Congress, Lawyering, Torts

“Please Tell Me What I’m Missing Here”: Eric Swalwell’s Curious Case Against Parental Rights

Parental rights are becoming one of the defining issues for 2024. Building from Glenn Youngkin’s 2021 gubernatorial victory in Virginia, school boards races and educational initiatives have become some of the most fiercely contested areas on local and state ballots. Rep. Eric Swalwell (D., Cal.) weighed in this week into the area with a curious attack on parents demanding more say in the education of their children. The California Democrat insisted that it is akin to “Putting patients in charge of their own surgeries? Clients in charge of their own trials?” These were curious analogies to draw since patients and clients are in charge of the key decisions in their surgeries and trials. What Rep. Swalwell is missing is called informed consent.

Swalwell is a lawyer with a degree from the University of Maryland Law School.

He took to Twitter to lash out against parents who dare challenge aspects of the education of their children. The tweet came in response to South Carolina GOP Sen. Tim Scott saying that Republicans intend to put “parents back in charge of their kids’ education.” Swalwell declared such a notion to be ridiculous:

“Please tell me what I’m missing here. What are we doing next? Putting patients in charge of their own surgeries? Clients in charge of their own trials? When did we stop trusting experts. … This is so stupid.”

As a threshold matter, it is important to note that parents have always had a say in the education of their children. School boards are invested with the authority to dictate changes in curriculum and teaching policies.

Indeed, in Meyer v. Nebraska (1925), the Court struck down a state law prohibiting instruction in German. In the decision, it stressed that parental roles in the education of their children was an essential part of the protections under the Constitution’s Due Process Clause: the right “to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Putting that historical and constitutional context aside, Rep. Swalwell is equally mistaken in his analogies to the medical and legal professions. In reality, patients and clients do control major decisions over their cases. Since he asked for assistance, let’s deal with each in turn.

Patients and Medical Consent

From the outset, the argument that patients do not make the key decisions on their own medical care is a bit incongruous given Swalwell’s support for abortion rights without any limits. (Swalwell was widely criticized for a campaign commercial showing a women being arrested at a restaurant by police with guns drawn under suspicion of having an abortion). While women clearly consult with doctors, the whole premise of “my body, my choice” is that these decisions are left to women, not the doctors or the state.

Parents are asking for consent in the basic goals, material, and methods used in the education of their children.

American torts have long required consent in torts. What Swalwell seemed to suggest would be battery for doctors to make the key decisions over surgical goals or purposes. Indeed, even when doctors secured consent to operate on one ear, it was still considered battery when they decided in the operation to address the other ear in the best interests of the patient. Mohr v. Williams, 104 N.W. 12 (Minn. 1905).

In Canterbury v. Spence, 464 F.2d 772, 784, the court observed:

“Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”

Thus, doctors in the United States do have to secure the consent of patients in what they intend to do in surgeries or other medical procedures. (There are narrow exceptions such things as “substituted consent” or  emergencies that do not apply here).

Ironically, California has one of the strongest patient-based consent rules. As the California Supreme Court stated in Cobbs v. Grant, 8 Cal. 3d 229 (1972):

“Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.

A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment. But once this information has been disclosed, that aspect of the doctor’s expert function has been performed. The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone.”

While obviously a patient cannot direct an operation itself, the doctor is expected to explain and secure the consent of the patient in what a surgery will attempt and how it will be accomplished. That is precisely what parents are demanding in looking at the subjects and books being taught in school. Moreover, that is precisely the role of school boards, which has historically exercised concurrent authority over the schools with the teachers hired under the school board-approved budgets.

Clients and Legal Consent

Swalwell is also wrong on suggesting that clients are not in charge of their own trials. Not only must attorneys secure the consent of their clients on what will be argued in trial but they can be removed by their clients for failure to adequately represent their interests. It would be malpractice for a lawyer to tell a client, as suggested by Swalwell, that they do not control the major decisions in their own cases.

Ironically, the informed consent rule in the law has been traced to its rise in the medical profession. It was adopted by bars to give clients the right to direct their own legal affairs. MODEL RULES OF PROF’L CONDUCT r. 1.7 cmt. 18; id. r. 1.0(e) (defining “informed consent” as the “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”).

