my belief, this factual difference rises to the level of a constitutional difference, then I believe that the objective checks upon the parents’ commitment decision, embodied in Georgia law and thoroughly discussed, ante at 442 U. S. 613-617, are more than constitutionally sufficient.
To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children. [Footnote 2/7]
This is not an easy case. Issues involving the family and issues concerning mental illness are among the most difficult that courts have to face, involving as they often do serious problems of policy disguised as questions of constitutional
law. But when a state legislature makes a reasonable definition of the age of minority, and creates a rebuttable presumption that in invoking the statutory procedures for voluntary commitment a parent is acting in the best interests of his minor child, I cannot believe that the Fourteenth Amendment is violated. This is not to say that in this area the Constitution compels a State to respect the traditional authority of a parent, as in the Meyer and Pierce cases. I believe, as in Prince v. Massachusetts, 321 U. S. 158, that the Constitution would tolerate intervention by the State. [Footnote 2/8] But that is a far cry from holding that such intervention is constitutionally compelled.
For these reasons I concur in the judgment.
See 1 W. Blackstone, Commentaries *452-453; 2 J. Kent, Commentaries on American Law *203-206; J. Schouler, A Treatise on the Law of Domestic Relations 335-353 (3d ed. 1882); G. Field, The Legal Relations of Infants 63-80 (1888).
“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166.
“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 232.
“Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent.”
Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 102 (STEVENS, J., concurring in part and dissenting in part).
Cf. Stump v. Sparkman, 435 U. S. 349, 435 U. S. 366 (dissenting opinion).
“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Pierce v. Society of Sisters, 268 U.S. at 268 U. S. 535.
The fact that such a stigma may be unjustified does not mean it does not exist. Nor does the fact that public reaction to past commitment may be less than the reaction to aberrant behavior detract from this assessment. The aberrant behavior may disappear, while the fact of past institutionalization lasts forever.
This is also true of a child removed from the control of his parents. For the juvenile court then has a duty to “secure for him care as nearly as possible equivalent to that which [his parents] should have given him.” Ga.Code § 24A-101 (1978) .
“The power of the guardian over the person of his or her ward shall be the same as that of the parent over his or her child, the guardian standing in his or her place; and in like manner it shall be the duty of the guardian to protect and maintain, and, according to the circumstances of the ward, to educate him or her.”
Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, was an entirely different case. The Court’s opinion today discusses some of these differences, ante at 442 U. S. 604, but I think there is a more fundamental one. The Danforth case involved an expectant mother’s right to decide upon an abortion — a personal substantive constitutional right. Roe v. Wade, 410 U. S. 113; Doe v. Bolton, 410 U. S. 179. By contrast, the appellees in this case had no substantive constitutional right not to be hospitalized for psychiatric treatment.
See MR. JUSTICE BRENNAN’s opinion, post at 442 U.S. 630-631, and n. 16.
The Prince case held that the State may constitutionally intervene in the parent-child relationship for the purpose of enforcing its child labor law.
If the State intervened, its procedures would, of course, be subject to the limitations imposed by the Fourteenth Amendment.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR JUSTICE STEVENS join, concurring in part and dissenting In part.
I agree with the Court that the commitment of juveniles to state mental hospitals by their parents or by state officials acting in loco parentis involves state action that impacts upon constitutionally protected interests, and therefore must be accomplished through procedures consistent with the constitutional mandate of due process of law. I agree also that the District Court erred in interpreting the Due Process Clause to require pre-confinement commitment hearings in all cases in which parents wish to hospitalize their children. I disagree, however, with the Court’s decision to pretermit questions concerning the post-admission procedures due Georgia’s institutionalized juveniles. While the question of the frequency of post-admission review hearings may properly be deferred, the
right to at least one post-admission hearing can and should be affirmed now. I also disagree with the Court’s conclusion concerning the procedures due juvenile wards of the State of Georgia. I believe that the Georgia statute is unconstitutional in that it fails to accord pre-confinement hearings to juvenile wards of the State committed by the State acting in loco parentis.
I
RIGHTS OF CHILDREN COMMITTED TO MENTAL INSTITUTIONS
Commitment to a mental institution necessarily entails a “massive curtailment of liberty,” Humphrey v. Cady, 405 U. S. 504, 405 U. S. 509 (1972), and inevitably affects “fundamental rights.” Baxstrom v. Herald, 383 U. S. 107, 383 U. S. 113 (1966). Persons incarcerated in mental hospitals are not only deprived of their physical liberty, they are also deprived of friends, family, and community. Institutionalized mental patients must live in unnatural surroundings under the continuous and detailed control of strangers. They are subject to intrusive treatment which, especially if unwarranted, may violate their right to bodily integrity. Such treatment modalities may include forced administration of psychotropic medication, [Footnote 3/1] aversive conditioning, [Footnote 3/2] convulsive therapy, [Footnote 3/3] and even psychosurgery. [Footnote 3/4] Furthermore, as the Court recognizes, see ante at 442 U. S. 600, persons confined in mental institutions are stigmatized as
sick and abnormal during confinement and, in some cases, even after release. [Footnote 3/5]
Because of these considerations, our cases have made clear that commitment to a mental hospital “is a deprivation of liberty which the State cannot accomplish without due process of law.” O’Connor v. Donaldson, 422 U. S. 563, 422 U. S. 580 (1975) (BURGER, C.J., concurring). See, e.g., McNeil v. Director, Patuxent Institution, 407 U. S. 245 (1972) (defective delinquent commitment following expiration of prison term); Specht v. Patterson, 386 U. S. 605 (1967) (sex offender commitment following criminal conviction); Chaloner v. Sherman, 242 U. S. 455, 242 U. S. 461 (1917) (incompetence inquiry). In the absence of a voluntary, knowing, and intelligent waiver, adults facing commitment to mental institutions are entitled to full and fair adversary hearings in which the necessity for their commitment is established to the satisfaction of a neutral tribunal. At such hearings, they must be accorded the right to
“be present with counsel, have an opportunity to be heard, be confronted with witnesses against [them], have the right to cross-examine, and to offer evidence of [their] own.”
Specht v. Patterson, supra at 386 U. S. 610.
These principles also govern the commitment of children.
“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution. and possess constitutional rights. See, e.g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); In re Gault, 387 U. S. 1 (1967).”
Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 74 (1976).
Indeed, it may well be argued that children are entitled to more protection than are adults. The consequences of an erroneous commitment decision are more tragic where children
are involved. Children, on the average, are confined for longer periods than are adults. [Footnote 3/6] Moreover, childhood is a particularly vulnerable time of life, [Footnote 3/7] and children erroneously institutionalized during their formative years may bear the scars for the rest of their lives. [Footnote 3/8] Furthermore, the provision of satisfactory institutionalized mental care for children generally requires a substantial financial commitment [Footnote 3/9] that too often has not been forthcoming. [Footnote 3/10] Decisions of the lower courts have chronicled the inadequacies of existing mental health facilities for children. See, e.g., New York State Assn. for Retarded Children v. Rockefeller, 357 F. Supp. 752, 756 (EDNY 1973) (conditions at Willowbrook School for the Mentally Retarded are “inhumane,” involving “failure to protect the physical safety of [the] children,” substantial personnel shortage, and “poor” and “hazardous” conditions); Wyatt v. Stickney, 344 F. Supp. 387, 391 (MD Ala.1972), aff’d sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (CA5 1974) (“grossly substandard” conditions at Partlow School for the Mentally Retarded lead to “hazardous and deplorable inadequacies in the institution’s operation”). [Footnote 3/11]
In addition, the chances of an erroneous commitment
decision are particularly great where children are involved. Even under the best of circumstances, psychiatric diagnosis and therapy decisions are fraught with uncertainties. See O’Connor v. Donaldson, supra at 422 U. S. 584 (BURGER, C.J., concurring). These uncertainties are aggravated when, as under the Georgia practice, the psychiatrist interviews the child during a period of abnormal stress in connection with the commitment, and without adequate time or opportunity to become acquainted with the patient. [Footnote 3/12] These uncertainties may be further aggravated when economic and social class separate doctor and child, thereby frustrating the accurate diagnosis of pathology. [Footnote 3/13]
These compounded uncertainties often lead to erroneous commitments, since psychiatrists tend to err on the side of medical caution, and therefore hospitalize patients for whom other dispositions would be more beneficial. [Footnote 3/14] The National Institute of Mental Health recently found that only 36 of patients below age 20 who were confined at St. Elizabeths Hospital actually required such hospitalization. [Footnote 3/15] Of particular relevance to this case, a Georgia study Commission on Mental Health Services for Children and Youth concluded that more than half of the State’s institutionalized children were not in need of confinement if other forms of care were made available or used. Cited in J.L. v. Parham, 412 F. Supp. 112, 122 (MD Ga.1976).
II
A
Notwithstanding all this, Georgia denies hearings to juveniles institutionalized at the behest of their parents. Georgia rationalizes this practice on the theory that parents act in their children’s best interests, and therefore may waive their children’s due process rights. Children incarcerated because their parents wish them confined, Georgia contends, are really voluntary patients. I cannot accept this argument.
In our society, parental rights are limited by the legitimate rights and interests of their children.
“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”
Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children [Footnote 3/16] and that, inter alia, curtail parental authority to alienate their children’s property, [Footnote 3/17] to withhold necessary medical treatment, [Footnote 3/18] and to deny children exposure to ideas
and experiences they may later need as independent and autonomous adults. [Footnote 3/19]
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor’s right to secure an abortion on attaining her parents’ consent, since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture family autonomy. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 428 U. S. 75.
This case is governed by the rule of Danforth. The right to be free from wrongful incarceration, physical intrusion, and stigmatization has significance for the individual surely as great as the right to an abortion. Moreover, as in Danforth, the parent-child dispute at issue here cannot be characterized as involving only a routine childrearing decision made within the context of an ongoing family relationship. Indeed, Danforth involved only a potential dispute between parent and child, whereas here a break in family autonomy has actually resulted in the parents’ decision to surrender custody of their child to a state mental institution. In my view, a child who has been ousted from his family has even greater need for an independent advocate.
Additional considerations counsel against allowing parents unfettered power to institutionalize their children without
cause or without any hearing to ascertain that cause. The presumption that parents act in their children’s best interests, while applicable to most childrearing decisions, is not applicable in the commitment context. Numerous studies reveal that parental decisions to institutionalize their children often are the results of dislocation in the family unrelated to the children’s mental condition. [Footnote 3/20] Moreover, even well-meaning parents lack the expertise necessary to evaluate the relative advantages and disadvantages of inpatient, as opposed to outpatient, psychiatric treatment. Parental decisions to waive hearings in which such questions could be explored, therefore, cannot be conclusively deemed either informed or intelligent. In these circumstances, I respectfully suggest, it ignores reality to assume blindly that parents act in their children’s best interests when making commitment decisions and when waiving their children’s due process rights.
B
This does not mean States are obliged to treat children who are committed at the behest of their parents in precisely the same manner as other persons who are involuntarily committed. The demands of due process are flexible and the parental commitment decision carries with it practical implications that States may legitimately take into account. While, as a general rule, due process requires that commitment hearings precede involuntary hospitalization, when parents seek to hospitalize their children, special considerations militate in favor of postponement of formal commitment proceedings and against mandatory adversary pre-confinement commitment hearings.
First, the prospect of an adversary hearing prior to admission might deter parents from seeking needed medical attention for their children. Second, the hearings themselves might delay treatment of children whose home life has become impossible and who require some form of immediate state care. Furthermore, because adversary hearings at this juncture would necessarily involve direct challenges to parental authority, judgment, or veracity, pre-admission hearings may well result in pitting the child and his advocate against the parents. This, in turn, might traumatize both parent and child and make the child’s eventual return to his family more difficult.
Because of these special considerations, I believe that States may legitimately postpone formal commitment proceedings when parents seek inpatient psychiatric treatment for their children. Such children may be admitted, for a limited period, without prior hearing, so long as the admitting psychiatrist first interviews parent and child and concludes that short-term inpatient treatment would be appropriate.
Georgia’s present admission procedures are reasonably consistent with these principles. See ante at 442 U. S. 613-616. To the extent the District Court invalidated this aspect of the Georgia juvenile commitment scheme and mandated pre-confinement hearings in all cases, I agree with the Court that the District Court was in error.
C
I do not believe, however, that the present Georgia juvenile commitment scheme is constitutional in its entirety. Although Georgia may postpone formal commitment hearings, when parents seek to commit their children, the State cannot dispense with such hearings altogether. Our cases make clear that, when protected interests are at stake, the “fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.'” Mathews
v. Eldridge, 424 U. S. 319, 424 U. S. 333 (1976), quoting in part from Armstrong v. Manzo, 380 U. S. 545, 380 U. S. 552 (1965). Whenever prior hearings are impracticable, States must provide reasonably prompt post-deprivation hearings. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975), with Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974).
The informal post-admission procedures that Georgia now follows are simply not enough to qualify as hearings — let alone reasonably prompt hearings. The procedures lack all the traditional due process safeguards. Commitment decisions are made ex parte. Georgia’s institutionalized juveniles are not informed of the reasons for their commitment; nor do they enjoy the right to be present at the commitment determination, the right to representation, the right to be heard, the right to be confronted with adverse witnesses, the right to cross-examine, or the right to offer evidence of their own. By any standard of due process, these procedures are deficient. See Wolff v. McDonnell, 418 U. S. 539 (1974); Morrissey v. Brewer, 408 U. S. 471 (1972); McNeil v. Director, Patuxent Institution, 407 U. S. 245 (1972); Specht v. Patterson, 386 U.S. at 610. See also Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 269-271 (1970). I cannot understand why the Court pretermits condemnation of these ex parte procedures which operate to deny Georgia’s institutionalized juveniles even “some form of hearing,” Mathews v. Eldridge, supra at 424 U. S. 333, before they are condemned to suffer the rigors of long-term institutional confinement. [Footnote 3/21]
The special considerations that militate against pre-admission
commitment hearings when parents seek to hospitalize their children do not militate against reasonably prompt post-admission commitment hearings. In the first place, post-admission hearings would not delay the commencement of needed treatment. Children could be cared for by the State pending the disposition decision.
Second, the interest in avoiding family discord would be less significant at this stage, since the family autonomy already will have been fractured by the institutionalization of the child. In any event, post-admission hearings are unlikely to disrupt family relationships. At later hearings, the case for and against commitment would be based upon the observations of the hospital staff and the judgments of the staff psychiatrists, rather than upon parental observations and recommendations. The doctors urging commitment, and not the parents, would stand as the child’s adversaries. As a consequence, post-admission commitment hearings are unlikely to involve direct challenges to parental authority, judgment, or veracity. To defend the child, the child’s advocate need not dispute the parents’ original decision to seek medical treatment for their child, or even, for that matter, their observations concerning the child’s behavior. The advocate need only argue, for example, that the child had sufficiently improved during his hospital stay to warrant outpatient treatment or outright discharge. Conflict between doctor and advocate on this question is unlikely to lead to family discord.
As a consequence, the prospect of a post-admission hearing is unlikely to deter parents from seeking medical attention for their children, and the hearing itself is unlikely so to traumatize parent and child as to make the child’s eventual return to the family impracticable.
Nor would post-admission hearings defeat the primary purpose of the state juvenile mental health enterprise. Under the present juvenile commitment scheme, Georgia parents do not enjoy absolute discretion to commit their
children to public mental hospitals. See ante at 442 U. S. 614-615. Superintendents of state facilities may not accept children for long-term treatment unless they first determine that the children are mentally ill and will likely benefit from long-term hospital care. See ibid. If the superintendent determines either condition is unmet, the child must be released or refused admission, regardless of the parents’ desires. See ibid. No legitimate state interest would suffer if the superintendent’s determinations were reached through fair proceedings with due consideration of fairly presented opposing viewpoints, rather than through the present practice of secret, ex parte deliberations. [Footnote 3/22]
Nor can the good faith and good intentions of Georgia’s psychiatrists and social workers, adverted to by the Court, see ante at 442 U. S. 615-616, excuse Georgia’s ex parte procedures. Georgia’s admitting psychiatrists, like the school disciplinarians described in Goss v. Lopez, 419 U. S. 565 (1975),
“although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed.”
Id. at 419 U. S. 580. See App. 188-190, testimony of Dr. Messinger. Here, as in Goss, the
“risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the . . . process. . . . ‘[F]airness can rarely be obtained by secret, one-sided determination
of facts decisive of rights. . . .’ ‘Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.'”
Goss v. Lopez, supra at 419 U. S. 580, quoting in part from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 170, 341 U. S. 171-172 (1951) (Frankfurter, J., concurring).
III
RIGHTS OF CHILDREN COMMITTED BY THEIR STATE GUARDIANS
Georgia does not accord prior hearings to juvenile wards of the State of Georgia committed by state social workers acting in loco parentis. The Court dismisses a challenge to this practice on the grounds that state social workers are obliged by statute to act in the children’s best interest. See ante at 442 U. S. 619.
I find this reasoning particularly unpersuasive. With equal logic, it could be argued that criminal trials are unnecessary, since prosecutors are not supposed to prosecute innocent persons.
