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Dr. Charles Rice's Opinion of the PRRA

Introduction After the publication of Cynthia Weatherly's Dec. 95 article critical of the PRRA ("Is Freedom Burning?"), Cynthia and Anita Hoge were challenged by Mr. Michael Farris of Home School Legal Defense Association (HSLDA) regarding their alternative viewpoint on the PRRA. In response, Anita's research associate, Gen Yvette Sutton contacted Dr. Charles Rice, eminent constitutional legal scholar from Notre Dame Law School. Dr. Rice issued a review of the PRRA which confirmed their worst fears. The PRRA was fatally flawed! This first letter was widely distributed across the country. Perhaps due to this letter, Mr. Farris revised the PRRA significantly. He also corresponded directly with Dr. Rice on these matters. Dr. Rice then issued a second letter which stated that although these changes were on the right track the issue of "state's compelling interest" was still troublesome. Dr. Rice proposed some positive solutions. When writing about this correspondence to home school leaders Mr. Farris omitted the middle paragraph of Dr. Rice's letter which had the suggested changes. In response to this omission and to correct some public misperceptions about his view of the PRRA, Dr. Rice then issued a third letter.

Dr. Rice's First Letter

Dear Mrs. Sutton:

You have asked my opinion of H.R. 1946, the Parental Rights and Responsibilities Act. I have read the bill; Michael Farris' analysis, "Federalism and the Parental Rights and Responsibilities Act," published in the Special Report of the National Center for Home Education; and Samuel Blumenfeld's analysis in his Education Letter of April, 1995.

In my opinion this is an imprudent bill for several reasons, including the following:

1. The bill would enact, in effect, the standard of review embodied in the Religious Freedom Restoration Act. However, RFRA has not yet been ruled upon by the Supreme Court. A serious question exists as to whether RFRA is consistent with the principle, established in U.S. v. Klein 80 U.S. 128 (1872), that while Congress may remove jurisdiction over a class of cases from the District Courts and Courts of Appeal and from the appellate jurisdiction of the Supreme Court, it may not tell those courts how to decide a case. With respect to state courts and state law, RFRA presents the issue of whether Congress has power, under Section 5 of the Fourteenth Amendment to enact an effective reversal of a Supreme Court decision. I believe Congress does have that power because RFRA enhances, rather than restricts, the protection afforded to religious freedom. The issue, however, is not free from doubt. In summary, I believe it is premature to enact the RFRA criterion in another law until the constitutionality of that criterion is determined.

2. Even if the RFRA criterion were upheld, I do not regard it as a sufficient protection for parental rights. The family is the primary society. it does not exist by sufferance of the state. The PRRA (Sec. 3(4)(c)) already excludes from parental rights the activity "that constitutes abuse or neglect of a child, as the terms have traditionally been defined." In my view that concept virtually exhausts the rightful authority of the state to interfere with parental rights. To enact a universal standard, by federal law, affirming a general right of the state to interfere with parental rights pursuant to the RFRA criterion, invites an indeterminate expansion of state control over parental rights.

3. The principle is well established in the Supreme Court that state constitutions and laws may rightly afford to personal rights stronger protections than are afforded to them by the United States Constitution. The PRRA would prevent a state from affording to parental rights any protections stronger than those contained in the PRRA. This is so because the PRRA establishes its own uniform, nationally applicable criterian, including especially the RFRA criterion, as determinative of allowable state interference with parental rights.

4. The PRRA, in Sec. 2(b)(3), states as one of its purposes, "to acknowledge... that parents have the responsibility to see that their children are educated for the purposes of literacy and self-sufficiency specified by the Supreme Court in Wisconsin v. Yoder." This invocation of Yoder raises the prospect, in view of the strict holding of Yoder, that the PRRA could condition the right of parents to control the education of their children upon the conformity of the parents' exercise of that right to the educational standards of the state with respect at least to "literacy and self-sufficiency." The enactment of the PRRA, as federal law, could, in my opinion, raise an indefinite threat to the integrity of private schools and home schools.

5. Sec. 4 of the PRRA forbids any government to "interfere with or usurp the right of a parent to direct the upbringing of the child of the parent." Sec. 5 allows an exception to this if the government demonstrates "by appropriate evidence, that the interference or usurpation is essential to accomplish a compelling governmental interest and is narrowly drawn or applied in a manner that is the least restrictive means of accomplishing the compelling interest." Section 3(1) defines "appropriate evidence" as:

(A) for a case in which a government seeks a temporary or preliminary action or order, except cases which terminate parental custody of visitation, evidence that demonstrates probable cause; and

(B) for a case in which the government seeks a final action or order, or in which it seeks to terminate parental custody or visitation, clear and convincing evidence.

It is imprudent, in my opinion, to enact such a standard as federal law, especially in the specification, as a uniform national criterion, of the relatively low standard of "probable cause" even for the limited cases specified in Sec. 3(1)(A), quoted above. It must be remembered that the PRRA is defining here a power of government to "interfere with or usurp the right of a parent to direct the upbringing of the child of the parent." (Sec. 4) In addition, these provisions of Sections 3, 4 and 5 would override, as mentioned in my point 3 above, any effort by a state to afford greater protection to parental rights.