Obviously, lawyers must follow their own ethical and professional judgment in trials, and tactical choices are generally left up to the lawyers. However, the main arguments and objectives of the trial remain for the client to decide. As one court explained in Metrick v. Chatz, 639 N.E.2d 198, 653-54 (Ill. App. Ct. 1994):

“An attorney’s liability for failing to advise a client of the foreseeable risks attendant to a given course of legal action is not predicated upon the impropriety of the recommended course of action; rather, it is predicated upon the client’s exposure to a risk that the client did not knowingly and voluntarily assume. Consequently, to establish the element of proximate cause, it is necessary for the client to both plead and prove that had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.”

Much like the claim of parents, clients demand the right to reject a plan for trial and the arguments or means to be used at trial. This right of consent is ongoing and can be exercised at any point in the litigation.

Informed Consent

Of course, the key to informed consent is that parents are given the information needed to secure their consent. School districts have been resisting such disclosures and pushing back on parental opposition to major curriculum or policy decisions.

I have previously stated my opposition to micromanaging classrooms. However, in public education, citizens vote to elect board members to be accountable for educational priorities and policies. In private education, citizens vote with their tuition dollars as well as through school boards. Most of these controversies involve major educational policies ranging from transgender participation on teams to the lesson plans viewed by many as extreme or political. Those policies go to the issues of educational priorities that have historically been subject to school board authority.

What is most striking about Swalwell’s reference to patients and clients is that, under his educational approach, parents have far more say in a wart removal or a parking ticket challenge than the education of their children. If anything, his analogies support the call for greater parental knowledge and consent.

In other words, “what is missing here” is that Rep. Swalwell’s interpretation could constitute both medical and legal malpractice. It may also constitute political malpractice as both parties now careen toward the 2024 elections.

 

 

147 thoughts on ““Please Tell Me What I’m Missing Here”: Eric Swalwell’s Curious Case Against Parental Rights”

  1. Let’s see swallwell (O/U on number of concussions he’s suffered is 6) leave his kids to the experts in the Detroit/Baltimore City/Philly/etc school districts… until then he and the rest of the morons siding with him can STFU.

    Public schools…experts…lol.

    1. Many of the problems are imposed top down from the Federal government. So, ‘experts’ like Swalwell have made horrible, corporate-driven decisions for the entire country. Get the Federal Dept of Education out of the decision-making! Let the local people figure it out.

  2. The problem with the medical treatment and legal case analogies with respect to public education is that the medical and legal arena deal with one patient or client and a professional person. Public education deals with a group of students (usually between 20 and 30 students) and one professional. Getting informed consent from the parents of all students in a class is an impossible task, an understanding that Prof. Turley hints at, but does not expressly address. The medical and legal analogies are inapt.

    1. Getting “informed consent” is hardly an impossible task. Teachers have been sending home permission slips for decades. I wasn’t allowed to go on a field trip without having submitted a form signed by a parent. And, now, when every public school system can provide information and contact parents (not to mention the TAXPAYERS who fund public schools) directly via the internet, it is ludicrous to suggest obtaining “informed consent” is impossible.

    2. Wrong – Teachers get written consent all the time, e.g., for field trips, extracurricular activities, etc. It’s no more a burden for them than handing out homework assignments. How do I know? I’ve been married to an educator for 51 years. My wife taught 4, 5, and 6th grade, was a reading specialist, a math specialist, Assistant Principal and Principal.

      Parental involvement is the reason we have PTAs. Parents are always the ultimate authority when it comes to their children unless that authority has been removed by a court for child endangerment which requires a hearing before a judge, attorney representation for all parties involved.

      1. I think it depends on your district. Some districts are not exactly forthright or open with their parents (or the taxpayers). Some districts are excellent with welcoming parent involvement and in considering parent and taxpayer concerns and suggestions. Others, well…

  3. Can’t we all just agree that Swallwell is just the dumbest congress critter on Capital Hill. There’s some steep competition for number 2. But he is number 1

    1. iowan2: Sorry, but it’s a tie. About fifty number one spots. e.g. AOC, the head of the house banking committee, Hank Johnson D, GA, who said Guam was gonna tip over. Need I go on?

