ABSTRACT

The constitutional framework of education must be revised, beginning with its biggest predicament: the institution of parental rights. Parental rights are the only legal instrument used to explain the source of parental discretion in education. But it does not account for the state’s reluctance to override this discretion, falsely constructs parental choice as a counterbalance to the rights of children, and stifles the possibility to adapt the scope of parental control to changes in the socio-political perception of education. This article argues that parental prerogatives in education must not be framed as rights, but as an exercise of a regulatory authority stemming from the social interest to provide the child with a “good” education. I claim that the reliance on the concept of parental rights distorts the constitutional debates about educational priorities by focusing on levels of scrutiny in judicial review, and explore how the alternative model could shift attention to the crucial questions of what good education is and why parents should be allowed to define it.