6. Other provisions of the PRRA are unclear or problematic. Let me just mention one, the provision of Section 7(2) which provides that the PRRA shall not apply to the appointment of parental rights in custody disputes or "any other dispute between parents." Parents can be on opposite sides in various kinds of cases involving parental rights. I do not understand the wisdom or effect of this vague provision.

To the extent that Congress is concerned about abuses by the United States courts with respect to parental rights, it can remove the jurisdiction of the lower federal courts, and the appellate jurisdiction of the Supreme Court, over such cases, pursuant to Article III, Sec. 2, of the Constitution. This would leave the matter in the hands of the state legislatures, state courts and state constitutions, where it belongs. To the extent that Congress is concerned about abuses on the state level, it should consider that issue after the constitutionality of RFRA is adjudicated. And it should address that issue only by an affirmation, pursuant to Section 5 of the Fourteenth Amendment, that parental rights are limited only by the sort of criterion specified in Section 3(4)(c) of the PRRA and not by indeterminate, even "compelling" state interests. It would be preferable, however, for Congress to leave the issue for resolution on the state level, which would be a more authentic application of federalism.

In my opinion the PRRA is an imprudent and dangerous bill.

I hope these comments will be helpful.

With appreciation and best wishes,
Sincerely,

Charles R. Rice, Professor of Law
Notre Dame University

Michael Farris Responds

Dr. Rice's Second Letter

Dear Mike:

Thank you very much for your letter of February 14. I appreciate your analysis. And your changes have, in my opinion, substantially improved the PRRA.

Let me offer a further suggestion. I believe that the authority of the state over parental rights is limited to situations coming under the traditional definition of "child abuse and child neglect," as those terms are used in Section 7 of your revised PRRA. Would it not make sense to couple that standard with the "compelling state interest criterion" and draft the PRRA to provide that, pursuant to Section 5 of the Fourteenth Amendment, state authority over parental custody is limited to "child abuse and neglect as those terms ahve been defined in state statute" and that "parental custody of children may be terminated or suspended only on clear and convincing evidence that such termination or suspension is essential to accomplish a compelling government interest and is narrowly drawn or applied in a manner that is the least restrictive means of accomplishing the compelling interest." This borrows from your Section 3.

As a further thought, why not add to the bill a provision withdrawing jurisdiction of parental rights cases from the lower federal courts and from the appellate jurisdiction of the Supreme Court?

I hope this will be helpful. Please understand that I regard this exchange as a tactical discussion among co-conspirators. I am certain we agree on the basics.

With best regards,
Sincerely,

Charles E. Rice, Professor at Law
Notre Dame University

cc: Mrs. Gen Yvette Sutton

Dr. Rice's Third Letter

Dear Mike:

I have listened to the tape of your appearance on Craig Roberts' Lifeline show on KFAX, Fremont, CA, on March 15th. You stated there that I had withdrawn my objection to the Parental Rights Restoration Act and now support it. In my letter to you of February 20th I stated that the changes you made after (and whether or not because of) my letter of February 5th to Mrs. Sutton had "substantially improved the PRRA." As I stated in the February 20th letter, "I am certain we agree on the basics." However, neither in the February 20th letter nor in any other way, have I withdrawn my objection to the PRRA. It is absolutely untrue that I have "withdrawn that [February 5th] letter." Despite the improvements over the first draft, the latest version of the PRRA, dated February 14th, 1996, is still, in my opinion, imprudent and dangerous.

You stated, with reference to the February 5th letter, in which I originally stated my objections to the PRRA, "He's withdrawn that letter," and "He's changed his opinion." And, "He's now working with us." Those statements are misleading. I expect that you will notify Mr. Roberts that your statements were not true. As an aside, I have had the tape of your Lifeline interview for a week but only got to hear it on the way home last Friday. When I heard that segment, I almost drove the car off the road. To say the least, your statements were a surprise and should be corrected.

In the February 22nd issue of your legislative update you stated that "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." Your quotes omitted any mention of the paragraph in the February 20th letter which suggested further improvements that would be desirable in the PRRA. I expect that you will note in your next legislative update that I still regard the PRRA, despite the improvements in the second draft, as imprudent and dangerous.

Incidentally, in your Lifeline interview, some of your remarks struck me as reflecting unfairly on unnamed non-lawyer and "conservative Christian" critics of the PRRA. I have found people like Gen Yvette Sutton and Cindi Weatherly, among others, to be perceptive and highly competent in their analyses of the issues involved in the PRRA. They may not have graduate degrees in law or anything else, but their work in the trenches in defense of the family deserves your commendation rather than acerbic and blanket criticism.

Please understand that I am not trying to give you a hard time. We are on the same side. At your convenience, I would be glad to discuss the PRRA with you. But for the moment it is important to correct these misleading statements.

With best regards,
Sincerely,

Charles E. Rice, Professor of Law
Notre Dame University

cc: Mrs. Gen Yvette Sutton
Mrs. Berit Kjos
Mrs. Cynthia Weatherly

Michael Farris Responds