To my mind, there is no justification for denying children committed by their social workers the prior hearings that the Constitution typically requires. In the first place, such children cannot be said to have waived their rights to a prior hearing simply because their social workers wished them to be confined. The rule that parents speak for their children, even if it were applicable in the commitment context, cannot be transmuted into a rule that state social workers speak for their minor clients. The rule in favor of deference to parental authority is designed to shield parental control of child rearing from state interference. See Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925). The rule cannot be invoked in defense of unfettered state control of child rearing or to immunize from review the decisions of state social workers.
The social worker-child relationship is not deserving of the special protection and deference accorded to the parent-child relationship, and state officials acting in loco parentis cannot be equated with parents. See O’Connor v. Donaldson, 422 U. S. 563 (1975); Wisconsin v. Yoder, 406 U. S. 205 (1972).
Second, the special considerations that justify postponement of formal commitment proceedings whenever parents seek to hospitalize their children are absent when the children are wards of the State and are being committed upon the recommendations of their social workers. The prospect of pre-admission hearings is not likely to deter state social workers from discharging their duties and securing psychiatric attention for their disturbed clients. Moreover, since the children will already be in some form of state custody as wards of the State, pre-hospitalization hearings will not prevent needy children from receiving state care during the pendency of the commitment proceedings. Finally, hearings in which the decisions of state social workers are reviewed by other state officials are not likely to traumatize the children or to hinder their eventual recovery.
For these reasons, I believe that, in the absence of exigent circumstances, juveniles committed upon the recommendation of their social workers are entitled to pre-admission commitment hearings. As a consequence, I would hold Georgia’s present practice of denying these juveniles prior hearings unconstitutional.
IV
Children incarcerated in public mental institutions are constitutionally entitled to a fair opportunity to contest the legitimacy of their confinement. They are entitled to some champion who can speak on their behalf and who stands ready to oppose a wrongful commitment. Georgia should not be permitted to deny that opportunity and that champion simply because the children’s parents or guardians wish them
to be confined without a hearing. The risk of erroneous commitment is simply too great unless there is some form of adversary review. And fairness demands that children abandoned by their supposed protectors to the rigors of institutional confinement be given the help of some separate voice.
See Winters v. Miller, 446 F.2d 65 (CA2), cert. denied, 404 U.S. 985 (1971); Scott v. Plante, 532 F.2d 939 (CA3 1976); Souder v. McGuire, 423 F. Supp. 830 (MD Pa.1976).
See Knecht v. Gillman, 488 F.2d 1136 (CA8 1973); Mackey v. Procunier, 477 F.2d 877 (CA9 1973).
See Wyatt v. Hardin, No. 3195-N (MD Ala., Feb. 28, June 26, and July 1, 1975); Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976); Nelson v. Hudspeth, C.A. No. J75-40 (R) (SD Miss., May 16, 1977).
See Kaimowitz v. Michigan Dept. of Mental Health, 42 U.S.L.W. 2063 (Cir.Ct.Wayne Cty., Mich., 1973).
See generally Note, Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1200 (1974).
See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 90, Utilization of Psychiatric Facilities by Persons 18 Years of Age, Table 8, p. 14 (July 1973).
See J. Bowlby, Child Care and the Growth of Love 80 (1953); J. Horrocks, The Psychology of Adolescence 156 (1976); F. Elkin, Agents of Socialization in Children’s Behavior 357, 360 (R. Bergman ed.1968).
See B. Flint, The Child and the Institution 14-15 (1966); H. Leland & D. Smith, Mental Retardation: Present and Future Perspectives 86 (1974); N. Hobbs, The Futures of Children 142-143 (1975).
See Joint Commission on Mental Health of Children, Crisis in Child Mental Health: Challenge for the 1970’s, p. 271 (1969).
See R. Kugel & W. Wolfensberger, Changing Patterns in Residential Services for the Mentally Retarded 22 (1969).
See also Wheeler v. Glass, 473 F.2d 983 (CA7 1973); Davis v. Watkins, 384 F. Supp. 1196 (ND Ohio 1974); Welsch v. Likins, 373 F. Supp. 487 (Minn.1974).
See J. Simmons, Psychiatric Examination of Children 1, 6 (1974); Lourie & Rieger, Psychiatric and Psychological Examination of Children, in 2 American Handbook of Psychiatry 19 (2d ed 1974).
See Joint Commission on Mental Health of Children, supra, 442 U.S. 584fn3/9|>n. 9, at 267.
See T. Scheff, Being Mentally Ill: A Sociological Theory (1966); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif.L.Rev. 693 (1974).
See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 115, Children and State Mental Hospitals 4 (Apr.1975).
See generally S. Katz, When Parents Fail (1971); M. Midonick & D. Besharov, Children, Parents and the Courts: Juvenile Delinquency, Ungovernability, and Neglect (1972); Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985 (1975).
See, e.g., Martorell v. Ochoa, 276 F. 99 (CA1 1921).
See, e.g., Jehovah’s Witnesses v. King County Hospital, 278 F. Supp. 488 (WD Wash.1967), aff’d, 390 U. S. 598 (1968); In re Sampson, 65 Misc.2d 658, 317 N.Y.S.2d 641 (Fam.Ct.Ulster County, 1970), aff’d, 37 App.Div.2d 668, 323 N.Y.S.2d 253 (1971), aff’d, 29 N.Y.2d 900, 278 N.E.2d 918 (1972); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962). Similarly, more recent legal disputes involving the sterilization of children have led to the conclusion that parents are not permitted to authorize operations with such far-reaching consequences. See, e.g., A.L. v. G.R.H., 163 Ind.App. 636, 325 N.E.2d 501 (1975); In re M.K.R., 515 S.W.2d 467 (M.1974); Frazier v. Levi, 440 S.W.2d 393 (Tex.Civ.App. 1969).
See Commonwealth v. Renfrew, 332 Mass. 492, 126 N.E.2d 109 (1955); Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962), appeal dism’d, 372 U. S. 705 (1963); In re Weberman, 198 Misc. 1055, 100 N.Y.S.2d 60 (Sup.Ct.1950), aff’d, 278 App.Div. 656, 102 N.Y.S.2d 418, aff’d, 302 N.Y. 855, 100 N.E.2d 47, appeal dism’d, 342 U. S. 884 (1951).
Murdock, Civil Rights of the Mentally Retarded: Some Critical Issues, 48 Notre Dame Law. 133, 138 (1972); Vogel & Bell, The Emotionally Disturbed Child as the Family Scapegoat, in a Modern Introduction to the Family 412 (1968).
The National Institute of Mental Health has reported:
“[T]housands upon thousands of elderly patients now confined on the back wards of . . . state [mental] institutions were first admitted as children thirty, forty, and even fifty years ago. A recent report from one state estimates that one in every four children admitted to its mental hospitals ‘can anticipate being permanently hospitalized for the next 50 years of their lives.'”
Joint Commission on Mental Health of Children, supra, 442 U.S. 584fn3/9|>n. 9, at 5.
Indeed, post-admission hearings may well advance the purposes of the state enterprise. First, hearings will promote accuracy and ensure that the superintendent diverts children who do not require hospitalization to more appropriate programs. Second, the hearings themselves may prove therapeutic. Children who feel that they have received a fair hearing may be more likely to accept the legitimacy of their confinement, acknowledge their illness, and cooperate with those attempting to give treatment. This, in turn, would remove a significant impediment to successful therapy. See Katz, The Right to Treatment — An Enchanting Legal Fiction?, 36 U.Chi.L.Rev. 755, 76769 (1969); O’Connor v. Donaldson, 422 U. S. 563, 422 U. S. 579 (1975) (BURGER, C.J., concurring).
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Justia Opinion Summary and Annotations
Annotation
Primary Holding
Under the Free Exercise Clause of the First Amendment, a state law requiring that children attend school past eighth grade violates the parents’ constitutional right to direct the religious upbringing of their children.
U.S. Supreme Court
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Wisconsin v. Yoder
No. 70-110
Argued December 8, 1971
Decided May 15, 1972
406 U.S. 205
Syllabus
Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin’s compulsory school attendance law (which requires a child’s school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents’ claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment.
Held:
1. The State’s interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. Pp. 406 U. S. 213-215.
2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs. Pp. 406 U.S. 215-219
3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have
carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interest that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Pp. 406 U. S. 212-29, 406 U. S. 234-236.
4. The State’s claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. Pp. 406 U. S. 229-234.
49 Wis.2d 430, 182 N.W.2d 539, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 406 U. S. 237. WHITE, J., filed a concurring opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 406 U. S. 237. DOUGLAS, J., filed an opinion dissenting in part, post, p. 406 U. S. 241. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Justia Opinion Summary and Annotations
Annotation
Primary Holding
Under the Free Exercise Clause of the First Amendment, a state law requiring that children attend school past eighth grade violates the parents’ constitutional right to direct the religious upbringing of their children.
U.S. Supreme Court
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Wisconsin v. Yoder
No. 70-110
Argued December 8, 1971
Decided May 15, 1972
CERTIORARI TO THE SUPREME COURT OF WISCONSIN
Syllabus
Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin’s compulsory school attendance law (which requires a child’s school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents’ claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment.
Held:
1. The State’s interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. Pp. 406 U. S. 213-215.
2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs. Pp. 406 U.S. 215-219
3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have
Page 406 U. S. 206
carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interest that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Pp. 406 U. S. 212-29, 406 U. S. 234-236.
4. The State’s claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. Pp. 406 U. S. 229-234.
49 Wis.2d 430, 182 N.W.2d 539, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 406 U. S. 237. WHITE, J., filed a concurring opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 406 U. S. 237. DOUGLAS, J., filed an opinion dissenting in part, post, p. 406 U. S. 241. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
Page 406 U. S. 207
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
On petition of the State of Wisconsin, we granted the writ of certiorari in this case to review a decision of the Wisconsin Supreme Court holding that respondents’ convictions of violating the State’s compulsory school attendance law were invalid under the Free Exercise Clause of the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. For the reasons hereafter stated, we affirm the judgment of the Supreme Court of Wisconsin.
Respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. They and their families are residents of Green County, Wisconsin. Wisconsin’s compulsory school attendance law required them to cause their children to attend public or private school until reaching age 16, but the respondents declined to send their children, ages 14 and 15, to public school after they completed the eighth grade. [Footnote 1] The children were not enrolled in any private school, or within any recognized exception to the compulsory attendance law, [Footnote 2] and they are conceded to be subject to the Wisconsin statute.
On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted of violating the compulsory attendance law in Green County Court, and were fined the sum of $5 each. [Footnote 3] Respondents defended on the ground that the application
of the compulsory attendance law violated their rights under the First and Fourteenth Amendments. [Footnote 4] The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that, by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children. The State stipulated that respondents’ religious beliefs were sincere.
In support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony is uncontradicted. They expressed their opinions on the relationship of the Amish belief concerning school attendance to the more general tenets of their religion, and described the impact that compulsory high school attendance could have on the continued survival of Amish communities as they exist in the United States today. The history of the Amish
sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century, who rejected institutionalized churches and sought to return to the early, simple, Christian life deemphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.
A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community. Adult baptism, which occurs in late adolescence, is the time at which Amish young people voluntarily undertake heavy obligations, not unlike the Bar Mitzvah of the Jews, to abide by the rules of the church community. [Footnote 5]
Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach
are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a “worldly” influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal “learning through doing;” a life of “goodness,” rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.
Formal high school education beyond the eighth grade is contrary to Amish beliefs not only because it places Amish children in an environment hostile to Amish beliefs, with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall within the category of those best learned through example and “doing,” rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith — and may even be hostile to it — interposes a serious barrier to the integration of the Amish child into
the Amish religious community. Dr. John Hostetler, one of the experts on Amish society, testified that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society.
The Amish do not object to elementary education through the first eight grades as a general proposition, because they agree that their children must have basic skills in the “three R’s” in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily affairs. They view such a basic education as acceptable because it does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period. While Amish accept compulsory elementary education generally, wherever possible. they have established their own elementary schools, in many respects like the small local schools of the past. In the Amish belief, higher learning tends to develop values they reject as influences that alienate man from God.
On the basis of such considerations, Dr. Hostetler testified that compulsory high school attendance could not only result in great psychological harm to Amish children, because of the conflicts it would produce, but would also, in his opinion, ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today. The testimony of Dr. Donald A. Erickson, an expert witness on education, also showed that the Amish succeed in preparing their high school age children to be productive members of the Amish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as “ideal,” and perhaps superior to ordinary high school education. The evidence also showed that the Amish have an excellent
record as law-abiding and generally self-sufficient members of society.
Although the trial court, in its careful findings, determined that the Wisconsin compulsory school attendance law, “does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief,” it also concluded that the requirement of high school attendance until age 16 was a “reasonable and constitutional” exercise of governmental power, and therefore denied the motion to dismiss the charges. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents’ claim under the Free Exercise Clause of the First Amendment, and reversed the convictions. A majority of the court was of the opinion that the State had failed to make an adequate showing that its interest in “establishing and maintaining an educational system overrides the defendants’ right to the free exercise of their religion.” 49 Wis.2d 430, 447, 182 N.W.2d 539, 547 (1971).
I
There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534 (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There, the Court held that Oregon’s statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing
and education of their children in their early and formative years have a high place in our society. See also Ginsberg v. New York, 390 U. S. 629, 390 U. S. 639 (1968); Meyer v. Nebraska, 262 U. S. 390 (1923); cf. Rowan v. Post Office Dept., 397 U. S. 728 (1970). Thus, a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, “prepare [them] for additional obligations.” 268 U.S. at 268 U. S. 535.
It follows that, in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to parochial schools by government grants for a salary subsidy for teachers is but one example of the extent to which courts have gone in this regard, notwithstanding that such aid programs were legislatively determined to be in the public interest and the service of sound educational policy by States and by Congress. Lemon v.
Kurtzman, 403 U. S. 602 (1971); Tilton v. Richardson, 403 U. S. 672 (1971). See also Everson v. Board of Education, 330 U. S. 1, 330 U. S. 18 (1947).
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. E.g., Sherbert v. Verner, 374 U. S. 398 (1963); McGowan v. Maryland, 366 U. S. 420, 366 U. S. 459 (1961) (separate opinion of Frankfurter, J.); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 165 (1944).
II
We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin’s compulsory school attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries. In evaluating those claims, we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, [Footnote 6] the very concept of ordered liberty precludes
allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses.
Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, “be not conformed to this world. . . .” This command is fundamental to the Amish faith. Moreover, for the Old Order Amish, religion is not simply a matter of theocratic belief. As the expert witnesses explained, the Old Order Amish religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community.
The record shows that the respondents’ religious beliefs and attitude toward life, family, and home have remained constant — perhaps some would say static — in a period of unparalleled progress in human knowledge generally and great changes in education. [Footnote 7] The respondents
freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call “lifestyle” have not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and “worldly” influences, their attachment to nature, and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society; these customs are both symbolic and practical.
As the society around the Amish has become more populous, urban, industrialized, and complex, particularly in this century, government regulation of human affairs has correspondingly become more detailed and pervasive. The Amish mode of life has thus come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards. So long as compulsory education laws were confined to eight grades of elementary basic education imparted in a nearby rural schoolhouse, with a large proportion of students of the Amish faith, the Old Order Amish had little basis to fear that school attendance would expose their children to the worldly influence they reject. But modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student’s home and alien to his daily home life. As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion; modern laws requiring compulsory secondary education have accordingly engendered great concern and conflict. [Footnote 8]
The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.
The impact of the compulsory attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U. S. 599, 366 U. S. 605 (1961). Nor is the impact of the compulsory attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large or be forced to migrate to some other and more tolerant region. [Footnote 9]
In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life support the claim that enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger, if not destroy, the free exercise of respondents’ religious beliefs.
III
Neither the findings of the trial court nor the Amish claims as to the nature of their faith are challenged in this Court by the State of Wisconsin. Its position is that the State’s interest in universal compulsory formal secondary education to age 16 is so great that it is paramount to the undisputed claims of respondents that their mode of preparing their youth for Amish life, after the traditional elementary education, is an essential part of their religious belief and practice. Nor does the State undertake to meet the claim that the Amish mode of life and education is inseparable from and a part of the basic tenets of their religion — indeed, as much a part of their religious belief and practices as baptism, the confessional, or a sabbath may be for others.
Wisconsin concedes that, under the Religion Clauses, religious beliefs are absolutely free from the State’s control, but it argues that “actions,” even though religiously grounded, are outside the protection of the First Amendment. [Footnote 10] But our decisions have rejected the idea that
religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. See, e.g., Gillette v. United States, 401 U. S. 437 (1971); Braunfeld v. Brown, 366 U. S. 599 (1961); Prince v. Massachusetts, 321 U. S. 158 (1944); Reynolds v. United States, 98 U. S. 145 (1879). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment, and thus beyond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v. Verner, 374 U. S. 398 (1963); Murdock v. Pennsylvania, 319 U. S. 105 (1943); Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303-304 (1940). This case, therefore, does not become easier because respondents were convicted for their “actions” in refusing to send their children to the public high school; in this context, belief and action cannot be neatly confined in logic-tight compartments. Cf. Lemon v. Kurtzman, 403 U.S.S. at 403 U. S. 612.
