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.
In the past school boards and teachers stayed in their lane. And all taught the same history lessons.. now the present has changed. The governments want to control and own the rights of the people. They do that through a grants and government contracts. So they now control the school boards and teachers.. they have abused their limited authority to the extreme. And the people have every right to step in and control their children’s future and knowledge so they are empowered and not oppressed.
Truly surprised that he left out “The governed in charge of their own governance?” It would seem to be consistent with his mindset.
This is so typical California. They want to treat gender reassignment as if the kid were getting braces. They have no one arguing with them so they actually think their idiotic “bar talk” ideas are normal.
I guess I missed the part where we aren’t responsible for ourselves, and our children, I guess he thinks the state assigns us children from a warehouse.
Did Fang Fang tell him that?
I think the more pertinent question is which parents get a say. Is it a majority, does the school board need to listen to the most vocal parents or does each child get a customized curriculum. Most school boards are elected by the voters; should voting be restricted to only parents.
Interesting question, however, if voting is restricted to parents will school taxes only be sent to them? Seems like if a local taxing district want property owners to pay for public schools, those paying should have a voice.
My comment that only parents should vote for school boards was “tongue in cheek” and I mentioned it to further demonstrate the ludicrous idea that each parent should determine what their child learns in a public school.
With all the fumbling and minor misdeeds and misspoken comments politicians and civil servants can make one would wonder why they introduce more laws and rules that will likely catch themselves out in the long run. Is there something more sinister going on that even they can’t comprehend?
Beats me why legislators would want to bring in more laws that don’t of themselves solve any real situation that most folks would agree on.
Poor, poor legislators….. opps perhaps it is their lobbyists who are pressuring them to do it…. against their better judgement.
Ah!
By this progressive “logic”, one has to wonder if women should be allowed to be in charge of their abortions.
Since the 4-year coup to overthrow President Trump was successful on January 6,2021, the coup has removed the rights and privileges of its “constituency” blatantly and rapidly during that 22 month period.
Why I’m not optimistic about getting our rights restored…
The Democrat Party was the main contributor to the FACTUAL documentary, “Kill Chain”. It was meant to warn about the election fraud, which would occur if election integrity was not addressed by Congress well before 2020. The Republicans severely erred, because they did nothing for election integrity. So, the Democrats used that abandoned weapon in 2020. The weapon about which Democrats wanted bilateral disarmament in 2018.
The methods and thoroughnes, which was used in the 2020 Presidential election was well planned and was failsafe in the event that an honest Secretary of State, constitutional judge, or Supreme Court would disallow one or more methods.
In December of 2020, the swing state legislations had no interest in verifying their Presidential election results which was mathematically, statistically, and forensically invalid. By January 6. 2021, the electors were presented before Congress, because the Republicans in the swing state legislatures denied or ignored the election fraud, which had been well documented. The fraud and irregularities included hundreds of sworn affidavits for the strongarm methods, which were used at swing state election polls on January 4, 2020 alone!
The Republicans had refused to acknowledge that they were to blame for handing the illegal weapon of election fraud to the Democrats. The GOP did absolutely nothing to prevent a repeat of the fraud of 2020, to occur in 2022. So, it did occur. Another mentally unfit Democrat was “elected” in 2022, just as was tragically done to the Country in 2020.
I couldn’t agree more. Well done.
Thank you.
dee, I have considerable agreement with you. Thanks for posting what you did.
I have to question the status of educators as “experts”. Sure, they’re required to be licensed, they go to graduate school, they’re even encouraged to pursue advanced degrees, but does that schooling and licensing actually make them more effective at educating children? A hundred years ago teaching was just getting started as a profession. Are children these days actually learning better than they did back then?
Look how far engineering has come in a hundred years. Look at how far medicine has progressed. Now look at education: lots of fads have come and gone, with nothing like the transformative progress of other professions.
Homeschooled students actually do quite well on average in comparison to their peers on public school. You certainly don’t see that kind of parity between professional and pro-se lawyering, or hospital care versus home remedies, let alone home surgery.
Remember that once upon a time, astrology was looked upon as a serious science, and its practitioners regarded as “experts”, but in the end it was all nothing but hokum, their years of study in vain.