    2. Actually he has many who believe in his brilliance! For Examples all look up “Eric Swalwell Fang Fang”!

  4. >”Tell me what I’m missing here”?

    I thought lawyers were never supposed to ask questions they don’t know the answer to?

    *>”American torts have long required consent in torts.” .. . you’ve got to be a lawyer to talk like that.

    1. A tort is a tort, of course, of course. And no one can tort to a tort, of course. That is, of course, unless the tort is the famous Bored of Ed.

  5. Every 2020-election-denying Republican running for SoS in a swing state has lost. Good.

    2. You applaud the Uniparty consolidating power? You can look forward to texting in your meaningless vote to the One World Order. And of course you’ll be happy about that too.

      1. I’m happy with the non-Trumpist party keeping the Senate. You may applaud Trumpism, but I won’t join you. Before the election, Trump declared “I think if they [the GOP] win, I should get all of the credit, and if they lose, I should not be blamed at all.” His narcissistic personality disorder was on full display.

        1. It was humor. Watch the video.

          Then you’ll be happy with your “non-Trumpist party” moving full speed ahead collapsing the country into communism. Enjoy the ride.

        2. The Democrat party election model for the Republic we couldn’t keep:

          “I have decided to run for President. This will be my only statement. There will be no news conferences, debates, or rallies.
          See you on inauguration day in 2025 when I will be sworn in.”

      2. Everyone should want a SoS who deals truthfully with the vote. I you don’t, you’re part of the problem.

  6. Thank goodness the Democrats kept the Senate. Here’s hoping that Warnock makes it 51-49.

      1. “Election fraud is not real. If you suggest that it is, you’re a crazy CoNsPiRaCy ThEoRiSt and eLeCtiOn DeNiEr.”

    4. ‘Weird how all toss-up seats and many red seats went totally blue this year in a historically unpopular environment for Democrats.

      Odd.

      It’s almost like Dems used COVID as a pretext to kill the value of the individual voter and replace them with managerial mass ballot systems.’

      @bennyjohnson

      1. Mr. Johnson is either ignorant or dishonest (or both). The Republicans flipped several toss-up seats from blue to red.

    5. ‘Congratulations to the Senate democrats

      for suddenly pulling ahead

      & winning surprise victories

      By the perfect margins

      4 days after polls close

      In the dead of night

      Only in states with mail in voting

      For the 2nd time in a row.

      We’d never seen anything like it

      In 244yrs.’

      (The Redheaded libertarian)

      1. I guess for the sake of sanity it should be pointed out ‘suddenly’ isn’t ‘4 days later’; that 10pm EST isn’t the ‘dead of night’; that it takes awhile to count mail in votes after R legislatures passed legislation making it illegal to begin counting the mail vote until election day; surprise elections aren’t ones that were polling evenly; and that the ‘perfect’ margin is actually just one vote (remember?…, that’s what fat nixon wanted in Georgia).

        1. For clarification:

          “A vote is what a voter casts.
          A ballot is what’s collected through a deliberately opaque and mostly untraceable process and completely unrelated to the actual voter who may or may not have anything to do with it.”

    6. The election was to be held on Tuesday per the Constitution and U.S. Code.

      Election day is one 24-hour period; an election place is one particular polling place for each voter.

      Never did the Founders fret over someone not voting; never did they intend for one man, one vote democracy in their restricted-vote republic, turnout in 1788 was 11.6% by design.

      American elections are so far gone from the Constitution and the thesis of the Founders and Framers, recovery seems unlikely and Karl Marx is smiling broadly in heaven, nay, hell.

      Saturday was not election day.

      Saturday was election corruption day.
      ______________________________

      The Deep Deep State just secured another corrupt election.

      Critical outcomes were delayed until as much as Saturday to accommodate “adjustments” of votes, and the perpetuation and prevalence of the multicultural hyphenate, illegal alien, foreign invader, American welfare state.

