Student RightS and PaRent RightS in education in auStRalia

Abstract

The United States has an extensive history of encouraging and protecting the rights of parents to make educational decisions for their children. The notion that parents speak for their children has been a longstanding, important value undergirding the operation of American public schools and early courts developed common law principles in support of this concept. Beginning in Meyer v Nebraska, the United States Supreme Court enshrined this common law concept that parents could make educational decisions for their children as a constitutional right under the liberty clause of the Fourteenth Amendment. In the intervening eight decades, the Supreme Court and other federal courts have wrestled with interpreting how this constitutional right should be balanced with the emerging post-Tinker v Des Moines Independent School District constitutional rights of students and the post-Hazelwood School District v Kuhlmeier right of school districts to make reasonable curriculum decisions even if they limit student expression. Complicating this constitutional balancing is how courts should address the rights of students where those rights may conflict with the educational choices of parents. To the extent that courts recognise the choices of students over those of their parents, the nature of the parent-child relationship as developed under common law and enshrined in the liberty clause has been dramatically altered.

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