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Parental Rights Under Arizona Law

OVERVIEW

Parents have the right, as well as the responsibility, to direct their children’s upbringing in a manner consistent with their beliefs and with knowledge of each child’s unique needs, talents, and abilities.

The United States Supreme Court has recognized the importance of parental rights and has repeatedly held that parents possess the “fundamental right” to “direct the upbringing and education of their children.”[1] The Court has repeatedly reaffirmed, “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[2]

The state of Arizona recognizes this fundamental right, and therefore has a robust set of laws that protect parental rights to direct a child’s upbringing, education, and health care.

ANALYSIS

Center for Arizona Policy (CAP) supports the right of parents to direct the upbringing, education, and health care of their children, and has advocated for these rights at the Arizona legislature for almost twenty-five years.

Parents’ Bill of Rights

Recognizing the need to protect parental rights in state law, CAP worked with the Arizona Legislature in 2010 to pass the Parents’ Bill of Rights. This statute sets forth the broad rule of parents’ rights: “The liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right.”[3] The government may not interfere with parental rights unless it demonstrates a compelling state interest “of the highest order, is narrowly tailored and is not otherwise served by a less restrictive means.”[5] This standard allows for children to be protected from abusive situations[4], while still ensuring that parents’ rights are not infringed by government officials who may simply believe they know better than a parent. The Parents’ Bill of Rights recognizes a parent’s right to:

The Parents’ Bill of Rights recognizes a parent’s right to:

• Direct the education of their child.
• Direct the upbringing of their child.
• Direct the moral or religious training of their child.
• Make healthcare decisions for their child.
• Access and review all medical records relating to their child.
• Provide written permission before a biometric scan is performed on their child.
• Provide written permission before any record of their child’s blood or DNA is created, stored, or shared.
• Provide written permission before any videos or voice recordings are made of their child, with certain exceptions (for example, security or surveillance of school property).
• Be notified promptly if there is suspicion that a criminal offense has been committed against their child.
• Access information about a Department of Child Safety investigation involving the parent and their child.

However, parents’ rights are not limited to those enumerated in the statute: “[u]nless those rights have been legally waived or legally terminated, parents have inalienable rights that are more comprehensive than those listed in this section. This chapter does not prescribe all rights of parents. Unless otherwise required by law, the rights of parents of minor children shall not be limited or denied.”[6]

The statute goes on, “[a]ny attempt to encourage or coerce a minor child to withhold information from the child’s parent shall be grounds for discipline of an employee of this state, any political subdivision of this state or any other governmental entity, except for law enforcement personnel.”[7]

Parental Rights and Education

Arizona law also protects the right of parents to direct the education of their children. This includes the right to select the type of education the parent deems best for their child, including district, charter, private, homeschool, online or through the Empowerment Scholarship Account program.[8] In addition to the parental rights listed in the Parents’ Bill of Rights, Arizona law also spells out specific rights parents have if their child attends a district or charter school.

District School

In a district school, parents have the right to:[9]

• Opt their child out of any learning material or activity that the parent finds harmful to their child. This includes material that questions beliefs or practices related to sex, morality, or religion.
• Opt their child out of any activity the parent deems objectionable because of sexual content, violent content, or profane or vulgar language.[10]
• Opt their child in to sex education instruction if provided by the school district. Without written parental permission, children cannot participate in sex education.
• Be notified in advance if content discussing sexuality is taught in other classes, such as history or literature, and the right to opt their child out of that instruction.
• Opt their child in to any video, audio, or electronic materials that are inappropriate for the age of the student. This means the school cannot show a rated-R movie to students under 18 years of age without signed, written permission from the child’s parent.[11]
• Opt their child out of instruction on the acquired immune deficiency syndrome (AIDS).
• Excuse their child from school attendance for religious purposes.
• Be informed about the nature and purpose of extracurricular student clubs and activities.
• Access instructional materials and review courses of study and textbooks.
• Refuse to provide information for the Student Accountability Information System that does not relate to the provision of educational services to the student.[12]

For additional parental rights and responsibilities in district schools, see ARS 15-102(A)(7).

