Foster parents

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From the SelectedWorks of Margaret Ryznar

January 2010

The Proper Guardians of Foster Children’s Educational Interests

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10/30/2010 11:50:32 AM

The Proper Guardians of Foster Children’s Educational Interests
Margaret Ryznar* ChaiPark** The United States Supreme Court has enumerated a constitutionally protected parental right to control the upbringing of one’s child that includes the right to direct the child’s education. The states, meanwhile, have differed in their interpretation and application of this principle when foster children’s educational interests conflict with their biological parents’ wishes. Specifically,although some states permit the judicial limitation of parental rights over children’s education during foster care placement, others do not. This Article is among the first to consider the benefits and consequences of each approach in the context of parents’ rights and children’s best interests.

In the United States, the relationship between parents and children is viewed asfundamental.1 This is true not only in the literal sense but also in the constitutional sense that protects the relationship from governmental intrusion. In fact, this relationship is so respected that not only is it reluctantly terminated, but even when it is interrupted due to
* Attorney, Washington, D.C. J.D., Notre Dame Law School; M.A., Jagiellonian University; B.A., University of Chicago. Theopinions in this Article are the authors’ alone. ** Attorney, Juvenile Rights Practice, The Legal Aid Society. J.D., Notre Dame Law School; M.P.H., Yale University; B.A., Smith College. Special thanks to little Joshua, whose story inspired us to write this Article, and to Cara Chambers for her invaluable assistance with this Article. This Article was written in the authors’ individual capacities andin no way reflects the opinions of The Legal Aid Society. 1. Odeana R. Neal, Myths and Moms: Images of Women and Termination of Parental Rights, 5 KAN. J.L. & PUB. POL’Y 61, 63 (1995). “According to doctrinal constitutional theory then, this relationship should not suffer state interference absent some compelling state interest.” Id. at 67. Meanwhile, education and foster care, the other subjectsof this Article, are not fundamental rights under the federal Constitution, although they do play essential roles in society. Angela M. Elsperger, Florida’s Battle With the Federal Government Over Immigration Policy Holds Children Hostage: They Are Not Our Children!, 13 LAW & INEQ. 141, 162 (1994). Most states, however, protect education in their own constitutions. Lewis Pitts, Essay, Fighting forChildren’s Rights: Lessons from the Civil Rights Movement, 16 U. FLA. J. L. & PUB. POL’Y 337, 341 (2005).



10/30/2010 11:50:32 AM


Loyola University Chicago Law Journal

[Vol. 42

the child’s temporary entry into foster care, parents often retain their rights.2 One right in this parental bundle of rights is the constitutionally protected right to directthe education of one’s child.3 Although seemingly a subtle right, this right potentially has the greatest impact on foster children due to the importance of education in today’s knowledge-based society and economy.4 In fact, the value of an education cannot be overstated, particularly given that education has long been viewed as a key to success, especially for those from disadvantaged backgrounds.5In any case, education in the United States is compulsory for children,6 and few parents would veto their children’s education during foster care. A significant problem arises, however, when a parent’s educational decision for a child conflicts with the child’s best interests. Special education is particularly relevant to this discussion because more than half of all foster children receive...
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