Nor can this case be disposed of on the grounds that Wisconsin’s requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Sherbert v. Verner, supra; cf. Walz v. Tax Commission, 397 U. S. 664 (1970). The Court must not ignore the danger that an exception
from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception, no matter how vital it may be to the protection of values promoted by the right of free exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses,
“we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a ‘tight rope,’ and one we have successfully traversed.”
Walz v. Tax Commission, supra, at 397 U. S. 672.
We turn, then, to the State’s broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way. Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption. See, e.g., Sherbert v. Verner, supra; Martin v. City of Struthers, 319 U. S. 141 (1943); Schneider v. State, 308 U. S. 147 (1939).
The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society. We accept these propositions.
However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Respondents’ experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith. See Meyer v. Nebraska, 262 U.S. at 262 U. S. 400.
The State attacks respondents’ position as one fostering “ignorance” from which the child must be protected by the State. No one can question the State’s duty to protect children from ignorance, but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional “mainstream.” Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. The Congress itself recognized their self-sufficiency by authorizing exemption of such groups as the Amish from the obligation to pay social security taxes. [Footnote 11]
It is neither fair nor correct to suggest that the Amish are opposed to education beyond the eighth grade level. What this record shows is that they are opposed to conventional formal education of the type provided by a certified high school because it comes at the child’s crucial adolescent period of religious development. Dr. Donald Erickson, for example, testified that their system of “learning by doing” was an “ideal system” of education in terms of preparing Amish children for life as adults in the Amish community, and that “I would be inclined to say they do a better job in this than most of the rest of us do.” As he put it,
“These people aren’t purporting to be learned people, and it seems to me the self-sufficiency of the community is the best evidence I can point to — whatever is being done seems to function well. [Footnote 12]”
We must not forget that, in the Middle Ages, important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today’s majority is
“right,” and the Amish and others like them are “wrong.” A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.
The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that, if this occurs, they will be ill-equipped for life. The State argues that, if Amish children leave their church, they should not be in the position of making their way in the world without the education available in the one or two additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that, upon leaving the Amish community, Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings. Indeed, this argument of the State appears to rest primarily on the State’s mistaken assumption, already noted, that the Amish do not provide any education for their children beyond the eighth grade, but allow them to grow in “ignorance.” To the contrary, not only do the Amish accept the necessity for formal schooling through the eighth grade level, but continue to provide what has been characterized by the undisputed testimony of expert educators as an “ideal” vocational education for their children in the adolescent years.
There is nothing in this record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today’s society. Absent some contrary evidence supporting the
State’s position, we are unwilling to assume that persons possessing such valuable vocational skills and habits are doomed to become burdens on society should they determine to leave the Amish faith, nor is there any basis in the record to warrant a finding that an additional one or two years of formal school education beyond the eighth grade would serve to eliminate any such problem that might exist.
Insofar as the State’s claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fall. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself, this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief. [Footnote 13] When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. Indeed, the Amish communities singularly parallel and reflect many of the virtues of Jefferson’s ideal of the “sturdy yeoman” who would form the basis of what he considered as the
ideal of a democratic society. [Footnote 14] Even their idiosyncratic separateness exemplifies the diversity we profess to admire and encourage.
The requirement for compulsory education beyond the eighth grade is a relatively recent development in our history. Less than 60 years ago, the educational requirements of almost all of the States were satisfied by completion of the elementary grades, at least where the child was regularly and lawfully employed. [Footnote 15] The independence
and successful social functioning of the Amish community for a period approaching almost three centuries and more than 200 years in this country are strong evidence that there is, at best, a speculative gain, in terms of meeting the duties of citizenship, from an additional one or two years of compulsory formal education. Against this background, it would require a more particularized showing from the State on this point to justify the severe interference with religious freedom such additional compulsory attendance would entail.
We should also note that compulsory education and child labor laws find their historical origin in common humanitarian instincts, and that the age limits of both laws have been coordinated to achieve their related objectives. [Footnote 16] In the context of this case, such considerations,
if anything, support rather than detract from, respondents’ position. The origins of the requirement for school attendance to age 16, an age falling after the completion of elementary school but before completion of high school, are not entirely clear. But, to some extent, such laws reflected the movement to prohibit most child labor under age 16 that culminated in the provisions of the Federal Fair Labor Standards Act of 1938. [Footnote 17] It is true, then, that the 16-year child labor age limit may, to some degree, derive from a contemporary impression that children should be in school until that age. But, at the same time, it cannot be denied that, conversely, the 16-year education limit reflects, in substantial measure, the concern that children under that age not be employed under conditions hazardous to their health, or in work that should be performed by adults.
The requirement of compulsory schooling to age 16 must therefore be viewed as aimed not merely at providing educational opportunities for children, but as an alternative to the equally undesirable consequence of unhealthful child labor displacing adult workers, or, on the other hand, forced idleness. [Footnote 18] The two kinds of statutes — compulsory school attendance and child labor laws — tend to keep children of certain ages off the labor market and in school; this regimen, in turn, provides opportunity to prepare for a livelihood of a higher order than that which children could pursue without education, and protects their health in adolescence.
In these terms, Wisconsin’s interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance
for children generally. For, while agricultural employment is not totally outside the legitimate concerns of the child labor laws, employment of children under parental guidance and on the family farm from age 14 to age 16 is an ancient tradition that lies at the periphery of the objectives of such laws. [Footnote 19] There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health, or that Amish parents exploit children at tender years. Any such inference would be contrary to the record before us. Moreover, employment of Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs that might otherwise be held by adults.
IV
Finally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting Amish children from the State’s requirement fails to recognize the substantive right of the Amish child to a secondary education, and fails to give due regard to the power of the State as parens patriae to extend the benefit of secondary education to children regardless of the wishes of their parents. Taken at its broadest sweep, the Court’s language in Prince might be read to give support to the State’s position. However, the Court was not confronted in Prince with a situation comparable to that of the Amish as revealed in this record; this is shown by the
Court’s severe characterization of the evils that it thought the legislature could legitimately associate with child labor, even when performed in the company of an adult. 321 U.S. at 321 U. S. 169-170. The Court later took great care to confine Prince to a narrow scope in Sherbert v. Verner, when it stated:
“On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for ‘even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.’ Braunfeld v. Brown, 366 U. S. 599, 366 U. S. 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U. S. 145; Jacobson v. Massachusetts, 197 U. S. 11; Prince v. Massachusetts, 321 U. S. 158. . . .”
374 U.S. at 374 U. S. 402-403.
This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. [Footnote 20] The record is to the contrary, and any reliance on that theory would find no support in the evidence.
Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child, as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it
is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point, since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and, indeed, the record is to the contrary. [Footnote 21] The state’s position from the outset has been that it is empowered to apply its compulsory attendance law to Amish parents in the same manner as to other parents — that is, without regard to the wishes of the child. That is the claim we reject today.
Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here
and those presented in Pierce v. Society of Sisters, 268 U. S. 510 (1925). On this record, we neither reach nor decide those issues.
The State’s argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children of ages 14-16 if they are placed in a church school of the parents’ faith.
Indeed, it seems clear that, if the State is empowered, as parens patriae, to “save” a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will, in large measure, influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters, in which the Court observed:
“Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act
of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
268 U.S. at 268 U. S. 534-535.
The duty to prepare the child for “additional obligations,” referred to by the Court, must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship. Pierce, of course, recognized that, where nothing more than the general interest of the parent in the nurture and education of his children is involved, it is beyond dispute that the State acts “reasonably” and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State.
However read, the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a “reasonable relation to some purpose within the competency of the State” is required to sustain the validity of the State’s requirement under the First Amendment. To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince
if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But, in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole. The record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.
In the face of our consistent emphasis on the central values underlying the Religion Clauses in our constitutional scheme of government, we cannot accept a parens patriae claim of such all-encompassing scope and with such sweeping potential for broad and unforeseeable application as that urged by the State.
V
For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16. [Footnote 22] Our disposition of this case, however, in no way
alters our recognition of the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the “necessity” of discrete aspects of a State’s program of compulsory education. This should suggest that courts must move with great circumspection in performing the sensitive and delicate task of weighing a State’s legitimate social concern when faced with religious claims for exemption from generally applicable educational requirements. It cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some “progressive” or more enlightened process for rearing children for modern life.
Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing
showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Sherbert v. Verner, supra.
Nothing we hold is intended to undermine the general applicability of the State’s compulsory school attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion. [Footnote 23]
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
The children, Frieda Yoder, aged 15, Barbara Miller, aged 15, and Vernon Yutzy, aged 14, were all graduates of the eighth grade of public school.
Wis.Stat. § 118.15 (1969) provides in pertinent part:
“118.15 Compulsory school attendance”
“(1)(a) Unless the child has a legal excuse or has graduated from high school, any person having under his control a child who is between the ages of 7 and 16 years shall cause such child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which such child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which he becomes 16 years of age.”
“* * * *”
“(3) This section does not apply to any child who is not in proper physical or mental condition to attend school, to any child exempted for good cause by the school board of the district in which the child resides or to any child who has completed the full 4-year high school course. The certificate of a reputable physician in general practice shall be sufficient proof that a child is unable to attend school.”
“(4) Instruction during the required period elsewhere than at school may be substituted for school attendance. Such instruction must be approved by the state superintendent as substantially equivalent to instruction given to children of like ages in the public or private schools where such children reside.”
“(5) Whoever violates this section . . . may be fined not less than $5 nor more than $50 or imprisoned not more than 3 months or both.”
Section 118.15(1)(b) requires attendance to age 18 in a school district containing a “vocational, technical and adult education school,” but this section is concededly inapplicable in this case, for there is no such school in the district involved.
Prior to trial, the attorney for respondents wrote the State Superintendent of Public Instruction in an effort to explore the possibilities for a compromise settlement. Among other possibilities, he suggested that perhaps the State Superintendent could administratively determine that the Amish could satisfy the compulsory attendance law by establishing their own vocational training plan similar to one that has been established in Pennsylvania. Supp.App. 6. Under the Pennsylvania plan, Amish children of high school age are required to attend an Amish vocational school for three hours a week, during which time they are taught such subjects as English, mathematics, health, and social studies by an Amish teacher. For the balance of the week, the children perform farm and household duties under parental supervision, and keep a journal of their daily activities. The major portion of the curriculum is home projects in agriculture and homemaking. See generally J. Hostetler & G. Huntington, Children in Amish Society: Socialization and Community Education, c. 5 (1971). A similar program has been instituted in Indiana. Ibid. See also Iowa Code § 299.24 (1971); Kan.Stat.Ann. § 72-1111 (Supp. 1971).
The Superintendent rejected this proposal on the ground that it would not afford Amish children “substantially equivalent education” to that offered in the schools of the area. Supp.App. 6.
The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
See generally J. Hostetler, Amish Society (1968); J. Hostetler & G. Huntington, Children in Amish Society (1971); Littell, Sectarian Protestantism and the Pursuit of Wisdom: Must Technological Objectives Prevail?, in Public Controls for Nonpublic Schools 61 (D. Erickson ed.1969).
See Welsh v. United States, 398 U. S. 333, 398 U. S. 351-361 (1970) (Harlan, J., concurring in result); United States v. Ballard, 322 U. S. 78 (1944).
See generally R. Butts & L. Cremin, A History of Education in American Culture (1953); L. Cremin, The Transformation of the School (1961).
Hostetler, supra, n 5, c. 9; Hostetler & Huntington, supra, n 5.
Some States have developed working arrangements with the Amish regarding high school attendance. See n 3, supra. However, the danger to the continued existence of an ancient religious faith cannot be ignored simply because of the assumption that its adherents will continue to be able, at considerable sacrifice, to relocate in some more tolerant State or country or work out accommodations under threat of criminal prosecution. Forced migration of religious minorities was an evil that lay at the heart of the Religion Clauses. See, e.g., Everson v. Board of Education, 330 U. S. 1, 330 U. S. 9-10 (1947); Madison, Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183 (G. Hunt ed.1901).
That has been the apparent ground for decision in reversal previous state cases rejecting claims for exemption similar to that here. See, e.g., State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966), cert. denied, 389 U. S. 51 (1967); State v. Hershberger, 103 Ohio App. 188, 144 N.E.2d 693 (1955); Commonwealth v. Beiler, 168 Pa.Super. 462, 79 A.2d 134 (1951).
Title 26 U.S.C. § 1402(h) authorizes the Secretary of Health, Education, and Welfare to exempt members of “a recognized religious sect” existing at all times since December 31, 1950, from the obligation to pay social security taxes if they are, by reason of the tenets of their sect, opposed to receipt of such benefits and agree to waive them, provided the Secretary finds that the sect makes reasonable provision for its dependent members. The history of the exemption shows it was enacted with the situation of the Old Order Amish specifically in view. H.R.Rep. No. 213, 89th Cong., 1st Sess., 101-102 (1965).
The record in this case establishes without contradiction that the Green County Amish had never been known to commit crimes, that none had been known to receive public assistance, and that none was unemployed.
Dr. Erickson had previously written:
“Many public educators would be elated if their programs were as successful in preparing students for productive community life as the Amish system seems to be. In fact, while some public schoolmen strive to outlaw the Amish approach, others are being forced to emulate many of its features.”
Erickson, Showdown at an Amish Schoolhouse: A Description and Analysis of the Iowa Controversy, in Public Controls for Nonpublic Schools 15, 53 (D. Erickson ed.1969). And see Littell, supra, n 5, at 61.
All of the children involved in this case are graduates of the eighth grade. In the county court, the defense introduced a study by Dr. Hostetler indicating that Amish children in the eighth grade achieved comparably to non-Amish children in the basic skills. Supp.App. 11. See generally Hostetler & Huntington, supra, n 5, at 88 96.
While Jefferson recognized that education was essential to the welfare and liberty of the people, he was reluctant to directly force instruction of children “in opposition to the will of the parent.” Instead, he proposed that state citizenship be conditioned on the ability to “read readily in some tongue, native or acquired.” Letter from Thomas Jefferson to Joseph Cabell, Sept. 9, 1817, in 17 Writings of Thomas Jefferson 417, 423-424 (Mem. ed.1904). And it is clear that, so far as the mass of the people were concerned, he envisaged that a basic education in the “three R’s” would sufficiently meet the interests of the State. He suggested that, after completion of elementary school,
“those destined for labor will engage in the business of agriculture, or enter into apprenticeships to such handicraft art as may be their choice.”
Letter from Thomas Jefferson to Peter Carr, Sept. 7, 1814, in Thomas Jefferson and Education in a Republic 93-106 (Arrowood ed.1930). See also id. at 60-64, 70, 83, 136-137.
See Dept. of Interior, Bureau of Education, Bulletin No. 47, Digest of State Laws Relating to Public Education 527-559 (1916); Joint Hearings on S. 2475 and H.R. 7200 before the Senate Committee on Education and Labor and the House Committee on Labor, 75th Cong., 1st Sess., pt. 2, p. 416.
Even today, an eighth grade education fully satisfies the educational requirements of at least six States. See Ariz.Rev.Stat.Ann. § 15-321(b)(4) (1956); Ark.Stat.Ann. § 80-1504 (1947); Iowa Code § 299.2 (1971); S.D.Comp.Laws Ann. § 13-27-1 (1967); Wyo.Stat.Ann. § 21.1-48 (Supp. 1971). (Mississippi has no compulsory education law.) A number of other States have flexible provisions permitting children aged 14 or having completed the eighth grade to be excused from school in order to engage in lawful employment. E.g., Colo.Rev.Stat.Ann. §§ 123-20-5, 80-6-1 to 80-6-12 (1963); Conn.Gen.Stat.Rev. §§ 10-184, 10-189 (1964); D.C.Code Ann. §§ 31-202, 36-201 to 36-228 (1967); Ind.Ann.Stat. §§ 28-505 to 28-506, 28-519 (1948); Mass.Gen.Laws Ann., c. 76, § 1 (Supp. 1972) and c. 149, § 86 (1971); Mo.Rev.Stat. §§ 167.031, 294.051 (1969); Nev.Rev.Stat. § 392.110 (1968); N.M.Stat.Ann. § 77-10-6 (1968).
An eighth grade education satisfied Wisconsin’s formal education requirements until 1933. See Wis.Laws 1927, c. 425, § 97; Laws 1933, c. 143. (Prior to 1933, provision was made for attendance at continuation or vocational schools by working children past the eighth grade, but only if one was maintained by the community in question.) For a general discussion of the early development of Wisconsin’s compulsory education and child labor laws, see F. Ensign, Compulsory School Attendance and Child Labor 203-230 (1921).
See, e.g., Joint Hearings, supra, n 15, pt. 1, at 185-187 (statement of Frances Perkins, Secretary of Labor), pt. 2, at 381-387 (statement of Katherine Lenroot, Chief, Children’s Bureau, Department of Labor); National Child Labor Committee, 40th Anniversary Report, The Long Road (1944); 1 G. Abbott, The Child and the State 259-269, 566 (Greenwood reprint 1968); L. Cremin, The Transformation of the School, c. 3 (1961); A. Steinhilber & C. Sokolowski, State Law on Compulsory Attendance 3-4 (Dept. of Health, Education, and Welfare 1966).
