In most circumstances, when constitutionally protected autonomy rights are at issue, the law balances the individual’s constitutional right of control against the countervailing power of the state. How these two competing claims to control are resolved can be highly contested, but the task of balancing one against the other is a coherent inquiry well captured in constitutional doctrine. Early cases addressing parental rights took this form, balancing the rights of parents to control the upbringing of their children against the state’s power to shape that upbringing. But when the Court recognized children as independent rights holders under the Constitution, it rendered this well-understood two-way balancing insufficient. Divvying up constitutionally recognized power among parent, child, and state presents a three-body problem as elusive as its namesake in physics.
Until now, this three-body problem has been obscured in the cases, but the recent political movement aimed at shaping children’s experience in schools, frequently under the banner of parental rights, puts the three-body problem squarely at issue. Parents are increasingly seeking to intervene in their children’s schooling in ways that directly threaten their children’s exercise of their rights, particularly speech rights, and schools are increasingly turning to parents for permission before they allow children to exercise these rights.
This Article takes up the challenge of accounting for the three potentially competing claims to constitutional power—those of parent, child, and state—and makes four contributions. First, it describes the three-body problem, distinguishing it from the myriad of legal relationships in which conflicting interests are managed in law. Second, it considers the Court’s attempt, to date, to address the three-body problem created by the Constitution’s awarding of power to parent, child, and state. Third, it proposes a solution to the three-body problem in the context of student expression in school, where children’s constitutional rights against the state have been well developed and where parents’ power to compromise those rights has begun to be tested. And fourth, it draws some lessons from this analysis to guide the Court’s resolution of the three-body problem in other contemporary contexts where both parental and children’s rights of control are asserted.
A crucial distinction between a three-body problem in physics and in law is the cost of getting it wrong. Unlike in physics, where a failure to adequately account for the gravitational pull of three bodies produces an erroneous prediction that can be improved upon with further work, the Court’s failure to account adequately for the constitutional interests in control among parent, child, and state will create a new doctrinal reality that will affect the constitutional powers of all three bodies going forward. It is therefore essential that the Court consider the complexity of the issues pressed by the three-body problem even when the binary nature of most litigation obscures it from view.
