“What’s Missing . . . and the Real Problem for Parental Rights”

If you care about parental rights, be on the lookout for Georgia’s proposed Parental Rights Constitutional Amendment. It was proposed last year, and thankfully, it failed. By all accounts, it is going to be reintroduced again this year. Be forewarned!

The Trojan Horse

On its face, Georgia’s proposed Parental Rights Constitutional Amendment sounds good. Yet, it is a Trojan Horse! Its “health and safety exception” will gut parental rights because the government can justify anything as “health and safety.” Whether it is mandatory public school for all children, transgender medical treatments, vaccine mandates, or whatever the State may deem “protecting the health and safety of children,” the State will be able to do whatever it wants with your children.

The proposed Parental Rights Constitutional Amendment will also override the Georgia Parents Bill of Rights Law and Georgia’s Religious Freedom Restoration Act. ¹ Why? Because state constitutions override or “preempt” state laws and the “health and safety exception” will override all the rights and benefits that these laws grant.

No, We Can’t Just Drop the “Health and Safety Exception”

Of course, this begs the question, “If we drop the ‘health and safety exception,’ will it be okay?” The answer is “NO.” The proposed Parental Rights Constitutional Amendment recognizes only some of the parental rights Georgians already have today, and leaves out custody, religious upbringing, and the “strict scrutiny” standard for protecting constitutional rights, to name a few of its omissions.

Yet, even if these were added and the door was left open to add more, having parental rights is not the problem. The problem is that people don’t understand how to use the parental rights they already have.

Parents don’t understand that their constitutional rights protect them from the government, that their rights must be asserted, or how to assert them. They don’t know that they can start by submitting a Parental Rights Opt-Out Form to their public school, and the immediate positive changes it will make for them and their communities.

Parental Rights in Georgia – Today

The Georgia Constitution already protects parental rights more comprehensively and more powerfully than the proposed Parental Rights Constitutional Amendment. The Georgia Supreme Court, which is charged with interpreting the Georgia Constitution, already recognizes the inherent rights of parents² to direct the care, custody, control, education, upbringing, and religious upbringing of their minor children, along with the option for more aspects of parental rights to be recognized.³  The Georgia Supreme Court also applies “strict scrutiny” in cases involving parental rights, which is the highest and best standard.⁴

Inherent Rights, Deeply Rooted in History and Tradition

In other words, even though parental rights are not expressly stated in the Georgia Constitution (nor in the U.S. Constitution), they are considered “inherent rights,” “fundamental rights,” rights that are “deeply rooted in our history and tradition” and essential to our “scheme of ordered liberty.”⁵ They are not granted by the government; rather, they are “endowed to us by our Creator” and “unalienable,” which means that they cannot be taken away.⁶  

To accept any other limitations on parental rights, either in number or character, is to give Georgians fewer, not more parental rights than they have today. Why would we possibly settle for less?

What’s Missing in the Parental Rights Constitutional Amendment?

“Custody” is Missing

In 2025, the Georgia Supreme Court reiterated that the Georgia Constitution includes the inherent rights of parents to the custody of their minor children, “but recognized that the right could be overcome by a showing of harm or threat of harm to the child.”⁷ Yet, “custody” is left out of the list of rights entirely in the proposed Parental Rights Constitutional Amendment.

Certainly, custody is complicated with the large number of published court decisions on the topic, but that is no reason to leave it off the list! Excluding “custody” indicates that it is no longer protected as a parental right under the Georgia Constitution. The concern? If custody is left out, good and decent parents will have fewer custody rights, leaving government and government-run schools to usurp parental rights. . . and that is a very dangerous proposition!

What is Missing?

“Religious Upbringing” and “Moral and Religious Training” is Missing

 The proposed Parental Rights Constitutional Amendment does not include religious upbringing of one’s minor children, which is recognized by the Georgia Supreme Court as an inherent right of parents under the Georgia Constitution.⁸

Another is the moral and religious training of one’s minor children, which is recognized in Georgia’s Parents’ Bill of Rights Law.⁹ Given that the Georgia Constitution protects both “religion” and “matters of conscience,” moral training should be included as an aspect of parental rights also.¹⁰

Parental Rights in the Future is Missing

Soon, we may need to consider parental rights in relation to AI, robots, and self-driving cars! This will be a problem because the proposed Parental Rights Constitutional Amendment has a closed list: “upbringing, education, care, and control.”