52 Stat. 1060, as amended, 29 U.S.C. §§ 201-219.
See materials cited n 16, supra; Casad, Compulsory Education and Individual Rights, in 5 Religion and the Public Order 51, 82 (D. Giannella ed.1969).
See, e.g., Abbott, supra, n 16, at 266. The Federal Fair Labor Standards Act of 1938 excludes from its definition of “[o]ppressive child labor” employment of a child under age 16 by
“a parent . . . employing his own child . . . in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or wellbeing.”
29 U.S.C. § 203(1).
Cf., e.g., Jacobson v. Massachusetts, 197 U. S. 11 (1905); Wright v. DeWitt School District, 238 Ark. 906, 385 S.W.2d 644 (1965); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 87-90, 331 F.2d 1000, 1007-1010 (in chambers opinion), cert. denied, 377 U.S. 978 (1964).
The only relevant testimony in the record is to the effect that the wishes of the one child who testified corresponded with those of her parents. Testimony of Frieda Yoder, Tr. 994, to the effect that her personal religious beliefs guided her decision to discontinue school attendance after the eighth grade. The other children were not called by either side.
What we have said should meet the suggestion that the decision of the Wisconsin Supreme Court recognizing an exemption for the Amish from the State’s system of compulsory education constituted an impermissible establishment of religion. In Walz v. Tax Commission, the Court saw the three main concerns against which the Establishment Clause sought to protect as “sponsorship, financial support, and active involvement of the sovereign in religious activity.” 397 U. S. 664, 397 U. S. 668 (1970). Accommodating the religious beliefs of the Amish can hardly be characterized as sponsorship or active involvement. The purpose and effect of such an exemption are not to support, favor, advance, or assist the Amish, but to allow their centuries-old religious society, here long before the advent of any compulsory education, to survive free from the heavy impediment compliance with the Wisconsin compulsory education law would impose. Such an accommodation
“reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.”
Sherbert v. Verner, 374 U. S. 398, 374 U. S. 409 (1963).
Several States have now adopted plans to accommodate Amish religious beliefs through the establishment of an “Amish vocational school.” See n 3, supra. These are not schools in the traditional sense of the word. As previously noted, respondents attempted to reach a compromise with the State of Wisconsin patterned after the Pennsylvania plan, but those efforts were not productive. There is no basis to assume that Wisconsin will be unable to reach a satisfactory accommodation with the Amish in light of what we now hold, so as to serve its interests without impinging on respondents’ protected free exercise of their religion.
MR JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins, concurring.
This case involves the constitutionality of imposing criminal punishment upon Amish parents for their religiously based refusal to compel their children to attend public high schools. Wisconsin has sought to brand these parents as criminals for following their religious beliefs, and the Court today rightly holds that Wisconsin cannot constitutionally do so.
This case in no way involves any questions regarding the right of the children of Amish parents to attend public high schools, or any other institutions of learning, if they wish to do so. As the Court points out, there is no suggestion whatever in the record that the religious beliefs of the children here concerned differ in any way from those of their parents. Only one of the children testified. The last two questions and answers on her cross-examination accurately sum up her testimony:
“Q. So I take it then, Frieda, the only reason you are not going to school, and did not go to school since last September, is because of your religion?”
“A. Yes.”
“Q. That is the only reason?”
“A. Yes.”
(Emphasis supplied.)
It is clear to me, therefore, that this record simply does not present the interesting and important issue discussed in 406 U. S. JUSTICE DOUGLAS. With this observation, I join the opinion and the judgment of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, concurring.
Cases such as this one inevitably call for a delicate balancing of important but conflicting interests. I join the opinion and judgment of the Court because I cannot
say that the State’s interest in requiring two more years of compulsory education in the ninth and tenth grades outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect.
This would be a very different case for me if respondents’ claim were that their religion forbade their children from attending any school at any time and from complying in any way with the educational standards set by the State. Since the Amish children are permitted to acquire the basic tools of literacy to survive in modern society by attending grades one through eight, and since the deviation from the State’s compulsory education law is relatively slight, I conclude that respondents’ claim must prevail, largely because
“religious freedom — the freedom to believe and to practice strange and, it may be, foreign creeds — has classically been one of the highest values of our society.”
Braunfeld v. Brown, 366 U. S. 599, 366 U. S. 612 (1961) (BRENNAN, J., concurring and dissenting).
The importance of the state interest asserted here cannot be denigrated, however:
“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”
Brown v. Board of Education, 347 U. S. 483, 347 U. S. 493 (1954).
As recently as last Term, the Court reemphasized the legitimacy of the State’s concern for enforcing minimal educational standards, Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 613 (1971). [Footnote 2/1] Pierce v. Society of Sisters, 268 U. S. 510 (1925), lends no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society; in Pierce, both the parochial and military schools were in compliance with all the educational standards that the State had set, and the Court held simply that, while a State may posit such standards, it may not preempt the educational process by requiring children to attend public schools. [Footnote 2/2] In the present case, the State is not concerned with the maintenance of an educational system as an end in itself; it is rather attempting to nurture and develop the human potential of its children, whether Amish or non-Amish: to expand their knowledge, broaden their sensibilities, kindle their imagination, foster a spirit of free inquiry, and increase their human understanding and tolerance. It is possible that most Amish
children will wish to continue living the rural life of their parents, in which case their training at home will adequately equip them for their future role. Others, however, may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary. There is evidence in the record that many children desert the Amish faith when they come of age. [Footnote 2/3] A State has a legitimate interest not only in seeking to develop the latent talents of its children, but also in seeking to prepare them for the lifestyle that they may later choose, or at least to provide them with an option other than the life they have led in the past. In the circumstances of this case, although the question is close, I am unable to say that the State has demonstrated that Amish children who leave school in the eighth grade will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the State is, after all, only 16.
Decision in cases such as this and the administration of an exemption for Old Order Amish from the State’s compulsory school attendance laws will inevitably involve the kind of close and perhaps repeated scrutiny of religious practices, as is exemplified in today’s opinion, which the Court has heretofore been anxious to avoid. But such entanglement does not create a forbidden establishment of religion where it is essential to implement free
exercise values threatened by an otherwise neutral program instituted to foster some permissible, nonreligious state objective. I join the Court because the sincerity of the Amish religious policy here is uncontested, because the potentially adverse impact of the state requirement is great, and because the State’s valid interest in education has already been largely satisfied by the eight years the children have already spent in school.
The challenged Amish religious practice here does not pose a substantial threat to public safety, peace, or order; if it did, analysis under the Free Exercise Clause would be substantially different. See Jacobson v. Massachusetts, 197 U. S. 11 (1905); Prince v. Massachusetts, 321 U. S. 158 (1944); Cleveland v. United States, 329 U. S. 14 (1946); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000, cert. denied, 377 U.S. 978 (1964).
“No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”
Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534 (1925).
Dr. Hostetler testified that, though there was a gradual increase in the total number of Old Order Amish in the United States over the past 50 years, “at the same time, the Amish have also lost members [of] their church,” and that the turnover rate was such that “probably two-thirds [of the present Amish] have been assimilated non-Amish people.” App. 110. Justice Heffernan, dissenting below opined that “[l]arge numbers of young people voluntarily leave the Amish community each year, and are thereafter forced to make their way in the world.” 49 Wis.2d 430, 451, 182 N.W.2d 539, 549 (1971).
MR. JUSTICE DOUGLAS dissenting in part.
I
I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court’s conclusion that the matter is within the dispensation of parents alone. The Court’s analysis assumes that the only interests at stake in the case are those of the Amish parents, on the one hand, and those of the State, on the other. The difficulty with this approach is that, despite the Court’s claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children.
It is argued that the right of the Amish children to religious freedom is not presented by the facts of the case, as the issue before the Court involves only the Amish parents’ religious freedom to defy a state criminal statute imposing upon them an affirmative duty to cause their children to attend high school.
First, respondents’ motion to dismiss in the trial court expressly asserts not only the religious liberty of the adults, but also that of the children, as a defense to the prosecutions. It is, of course, beyond question that the parents have standing as defendants in a criminal prosecution to assert the religious interests of their
children as a defense. [Footnote 3/1] Although the lower courts and a majority of this Court assume an identity of interest between parent and child, it is clear that they have treated the religious interest of the child as a factor in the analysis.
Second, it is essential to reach the question to decide the case not only because the question was squarely raised in the motion to dismiss, but also because no analysis of religious liberty claims can take place in a vacuum. If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents’ notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child’s rights to permit such an imposition without canvassing his views. As in Prince v. Massachusetts, 321 U. S. 158, it is an imposition resulting from this very litigation. As the child has no other effective forum, it is in this litigation that his rights should be considered. And if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents’ religiously motivated objections.
Religion is an individual experience. It is not necessary, nor even appropriate, for every Amish child to express his views on the subject in a prosecution of a single adult. Crucial, however, are the views of the child whose parent is the subject of the suit. Frieda Yoder has in fact, testified that her own religious views are opposed to high-school education. I therefore join the judgment of the Court as to respondent Jonas Yoder. But Frieda Yoder’s views may not be those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller, as their motion to dismiss also raised the question of their children’s religious liberty.
II
This issue has never been squarely presented before today. Our opinions are full of talk about the power of the parents over the child’s education. See Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. And we have in the past analyzed similar conflicts between parent and State with little regard for the views of the child. See Prince v. Massachusetts, supra. Recent cases, however, have clearly held that the children themselves have constitutionally protectible interests.
These children are “persons” within the meaning of the Bill of Rights. We have so held over and over again. In Haley v. Ohio, 332 U. S. 596, we extended the protection of the Fourteenth Amendment in a state trial of a 15-year-old boy. In In re Gault, 387 U. S. 1, 387 U. S. 13, we held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In In re Winship, 397 U. S. 358, we held that a 12-year-old boy, when charged with an act which would be a crime if committed by an adult, was entitled to procedural safeguards contained in the Sixth Amendment.
In Tinker v. Des Moines School District, 393 U. S. 503, we dealt with 13-year-old, 15-year-old, and 16-year-old students who wore armbands to public schools and were disciplined for doing so. We gave them relief, saying that their First Amendment rights had been abridged.
“Students, in school as well as out of school, are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”
Id. at 393 U. S. 511.
In Board of Education v. Barnette, 319 U. S. 624, we held that school children whose religious beliefs collided with a school rule requiring them to salute the flag could not be required to do so. While the sanction included expulsion of the students and prosecution of the parents, id. at 319 U. S. 630, the vice of the regime was its interference with the child’s free exercise of religion. We said: “Here . . . we are dealing with a compulsion of students to declare a belief.” Id. at 319 U. S. 631. In emphasizing the important and delicate task of boards of education we said:
“That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
Id. at 319 U. S. 637.
On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer.
To do so he will have to break from the Amish tradition. [Footnote 3/2]
It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. [Footnote 3/3] If he is harnessed to the Amish way of life
by those in authority over him, and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.
The views of the two children in question were not canvassed by the Wisconsin courts. The matter should be explicitly reserved so that new hearings can be held on remand of the case. [Footnote 3/4]
III
I think the emphasis of the Court on the “law and order” record of this Amish group of people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists, Jehovah’s Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such a test. It is, of course, true that, if a group or society was organized to perpetuate crime, and if that is its motive, we would have rather startling problems akin to those that were raised when, some years back, a particular sect was challenged here as operating on a fraudulent basis. United States v. Ballard, 322 U. S. 78. But no such factors are present here, and the Amish, whether with a high or low criminal
record, [Footnote 3/5] certainly qualify by all historic standards as a religion within the meaning of the First Amendment.
The Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling, the Court departs from the teaching of Reynolds v. United States, 98 U. S. 145, 98 U. S. 164, where it was said, concerning the reach of the Free Exercise Clause of the First Amendment,
“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”
In that case, it was conceded at polygamy was a part of the religion of the Mormons. Yet the Court said, “It matters not that his belief [in polygamy] was a part of his professed religion: it was still belief, and belief only.” Id. at 98 U. S. 167.
Action which the Court deemed to be antisocial could be punished even though it was grounded on deeply held and sincere religious convictions. What we do today, at least in this respect, opens the way to give organized religion a broader base than it has ever enjoyed, and it even promises that in time Reynolds will be overruled.
In another way, however, the Court retreats when, in reference to Henry Thoreau, it says his “choice was philosophical
and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses.” That is contrary to what we held in United States v. Seeger 380 U. S. 163, where we were concerned with the meaning of the words “religious training and belief” in the Selective Service Act, which were the basis of many conscientious objector claims. We said:
“Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.”
Id. at 380 U. S. 176.
Welsh v. United States, 398 U. S. 333, was in the same vein, the Court saying:
“In this case, Welsh’s conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote: ”
“I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to ‘defend’ our ‘way of life’ profoundly change that way of life. I see that, in our failure to
recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation.”
Id. at 398 U. S. 342.
The essence of Welsh’s philosophy, on the basis of which we held he was entitled to an exemption, was in these words:
“”I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding duty’ to abstain from violence toward another person) is not `superior to those arising from any human relation.’ On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government’s insistence that I assume duties which I feel are immoral and totally repugnant.””
Id. at 398 U. S. 343.
I adhere to these exalted views of “religion,” and see no acceptable alternative to them now that we have become a Nation of many religions and sects, representing all of the diversities of the human race. United States v. Seeger, 380 U.S. at 380 U. S. 192-193 (concurring opinion).
Thus, in Prince v. Massachusetts, 321 U. S. 158, a Jehovah’s Witness was convicted for having violated a state child labor law by allowing her nine-year-old niece and ward to circulate religious literature on the public streets. There, as here, the narrow question was the religious liberty of the adult. There, as here, the Court analyzed the problem from the point of view of the State’s conflicting interest in the welfare of the child. But, as MR. JUSTICE BRENNAN, speaking for the Court, has so recently pointed out,
“The Court [in Pierce] implicitly held that the custodian had standing to assert alleged freedom of religion . . . rights of the child that were threatened in the very litigation before the Court, and that the child had no effective way of asserting herself.”
Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 446 n. 6. Here, as in Pierce, the children have no effective alternate means to vindicate their rights. The question, therefore, is squarely before us.
A significant number of Amish children do leave the Old Order. Professor Hostetler notes that “[t]he loss of members is very limited in some Amish districts, and considerable in others.” J. Hostetler, Amish Society 226 (1968). In one Pennsylvania church, he observed a defection rate of 30%. Ibid. Rates up to 50% have been reported by others. Casad, Compulsory High School Attendance and the Old Order Amish: A Commentary on State v. Garber, 16 Kan.L.Rev. 423, 434 n. 51 (1968).
The court below brushed aside the students’ interests with the offhand comment that, “[w]hen a child reaches the age of judgment, he can choose for himself his religion.” 49 Wis.2d 430, 440, 182 N.W.2d 539, 543. But there is nothing in this record to indicate that the moral and intellectual judgment demanded of the student by the question in this case is beyond his capacity. Children far younger than the 14- and 15-year-olds involved here are regularly permitted to testify in custody and other proceedings. Indeed, the failure to call the affected child in a custody hearing is often reversible error. See, e.g., Callicott v. Callicott, 364 S.W.2d 455 (Civ.App. Tex.) (reversible error for trial judge to refuse to hear testimony of eight-year-old in custody battle). Moreover, there is substantial agreement among child psychologists and sociologists that the moral and intellectual maturity of the 14-year-old approaches that of the adult. See, e.g., J. Piaget, The Moral Judgment of the Child (1948); D. Elkind, Children and Adolescents 750 (1970); Kohlberg, Moral Education in the Schools: A Developmental View, in R. Muuss, Adolescent Behavior and Society 193, 199-200 (1971); W. Kay, Moral Development 172-183 (1968); A. Gesell & F. Ilg, Youth: The Years From Ten to Sixteen 175-182 (1956). The maturity of Amish youth, who identify with and assume adult roles from early childhood, see M. Goodman, The Culture of Childhood 92-94 (1970), is certainly not less than that of children in the general population.
Canvassing the views of all school-age Amish children in the State of Wisconsin would not present insurmountable difficulties. A 1968 survey indicated that there were at that time only 256 such children in the entire State. Comment, 1971 Wis.L.Rev. 832, 852 n. 132.
The observation of Justice Heffernan, dissenting below, that the principal opinion in his court portrayed the Amish as leading a life of “idyllic agrarianism,” is equally applicable to the majority opinion in this Court. So, too, is his observation that such a portrayal rests on a “mythological basis.” Professor Hostetler has noted that “[d]rinking among the youth is common in all the large Amish settlements.” Amish Society 283. Moreover, “[i]t would appear that, among the Amish, the rate of suicide is just as high, if not higher, than for the nation.” Id. at 300. He also notes an unfortunate Amish “preoccupation with filthy stories,” id. at 282, as well as significant “rowdyism and stress.” Id. at 281. These are not traits peculiar to the Amish, of course. The point is that the Amish are not people set apart and different.
