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Supplemental Correspondence

Introduction This section helps to explain Dr. Rice's third letter regarding the PRRA. In the course of the letters back and forth you can catch glimpses of the legal arguments both pro and con for the PRRA. Here you can read Michael Farris' rationale for the PRRA in a letter responding to Dr. Rice's first letter which had been widely circulated in Washington. After Dr. Rice issued his second letter (this time directly to Michael Farris) a mailing was issued from Home School Legal Defense Association to home school leaders around the country. This HSLDA mailing omitted a key middle paragraph of Dr. Rice's second letter -- a fact which bothered Dr. Rice and is referenced in his third letter. Dr. Rice's missing paragraph contains some very interesting advice to Mr. Farris regarding some positive changes that could be made with the PRRA. The HSLDA mailing also references a letter co-signed by Senator Bob Dole and Charles Grassley urging Senate colleagues to become a co-sponsor of the PRRA. We have included this letter because of its reference to "compelling government interest". Finally, one can read Michael Farris' apology to Dr. Rice in the latest letter in this series of correspondence.

Michael Farris' Response Letter

Dear Professor Rice,

Thank you so much for sending me a copy of your February 5, 1996 letter concerning the Parental Rights and Responsibilities Act (PRRA). As the principal draftsman of the Act, I am happy to have an opportunity to respond to your concerns. You have fought long and hard for principles I believe in and take your concerns with the utmost of respect for you and your expertise.

To begin with I would note that you supported the Religious Freedom Restoration Act (RFRA). I had a hand in drafting that legislation as well since I served as chairman of the drafting committee.

The purpose of the RFRA was to ensure that the highest level of judicial protection was guaranteed in religious freedom cases. The Supreme Court had just announced in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) that the free exercise of religion would be treated under a lower level of judicial protection.

The PRRA has a similar goal. It is designed to ensure that parental rights receive the same high level of protection guaranteed to religious freedom. There are only two material differences between the RFRA and the PRRA:

1. They involve different subjects (parental rights vs. religious freedom. Some people (Barney Frank and Pat Schroeder, for example) support the idea of high protections for religious freedom while denying that level of protection for parental rights. You obviously, do not fall in that camp. I know full well that it would be your desire to grant both freedoms the highest protections possible.

2. The RFRA was responding to a single decision of the Supreme Court. The PRRA is responding to a number of decisions from state and federal courts which have held that parental rights claims are entitled only to minimal judicial scrutiny, not strict scrutiny appropriate for fundamental rights. Frankly, state courts are worse on this subject that [sic] federal courts generally.

The differences between the RFRA and the PRRA are simply not relevant to the objections you have raised. I would respectfully suggest that they are identical for the purpose of this discussion.

Let me now turn to some specific responses to each of your points. (My numbering does not match yours).

1. You have said that parental rights do not exist by sufferance of the state. That is most assuredly true. However, it can also be said that religious freedom "does not exist by the sufferance of the state" either. Both are natural rights. But the reality is that courts are dealing harshly with parental rights just like the Supreme Court dealt harshly with religious freedom in Smith. Our elected officials have the responsibility to protect our rights from attack by the executive and judicial branches. Congress protected religious freedom from governmental attack in RFRA. In the same way, we are asking Congress to protect us from the other two branches of government in the PRRA.

2. There is no legitimate reason to wait until Congress has resolved the constitutionality of the RFRA. It was just upheld by the Fifth Circuit. Flores v. City of Boerne, 1996 U.S. App. LEXIS 762. We can wait for years and parental rights would be diminished day by day.

3. The RFRA/PRRA criteria tracks precisely the RFRA criteria. The strict scrutiny litany of compelling governmental interest/least restrictive means is the highest level of protection granted to any constitutional right. The only higher standard is an absolute right. Obviously, no level of government is going to say that parents have an absolute right to do anything they want to their children. How can it be said that we have set the standard too low? Do you know of any recognized higher standard we could employ?

4. The issue of child abuse is a serious matter. A parent accused of child abuse or neglect will simply have to stand on their constitutional rights relative to such a charge. State efforts to protect parental rights have all had substantial difficulty because of the child abuse issue. We had to deal with this at the federal level, by saying, in effect, "This is a matter that will have to be dealt with on the state level." Obviously, nothing in the PRRA would limit a parent's ability to raise constitutional defenses in a child abuse case. However, to make sure that no court can mistakenly rule that the PRRA precludes such a constitutional defense, we have added the following language: "However, nothing in this Act shall be construed to limit any constitutional defense or claim that a parent may have in a case involving abuse or neglect." This will immediately follow the current language on child abuse cases.