When courts interpret constitutions and laws with a series of items, they are deemed closed.¹¹ Anything not included in the list is presumed to be purposely excluded, unless it is stated otherwise. For example, if our founding fathers had protected speech with specificity, they would have protected speech that was spoken, handwritten, or printed on a printing press. However, they could not have anticipated speech through texts and emails.

Thankfully, they just named “speech” and left the door open for the courts to interpret constitutional rights as times changed. Yet, the “closed list” in the proposed Parental Rights Amendment does not allow for future aspects of parental rights.

“Strict Scrutiny” Is Missing

“Strict scrutiny” is the highest and strongest standard of protection for constitutional rights. If you are a parental rights advocate, you want “strict scrutiny.”

The Georgia Supreme Court already applies “strict scrutiny” in cases involving parental rights.¹² It is also required by the Georgia Parents’ Bill of Rights and the Georgia Religious Freedom Restoration Act.¹³ Yet, not including “strict scrutiny” in the proposed Parental Rights Constitutional Amendment calls in questions whether it still applies. Given the importance of keeping this high standard of proof, any parental rights amendment worth its salt should include the “strict scrutiny” standard.

What it Means

Technically, “strict scrutiny” means that the government cannot infringe on the fundamental rights of parents, unless the government can prove (before a court of law when challenged) that the government’s action is: (1) reasonable and necessary to achieve a compelling state interest; and (2) that the government’s action is narrowly tailored and cannot be accomplished by less restrictive means.¹⁴  

For example, if parents challenge public school content and instruction based on their parental rights, the court will apply strict scrutiny to the public school’s content and instruction.

For the “compelling interest” component, the court focuses on the purpose of the content and instruction and may ask, “Is it the public school’s job to teach this?” “How important or pervasive is this problem that the public school must solve?” The “narrowly tailored” and “least restrictive means” component focuses on the precision of the content and instruction, how it is delivered, and to whom. “Does it need to be taught to everyone?” “Does the school allow opt-outs?’ “When, where, and how is it taught?”

As a practical matter, strict scrutiny forces public schools to focus on their core purpose of educating students.

“Strict Scrutiny” Allows for Emergencies

If we ever need a “health and safety exception,” we have it with strict scrutiny. Let’s assume an emergency arises and the government wants to pass a law or take action to protect the health and safety of children, but at the same time, threatens parental rights. If the law or action is challenged and can withstand strict scrutiny, then it will become an exception to parental rights. This is how strict scrutiny handles the exceptions, and we should want it that way because parental rights are so important.

The Real Problem:

Most Parents Don’t Know How to Assert Their Parental Rights

 The real problem is that people aren’t using the parental rights they have today! They don’t understand that all constitutional rights, including parental rights, must be asserted, and no one can do it for them! They tend to think that a new law or even a new constitutional amendment will make the government and public schools “do the right thing.” It won’t.

Having more constitutional rights will not make the government do anything because our constitutional rights protect us from the government. More specifically, our constitutional rights protect us from laws, government actions, and what is done and taught in our government-run public schools. No president, no executive order, no governor, no legislator, and no school board member can do it for us.

To expect government officials to protect our constitutional rights against government actions is like asking the fox to guard the henhouse!

Request an Accommodation of Your Parental Rights

So, what does asserting your constitutional rights in public school look like? Usually, the first step is to communicate to the public school or school district, in writing, that some of their content, instruction, or activities, is abridging your constitutional rights, and you are requesting an accommodation of your rights.

So, there is no need for you to take legal action. All you need to do is remind the public school of your concerns, and request the accommodation of your parental rights.

 Parental Rights Opt-Out Forms

The simplest and most non-confrontational way to request an accommodation of your parental rights is by submitting a Parental Rights Opt-Out Form to your public school.

For a free Parental Rights Opt-Out Form, click here.