      Americans understand that, as the tyranny and oppression of the British monarchy could not be overcome by available means in 1776, the election corruption and dominion of the Deep Deep State “Swamp,” President Eisenhower’s Military/Industrial Complex, cannot be overcome now.

      To wit,

      “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

      – Declaration of Independence, 1776

      1. “If it were to be asked, What is the most sacred duty and the greatest source of security in a Republic? the answer would be, An inviolable respect for the Constitution and Laws.”

        – Alexander Hamilton, August 28, 1794

  7. (Tongue in cheek, I propose a new law for America’s voting public: the right to Informed Consent in getting more balanced information before casting ballots…meaning more control over Media manipulations and machinations.)
    (I’m JOKING, for sure! So Svelaz need not reply.)
    But in truth, I DO ask myself not which party or candidate should have won. Rather, I ask myself:
    Would Democrats have won without the role of media?
    Would Republicans have won without the role of media?
    Aye, there’s the rub.

    1. Real question is: would the right have even gotten close without the media’s seeking to ‘3 act structure’ the election writ large? The corporate controlled media, even MSNBC, doesn’t argue with the sort of tax breaks for the super high end that R’s are all about. For them it’s like an options strangle strategy…, take an ideological position, but if it doesn’t work out, profit from the economic wreckage R policy so regularly creates.

  8. Learned a few things from this post….

    a) Turley attends the Fox News talking points meetings.
    b) ‘Parents rights’ is the issue du jour for the right to escape the wreckage of their ‘red wave’ disaster of ’22.
    c) Fox is going to back Youngkin in ’24.

    All from this one sentence….

    “Parental rights are becoming one of the defining issues for 2024.”

  9. If we followed Swalwell’s point to it’s obvious conclusion then Senator Elect Fetterman should have been dragged into a hospital, had his arrhythmia treated and anticoagulants started so he would never have had his stroke. All for his own good, of course. Now that would have been a sight to see.
    I feel that the key point is transparency and having all the facts laid out so that the client, patient, or parent can make the best informed decision. Lack of transparency leads to bad decisions and ultimately bad policy. But representative Swalwell is not actually a paragon of virtue in transparency.
    Too many representative’s, presidents and senators have resisted total transparency and there is a whole litany of bad decisions as a result of that. The riches obtained by senators and representatives are also a case in point.
    Does not the Washington Post preach that “Democracy Dies in Darkness” and then throws shade on almost everything .
    Every rule in a school district should be posted on the internet. All decision making personnel should be listed with their roles and education. Same with teachers by posting their experience, education and syllabus of each course they teach. We are not dealing with state secrets here.
    This is the right of parents not simply a luxury. There are a helluva a lot of educated parents out there and teachers and administrations should be challenged to make sure their decisions are based on logic, truth and the law. And they need to know their subject.
    I gave a lot of informed consent in ICU’s and offices and you better be comprehensive because if things go wrong you will face years of hell, even if you are proved right. After all, as they say in the law, “It’s not personal”.
    School districts make decisions that affect people lifelong so they should have to face the same scrutiny.
    If a patient questioned your decision or recommendation as a physician, you don’t get huffy and storm out of the room. You sit down and explain the data, the logic, the risks of each pathway and always offer a second opinion if they are still unsure. Losing your temper is a non starter. “This is the way we do things” is also a non starter.

  11. He probably found this idea on page #1006 of the Steele Dossier that he has tucked away in his garter belt.

  12. He was brain dead even before Fang Fang drained him of what was left.

    Note to Professor Turley: Please find a new proofreader. Many disturbing typos/etc. in this one. You should treat these blogs as if they were going to be filed in court. They are a reflection of you and your competence.

    1. “Note to Professor Turley: Please find a new proofreader.”

      Dear WOL:

      Please take a moment to praise JT for his prolific output: *Four* blog commentaries, on important topics — *over the weekend*. (That you are reading for *free*.) And please note that they are *blog* comentaries, not documents “to be filed in court.”

    2. wiseoldlawyer wrote, “Note to Professor Turley: Please find a new proofreader.”