Read letter to editor in @2006 from a physicists PhD…who wanted to teach in Colorado Springs. “They” don’t want smart ppl teaching….they want indoctrinatirs teaching. It’s not about teaching kids it’s about indoctrinating them….you got a PhD too bad jump out hoop…and even then no job other side. They are all commies in sheep wool. Pretending that being but they are..
“but does that schooling and licensing actually make them more effective at educating children?”
It’s complicated. The master teachers I know are very well educated, very knowledgeable in content. They know kids really well and like them. They know not only how to explain things well, but they also exude enthusiasm about whatever they are teaching. They are adept at building understanding and watching whether those they teach are following them.
Parents can be quite good at this, too. But, it’s hard to beat a skilled, veteran teacher who has had 10 years experience or more and has finely tuned his or her craft and lessons.
A parent would have to contend with approaching each grade level and the content, especially with the eldest child, essentially as a novice teacher each year. That is not necessarily a bad thing, but master teachers do have the benefit of having fine-tuned their lessons and explanations over the years.
I have known families where homeschooling has been fantastic and thorough. I have also known families where homeschooling was not the right means for getting their kids educated at all.
Being a teacher is something in people’s spirits/dispositions quite often. My dad is an excellent teacher, but never took classes to be one. He was simply very observant and could explain things really well.
I don’t deny that teaching is a craft, that can be learned and that improves with practice. The question is whether this corpus of formal academic knowledge that purports to be the foundation to teaching as a profession actually amounts to anything concrete.
“The question is whether this corpus of formal academic knowledge that purports to be the foundation to teaching as a profession actually amounts to anything concrete.”
Which corpus? The education classes or the content classes?
The content classes, yes. Educational Psych, yes. Public speaking, yes. A course taught by a visiting master teacher about the art of teaching, yes. Most of the other ed classes. Probably not, at least not for folks teaching secondary. Maybe an elementary teacher would have a different perspective.
Any evidence? Or did you learn as an educator, you only need to state your opinion?
Why are you being snarky?
I gave my personal assessment. I could try to do a literature dive to see if there is any research on the matter.
“The question is whether this corpus of formal academic knowledge that purports to be the foundation to teaching as a profession actually amounts to anything concrete.”
What are your thoughts on this?
If “content classes” refers to the content to be taught, namely the same content that every high school graduate is already expected to demonstrate mastery of, then I think we can discount “content classes” as contributing to elevating teachers as experts having knowledge beyond the common man.
I mean no offence, but Anonymous has a point. I expect every graduate of the Faculty of Education to believe there’s value in what they spent years of their lives and tens of thousands of dollars on. There was a time that Astrologers commanded similar respect, and had everyone believing they had a deep store of specialized knowledge. Theology was once regarded as the queen of the sciences. Now the former is universally regarded as bunkum and the latter rejected by everyone but fellow believers.
One may always obtain permission to home school. I did that in 2nd grade.
Just give the rearing of children back to their parents! No teacher, politician, or government has the right to claim the illegal authority to dismiss the role, or the rights, of the parents, especially since most of those who do have less than perfect children themselves. Worse, this government control over the upbringing of our children is merely another step in breaking up the nuclear family for their own selfish benefit. Without the nuclear family, society will become enslaved. “Stakeholders” are bad replacements. Say goodbye, WEF! Say goodbye, WEF!
And parents have not only the fundamental right….plus the presumption that what they decide is inn their kids best interest. The un-doers have to overcome this. Conservatism. First their is a fundamental right to parent….backed up by state oblligations. No matter
…they parents are presumed to know best….for their kids. A presumption courts should not take lightly….especially since just last year Supremes asked where does this state power come from? Parent is loci? A contract with parents. So not a contract for tyranny. At all.but consent. Swallowed should read the case. Because at root there is no right of the government to educate kids. Kids get together to be educated…..because parents decided it. Parents can quit deciding it too. But when you work for the ccp….and have your life on the line
You probably don’t think clearly. National security threat….ya think?
Just give the rearing of children back to their parents! No teacher, politician, or government has the right to claim the illegal authority to dismiss the role, or the rights, of the parents, especially since most of those who do have less than perfect children themselves. Worse, this government control over the upbringing of our children is merely another step in breaking up the nuclear family for their own selfish benefit. Without the nuclear family, society will become enslaved. “Stakeholders” are bad replacements. Say goodbye, WEF! Say goodbye, WEF!
Excellent post, Professor!