Opt-outs are actually common because both state and federal law already allow parents to opt-out of the Pledge of Allegiance,¹⁵ sex education,¹⁶ all LGBTQ+ content and instruction,¹⁷ as well as content and instruction that “poses a very real threat of undermining the religious beliefs and practices parents want to instill in their children.”¹⁸

Parents can also opt-out of medical care at Georgia’s School Based Health Centers (which are different than the traditional school clinics), psychiatric and mental health evaluations, surveys and inquiries about the student and the student’s family, data sharing with third-party vendors, and other voluntary matters.

Some Parental Rights Opt-Out Forms reference U.S. Supreme Court decisions, as well as federal and state laws that have already decided the issues that concern most parents. These prior court decisions and laws can be enforced, if necessary. In the unlikely event that you have a unique situation that your legal counsel thinks you should bring before the courts, you can bring a legal action against your public school or school district to have the issue resolved.

For most, a Parental Rights Opt-out Form will suffice for asserting your parental rights.

Parents Can Change Things on a Grand Scale

Moreover, multitudes of parents can opt-out, and when that happens, things change on a grand scale. If enough people opt-out, public schools will be forced to return to the basics – quickly! In fact, things could change so much that our government officials might return to protecting our constitutional rights, and stop proposing constitutional amendments that give us fewer protections!

Conclusion

Amending the Georgia Constitution is serious business and should not be taken lightly, as appears to be the case here. The proposed Parental Rights Constitutional Amendment is fraught with dangerous defects, omissions, and presumably unintended consequences. If it had been adopted, it would have undermined over two centuries of well-developed Georgia Supreme Court precedent and overridden several state laws protecting the inherent rights of parents over their minor children.

In short, the proposed Parental Rights Constitutional Amendment should be abandoned and not reintroduced in the next legislative session. So, be on the alert, share this three-part series with others (even people in other states), and if you are asked about the proposed Parental Rights Constitutional Amendment, here are a few talking points:

1. “Georgia’s proposed Parental Rights Amendment is unnecessary, harmful, and a Trojan Horse. The Georgia Constitution already protects parental rights and has more protections than what is being proposed.”
2. “Constitutions override laws. The ‘health and safety exception’ would gut parental rights and override Georgia’s Parental Rights Law, which has great protections and requires strict scrutiny of laws that infringe on parental rights.”
3. “I prefer the ‘less is more’ approach used in the First Amendment – no carve outs and no health and safety exceptions!”
4. “I want to keep the strict scrutiny standard for parental rights, which is the highest standard for protecting constitutional rights.”
5. “Georgia already has great parental rights and I am asserting them with a Parental Rights Opt-Out Form to protect my child.”

Disclaimer: This article is for educational purposes only. No information contained in this article should be construed as legal advice, does not create an attorney-client relationship, nor is it intended to be a substitute for legal counsel on any subject matter. Readers are encouraged to contact an attorney in their jurisdiction with any questions.

Kelly Himes Brolly is an attorney, author, consultant, and the Managing Member of Double Umbrella Publications, LLC, d/b/a Double Umbrella Consulting. For more information on constitutional rights in layman’s terms, see Part II, Federal and State Constitutional Rights, in Kelly’s book, “Laws, Rules, and Rights: A Guide to Protecting Children in Public Schools,” Double Umbrella Publications, LLC (2023). To order Kelly’s book on Amazon, go here. To hear Kelly’s podcast on ThinQ Media titled “The Informed Parent,” go here. To learn more about parental rights and public schools in all 50 states, go here or to www.doubleumbrellapublications.com.

References:

¹ O.C.G.A. § 20-2-786 and O.C.G.A. 50-15A-1.

² Dias v. Boone, 912 S.E.2d 547, 571-572 (Ga. 2025) (citing Georgia Constitution, Article I, Section I, Paragraph I, and Article I, Section I, Paragraph XXIX).

