Papers by Jeffrey Shulman
At common law, and (for most of the nation's history) under state statutory regimes, the auth... more At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation's history — and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear — is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the chil...
Villanova law review, 2008
Despite its grounding in a specific and peculiar set of facts, the strict scrutiny mandate of Wis... more Despite its grounding in a specific and peculiar set of facts, the strict scrutiny mandate of Wisconsin v. Yoder (decided in 1972) has changed the constitutional landscape of custody cases - and it has done so in a way that is unsound both as a matter of law and policy. Following Yoder, most courts require a showing of harm to the child, or a substantial threat of harm to the child, before placing any restrictions on exposure to a parent's religious beliefs and practices. This harm standard leaves children in an untenable position when parents compete for "spiritual custody," for the law can protect them only when the risk of harm is already substantial. Indeed, the bar is set so high that few courts have found circumstances that satisfy the harm standard. In this essay, I argue that a strict scrutiny standard has no place in spiritual custody cases. It is hardly consistent with the basic principle that the custody court's paramount consideration is the best intere...
LSN: Public Opinion & the Judiciary (Topic), 2011
In declining to consider the "epic" posted by the Westboro Baptist Church on its web si... more In declining to consider the "epic" posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps. The Court may have sought to make this an easy case by considering only the contents of the church's picketing placards. For the Court, the placards highlighted such issues of public import as "the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy." On grounds that we might charitably call dubious, the Court chose not to "hear" those parts of the church's speech that most clearly and most viciously attacked the Snyders - speech, that is, on matters of purely private concern. In deciding whether speech is on a matter of public or private concern, the Court is required 'to examine the "content, form, and context" of that speech...
Cardozo law review, 2010
It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in... more It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than satisfy the appropriate constitutional standard. Indeed, such a standard can help create a civil space where both robust advocacy and the freedom to avoid robust advocacy can flourish. This article makes four points about the Fourth Circuit’s decision in Snyder v. Phelps, each of which addresses the need to secure what is purely private from injurious speech. 1. The Fourth Circuit...
This article lays out the constitutional bases for and limits of state regulation of private scho... more This article lays out the constitutional bases for and limits of state regulation of private schools; describes the current regulatory framework; and considers how the debate over private-school oversight takes place within a broader discussion occurring in the realms of political theory and moral philosophy. Under the US Constitution, though state regulation cannot be arbitrary or unduly aggressive, so as to effectively prohibit private schooling, the Supreme Court has repeatedly affirmed that reasonable regulation is beyond question constitutional. Even so, the recent trend of legislative activity at the state level has been to deregulate private schooling in the name of parental rights and religious freedom—a trend, this article argues, that poorly serves the best interests of the child and the welfare of a democratic polity.
Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, t... more Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School during his visitation periods. Patricia Zummo, on the other hand, opposed exposing the children to a second religion. She was concerned that such a mixed spiritual message "would confuse and disorient them." The Zummos brought their custody dispute to the Court of Common Pleas for Montgomery County, Pennsylvania.The facts of the Zummo case are distressingly typical of the spir...
When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourne... more When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned. The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew's funeral service. The church held signs that read, "You are going to hell," "God hates you," "Thank God for dead soldiers," and "Semper fi fags." In the weeks following the funeral, the church posted on its website, godhatesfags.com, an "epic" entitled "The Burden of Marine Lance Cpl. Matthew Snyder." Matthew's burden, as the church saw it, was that he had been "raised for the devil" and "taught to defy God." Matthew's father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action). He was awarded $10.9 million in compensatory and punitive damage...
The Constitution affords great protection to religiously motivated speech. Religious liberty woul... more The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous? These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as much heat as light. On March 8, 2010, the Court granted certiorari in Snyder v. Phelps. 1 It is a tort case brought by a family grieving the untimely death of their son. It is a free speech case, testing the boundaries of the constitutional commitment to the marketplace of ideas. It is a religious liberty case that has made unlikely
While the jurisprudence of the Establishment Clause may not make much sense (common or otherwise)... more While the jurisprudence of the Establishment Clause may not make much sense (common or otherwise) as a substantive legal matter, it does make sense as a series of jurisprudential maneuvers by which the Court has sought to make more room for religion in civic life. In fact, there is a method to the “massive jumble... of doctrines and rules” that forms the law of church-state relations. It is the method of a somewhat disorderly retreat from the Constitution’s foundational principle of disestablishment. The accommodations made by the Court to religious belief and conduct have allowed for discrimination against non-religion, edging the Court ever closer toward a non-preferentialist perspective.
Nebraska law review, 2010
This article argues that parents have no fundamental right to control the education of their chil... more This article argues that parents have no fundamental right to control the education of their children. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation's history - and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear - is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. The purpose of this article is two-fold. First, the article argues that the parent's right to educate his or her children is strictly circumscribed by the parent's duty to ensure that children lear...
Choice Reviews Online, 2015
In this bold and timely work, law professor Jeffrey Shulman argues that the United States Constit... more In this bold and timely work, law professor Jeffrey Shulman argues that the United States Constitution does not protect a fundamental right to parent. Based on a rigorous reconsideration of the historical record, Shulman challenges the notion, held by academics and the general public alike, that parental rights have a long-standing legal pedigree. What is deeply rooted in our legal tradition and social conscience, Shulman demonstrates, is the idea that the state entrusts parents with custody of the child, and it does so only as long as parents meet their fiduciary duty to serve the developmental needs of the child. Shulman's illuminating account of American legal history is of more than academic interest. If once again we treat parenting as a delegated responsibility--as a sacred trust, not a sacred right--we will not all reach the same legal prescriptions, but we might be more willing to consider how time-honored principles of family law can effectively accommodate the evolving interests of parent, child, and state.
ELH, 1983
Page 1. AT THE CROSSROADS OF MYTH: THE HERMENEUTICS OF HERCULES FROM OVID TO SHAKESPEARE BY JEFF ... more Page 1. AT THE CROSSROADS OF MYTH: THE HERMENEUTICS OF HERCULES FROM OVID TO SHAKESPEARE BY JEFF SHULMAN In his model study of the mythological tradition in the English Renaissance, Douglas ...
Theory and Research in Education
Book review: Melissa Moschella, To Whom Do Children Belong? Parental Rights, Civic Education, and Children’s AutonomyMoschellaMelissa, To Whom Do Children Belong? Parental Rights, Civic Education, and Children’s Autonomy, Cambridge University Press, Cambridge, 2016. 212 pp. ISBN 9781107150652, $1... Theory and Research in Education
... ignominious end in Lynch v. Donnelly, where Chief Justice Burger observed that the ... 30 See... more ... ignominious end in Lynch v. Donnelly, where Chief Justice Burger observed that the ... 30 See, eg, County of Allegheny v. American Civil Liberties Union, 492 US 573 (1989); Lynch v. Donnelly, 465 US 669 (1984); McGowan v. Maryland, 366 US 420 (1961). ...
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Papers by Jeffrey Shulman