      That’s a reasonably valid statement and you should have ended your comment right then and there.

      wiseoldlawyer wrote, “Many disturbing typos/etc. in this one.”

      WTF is a “disturbing typos”, be specific.

      wiseoldlawyer wrote, “You should treat these blogs as if they were going to be filed in court. They are a reflection of you and your competence.”

      So what if Turley’s typing skills don’t meet your perfection expectations? You “attacking” Turley over typos is signature significant of a nit-picky pompous a$$. No wiseoldlawyer, this is not a reflection of Turley’s competence, it’s a reflection of his typing skills.

      Maybe you should better represent you name sake (wiseoldlawyer) and try to use your brain a bit more so you can be a little wiser than you just presented yourself. Using the phrase “disturbing typos” is moronic.

          1. Turley just needs to take better notes from his meetings with FOXNEWS. Maybe a tape recorder, so he can get every word of the talking points of the day.

          1. You seem not to understand that multiple people use a non-unique icon (the gray and brown one that displays when one doesn’t enter an email address), including some who use names. Independent Bob is another: https://jonathanturley.org/2022/11/09/bidens-inner-pluskat-how-the-loss-of-control-of-either-house-could-impact-the-president/comment-page-2/#comment-2237575
            If you think wiseoldlawyer sometimes does use a unique icon, link to an example.

            1. Anonymous wrote, “You seem not to understand that multiple people use a non-unique icon (the gray and brown one that displays when one doesn’t enter an email address), including some who use names.”

              This is testing the validity of that claim.
              Steve

              1. Anonymous wrote, “You seem not to understand that multiple people use a non-unique icon (the gray and brown one that displays when one doesn’t enter an email address), including some who use names.”

                After I just tested the theory by posting as “TheoryTester” and not including an email address, I concede that what Anonymous posted above is factually correct and that is a fact that I was unaware of so I officially retract the comment that included the “Cranial Power Generation Potential (CPGP)” statement in its entirety.

                Here is the icon that I got when posting as the “TheoryTester”…
                https://stevewitherspoonhome.files.wordpress.com/2022/11/theorytester.jpg

                So any commenter that posts a comment without including an email address get’s that same non-unique icon making it appear that all the comments with that icon are being posted by the same person. This give me more reasons to ignore these anonymous commenters many of which turn out to be internet trolls anyway.

                Thanks for the information Anonymous.

                Back to ignoring you.

    4. Wiseoldlawyer: Methinks you are a conservative. No reason for you to stir up an unnecessary tempest in a teapot over typos. Turley writes a bunch, and no, they are not perfekt.
      Conservatives, for the most part, should be grateful that a person who is as learned as Turley is on our side many more times than not. That is highly unusual, and is why this site is frequented often by some folks like me.

      1. Randy,
        Good comment. I’m a sorta/sometimeswiseoldgranny, and I would come to this blog, even if it were written in pig Latin with a crayon.

  14. “Please tell me what I’m missing here.” (Swalwell)

    The fact that children are not property of the government.

  16. Rep. Eric Swalwell (D., Cal.) saying something like “Please tell me what I’m missing here” is a rhetorical fishing question. From Swalwell’s point of view he’s not missing a thing, he’s projecting that those he opposed are missing something. Swalwell has shown us repeatedly that he’s going to toe the progressive line and attack anyone that opposes it with anything his pea brain can muster, even if it’s absurd on it face, and the ignorant progressive sheeple will swallow it hook, line and sinker. Swalwell is basically a political hack trying to incite the opposition to see if he can catch them in some sort of “gotcha”.

    1. Steve, you are so regularly wrong on issues…, why do you think your judgements on who may or may not have a “pea brain” carry any other weight than to be used as a set point for what constitutes pea brainedness itself?

  17. I said to my family before the election: “If there is not a WIPEOUT of The Left in this mid-term election, you can kiss the country goodbye.” I hate to be right, and hopefully I will not be. The sort of dangerous views espoused and held dear by Swalwell and his gang, unchecked, would certainly lead to further and greater destruction of our country and culture.

  19. This man looks like he has very little life experience. As is frequently the case, once you have raised a child you frequently start seeing the world through a reality that many never realized existed.

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