³ Dias v. Boone, 912 S.E.2d 547, 570 (Ga. 2025) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000) and Patten v. Ardis, 816 S.E.2d 633, 636-637 (Ga. 2018)). See also Paramount Pictures Corp. v. Busbee, 297 S.E.2d 250, 253 n.5 (Ga. 1982) (“In the absence of controlling state precedent, this court has applied analogous First Amendment standards when construing the state constitution.”) (citing Retail Credit Co. v. Russell, 218 S.E.2d 54 (Ga. 1975), and Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974)). See also, Mahmoud v. Taylor, 606 U.S. 522, 543-544 (2025) (holding that parents can opt-out of all LGBTQ+ content in public schools); Troxel v. Granville, 530 U.S. 57 (2000) (stating that the U.S. Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”); Santosky v. Kramer, 455 U.S. 745 (1982) (recognizing “fundamental liberty interest of natural parents in the care, custody, and management of their child”); Wisconsin v. Yoder, 406 U.S. 205, 213-214 (1972) (recognizing “liberty of parents…to direct the upbringing and education of children” and stating “the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children);); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (parents have the right “to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U.S. 390 (1923) (concluding that the state legislature unconstitutionally interfered “the power of parents to control the education of their own”).

⁴ Clark v. Wade, 544 S.E.2d 99, 106-107 (Ga. 2001). Strict scrutiny is also required by Georgia’s Parents’ Bill of Rights at O.C.G.A. § 20-2-786(d), and Georgia’s Religious Freedom Restoration Act at O.C.G.A. § 50-15A-1.

⁵ McDonald v. Chicago, 561 U.S. 742, 764 (2010); Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

 ⁶ The Declaration of Independence, dated July 4, 1776, states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”

⁷ Dias v. Boone, 912 S.E.2d 547, 570-571 (Ga. 2025) (citing Patten v. Ardis, 816 S.E.2d 633, 641-642 (Ga. 2018)).

⁸ Paramount Pictures Corp. v. Busbee, 297 S.E.2d 250, 253 n.5 (Ga. 1982) (“In the absence of controlling state precedent, this court has applied analogous First Amendment standards when construing the state constitution”) (citing Retail Credit Co. v. Russell, 218 S.E.2d 54 (Ga. 1975), and Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974)); Mahmoud v. Taylor, 606 U.S. 522, 543-544 (2025) (holding that parents can opt-out of all LGBTQ+ content in public schools based on parental rights and religious freedom); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (parents have the right “to direct the upbringing and education of children under their control”).

⁹ O.C.G.A.  § 20-2-786 (e)(1)(A).

¹⁰ Constitution of the State of Georgia, Art. I, Section I, Paragraphs III and IV.

¹¹ The legal maxim “expressio unius est exclusio alterius,” is a Latin term which means “the express mention of one thing is the exclusion of others.” It means that when one or more things are explicitly mentioned, others of the same category are excluded. It is used to interpret constitutions, laws, contracts, etc.

¹² Clark v. Wade, 544 S.E.2d 99, 106-107 (Ga. 2001).

¹³ Georgia’s Parents’ Bill of Rights at O.C.G.A. § 20-2-786(d), and Georgia’s Religious Freedom Restoration Act at O.C.G.A. § 50-15A-1.

¹⁴ Clark v. Wade, 544 S.E.2d 99 (Ga. 2001). See also O.C.G.A. § 20-2-786(d), and O.C.G.A. § 50-15A-1.

¹⁵ West Virginia State Board of Educ. v. Barn ette, 319 U.S. 624 (1943); and O.C.G.A. § 20-2-1020(b).

¹⁶ O.C.G.A. § 20-2-143(d) and O.C.G.A. § 20-2-786(f)(3).

¹⁷ Mahmoud v. Taylor, 606 U.S. 522, 563 (2025) (holding that parents can opt-out of all LGBTQ+ content and instruction in public schools and stating that “the Board should be ordered to notify [parents] in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction”). For an article regarding Mahmoud v. Taylor, click here.

¹⁸ Mahmoud v. Taylor, 606 U.S. 522, 550 (2025). As recently as last summer, the US. Supreme Court reiterated that public schools cannot require parents to give up their constitutional rights as a condition of receiving a free public education for their minor children. This is known as the “unconstitutional conditions doctrine” and it applies to public schools and in other contexts as well. Mahmoud v. Taylor, 606 U.S. 522, 555 (2025).