5. The PRRA does not set a ceiling but a floor for parental rights. Nothing in the PRRA as written would limit the ability of state and local governments from granting even greater parental rights. The RFRA did not set a ceiling, but a floor. No one has made the claim that states cannot grant even greater protection for religious freedom than contained in the RFRA. Nonetheless, just to ensure that no one can make a claim that the PRRA imposes a maximum level of parental protections that the states cannot exceed we have added the following language to the bill. "Nothing in this Act shall be construed to limit the ability of state or local governments from granting greater protection to parental rights."

6. Your concerns regarding the citation to Yoder should be entirely alleviated by our deletion of the entire findings section. It was certainly not our intent to create the effects you predicted. But the issue is entirely moot, since the language you question is completely gone.

7. Your concerns about the levels of evidence has also been corrected by a change. Now rather than employ the term "appropriate evidence" we have simply substituted the term "clear and convincing evidence" as the level of evidence required for the government to sustain its burden of proof. In our original language we were attempting to stop state governments from running into family's homes and conducting child abuse investigations without probable cause. However, for a number of reasons we have been forced to fight that battle on other fronts. The clear and convincing standard is the level of evidence the Supreme Court has said is constitutionally required to terminate parental custody. The PRRA will now ensure that this high evidentiary standard applies to any interference with parental rights.

8. The section concerning "any other dispute between parents" arose out of a concern raised by a number of Congressmen who used to do domestic relations litigation. They did not want to have a national standard for settling such cases. The purpose of the PRRA is to announce a standard when the government is battling with parents over parental rights. It is not intended to invade the sphere of state-controlled domestic relations law where two private parties are in a dispute. Since the PRRA was never intended to reach any other sphere other than governmental interference with parental rights, we saw no harm in stating the self-evident proposition that there is no governmental action in a private dispute between two parents.

9. Your concerns about the issue of federalism are important. This is one area where we may disagree philosophically.

I believe that the federal government has no implied powers. I believe that the Constitution limits the federal government's role and it may only enact legislation where there is express constitutional authority. The express provision here is the fifth section of the Fourteenth Amendment which gives Congress the authority to enact legislation to protect our Fourteenth Amendment rights from state encroachments.

To me, that settles the issue of Congressional authority. However, there is the issue of whether it is wise to employ this federal authority.

I begin from the premise that Pierce v. Society of Sisters, 268 U.S. 510 (1925) was correctly decided. As you well know, the state of Oregon decided to ban all private education. The federal government, in the form of the Supreme Court, said to Oregon, "No, Oregon you may not ban private education because such an action interferes with the natural rights of parents." Obviously, I am paraphrasing.

If the federal government can and should tell Oregon that it cannot ban parental rights to choose private schools, the federal government can and should tell Michigan that it was wrong when it banned home schooling for secular parents while allowing it for religious parents. Compare, People of the State of Michigan v. DeJonge, 501 N.W.2d 127 (Mich. 1993), with People of the State of Michigan v. Bennett, 442 N.W.2nd316 (Mich. 1993). Congress can tell Washington state that it was wrong when it decided that parental rights may be terminated simply because of conflict between a parent and a child over reasonable rules which have been enforced in a reasonable manner. In re Sumey, 94 Wash.2d 757.621 P.2d 108 (1980). It is wise for Congress to tell states that they may not ban corporal discipline of children by parents.

Certain rights should not vary from state to state. The RFRA was enacted to make sure that religious freedom would be upheld at the highest level in all courts. The PRRA stands for the proposition that all parents in all states should be guaranteed the benefit of the highest known standard of constitutional protection. I don't believe that parents in North Dakota, Michigan, or Iowa (these were the last three states to ban home schooling through teacher certification laws) should ever again have to face the prospect that their rights are diminished as compared to parents in neighboring states.

Oregon can't ban private education. Parental rights are universal in nature. As a matter of policy, I do not believe they should vary from state to state (at least not below the level of protection granted by the PRRA.

Your letter is being widely circulated and it is causing a great furor on Capitol Hill. I would greatly appreciate it if you could let me know if my response (and the legislative changes) has any affect on your views.

Thank you for your courageous leadership on so many fronts. Please let me know if I can ever assist you on any matter of concern to you.

Sincerely,

Michael P. Farris
Home School Legal Defense Association (HSLDA)

Dr. Rice's Response

Mailing From HSLDA

February 22, 1996

Dear Home School Leader,

... 1. The Parental Rights and Responsibilities Act (H.R. 1946/S. 984)

The list of co-sponsors for the Parental Rights and Responsibilities Act (PRRA) has grown to more than 124 in the House and eight in the Senate. Our latest addition on the Senate side is Alan Simpson (R-WY). This is particularly good news since he represents the more moderate wing of the Republican Party.

In our last mailing, we noted that Senator Dole had come on board as a cosponsor. Senator Grassley has been able to persuade Senator Dole to sign a "Dear Colleague" letter to the other Senators. A copy of this letter is enclosed.

