Senator Eric J. Will
AGO 94050
No. 94050
Nebraska Attorney General Opinions
State of Nebraska office of the Attorney General
June 29, 1994
Date: June 24, 1994
L. Steven Grasz, Sam Grimminger, Deputy Attorneys General.
SUBJECT: LB 1351 - Constitutionality of Sanctioning Parent for Crimes of Child
REQUESTED BY: Senator Eric J. Will
WRITTEN BY: Don Stenberg, Attorney General, Barry Waid, Assistant Attorney General
The act embodied in LB 1351 appears to be an attempt to make parents take more responsibility for the activities of their minor children. The ultimate goal of the legislation would appear to be aimed at discouraging various forms of undesirable conduct on the part of children. The major portion of the proposed legislation seeks to do this by requiring parents of children who have gotten into trouble to avail themselves of public or private child service organizations.
The U.S. Supreme Court has repeatedly held that the state and federal governments cannot deprive citizens of life, liberty, or property without due process of law.
Meyer v. Nebraska, 262 U.S. 390 (1923). The due process clause provides both procedural and substantive due process protections.
Pierce v. Society, 268 U.S. 510 (1925). Both Meyer and Pierce involve state statutes that interfered with the ability of parents to choose how to best educate their children. In Meyer, the U.S. Supreme Court found that the Fifth and Fourteenth amendments' guarantee that citizens would not be deprived of liberty without due process and that liberty includes the right to raise one's children.
Meyer v. Nebraska, supra at 399 (educating children in a foreign language). In Pierce, the Court found that the liberty of parents and guardians to direct the upbringing and education of children under their control' denied the state the power to force children to attend public schools.
On the other hand, the state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.
Parham v. J.R., 442 U.S. 584, 61 L.Ed.2d 101, 99 S.Ct. 2493 (1979). The family is not beyond regulation by the state in the public interest and the rights of parenthood are not beyond limitation.
Prince v. Commonwealth of Massachusetts, 321 U.S. 158 at 166 (1944). The state as parens patriae and within the police powers of the state may restrict the parent's control
Prince v. Commonwealth of Massachusetts, Supra at 166;
Meyer v. Nebraska, supra at 400;
Sturges & Bum Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913) (regulating or prohibiting child labor);
Jacobsen v. Massachusetts, 197 U.S. 11 (1905) (compulsory vaccination of children);
People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903) (exposing the community or children to communicable diseases);
State v. Baily,
157 Ind. 324, 61 N.E. 730 (1901) (requiring school attendance).
While earlier case law infrequently addresses the rights of children, more recent U.S. Supreme Court cases have recognized children's rights.
In Re...