Charter School

In charter schools, parents have the right to:[13]

• Opt their child out of any activity the parent deems objectionable because of sexual content, violent content, or profane or vulgar language. The charter school may require parents to waive this requirement as a condition of enrollment if the school provides a complete list of books and materials to be used during the school year.
• Opt their child in to any video, audio, or electronic materials that are inappropriate for the age of the student. This means the school cannot show a rated-R movie to students under 18 years old without signed, written permission from the child’s parent.
• Opt their child in to sex education instruction if provided by the charter school. Without written parental permission, children cannot participate in sex education.[14]

Parental Rights and Health Care

Parents also have important rights regarding the medical care and treatment of their children under Arizona law. In addition to the health care provisions in the Parents’ Bill of Rights discussed above, Arizona’s parents have specific rights found elsewhere in state law, including:

• Requiring written permission before a mental health screening is performed on a minor in a non-clinical setting (e.g., outside of a doctor’s office or clinic).[15]
• Requiring written permission before any mental health treatment is performed on a minor, unless it is an emergency.[16]
• Requiring written parental consent before a physician or entity performs or seeks to perform a surgical procedure on a minor.[17]
• Requiring parental consent before a pharmacist administers an immunization or vaccine to a minor.[18]
• Requiring written parental consent before a minor donates blood.[19]
• Opting a minor out of immunizations at the beginning of the school year due to parent’s personal beliefs.[20]
• Requiring notarized parental consent before a minor can have an abortion, unless the minor obtains a judicial bypass.[21]
• Requiring parental communication before a do-not-resuscitate order is placed on a minor’s medical chart.[22]

Unfortunately, parents’ rights are undermined by two state laws that allow minors to consent to medical treatment without parental consent. State law allows a minor to seek treatment for a sexually-transmitted disease[23] or for substance abuse[24] without parental consent or involvement. Also, Arizona law does not require parental consent for prescription medications for minors, including contraceptives.

CONCLUSION

Parents have the solemn right and responsibility to raise their children according to their own sincerely held convictions. Government must always recognize this right and make every effort to support parents in the choices they make while raising their children. In Arizona, citizens should be aware of the extensive parental rights in state law and their ability to exercise them freely.

TALKING POINTS

1. Parents possess the fundamental right to direct the upbringing, education, and health care of their children. The U.S. Supreme Court has repeatedly recognized this right, and the CAP-supported Parents’ Bill of Rights acknowledged this right in Arizona law.
2. Parental rights do not end when school begins. Arizona law explicitly protects the rights of parents to direct their children’s education, even within the public school system.

ENDNOTES

[1]Troxel v. Granville, 530 U.S. 57, 65 (2000) (citations omitted).
[2]Id. (citing Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925)).
[3]A.R.S. § 1-601(A).
[4]A.R.S. § 1-601(B).
[5]A.R.S. § 1-602(B).
[6]A.R.S. § 1-602(D).
[7]A.R.S. § 1-602(C).
[8]A.R.S. § 15-802.
[9] A.R.S. § 15-102.
[10]A.R.S. § 15-113(A).
[11]A.R.S. § 15-113(D).
[12]A.R.S. § 15-1042(D).
[13]A.R.S. § 15-113.
[14]Ariz. Admin. Code § R7-2-303(A)(1)(a)(i).
[15]A.R.S. § 36-2272.
[16]Id.
[17]A.R.S. § 36-2271.
[18]A.R.S. § 32-1974(M).
[19]A.R.S. § 44-134.
[20]A.R.S. § 15-873(A)(1).
[21]A.R.S. § 36-2152.
[22]A.R.S. § 36-418. The Governor signed CAP-supported HB 2122 into law April 30, 2019. It becomes effective August 27, 2019.
[23]A.R.S. § 44-132.01.
[24]A.R.S. § 44-133.01.

This publication includes summaries of many complex areas of law and is not specific legal advice to any person. Consult an attorney if you have questions about your specific situation or believe your legal rights have been infringed. This publication is educational in nature and should not be construed as an effort to aid or hinder any legislation.