Troxel v. Granville, 530 U.S. 57 (2000)
Justia Opinion Summary and Annotations
Annotation
Primary Holding
There is a fundamental right under the Fourteenth Amendment for a parent to oversee the care, custody, and control of a child.
Facts
Tommie Granville and Brad Troxel, an unmarried couple, had two daughters together before they separated. Brad eventually committed suicide, and Granville told the Troxels (his parents) that they could not have more than one visit per month with the children under their visitation rights. They brought an action to obtain visitation rights under a Washington law that allowed any person to bring such a petition at any time. The Troxels succeeded in securing visitation for one weekend each month, one week during the summer, and four hours on each of their birthdays. During the appeals process, Granville married, and her husband eventually adopted the children.
The state appellate court determined that non-parents cannot bring a petition to seek visitation with children except in the context of a pending custody action. The state Supreme Court disagreed and ruled that the Troxels actually did have standing under the statute, but it ruled that the statute was an unconstitutional infringement on the fundamental rights of parents to control the upbringing of their children.
Opinions
Plurality
- Sandra Day O’Connor (Author)
- William Hubbs Rehnquist
- Ruth Bader Ginsburg
- Stephen G. Breyer
The Due Process Clause prevents the government from intruding on fundamental rights and liberty interests, one of which is the liberty interest that parents have in controlling the care and custody of their children. The state may not give rights to any third party to challenge any decision by a parent regarding visitation with that parent’s child in state courts. Giving a state court judge the discretion to determine the best interests of the child in these situations violates due process, especially when there is no allegation that the parent is unfit. It is reasonable to presume that parents will act in the best interests of their children, so the state should not interfere and take that role away from them.
Concurrence
- David H. Souter (Author)
The Washington Supreme Court acted correctly in striking down its own state statute, a decision that complies with Supreme Court precedents.
Concurrence
- Clarence Thomas (Author)
This decision complies with long-standing jurisprudence in the area of substantive due process.
Dissent
- John Paul Stevens
Judicial review by the Supreme Court is inappropriate when a state supreme court required its state legislature to revise a law so that it would comply with the U.S. Constitution. Since the Court accepted the case, however, it should have attempted to resolve it on federal rather than state grounds.
Dissent
- Antonin Scalia (Author)
The legislature rather than the court should resolve this issue because federal law and the federal Constitution should not give rise to a federal body of family law created by the judicial system. The view that the right to raise one’s children was created by the Declaration of Independence and reserved to the people in the Ninth Amendment is merely a personal opinion, albeit a well-supported one.
Dissent
- Anthony M. Kennedy (Author)
Third parties who seek visitation with children should not be required to show that the lack of visitation would affirmatively harm the child. Once further proceedings had unfolded in state court under that adjusted standard, the Court could return to any federal questions that might arise later, such as whether the statute failed to protect the parent’s rights sufficiently.
Case Commentary
Limiting its decision to the facts of the specific case, the plurality refrained from finding that the law was unconstitutional on its face. Some of the concurrences reached that issue and found that it was unconstitutional, but for now laws supporting grandparents’ visitation rights remain valid.
OCTOBER TERM, 1999
Syllabus
TROXEL ET VIR v. GRANVILLE
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 99-138. Argued January 12, 2000-Decided June 5, 2000
Washington Rev. Code §26.1O.160(3) permits “[a]ny person” to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights whenever visitation may serve a child’s best interest. Petitioners Troxel petitioned for the right to visit their deceased son’s daughters. Respondent Granville, the girls’ mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Court ordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed and dismissed the Troxels’ petition. In affirming, the State Supreme Court held, inter alia, that § 26.10.160(3) unconstitutionally infringes on parents’ fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it found that § 26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.
Held: The judgment is affirmed.
137 Wash. 2d 1, 969 P. 2d 21, affirmed.
JUSTICE O’CONNOR, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG, and JUSTICE BREYER, concluded that § 26.10.160(3), as applied to Granville and her family, violates her due process right to make decisions concerning the care, custody, and control of her daughters. Pp.63-75.
(a) The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.
(b) Washington’s breathtakingly broad statute effectively permits a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interest. A parent’s estimation of the child’s best interest is accorded no deference. The State Supreme Court had the oppor-
Syllabus
tunity, but declined, to give § 26.10.160(3) a narrower reading. A combination of several factors compels the conclusion that § 26.10.160(3), as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see, e. g., Reno v. Flores, 507 U. S. 292, 304. The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville’s determination of her daughters’ best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden of disproving that visitation would be in her daughters’ best interest and thus failed to provide any protection for her fundamental right. The court also gave no weight to Granville’s having assented to visitation even before the filing of the petition or subsequent court intervention. These factors, when considered with the Superior Court’s slender findings, show that this case involves nothing more than a simple disagreement between the court and Granville concerning her children’s best interests, and that the visitation order was an unconstitutional infringement on Granville’s right to make decisions regarding the rearing of her children. Pp. 67-73.
(c) Because the instant decision rests on § 26.10.160(3)’s sweeping breadth and its application here, there is no need to consider the question whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation or to decide the precise scope of the parental due process right in the visitation context. There is also no reason to remand this case for further proceedings. The visitation order clearly violated the Constitution, and the parties should not be forced into additional litigation that would further burden Granville’s parental right. Pp. 73-75.
JUSTICE SOUTER concluded that the Washington Supreme Court’s second reason for invalidating its own state statute-that it sweeps too broadly in authorizing any person at any time to request (and a judge to award) visitation rights, subject only to the State’s particular bestinterests standard-is consistent with this Court’s prior cases. This ends the case, and there is no need to decide whether harm is required or to consider the precise scope of a parent’s right or its necessary protections. pp. 75-79.
Troxel v. Granville, 530 U.S. 57 (2000)
Justia Opinion Summary and Annotations
Annotation
Primary Holding
There is a fundamental right under the Fourteenth Amendment for a parent to oversee the care, custody, and control of a child.
Facts
Tommie Granville and Brad Troxel, an unmarried couple, had two daughters together before they separated. Brad eventually committed suicide, and Granville told the Troxels (his parents) that they could not have more than one visit per month with the children under their visitation rights. They brought an action to obtain visitation rights under a Washington law that allowed any person to bring such a petition at any time. The Troxels succeeded in securing visitation for one weekend each month, one week during the summer, and four hours on each of their birthdays. During the appeals process, Granville married, and her husband eventually adopted the children.
The state appellate court determined that non-parents cannot bring a petition to seek visitation with children except in the context of a pending custody action. The state Supreme Court disagreed and ruled that the Troxels actually did have standing under the statute, but it ruled that the statute was an unconstitutional infringement on the fundamental rights of parents to control the upbringing of their children.
Opinions
Plurality
- Sandra Day O’Connor (Author)
- William Hubbs Rehnquist
- Ruth Bader Ginsburg
- Stephen G. Breyer
The Due Process Clause prevents the government from intruding on fundamental rights and liberty interests, one of which is the liberty interest that parents have in controlling the care and custody of their children. The state may not give rights to any third party to challenge any decision by a parent regarding visitation with that parent’s child in state courts. Giving a state court judge the discretion to determine the best interests of the child in these situations violates due process, especially when there is no allegation that the parent is unfit. It is reasonable to presume that parents will act in the best interests of their children, so the state should not interfere and take that role away from them.
Concurrence
- David H. Souter (Author)
The Washington Supreme Court acted correctly in striking down its own state statute, a decision that complies with Supreme Court precedents.
Concurrence
- Clarence Thomas (Author)
This decision complies with long-standing jurisprudence in the area of substantive due process.
Dissent
- John Paul Stevens
Judicial review by the Supreme Court is inappropriate when a state supreme court required its state legislature to revise a law so that it would comply with the U.S. Constitution. Since the Court accepted the case, however, it should have attempted to resolve it on federal rather than state grounds.
Dissent
- Antonin Scalia (Author)
The legislature rather than the court should resolve this issue because federal law and the federal Constitution should not give rise to a federal body of family law created by the judicial system. The view that the right to raise one’s children was created by the Declaration of Independence and reserved to the people in the Ninth Amendment is merely a personal opinion, albeit a well-supported one.
Dissent
- Anthony M. Kennedy (Author)
Third parties who seek visitation with children should not be required to show that the lack of visitation would affirmatively harm the child. Once further proceedings had unfolded in state court under that adjusted standard, the Court could return to any federal questions that might arise later, such as whether the statute failed to protect the parent’s rights sufficiently.
Case Commentary
Limiting its decision to the facts of the specific case, the plurality refrained from finding that the law was unconstitutional on its face. Some of the concurrences reached that issue and found that it was unconstitutional, but for now laws supporting grandparents’ visitation rights remain valid.
OCTOBER TERM, 1999
Syllabus
TROXEL ET VIR v. GRANVILLE
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 99-138. Argued January 12, 2000-Decided June 5, 2000
Washington Rev. Code §26.1O.160(3) permits “[a]ny person” to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights whenever visitation may serve a child’s best interest. Petitioners Troxel petitioned for the right to visit their deceased son’s daughters. Respondent Granville, the girls’ mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Court ordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed and dismissed the Troxels’ petition. In affirming, the State Supreme Court held, inter alia, that § 26.10.160(3) unconstitutionally infringes on parents’ fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it found that § 26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.
Held: The judgment is affirmed.
137 Wash. 2d 1, 969 P. 2d 21, affirmed.
JUSTICE O’CONNOR, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG, and JUSTICE BREYER, concluded that § 26.10.160(3), as applied to Granville and her family, violates her due process right to make decisions concerning the care, custody, and control of her daughters. Pp.63-75.
(a) The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.
(b) Washington’s breathtakingly broad statute effectively permits a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interest. A parent’s estimation of the child’s best interest is accorded no deference. The State Supreme Court had the oppor-
58
Syllabus
tunity, but declined, to give § 26.10.160(3) a narrower reading. A combination of several factors compels the conclusion that § 26.10.160(3), as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see, e. g., Reno v. Flores, 507 U. S. 292, 304. The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville’s determination of her daughters’ best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden of disproving that visitation would be in her daughters’ best interest and thus failed to provide any protection for her fundamental right. The court also gave no weight to Granville’s having assented to visitation even before the filing of the petition or subsequent court intervention. These factors, when considered with the Superior Court’s slender findings, show that this case involves nothing more than a simple disagreement between the court and Granville concerning her children’s best interests, and that the visitation order was an unconstitutional infringement on Granville’s right to make decisions regarding the rearing of her children. Pp. 67-73.
(c) Because the instant decision rests on § 26.10.160(3)’s sweeping breadth and its application here, there is no need to consider the question whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation or to decide the precise scope of the parental due process right in the visitation context. There is also no reason to remand this case for further proceedings. The visitation order clearly violated the Constitution, and the parties should not be forced into additional litigation that would further burden Granville’s parental right. Pp. 73-75.
JUSTICE SOUTER concluded that the Washington Supreme Court’s second reason for invalidating its own state statute-that it sweeps too broadly in authorizing any person at any time to request (and a judge to award) visitation rights, subject only to the State’s particular bestinterests standard-is consistent with this Court’s prior cases. This ends the case, and there is no need to decide whether harm is required or to consider the precise scope of a parent’s right or its necessary protections. pp. 75-79.
59
JUSTICE THOMAS agreed that this Court’s recognition of a fundamental right of parents to direct their children’s upbringing resolves this case, but concluded that strict scrutiny is the appropriate standard of review to apply to infringements of fundamental rights. Here, the State lacks a compelling interest in second-guessing a fit parent’s decision regarding visitation with third parties. P. 80.
O’CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and GINSBURG and BREYER, JJ., joined. SOUTER, J., post, p. 75, and THOMAS, J., post, p. 80, filed opinions concurring in the judgment. STEVENS, J., post, p. 80, SCALIA, J., post, p. 91, and KENNEDY, J., post, p. 93, filed dissenting opinions.
Mark D. Olson argued the cause for petitioners. With him on the briefs was Eric Schnapper.
Catherine W Smith argued the cause for respondent.
With her on the brief was Howard M. Goodfriend. *
*Briefs of amici curiae urging reversal were filed for the State of Washington et al. by Christine O. Gregoire, Attorney General of Washington, and Maureen A. Hart, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Earl I. Anzai of Hawaii, Carla J. Stovall of Kansas, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for AARP et al. by Rochelle Bobroff, Bruce Vignery, and Michael Schuster; for Grandparents United for Children’s Rights, Inc., by Judith Sperling Newton and Carol M. Gapen; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for the Grandparent Caregiver Law Center of the Brookdale Center on Aging.
Briefs of amici curiae urging affirmance were filed for the American Academy of Matrimonial Lawyers by Barbara Ellen Handschu and Sanford K. Ain; for the American Center for Law and Justice by Jay Alan Sekulow, Colby May, Vincent McCarthy, and John P. Tuskey; for the American Civil Liberties Union et al. by Matthew A. Coles, Michael P. Adams, Catherine Weiss, and Steven R. Shapiro; for the Coalition for the Restoration of Parental Rights by Karen A. Wyle; for the Institute for Justice et al. by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby, Gregory S. Baylor, and Carl H. Esbeck; for the Lambda Legal Defense
Opinion of O’CONNOR, J.
JUSTICE O’CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JusTICE GINSBURG, and JUSTICE BREYER join.
Section 26.10.160(3) of the Revised Code of Washington permits “[a]ny person” to petition a superior court for visitation rights “at any time,” and authorizes that court to grant such visitation rights whenever “visitation may serve the best interest of the child.” Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Court for the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the mother of Isabelle and Natalie, opposed the petition. The case ultimately reached the Washington Supreme Court, which held that § 26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.
I
Tommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, but they had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad’s parents, and thus the paternal grandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents and regularly brought his daughters to his parents’ home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their son’s death, Tommie Granville in-
and Education Fund et al. by Patricia M. Logue, Ruth E. Harlow, and Beatrice Dohrn; for the Society of Catholic Social Scientists by Stephen M. Krason and Richard W Garnett; and for Debra Hein by Stuart M. Wilder.
Briefs of amici curiae were filed for the Center for Children’s Policy Practice & Research at the University of Pennsylvania by Barbara Bennett Woodhouse; for the Domestic Violence Project, Inc.lSafe House (Michigan) et al. by Anne L. Argiroffand Ann L. Routt; for the National Association of Counsel for Children by Robert C. Fellmeth and Joan Hollinger; and for the Northwest Women’s Law Center et al. by Cathy J. Zavis.
formed the Troxels in October 1993 that she wished to limit their visitation with her daughters to one short visit per month. In re Smith, 137 Wash. 2d 1, 6, 969 P. 2d 21, 23-24 (1998); In re Troxel, 87 Wash. App. 131, 133, 940 P. 2d 698, 698-699 (1997).
In December 1993, the Troxels commenced the present action by filing, in the Washington Superior Court for Skagit County, a petition to obtain visitation rights with Isabelle and Natalie. The Troxels filed their petition under two Washington statutes, Wash. Rev. Code §§ 26.09.240 and 26.10.160(3) (1994). Only the latter statute is at issue in this case. Section 26.10.160(3) provides: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose visitation altogether, but instead asked the court to order one day of visitation per month with no overnight stay. 87 Wash. App., at 133-134, 940 P. 2d, at 699. In 1995, the Superior Court issued an oral ruling and entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents’ birthdays. 137 Wash. 2d, at 6, 969 P. 2d, at 23; App. to Pet. for Cert. 76a-78a.
Granville appealed, during which time she married Kelly Wynn. Before addressing the merits of Granville’s appeal, the Washington Court of Appeals remanded the case to the Superior Court for entry of written findings of fact and conclusions of law. 137 Wash. 2d, at 6, 969 P. 2d, at 23. On remand, the Superior Court found that visitation was in Isabelle’s and Natalie’s best interests:
“The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Peti-
Opinion of O’CONNOR, J.
tioners can provide opportunities for the children in the areas of cousins and music.
” … The court took into consideration all factors regarding the best interest of the children and considered all the testimony before it. The children would be benefitted from spending quality time with the Petitioners, provided that that time is balanced with time with the childrens’ [sic] nuclear family. The court finds that the childrens’ [sic] best interests are served by spending time with their mother and stepfather’s other six children.” App. 70a.
Approximately nine months after the Superior Court entered its order on remand, Granville’s husband formally adopted Isabelle and Natalie. Id., at 60a-67a.
The Washington Court of Appeals reversed the lower court’s visitation order and dismissed the Troxels’ petition for visitation, holding that nonparents lack standing to seek visitation under § 26.10.160(3) unless a custody action is pending. In the Court of Appeals’ view, that limitation on nonparental visitation actions was “consistent with the constitutional restrictions on state interference with parents’ fundamental liberty interest in the care, custody, and management of their children.” 87 Wash. App., at 135, 940 P. 2d, at 700 (internal quotation marks omitted). Having resolved the case on the statutory ground, however, the Court of Appeals did not expressly pass on Granville’s constitutional challenge to the visitation statute. Id., at 138, 940 P. 2d, at 70l.
