Print

Email story

Comment

Email editor

Can courts stop a parent from teaching kids jihad?

By EUGENE VOLOKH
Published February 10, 2007

Meet Daniel P. and Allison B. and their children, Mujahid Daniel and Mujahid David, ages 13 and 11. Not your typical American family, but their situation may affect your right to speak to your children.

During their marriage, according to court documents, Daniel and Allison followed a "quasi-Muslim philosophy." They also "amassed a large quantity of weapons," and Daniel was imprisoned for illegal weapons possession and making threats.

Allison testified that Daniel abused her and that she went along with his actions only because she was afraid of him. The couple divorced in 1997, when Daniel was in prison.

Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record ... domestic violence ... extremist views regarding religion, including ... jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam).

In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion."

It is surely in the children's best interests not to be taught militant jihad. But the trial court didn't apply a jihadists-only rule, or a "convicted felons lose their parent-child speech rights" rule. Rather, it applied the broad and subjective "best interests of the child" standard. Many parents might wonder how their own philosophies might be evaluated by family judges under that standard.

In fact, a wide range of parental speech has been prohibited by family courts, all in the name of the child's "best interests." One parent was enjoined from making racial slurs in a child's presence. Another parent whose ex was a lesbian was ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."

If the rule is really "children's best interests above all," these results may make sense.

But orders mandating or forbidding certain kinds of speech pose serious First Amendment problems. So does allocating civil rights, such as the right to spend time with one's child, based on a person's speech.

Does the First Amendment mean something different when it comes to parent-child speech, especially when the parent is divorced? On the one hand, children are immature and less able to resist their parents' ideological excesses. There may be special reasons to protect children from parental teachings that harm their best interests.

On the other hand, parental self-expression rights are especially important. Many people would trade all their free-speech rights for the right to teach their own children. And government power to constrain how parents teach their own children is dangerous: Restricting the spread of ideas from parent to child can help today's majority, or today's elite, entrench its views for future generations.

I think the First Amendment should impose some constraint here. The Supreme Court has recognized that the equal protection clause bars courts from considering a parent's interracial remarriage in the "best interests" analysis, even when the remarriage might have led to social trouble for the child. State courts have likewise barred judicial consideration of parents' religious teachings, at least unless imminent physical or psychological harm to the child is shown.

The same should be done for parents' ideological teachings. Such "harm" standards are themselves often subjective, but at least they are better than letting judges routinely decide when a parent's ideological teachings are against a child's best interests.

Eugene Volokh is a professor of constitutional law at UCLA.

[Last modified February 9, 2007, 22:42:42]