While we have been involved in many radio and T.V. interviews dealing with the PRRA, most of our efforts have been in fine-tuning the language of the bill. Enclosed you will find the latest draft of the PRRA, dated February 14, 1996. The final version of the bill will likely be very similar to this draft. We removed the "Findings and Purposes" section because it was both unnecessary and raised too many questions. Also, by making various adjustments, we were able to resolve questions from Senators and Congressmen concerning federalism, the definition of child abuse, and other issues. We believe these changes have greatly improved the bill.

We expect both the House and Senate sub-committees currently considering the PRRA to issue favorable reports. We will let you know when the PRRA will be considered by the full Judiciary Committees in both chambers.

Dr. Charles Rice, Professor of Law at the University of Notre Dame Law School, expressed some objections to the PRRA in a recent letter. His letter became public, causing some concern by some home schoolers. Michael Farris responded to Rice's objections, and on February 20, Dr. Rice wrote Michael stating, "Thank you very much for your letter of February 14. I appreciate your analyses. Your changes have, in my opinion, substantially improved the PRRA... Please understand this exchange as a tactical discussion... I am certain we agree on the basics." We are thankful for this outcome.

ACTION: Home schoolers need to continue to deliver a steady stream of calls to their Senators and Representatives to build support for the PRRA. Continue to distribute the Issues Alert included in the previous mailing. The implications of this bill are so important -- we need to make it a priority in our federal lobbying efforts....

Dr. Rice's Response

Dole & Grassley "Dear Colleague" Letter

Dear Colleague:

Across America, families are on the defensive. Citizens who believe in the primacy of the family have been alarmed to see the increasing intrusion of outsiders who want to tell them how to raise their children.

Though the Supreme Court has affirmed that parents are primarily responsible for the upbringing of their children, this principle is increasingly disregarded by lower courts.

As cosponsors of S. 984, the "Parental Rights and Responsibilities Act" (the "PRA"), we want to reaffirm the primacy of parents in decisions regarding the education, health care, discipline, and religious training of their children.

Since the parental right to direct the upbringing of their child is a fundamental right, it is appropriately adjudicated under a compelling interest standard. This standard requires the court to determine that the government has a compelling interest before it can intervene in the decisions of a parent concerning his child. Further, if the government is going to intervene in the parent/child relationship, it must use the least restrictive means of achieving the compelling government interest. Clarifying this standard is the purpose of the PRA.

I urge you to join us in affirming the right of parents to lead and direct their children. If you would like to cosponsor this bill, please contact Shannon Royce of Senator Grassley's staff at 4-3744.

Sincerely,

Bob Dole
Senate Majority Leader

Chuck Grassley
United States Senator

Michael Farris' Second Response Letter

Professor Charles Rice
Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

VIA FAX: (210)631-6371

Dear Professor Rice,

I have two apologies.

First, I apologize for taking so long to answer your important letter. I have been on the road and over my head in scheduling conflicts.

Second, and more importantly, I apologize for inadvertently giving the impression that you were supporting the PRRA. I did not say that you were supporting the PRRA. I did not intend to imply that you were supporting the PRRA. But I can understand that my words could have been construed to give some people that impression. I should have been more precise and I apologize.

I think my words were absolutely accurate on their face and certainly in my heart. But again, I could have explained the situation better and could have made it clear that you have not endorsed the PRRA.

Frankly, my haste in speech was based on the fact that I did not want to dwell on the difference between our positions. It does neither of us any good to be seen as "opponents" because we are not opponents in your own words we are "co-conspirators" for a number of important causes. I wanted to give a quick answer to show that your first letter was not the whole story and to move on. My motive was to avoid spinning this controversy any further.

There are people who have dedicated much time, money, and ink to creating and stirring up this controversy. These people believe that any time one enumerates a right it results in a loss of rights.

Fortunately, the authors of the Magna Charta and the Bill of Rights have a different view. The enumeration of rights is one of the great historical protections against governmental abuse.

Even though both of us believe that the right to life is an absolute God-given right, neither of us would hesitate to place in federal law a protection for the right to life of the unborn. We would not simply say, "the right to life is a God-given right, any law to protect the right to life is made in derogation of that right."

This is the essence of the argument that is being made by these other critics. And they are using our back-and-forth correspondence as evidence to buttress their historically indefensible position. History proves that the enumeration of rights is essential for liberty. Without written enumerated rights, the government will steal our God-given freedoms at will.

History and personal experience also prove, the necessity of apologizing when I make a mistake. Again, I make a mistake in my brief description by not more carefully stating your full position. I ask your forgiveness and you can be assured that I will be more complete in any future answers.

Let's keep talking about the important subject of parental rights. We really are on the same team.

Thanks for your friendship.

Sincerely,

Michael P. Farris