The Washington Supreme Court granted the Troxels’ petition for review and, after consolidating their case with two other visitation cases, affirmed. The court disagreed with the Court of Appeals’ decision on the statutory issue and found that the plain language of § 26.10.160(3) gave the Troxels standing to seek visitation, irrespective of whether a custody action was pending. 137 Wash. 2d, at 12, 969 P.
2d, at 26-27. The Washington Supreme Court nevertheless agreed with the Court of Appeals’ ultimate conclusion that the Troxels could not obtain visitation of Isabelle and N atalie pursuant to § 26.10.160(3). The court rested its decision on the Federal Constitution, holding that § 26.10.160(3) unconstitutionally infringes on the fundamental right of parents to rear their children. In the court’s view, there were at least two problems with the nonparental visitation statute. First, according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that standard because it requires no threshold showing of harm. Id., at 15-20, 969 P. 2d, at 28-30. Second, by allowing” ‘any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the best interest of the child,” the Washington visitation statute sweeps too broadly. Id., at 20, 969 P. 2d, at 30. “It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a ‘better’ decision.” Ibid., 969 P. 2d, at 31. The Washington Supreme Court held that “[p]arents have a right to limit visitation of their children with third persons,” and that between parents and judges, “the parents should be the ones to choose whether to expose their children to certain people or ideas.” Id., at 21, 969 P. 2d, at 31. Four justices dissented from the Washington Supreme Court’s holding on the constitutionality of the statute. Id., at 23-43, 969 P. 2d, at 32-42.
We granted certiorari, 527 U. S. 1069 (1999), and now affirm the judgment.
II
The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and
Opinion of O’CONNOR, J.
grandparents who visit regularly, many other children are raised in single-parent households. In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. U. S. Dept. of Commerce, Bureau of Census, Current Population Reports, 1997 Population Profile of the United States 27 (1998). Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million children-or 5.6 percent of all children under age 18-lived in the household of their grandparents. U. S. Dept. of Commerce, Bureau of Census, Current Population Reports, Marital Status and Living Arrangements: March 1998 (Update), p. i (1998).
The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States’ recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States’ nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons-for example, their grandparents. The extension of statutory rights in this area to persons other than a child’s parents, however, comes with an obvious cost. For example, the State’s recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. Contrary to JUSTICE STEVENS’ accusation, our description of state nonparental visitation statutes in these terms, of course, is not meant to suggest that “children are so much chattel.” Post, at 89 (dissenting opinion). Rather, our terminology is intended to highlight the fact that these
statutes can present questions of constitutional import. In this case, we are presented with just such a question. Specifically, we are asked to decide whether § 26.10.160(3), as applied to Tommie Granville and her family, violates the Federal Constitution.
The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).
The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary
Opinion of O’CONNOR, J.
function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute’s text, “[a]ny person may petition the court for visitation rights at any time,” and the court may grant such visitation rights whenever “visitation may serve the best interest of the child.” § 26.10.160(3) (emphases added). That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests. The Washington Supreme Court had the opportunity to give § 26.10.160(3) a narrower reading, but it declined to do so. See, e. g., 137 Wash. 2d, at 5, 969 P. 2d, at 23 (“[The statute] allow[s] any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm”); id., at 20, 969 P. 2d, at 30 (“[The statute] allow[s] ‘any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the best interest of the child”).
Opinion of O’CONNOR, J.
Turning to the facts of this case, the record reveals that the Superior Court’s order was based on precisely the type of mere disagreement we have just described and nothing more. The Superior Court’s order was not founded on any special factors that might justify the State’s interference with Granville’s fundamental right to make decisions concerning the rearing of her two daughters. To be sure, this case involves a visitation petition filed by grandparents soon after the death of their son-the father of Isabelle and N atalie-but the combination of several factors here compels our conclusion that § 26.10.160(3), as applied, exceeded the bounds of the Due Process Clause.
First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham:
“[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations …. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” 442 U. S., at 602 (alteration in original) (internal quotation marks and citations omitted).
Accordingly, so long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the
best decisions concerning the rearing of that parent’s children. See, e. g., Flores, 507 U. S., at 304.
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained:
“The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn’t the case here from what I can tell.” Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report).
The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the children would be “impact[ed] adversely.” In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later: “I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.” Id., at 214.
The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. See Parham, supra, at 602. In that respect, the court’s pre-
Opinion of O’CONNOR, J.
sumption failed to provide any protection for Granville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters. Cf., e. g., Cal. Fam. Code Ann. § 3104(e) (West 1994) (rebuttable presumption that grandparent visitation is not in child’s best interest if parents agree that visitation rights should not be granted); Me. Rev. Stat. Ann., Tit. 19A, § 1803(3) (1998) (court may award grandparent visitation if in best interest of child and “would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child”); Minn. Stat. § 257.022(2)(a)(2) (1998) (court may award grandparent visitation if in best interest of child and “such visitation would not interfere with the parent-child relationship”); Neb. Rev. Stat. § 43-1802(2) (1998) (court must find “by clear and convincing evidence” that grandparent visitation “will not adversely interfere with the parent-child relationship”); R. I. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp. 1999) (grandparent must rebut, by clear and convincing evidence, presumption that parent’s decision to refuse grandparent visitation was reasonable); Utah Code Ann. § 30-5-2(2)(e) (1998) (same); Hoffv. Berg, 595 N. W. 2d 285, 291-292 (N. D. 1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no “compelling interest in presuming visitation rights of grandparents to an unmarried minor are in the child’s best interests and forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to prove such visitation is not in the best interests of their minor child”). In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.
Finally, we note that there is no allegation that Granville ever sought to cut off visitation entirely. Rather, the present dispute originated when Granville informed the Troxels that she would prefer to restrict their visitation with Isabelle and Natalie to one short visit per month and special holidays. See 87 Wash. App., at 133, 940 P. 2d, at 699; Verbatim Report 12. In the Superior Court proceedings Granville did not oppose visitation but instead asked that the duration of any visitation order be shorter than that requested by the Troxels. While the Troxels requested two weekends per month and two full weeks in the summer, Granville asked the Superior Court to order only one day of visitation per month (with no overnight stay) and participation in the Granville family’s holiday celebrations. See 87 Wash. App., at 133, 940 P. 2d, at 699; Verbatim Report 9 (“Right off the bat we’d like to say that our position is that grandparent visitation is in the best interest of the children. It is a matter of how much and how it is going to be structured”) (opening statement by Granville’s attorney). The Superior Court gave no weight to Granville’s having assented to visitation even before the filing of any visitation petition or subsequent court intervention. The court instead rejected Granville’s proposal and settled on a middle ground, ordering one weekend of visitation per month, one week in the summer, and time on both of the petitioning grandparents’ birthdays. See 87 Wash. App., at 133-134, 940 P. 2d, at 699; Verbatim Report 216-221. Significantly, many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party. See, e. g., Miss. Code Ann. § 93-16-3(2)(a) (1994) (court must find that “the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child”); Ore. Rev. Stat. § 109.121(1)(a)(B) (1997) (court may award visitation if the “custodian of the child has denied the grandparent reasonable opportunity to visit the child”); R. 1. Gen. Laws §§ 15-5-
Opinion of O’CONNOR, J.
24.3(a)(2)(iii)-(iv) (Supp. 1999) (court must find that parents prevented grandparent from visiting grandchild and that “there is no other way the petitioner is able to visit his or her grandchild without court intervention”).
Considered together with the Superior Court’s reasons for awarding visitation to the Troxels, the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granville’s fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight. In fact, the Superior Court made only two formal findings in support of its visitation order. First, the Troxels “are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music.” App. 70a. Second, “[t]he children would be benefitted from spending quality time with the [Troxels], provided that that time is balanced with time with the childrens’ [sic] nuclear family.” Ibid. These slender findings, in combination with the court’s announced presumption in favor of grandparent visitation and its failure to accord significant weight to Granville’s already having offered meaningful visitation to the Troxels, show that this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interests. The Superior Court’s announced reason for ordering one week of visitation in the summer demonstrates our conclusion well: “I look back on some personal experiences …. We always spen[t] as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience. Maybe that can, in this family, if that is how it works out.” Verbatim Report 220-221. As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right
of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made. Neither the Washington nonparental visitation statute generally-which places no limits on either the persons who may petition for visitation or the circumstances in which such a petition may be granted-nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional.
Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court-whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with JUSTICE KENNEDY that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best “elaborated with care.” Post, at 101 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter. * See, e. g., Fair-
* All 50 States have statutes that provide for grandparent visitation in some form. See Ala. Code § 30-3-4.1 (1989); Alaska Stat. Ann. § 25.20.065 (1998); Ariz. Rev. Stat. Ann. § 25-409 (1994); Ark. Code Ann. § 9-13-103 (1998); Cal. Fam. Code Ann. § 3104 (West 1994); Colo. Rev. Stat. § 19-1-117 (1999); Conn. Gen. Stat. § 46b-59 (1995); Del. Code Ann., Tit. 10, § 1031(7) (1999); Fla. Stat. § 752.01 (1997); Ga. Code Ann. § 19-7-3 (1991); Haw. Rev. Stat. § 571-46.3 (1999); Idaho Code § 32-719 (1999); Ill. Compo Stat., ch. 750, §5/607 (1998); Ind. Code §31-17-5-1 (1999); Iowa Code §598.35 (1999); Kan. Stat. Ann. § 38-129 (1993); Ky. Rev. Stat. Ann. § 405.021 (Baldwin 1990); La. Rev. Stat. Ann. § 9:344 (West Supp. 2000); La. Civ. Code Ann., Art. 136 (West Supp. 2000); Me. Rev. Stat. Ann., Tit. 19A, § 1803 (1998);
Opinion of O’CONNOR, J.
banks v. McCarter, 330 Md. 39,49-50,622 A. 2d 121, 126-127 (1993) (interpreting best-interest standard in grandparent visitation statute normally to require court’s consideration of certain factors); Williams v. Williams, 256 Va. 19, 501 S. E. 2d 417, 418 (1998) (interpreting Virginia nonparental visitation statute to require finding of harm as condition precedent to awarding visitation).
JUSTICE STEVENS criticizes our reliance on what he characterizes as merely “a guess” about the Washington courts’ interpretation of § 26.10.160(3). Post, at 82 (dissenting opinion). JUSTICE KENNEDY likewise states that “[m]ore specific guidance should await a case in which a State’s highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself.” Post, at 102 (dissenting opinion). We respectfully disagree. There is no need to hypothesize about how the Washington courts might apply § 26.10.160(3) because the Washington Superior Court did apply the statute in this very case. Like the Washington Supreme Court, then, we are presented with an actual visitation order and the reasons why the Superior Court believed
Md. Fam. Law Code Ann. § 9-102 (1999); Mass. Gen. Laws § 119:39D (1996); Mich. Compo Laws Ann. § 722.27b (West Supp. 1999); Minn. Stat. § 257.022 (1998); Miss. Code Ann. § 93-16-3 (1994); Mo. Rev. Stat. § 452.402 (Supp. 1999); Mont. Code Ann. §40-9-102 (1997); Neb. Rev. Stat. §43-1802 (1998); Nev. Rev. Stat. § 125C.050 (Supp. 1999); N. H. Rev. Stat. Ann. §458:17-d (1992); N. J. Stat. Ann. §9:2-7.1 (West Supp. 1999-2000); N. M. Stat. Ann. § 40-9-2 (1999); N. Y. Dom. ReI. Law § 72 (McKinney 1999); N. C. Gen. Stat. §§ 50-13.2, 50-13.2A (1999); N. D. Cent. Code § 14-09-05.1 (1997); Ohio Rev. Code Ann. §§ 3109.051, 3109.11 (Supp. 1999); Okla. Stat., Tit. 10, § 5 (Supp. 1999); Ore. Rev. Stat. § 109.121 (1997); 23 Pa. Cons. Stat. §§ 5311-5313 (1991); R. 1. Gen. Laws §§ 15-5-24 to 15-5-24.3 (Supp. 1999); S. C. Code Ann. §20-7-420(33) (Supp. 1999); S. D. Codified Laws §25-4-52 (1999); Tenn. Code Ann. §§ 36-6-306, 36-6-307 (Supp. 1999); Tex. Fam. Code Ann. § 153.433 (Supp. 2000); Utah Code Ann. § 30-5-2 (1998); Vt. Stat. Ann., Tit. 15, §§ 1011-1013 (1989); Va. Code Ann. §20-124.2 (1995); w. Va. Code §§48-2B-1 to 48-2B-7 (1999); Wis. Stat. §§767.245, 880.155 (1993-1994); Wyo. Stat. Ann. §20-7-101 (1999).
entry of the order was appropriate in this case. Faced with the Superior Court’s application of § 26.10.160(3) to Granville and her family, the Washington Supreme Court chose not to give the statute a narrower construction. Rather, that court gave § 26.10.160(3) a literal and expansive interpretation. As we have explained, that broad construction plainly encompassed the Superior Court’s application of the statute. See supra, at 67.
There is thus no reason to remand the case for further proceedings in the Washington Supreme Court. As JusTICE KENNEDY recognizes, the burden of litigating a domestic relations proceeding can itself be “so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.” Post, at 101. In this case, the litigation costs incurred by Granville on her trip through the Washington court system and to this Court are without a doubt already substantial. As we have explained, it is apparent that the entry of the visitation order in this case violated the Constitution. We should say so now, without forcing the parties into additional litigation that would further burden Granville’s parental right. We therefore hold that the application of § 26.10.160(3) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters.
Accordingly, the judgment of the Washington Supreme Court is affirmed.
It is so ordered.
JUSTICE SOUTER, concurring in the judgment.
I concur in the judgment affirming the decision of the Supreme Court of Washington, whose facial invalidation of its own state statute is consistent with this Court’s prior cases addressing the substantive interests at stake. I would say no more. The issues that might well be presented by reviewing a decision addressing the specific application of the
SOUTER, J., concurring in judgment
state statute by the trial court, ante, at 68-73, are not before us and do not call for turning any fresh furrows in the “treacherous field” of substantive due process. Moore v. East Cleveland, 431 U. S. 494, 502 (1977) (opinion of Powell, J.).
The Supreme Court of Washington invalidated its state statute based on the text of the statute alone, not its application to any particular case.1 Its ruling rested on two independently sufficient grounds: the failure of the statute to require harm to the child to justify a disputed visitation order, In re Smith, 137 Wash. 2d 1, 17, 969 P. 2d 21, 29 (1998), and the statute’s authorization of “any person” at “any time” to petition for and to receive visitation rights subject only to a free-ranging best-interests-of-the-child standard, id., at 20-21, 969 P. 2d, at 30-31. Ante, at 63. I see no error in the second reason, that because the state statute authorizes any person at any time to request (and a judge to award) visitation rights, subject only to the State’s particular best-
1 The Supreme Court of Washington made its ruling in an action where three separate cases, including the Troxels’, had been consolidated. In re Smith, 137 Wash. 2d 1, 6-7, 969 P. 2d 21, 23-24 (1998). The court also addressed two statutes, Wash. Rev. Code § 26.10.160(3) (Supp. 1996) and former Wash. Rev. Code §26.09.240 (1994), 137 Wash. 2d, at 7,969 P. 2d, at 24, the latter of which is not even at issue in this case. See Brief for Petitioners 6, n. 9; see also ante, at 61. Its constitutional analysis discussed only the statutory language and neither mentioned the facts of any of the three cases nor reviewed the records of their trial court proceedings below. 137 Wash. 2d, at 13-21, 969 P. 2d, at 27-31. The decision invalidated both statutes without addressing their application to particular facts: “We conclude petitioners have standing but, as written, the statutes violate the parents’ constitutionally protected interests. These statutes allow any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm.” Id., at 5, 969 P. 2d, at 23 (emphasis added); see also id., at 21, 969 P. 2d, at 31 (“RCW 26.10.160(3) and former RCW 26.09.240 impermissibly interfere with a parent’s fundamental interest in the care, custody and companionship of the child” (citations and internal quotation marks omitted)).
interests standard, the state statute sweeps too broadly and is unconstitutional on its face. Consequently, there is no need to decide whether harm is required or to consider the precise scope of the parent’s right or its necessary protections.
We have long recognized that a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment. See, e. g., Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Parham v. J. R., 442 U. S. 584, 602 (1979); Santosky v. Kramer, 455 U. S. 745,753 (1982); Washington v. Glucksberg, 521 U. S. 702, 720 (1997). As we first acknowledged in Meyer, the right of parents to “bring up children,” 262 U. S., at 399, and “to control the education of their own” is protected by the Constitution, id., at 401. See also Glucksberg, supra, at 761 (SOUTER, J., concurring in judgment).
On the basis of this settled principle, the Supreme Court of Washington invalidated its statute because it authorized a contested visitation order at the intrusive behest of any person at any time subject only to a best-interests-of-the-child standard. In construing the statute, the state court explained that the “any person” at “any time” language was to be read literally, 137 Wash. 2d, at 10-11, 969 P. 2d, at 25-27, and that “[m]ost notably the statut[e] do[es] not require the petitioner to establish that he or she has a substantial relationship with the child,” id., at 20-21, 969 P. 2d, at 31. Although the statute speaks of granting visitation rights whenever “visitation may serve the best interest of the child,” Wash. Rev. Code § 26.10.160(3) (1994), the state court authoritatively read this provision as placing hardly any limit on a court’s discretion to award visitation rights. As the court understood it, the specific best-interests provision in the
SOUTER, J., concurring in judgment
statute would allow a court to award visitation whenever it thought it could make a better decision than a child’s parent had done. See 137 Wash. 2d, at 20, 969 P. 2d, at 31 (“It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a ‘better’ decision”).2 On that basis in part, the Supreme Court of Washington invalidated the State’s own statute: “Parents have a right to limit visitation of their children with third persons.” Id., at 21, 969 P. 2d, at 31.
Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child, but Meyer’s repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by “any party” at “any time” a judge believed he “could make a ‘better’ decision” 3 than the objecting parent had done. The strength of a parent’s interest in controlling a child’s associates is as obvious as the influence of personal associations on the development of the child’s social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate children, and a choice about a child’s social companions is not essentially different from the designation of the adults who will influence the child in school. Even a State’s considered judgment about the preferable political and religious character of schoolteachers is not entitled
2 As JUSTICE O’CONNOR points out, the best-interests provision “contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge.” Ante, at 67.
3 Cf. Chicago v. Morales, 527 U. S. 41, 71 (1999) (BREYER, J., concurring in part and concurring in judgment) (“The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications”).
to prevail over a parent’s choice of private school. Pierce, supra, at 535 (“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations”). It would be anomalous, then, to subject a parent to any individual judge’s choice of a child’s associates from out of the general population merely because the judge might think himself more enlightened than the child’s parent.4 To say the least (and as the Court implied in Pierce), parental choice in such matters is not merely a default rule in the absence of either governmental choice or the government’s designation of an official with the power to choose for whatever reason and in whatever circumstances.
Since I do not question the power of a State’s highest court to construe its domestic statute and to apply a demanding standard when ruling on its facial constitutionality,5 see Chicago v. Morales, 527 U. S. 41, 55, n. 22 (1999) (opinion of STEVENS, J.), this for me is the end of the case. I would simply affirm the decision of the Supreme Court of Washington that its statute, authorizing courts to grant visitation rights to any person at any time, is unconstitutional. I therefore respectfully concur in the judgment.
4 The Supreme Court of Washington invalidated the broadly sweeping statute at issue on similarly limited reasoning: “Some parents and judges will not care if their child is physically disciplined by a third person; some parents and judges will not care if a third person teaches the child a religion inconsistent with the parents’ religion; and some judges and parents will not care if the child is exposed to or taught racist or sexist beliefs. But many parents and judges will care, and, between the two, the parents should be the ones to choose whether to expose their children to certain people or ideas.” 137 Wash. 2d, at 21, 969 P. 2d, at 31 (citation omitted).
5 This is the pivot between JUSTICE KENNEDY’S approach and mine.
JUSTICE THOMAS, concurring in the judgment.
I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day. *
Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, JUSTICE KENNEDY, and JUSTICE SOUTER recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest-to say nothing of a compelling one-in second-guessing a fit parent’s decision regarding visitation with third parties. On this basis, I would affirm the judgment below.
JUSTICE STEVENS, dissenting.
The Court today wisely declines to endorse either the holding or the reasoning of the Supreme Court of Washington. In my opinion, the Court would have been even wiser to deny certiorari. Given the problematic character of the trial court’s decision and the uniqueness of the Washington statute, there was no pressing need to review a State Su-
*This case also does not involve a challenge based upon the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that Clause. See Saenz v. Roe, 526 U. S. 489, 527-528 (1999) (THOMAS, J., dissenting).
preme Court decision that merely requires the state legislature to draft a better statute.
Having decided to address the merits, however, the Court should begin by recognizing that the State Supreme Court rendered a federal constitutional judgment holding a state law invalid on its face. In light of that judgment, I believe that we should confront the federal questions presented directly. For the Washington statute is not made facially invalid either because it may be invoked by too many hypothetical plaintiffs, or because it leaves open the possibility that someone may be permitted to sustain a relationship with a child without having to prove that serious harm to the child would otherwise result.
I
In response to Tommie Granville’s federal constitutional challenge, the State Supreme Court broadly held that Wash. Rev. Code § 26.10.160(3) (Supp. 1996) was invalid on its face under the Federal Constitution.1 Despite the nature of this judgment, JUSTICE O’CONNOR would hold that the Washington visitation statute violated the Due Process Clause of the Fourteenth Amendment only as applied. Ante, at 65, 67, 73 (plurality opinion). I agree with JUSTICE SOUTER, ante, at 75-76, and n. 1 (opinion concurring in judgment), that this approach is untenable.
The task of reviewing a trial court’s application of a state statute to the particular facts of a case is one that should be performed in the first instance by the state appellate courts. In this case, because of their views of the Federal Constitution, the Washington state appeals courts have yet to decide whether the trial court’s findings were adequate under the
1 The State Supreme Court held that, “as written, the statutes violate the parents’ constitutionally protected interests.” In re Smith, 137 Wash. 2d 1, 5, 969 P. 2d 21, 23 (1998).
statute.2 Any as-applied critique of the trial court’s judgment that this Court might offer could only be based upon a guess about the state courts’ application of that State’s statute, and an independent assessment of the facts in this case-both judgments that we are ill-suited and ill-advised to make.3
2 As the dissenting judge on the state appeals court noted, “[t]he trial court here was not presented with any guidance as to the proper test to be applied in a case such as this.” In re Troxel, 87 Wash. App. 131, 143, 940 P. 2d 698, 703 (1997) (opinion of Ellington, J.). While disagreeing with the appeals court majority’s conclusion that the state statute was constitutionally infirm, Judge Ellington recognized that despite this disagreement, the appropriate result would not be simply to affirm. Rather, because there had been no definitive guidance as to the proper construction of the statute, “[t]he findings necessary to order visitation over the objections of a parent are thus not in the record, and I would remand for further proceedings.” Ibid.
3 Unlike JUSTICE O’CONNOR, ante, at 69-70, I find no suggestion in the trial court’s decision in this case that the court was applying any presumptions at all in its analysis, much less one in favor of the grandparents. The first excerpt JUSTICE O’CONNOR quotes from the trial court’s ruling, ante, at 69, says nothing one way or another about who bears the burden under the statute of demonstrating “best interests.” There is certainly no indication of a presumption against the parents’ judgment, only a ” ‘commonsensical”’ estimation that, usually but not always, visiting with grandparents can be good for children. Ibid. The second quotation, “‘I think [visitation] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children,'” ibid., sounds as though the judge has simply concluded, based on the evidence before him, that visitation in this case would be in the best interests of both girls. Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 1994), p. 214. These statements do not provide us with a definitive assessment of the law the court applied regarding a “presumption” either way. Indeed, a different impression is conveyed by the judge’s very next comment: “That has to be balanced, of course, with Mr. and Mrs. Wynn [a.k.a. Tommie Granville], who are trying to put together a family that includes eight children, … trying to get all those children together at the same time and put together some sort of functional unit wherein the children can be raised as brothers and sisters and spend lots of quality time together.” Ibid. The judge then went on to reject the Troxels’ efforts to attain the same level of visitation that
While I thus agree with JUSTICE SOUTER in this respect, I do not agree with his conclusion that the State Supreme Court made a definitive construction of the visitation statute that necessitates the constitutional conclusion he would draw.4 As I read the State Supreme Court’s opinion, In re Smith, 137 Wash. 2d 1, 19-20, 969 P. 2d 21, 30-31 (1998), its interpretation of the Federal Constitution made it unnecessary to adopt a definitive construction of the statutory text, or, critically, to decide whether the statute had been correctly applied in this case. In particular, the state court gave no content to the phrase, “best interest of the child,” Wash. Rev. Code § 26.10.160(3) (Supp. 1996)-content that might well be gleaned from that State’s own statutes or decisionallaw employing the same phrase in different contexts,
their son, the girls’ biological father, would have had, had he been alive. “[T]he fact that Mr. Troxel is deceased and he was the natural parent and as much as the grandparents would maybe like to step into the shoes of Brad, under our law that is not what we can do. The grandparents cannot step into the shoes of a deceased parent, per say [sic], as far as whole gamut of visitation rights are concerned.” Id., at 215. Rather, as the judge put it, “I understand your desire to do that as loving grandparents. Unfortunately that would impact too dramatically on the children and their ability to be integrated into the nuclear unit with the mother.” Id., at 222-223.
However one understands the trial court’s decision-and my point is merely to demonstrate that it is surely open to interpretation-its validity under the state statute as written is a judgment for the state appellate courts to make in the first instance.
4JUSTICE SOUTER would conclude from the state court’s statement that the statute “do[es] not require the petitioner to establish that he or she has a substantial relationship with the child,” 137 Wash. 2d, at 21, 969 P. 2d, at 31, that the state court has “authoritatively read [the ‘best interests’] provision as placing hardly any limit on a court’s discretion to award visitation rights,” ante, at 77 (opinion concurring in judgment). Apart from the question whether one can deem this description of the statute an “authoritative” construction, it seems to me exceedingly unlikely that the state court held the statute unconstitutional because it believed that the “best interests” standard imposes “hardly any limit” on courts’ discretion. See n. 5, infra.
and from the myriad other state statutes and court decisions at least nominally applying the same standard.5 Thus, I believe that JUSTICE SOUTER’S conclusion that the statute unconstitutionally imbues state trial court judges with “‘too much discretion in every case,'” ante, at 78, n. 3 (opinion concurring in judgment) (quoting Chicago v. Morales, 527 U. S. 41, 71 (1999) (BREYER, J., concurring)), is premature.
We are thus presented with the unconstrued terms of a state statute and a State Supreme Court opinion that, in my view, significantly misstates the effect of the Federal Constitution upon any construction of that statute. Given that posture, I believe the Court should identify and correct the two flaws in the reasoning of the state court’s majority opin-
5 The phrase “best interests of the child” appears in no less than 10 current Washington state statutory provisions governing determinations from guardianship to termination to custody to adoption. See, e. g., Wash. Rev. Code § 26.09.240(6) (Supp. 1996) (amended version of visitation statute enumerating eight factors courts may consider in evaluating a child’s best interests); § 26.09.002 (in cases of parental separation or divorce “best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care”; “best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm”); §26.10.100 (“The court shall determine custody in accordance with the best interests of the child”). Indeed, the Washington state courts have invoked the standard on numerous occasions in applying these statutory provisions-just as if the phrase had quite specific and apparent meaning. See, e. g., In re McDoyle, 122 Wash. 2d 604,859 P. 2d 1239 (1993) (upholding trial court “best interest” assessment in custody dispute); McDaniels v. Carlson, 108 Wash. 2d 299, 310, 738 P. 2d 254, 261 (1987) (elucidating “best interests” standard in paternity suit context). More broadly, a search of current state custody and visitation laws reveals fully 698 separate references to the “best interest of the child” standard, a number that, at a minimum, should give the Court some pause before it upholds a decision implying that those words, on their face, may be too boundless to pass muster under the Federal Constitution.
ion, and remand for further review of the trial court’s disposition of this specific case.
II
In my view, the State Supreme Court erred in its federal constitutional analysis because neither the provision granting “any person” the right to petition the court for visitation, 137 Wash. 2d, at 20, 969 P. 2d, at 30, nor the absence of a provision requiring a “threshold … finding of harm to the child,” ibid., provides a sufficient basis for holding that the statute is invalid in all its applications. I believe that a facial challenge should fail whenever a statute has “a ‘plainly legitimate sweep,'” Washington v. Glucksberg, 521 U. S. 702, 739-740, and n. 7 (1997) (STEVENS, J., concurring in judgment).6 Under the Washington statute, there are plainly any number of cases-indeed, one suspects, the most common to arise-in which the “person” among “any” seeking visitation is a once-custodial caregiver, an intimate relation, or even a genetic parent. Even the Court would seem to agree that in many circumstances, it would be constitutionally permissible for a court to award some visitation of a child to a parent or previous caregiver in cases of parental separation or divorce, cases of disputed custody, cases involving temporary foster care or guardianship, and so forth. As the statute plainly sweeps in a great deal of the permissible, the State Supreme Court majority incorrectly concluded that a statute authorizing “any person” to file a petition seeking visitation privileges would invariably run afoul of the Fourteenth Amendment.
The second key aspect of the Washington Supreme Court’s holding-that the Federal Constitution requires a showing of actual or potential “harm” to the child before a court may
6 It necessarily follows that under the far more stringent demands suggested by the majority in United States v. Salerno, 481 U. S. 739, 745 (1987) (plaintiff seeking facial invalidation “must establish that no set of circumstances exists under which the Act would be valid”), respondent’s facial challenge must fail.
order visitation continued over a parent’s objections-finds no support in this Court’s case law. While, as the Court recognizes, the Federal Constitution certainly protects the parent-child relationship from arbitrary impairment by the State, see infra this page and 87-88, we have never held that the parent’s liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm.7 The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable of treating a child like a mere possession.
Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies-the child.
It has become standard practice in our substantive due process jurisprudence to begin our analysis with an identification of the “fundamental” liberty interests implicated by the challenged state action. See, e. g., ante, at 65-66 (opinion of O’CONNOR, J.); Washington v. Glucksberg, 521 U. S. 702 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). My colleagues are of course correct to recognize that the right of a parent to maintain a relationship with his or her child is among the interests in-
7The suggestion by JUSTICE THOMAS that this case may be resolved solely with reference to our decision in Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), is unpersuasive. Pierce involved a parent’s choice whether to send a child to public or private school. While that case is a source of broad language about the scope of parents’ due process rights with respect to their children, the constitutional principles and interests involved in the schooling context do not necessarily have parallel implications in this family law visitation context, in which multiple overlapping and competing prerogatives of various plausibly interested parties are at stake.
cluded most often in the constellation of liberties protected through the Fourteenth Amendment. Ante, at 65-66 (opinion of O’CONNOR, J.). Our cases leave no doubt that parents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest-absent exceptional circumstances-in doing so without the undue interference of strangers to them and to their child. Moreover, and critical in this case, our cases applying this principle have explained that with this constitutional liberty comes a presumption (albeit a rebuttable one) that “natural bonds of affection lead parents to act in the best interests of their children.” Parham v. J. R., 442 U. S. 584, 602 (1979); see also Casey, 505 U. S., at 895; Santosky v. Kramer, 455 U. S. 745, 759 (1982) (State may not presume, at factfinding stage of parental rights termination proceeding, that interests of parent and child diverge); see also ante, at 68-69 (opinion of O’CONNOR, J.).
Despite this Court’s repeated recognition of these significant parental liberty interests, these interests have never been seen to be without limits. In Lehr v. Robertson, 463 U. S. 248 (1983), for example, this Court held that a putative biological father who had never established an actual relationship with his child did not have a constitutional right to notice of his child’s adoption by the man who had married the child’s mother. As this Court had recognized in an earlier case, a parent’s liberty interests “‘do not spring fullblown from the biological connection between parent and child. They require relationships more enduring.”’ Id., at 260 (quoting Caban v. Mohammed, 441 U. S. 380, 397 (1979)).
Conversely, in Michael H. v. Gerald D., 491 U. S. 110 (1989), this Court concluded that despite both biological parenthood and an established relationship with a young child, a father’s due process liberty interest in maintaining some connection with that child was not sufficiently powerful to overcome a state statutory presumption that the husband of the child’s mother was the child’s parent. As a result of the
presumption, the biological father could be denied even visitation with the child because, as a matter of state law, he was not a “parent.” A plurality of this Court there recognized that the parental liberty interest was a function, not simply of “isolated factors” such as biology and intimate connection, but of the broader and apparently independent interest in family. See, e. g., id., at 123; see also Lehr, 463 U. S., at 261; Smith v. Organization of Foster Families For Equality & Reform, 431 U. S. 816, 842-847 (1977); Moore v. East Cleveland, 431 U. S. 494, 498-504 (1977).
A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence of some embodiment of family. These limitations have arisen, not simply out of the definition of parenthood itself, but because of this Court’s assumption that a parent’s interests in a child must be balanced against the State’s long-recognized interests as parens patriae, see, e. g., Reno v. Flores, 507 U. S. 292, 303-304 (1993); Santosky v. Kramer, 455 U. S., at 766; Parham, 442 U. S., at 605; Prince v. Massachusetts, 321 U. S. 158, 166 (1944), and, critically, the child’s own complementary interest in preserving relationships that serve her welfare and protection, Santosky, 455 U. S., at 760.
While this Court has not yet had occasion to elucidate the nature of a child’s liberty interests in preserving established familial or family-like bonds, 491 U. S., at 130 (reserving the question), it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.8 At a minimum, our prior cases rec-
8 This Court has on numerous occasions acknowledged that children are in many circumstances possessed of constitutionally protected rights and liberties. See Parham v. J. R., 442 U. S. 584, 600 (1979) (liberty interest in avoiding involuntary confinement); Planned Parenthood of Central
ognizing that children are, generally speaking, constitutionally protected actors require that this Court reject any suggestion that when it comes to parental rights, children are so much chattel. See ante, at 64-65 (opinion of O’CONNOR, J.) (describing States’ recognition of “an independent third-party interest in a child”). The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child.9
This is not, of course, to suggest that a child’s liberty interest in maintaining contact with a particular individual is to be treated invariably as on a par with that child’s parents’ contrary interests. Because our substantive due process case law includes a strong presumption that a parent will act
Mo. v. Danforth, 428 U. S. 52, 74 (1976) (“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights”); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506-507 (1969) (First Amendment right to political speech); In re Gault, 387 U. S. 1, 13 (1967) (due process rights in criminal proceedings).
9 Cf., e. g., Wisconsin v. Yoder, 406 U. S. 205, 244-246 (1972) (Douglas, J., dissenting) (“While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today …. It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny”). The majority’s disagreement with Justice Douglas in that case turned not on any contrary view of children’s interest in their own education, but on the impact of the Free Exercise Clause of the First Amendment on its analysis of schoolrelated decisions by the Amish community.
in the best interest of her child, it would be necessary, were the state appellate courts actually to confront a challenge to the statute as applied, to consider whether the trial court’s assessment of the “best interest of the child” incorporated that presumption. Neither would I decide whether the trial court applied Washington’s statute in a constitutional way in this case, although, as I have explained, n. 3, supra, I think the outcome of this determination is far from clear. For the purpose of a facial challenge like this, I think it safe to assume that trial judges usually give great deference to parents’ wishes, and I am not persuaded otherwise here.
But presumptions notwithstanding, we should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a “person” other than a parent. The almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily. It is indisputably the business of the States, rather than a federal court employing a national standard, to assess in the first instance the relative importance of the conflicting interests that give rise to disputes such as this.10 Far from guaranteeing that
10 See Palmore v. Sidoti, 466 U. S. 429, 431 (1984) (“The judgment of a state court determining or reviewing a child custody decision is not ordinarily a likely candidate for review by this Court”); cf. Collins v. Harker Heights, 503 U. S. 115, 128 (1992) (matters involving competing and multifaceted social and policy decisions best left to local decisionmaking); Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 226 (1985) (emphasizing our “reluctance to trench on the prerogatives of state and local educational institutions” as federal courts are ill-suited to “evaluate the substance of the multitude of academic decisions that are made daily by” experts in the field evaluating cumulative information). That caution is never more essential than in the realm of family and intimate relations. In part, this principle is based on long-established, if somewhat arbitrary, tradition in
parents’ interests will be trammeled in the sweep of cases arising under the statute, the Washington law merely gives an individual-with whom a child may have an established relationship-the procedural right to ask the State to act as arbiter, through the entirely well-known best-interests standard, between the parent’s protected interests and the child’s. It seems clear to me that the Due Process Clause of the Fourteenth Amendment leaves room for States to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interests of the child.
Accordingly, I respectfully dissent.
JUSTICE SCALIA, dissenting.
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming anyone of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative
allocating responsibility for resolving disputes of various kinds in our federal system. Ankenbrandt v. Richards, 504 U. S. 689 (1992). But the instinct against overregularizing decisions about personal relations is sustained on firmer ground than mere tradition. It flows in equal part from the premise that people and their intimate associations are complex and particular, and imposing a rigid template upon them all risks severing bonds our society would do well to preserve.
democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children l_two of them from an era rich in substantive due process holdings that have since been repudiated. See Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972). Cf. West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) (overruling Adkins v. Children’s Hospital of D. c., 261 U. S. 525 (1923)). The sheer diversity of to day’s opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.
Judicial vindication of “parental rights” under a Constitution that does not even mention them requires (as JUSTICE KENNEDY’S opinion rightly points out) not only a judicially crafted definition of parents, but also-unless, as no one be-
1 Whether parental rights constitute a “liberty” interest for purposes of procedural due process is a somewhat different question not implicated here. Stanley v. Illinois, 405 U. S. 645 (1972), purports to rest in part upon that proposition, see id., at 651-652; but see Michael H. v. Gerald D., 491 U. S. 110, 120-121 (1989) (plurality opinion), though the holding is independently supported on equal protection grounds, see Stanley, supra, at 658.
lieves, the parental rights are to be absolute-judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious-whether we affirm or reverse the judgment here, or remand as JUSTICE STEVENS or JUSTICE KENNEDY would do-that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.2
For these reasons, I would reverse the judgment below.
JUSTICE KENNEDY, dissenting.
The Supreme Court of Washington has determined that petitioners Jenifer and Gary Troxel have standing under state law to seek court-ordered visitation with their grandchildren, notwithstanding the objections of the children’s parent, respondent Tommie Granville. The statute relied upon provides:
“Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Wash. Rev. Code § 26.10.160(3) (1994).
2 I note that respondent is asserting only, on her own behalf, a substantive due process right to direct the upbringing of her own children, and is not asserting, on behalf of her children, their First Amendment rights of association or free exercise. I therefore do not have occasion to consider whether, and under what circumstances, the parent could assert the latter enumerated rights.
After acknowledging this statutory right to sue for visitation, the State Supreme Court invalidated the statute as violative of the United States Constitution, because it interfered with a parent’s right to raise his or her child free from unwarranted interference. In re Smith, 137 Wash. 2d 1,969 P. 2d 21 (1998). Although parts of the court’s decision may be open to differing interpretations, it seems to be agreed that the court invalidated the statute on its face, ruling it a nullity.
The first flaw the State Supreme Court found in the statute is that it allows an award of visitation to a nonparent without a finding that harm to the child would result if visitation were withheld; and the second is that the statute allows any person to seek visitation at any time. In my view the first theory is too broad to be correct, as it appears to contemplate that the best interests of the child standard may not be applied in any visitation case. I acknowledge the distinct possibility that visitation cases may arise where, considering the absence of other protection for the parent under state laws and procedures, the best interests of the child standard would give insufficient protection to the parent’s constitutional right to raise the child without undue intervention by the State; but it is quite a different matter to say, as I understand the Supreme Court of Washington to have said, that a harm to the child standard is required in every instance.
Given the error I see in the State Supreme Court’s central conclusion that the best interests of the child standard is never appropriate in third-party visitation cases, that court should have the first opportunity to reconsider this case. I would remand the case to the state court for further proceedings. If it then found the statute has been applied in an unconstitutional manner because the best interests of the child standard gives insufficient protection to a parent under the circumstances of this case, or if it again declared the statute a nullity because the statute seems to allow any person
at all to seek visitation at any time, the decision would present other issues which mayor may not warrant further review in this Court. These include not only the protection the Constitution gives parents against state-ordered visitation but also the extent to which federal rules for facial challenges to statutes control in state courts. These matters, however, should await some further case. The judgment now under review should be vacated and remanded on the sole ground that the harm ruling that was so central to the Supreme Court of Washington’s decision was error, given its broad formulation.
Turning to the question whether harm to the child must be the controlling standard in every visitation proceeding, there is a beginning point that commands general, perhaps unanimous, agreement in our separate opinions: As our case law has developed, the custodial parent has a constitutional right to determine, without undue interference by the State, how best to raise, nurture, and educate the child. The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment. See, e. g., Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972); Santosky v. Kramer, 455 U. S. 745, 753754 (1982). Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion. Their formulation and subsequent interpretation have been quite different, of course; and they long have been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the “custody, care and nurture of the child,” free from state intervention. Prince, supra, at 166. The principle exists, then, in broad formulation; yet courts must use considerable restraint, including careful adherence to the incremental in-
struction given by the precise facts of particular cases, as they seek to give further and more precise definition to the right.
The State Supreme Court sought to give content to the parent’s right by announcing a categorical rule that third parties who seek visitation must always prove the denial of visitation would harm the child. After reviewing some of the relevant precedents, the Supreme Court of Washington concluded” ‘[t]he requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.'” 137 Wash. 2d, at 19-20, 969 P. 2d, at 30 (quoting Hawk v. Hawk, 855 S. W. 2d 573, 580 (Tenn. 1993)). For that reason, “[s]hort of preventing harm to the child,” the court considered the best interests of the child to be “insufficient to serve as a compelling state interest overruling a parent’s fundamental rights.” 137 Wash. 2d, at 20, 969 P. 2d, at 30.
While it might be argued as an abstract matter that in some sense the child is always harmed if his or her best interests are not considered, the law of domestic relations, as it has evolved to this point, treats as distinct the two standards, one harm to the child and the other the best interests of the child. The judgment of the Supreme Court of Washington rests on that assumption, and I, too, shall assume that there are real and consequential differences between the two standards.
On the question whether one standard must always take precedence over the other in order to protect the right of the parent or parents, “[o]ur Nation’s history, legal traditions, and practices” do not give us clear or definitive answers. Washington v. Glucksberg, 521 U. S. 702, 721 (1997). The consensus among courts and commentators is that at least through the 19th century there was no legal right of visitation; court-ordered visitation appears to be a 20thcentury phenomenon. See, e. g., 1 D. Kramer, Legal Rights of Children 124, 136 (2d ed. 1994); 2 J. Atkinson, Modern
Child Custody Practice § 8.10 (1986). A case often cited as one of the earliest visitation decisions, Succession of Reiss, 46 La. Ann. 347, 353, 15 So. 151, 152 (1894), explained that “the obligation ordinarily to visit grandparents is moral and not legal”-a conclusion which appears consistent with that of American common-law jurisdictions of the time. Early 20th-century exceptions did occur, often in cases where a relative had acted in a parental capacity, or where one of a child’s parents had died. See Douglass v. Merriman, 163 S. C. 210, 161 S. E. 452 (1931) (maternal grandparent awarded visitation with child when custody was awarded to father; mother had died); Solomon v. Solomon, 319 Ill. App. 618, 49 N. E. 2d 807 (1943) (paternal grandparents could be given visitation with child in custody of his mother when their son was stationed abroad; case remanded for fitness hearing); Consaul v. Consaul, 63 N. Y. S. 2d 688 (Sup. Ct. Jefferson Cty. 1946) (paternal grandparents awarded visitation with child in custody of his mother; father had become incompetent). As a general matter, however, contemporary state-court decisions acknowledge that “[h]istorically, grandparents had no legal right of visitation,” Campbell v. Campbell, 896 P. 2d 635, 642, n. 15 (Utah App. 1995), and it is safe to assume other third parties would have fared no better in court.
To say that third parties have had no historical right to petition for visitation does not necessarily imply, as the Supreme Court of Washington concluded, that a parent has a constitutional right to prevent visitation in all cases not involving harm. True, this Court has acknowledged that States have the authority to intervene to prevent harm to children, see, e. g., Prince, supra, at 168-169; Yoder, supra, at 233-234, but that is not the same as saying that a heightened harm to the child standard must be satisfied in every case in which a third party seeks a visitation order. It is also true that the law’s traditional presumption has been “that natural bonds of affection lead parents to act in the
best interests of their children,” Parham v. J. R., 442 U. S. 584, 602 (1979); and “[s]imply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state,” id., at 603. The State Supreme Court’s conclusion that the Constitution forbids the application of the best interests of the child standard in any visitation proceeding, however, appears to rest upon assumptions the Constitution does not require.
My principal concern is that the holding seems to proceed from the assumption that the parent or parents who resist visitation have always been the child’s primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child. That idea, in turn, appears influenced by the concept that the conventional nuclear family ought to establish the visitation standard for every domestic relations case. As we all know, this is simply not the structure or prevailing condition in many households. See, e. g., Moore v. East Cleveland, 431 U. S. 494 (1977). For many boys and girls a traditional family with two or even one permanent and caring parent is simply not the reality of their childhood. This may be so whether their childhood has been marked by tragedy or filled with considerable happiness and fulfillment.
Cases are sure to arise-perhaps a substantial number of cases-in which a third party, by acting in a care giving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto. See Michael H. v. Gerald D., 491 U. S. 110 (1989) (putative natural father not entitled to rebut state-law presumption that child born in a marriage is a child of the marriage); Quilloin v. Walcott, 434 U. S. 246 (1978) (best interests standard sufficient in adoption proceeding to protect interests of natural father who had not legitimated the child); see also Lehr v. Robertson, 463 U. S. 248, 261 (1983) (” ‘[T]he importance of the familial relationship, to the individuals in-
volved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “promot[ing] a way of life” through the instruction of children … as well as from the fact of blood relationship'” (quoting Smith v. Organization of Foster Families For Equality & Reform, 431 U. S. 816, 844 (1977), in turn quoting Yoder, 406 U. S., at 231-233)). Some pre-existing relationships, then, serve to identify persons who have a strong attachment to the child with the concomitant motivation to act in a responsible way to ensure the child’s welfare. As the State Supreme Court was correct to acknowledge, those relationships can be so enduring that “in certain circumstances where a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of the relationship could cause severe psychological harm to the child,” 137 Wash. 2d, at 20, 969 P. 2d, at 30; and harm to the adult may also ensue. In the design and elaboration of their visitation laws, States may be entitled to consider that certain relationships are such that to avoid the risk of harm, a best interests standard can be employed by their domestic relations courts in some circumstances.
Indeed, contemporary practice should give us some pause before rejecting the best interests of the child standard in all third-party visitation cases, as the Washington court has done. The standard has been recognized for many years as a basic tool of domestic relations law in visitation proceedings. Since 1965 all 50 States have enacted a third-party visitation statute of some sort. See ante, at 73-74, n. (plurality opinion). Each of these statutes, save one, permits a court order to issue in certain cases if visitation is found to be in the best interests of the child. While it is unnecessary for us to consider the constitutionality of any particular provision in the case now before us, it can be noted that the statutes also include a variety of methods for limiting parents’ exposure to third-party visitation petitions and for ensuring parental decisions are given respect. Many States
limit the identity of permissible petitioners by restricting visitation petitions to grandparents, or by requiring petitioners to show a substantial relationship with a child, or both. See, e. g., Kan. Stat. Ann. § 38-129 (1993 and Supp. 1998) (grandparent visitation authorized under certain circumstances if a substantial relationship exists); N. C. Gen. Stat. §§ 50-13.2, 50-13.2A, 50-13.5 (1999) (same); Iowa Code § 598.35 (Supp. 1999) (same; visitation also authorized for great-grandparents); Wis. Stat. § 767.245 (Supp. 1999) (visitation authorized under certain circumstances for “a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child”). The statutes vary in other respects-for instance, some permit visitation petitions when there has been a change in circumstances such as divorce or death of a parent, see, e. g., N. H. Rev. Stat. Ann. § 458:17-d (1992), and some apply a presumption that parental decisions should control, see, e. g., Cal. Fam. Code Ann. §§ 3104(e)-(f) (West 1994); R. 1. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp. 1999). Georgia’s is the sole state legislature to have adopted a general harm to the child standard, see Ga. Code Ann. § 19-73(c) (1999), and it did so only after the Georgia Supreme Court held the State’s prior visitation statute invalid under the Federal and Georgia Constitutions, see Brooks v. Parkerson, 265 Ga. 189, 454 S. E. 2d 769, cert. denied, 516 U. S. 942 (1995).
In light of the inconclusive historical record and case law, as well as the almost universal adoption of the best interests standard for visitation disputes, I would be hard pressed to conclude the right to be free of such review in all cases is itself” ‘implicit in the concept of ordered liberty.'” Glucksberg, 521 U. S., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)). In my view, it would be more appropriate to conclude that the constitutionality of the application of the best interests standard depends on more specific factors. In short, a fit parent’s right vis-a-vis a complete
stranger is one thing; her right vis-a-vis another parent or a de facto parent may be another. The protection the Constitution requires, then, must be elaborated with care, using the discipline and instruction of the case law system. We must keep in mind that family courts in the 50 States confront these factual variations each day, and are best situated to consider the unpredictable, yet inevitable, issues that arise. Cf. Ankenbrandt v. Richards, 504 U. S. 689, 703-704 (1992).
It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated. The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. See, e. g., American Law Institute, Principles of the Law of Family Dissolution 2, and n. 2 (Tent. Draft No.3, Mar. 20, 1998). If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future. Our system must confront more often the reality that litigation can itself be so disruptive that constitutional protection may be required; and I do not discount the possibility that in some instances the best interests of the child standard may provide insufficient protection to the parent-child relationship. We owe it to the Nation’s domestic relations legal structure, however, to proceed with caution.
It should suffice in this case to reverse the holding of the State Supreme Court that the application of the best interests of the child standard is always unconstitutional in thirdparty visitation cases. Whether, under the circumstances of this case, the order requiring visitation over the objection of this fit parent violated the Constitution ought to be reserved for further proceedings. Because of its sweeping ruling re-
quiring the harm to the child standard, the Supreme Court of Washington did not have the occasion to address the specific visitation order the Troxels obtained. More specific guidance should await a case in which a State’s highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself. Furthermore, in my view, we need not address whether, under the correct constitutional standards, the Washington statute can be invalidated on its face. This question, too, ought to be addressed by the state court in the first instance.
In my view the judgment under review should be vacated and the case remanded for further proceedings.
