Text of MS SB 2763 (2023)

MISSISSIPPI LEGISLATURE 2023 Regular Session To: Education By: Senator(s) Hill Senate Bill 2763 AN ACT TO ENACT THE "FAMILIES' RIGHTS AND RESPONSIBILITIES ACT"; TO PROVIDE THAT THE LIBERTY OF A PARENT TO DIRECT THE UPBRINGING, EDUCATION, HEALTH CARE AND MENTAL HEALTH OF THAT PARENT'S CHILD SHALL BE A FUNDAMENTAL RIGHT; TO PROVIDE THAT THE STATE, ANY POLITICAL SUBDIVISION OF THIS STATE OR ANY OTHER GOVERNMENTAL ENTITY SHALL NOT SUBSTANTIALLY BURDEN THE FUNDAMENTAL RIGHT OF A PARENT TO DIRECT THE UPBRINGING, EDUCATION, HEALTH CARE AND MENTAL HEALTH OF THAT PARENT'S CHILD WITHOUT DEMONSTRATING THAT THE BURDEN IS REQUIRED BY A COMPELLING GOVERNMENTAL INTEREST OF THE HIGHEST ORDER AS APPLIED TO THE PARENT AND THE CHILD AND IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING GOVERNMENTAL INTEREST; TO PROVIDE SPECIFIC RIGHTS AND RESPONSIBILITIES OF PARENTS; TO SET STANDARDS FOR THE EDUCATIONAL INVOLVEMENT FOR PARENTS IN SCHOOL DISTRICTS; TO PROVIDE THAT A PERSON, CORPORATION, ASSOCIATION, ORGANIZATION, STATE-SUPPORTED INSTITUTION OR INDIVIDUAL EMPLOYED BY ANY OF THESE ENTITIES SHALL OBTAIN THE CONSENT OF A PARENT OF A CHILD BEFORE TAKING ANY SPECIFIC MEDICAL CARE; TO PROVIDE A CAUSE OF ACTION FOR ANY VIOLATION OF THE ACT; TO PROVIDE THAT PARENTS HAVE INALIENABLE RIGHTS THAT ARE MORE COMPREHENSIVE THAN THOSE LISTED IN THIS ACT; AND FOR RELATED PURPOSES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: SECTION 1. Title. This Act shall be known and may be cited as the "Families' Rights and Responsibilities Act." SECTION 2. Definitions. For purposes of this act, the following terms shall have the meanings ascribed herein: (a) "Child" means an individual under the age of eighteen. (b) "Parent" means a biological parent of a child, an adoptive parent of a child, or an individual who has been granted exclusive right and authority over the welfare of a child under state law. (c) "Substantial burden" means any action that directly or indirectly constrains, inhibits, curtails or denies the right of a parent to direct the upbringing, education, health care and mental health of that parent's child or compels any action contrary to the right of a parent to direct the upbringing, education, health care and mental health of that parent's child. This term shall include but is not limited to, withholding benefits, assessing criminal, civil or administrative penalties or damages, or exclusion from governmental programs. SECTION 3. Parental rights are fundamental. (1) The liberty of a parent to direct the upbringing, education, health care and mental health of that parent's child shall be a fundamental right. (2) This state, any political subdivision of this state or any other governmental entity shall not substantially burden the fundamental right of a parent to direct the upbringing, education, health care and mental health of that parent's child without demonstrating that the burden is required by a compelling governmental interest of the highest order as applied to the parent and the child and is the least restrictive means of furthering that compelling governmental interest. SECTION 4. Rights and responsibilities. (1) All parental rights shall be exclusively reserved to a parent of a child without obstruction by or interference from this state, any political subdivision of this state, any other governmental entity or any other institution, including without limitation, the following rights and responsibilities: (a) To direct the education of the child, including the right to choose public, private, religious or home schools, and the right to make reasonable choices within public schools for the education of the child; (b) To access and review all school records relating to the child; (c) To direct the upbringing of the child; (d) To direct the moral or religious training of the child; (e) To make and consent in writing to all physical and mental healthcare decisions for the child; (f) To access and review all medical records of the child; (g) To consent in writing before a biometric scan of the child is made, shared or stored; (h) To consent in writing before any record of the child's blood or deoxyribonucleic acid (DNA) is created, stored or shared, unless authorized pursuant to a court order; (i) To consent in writing before any governmental entity makes a video or voice recording of the child, unless the video or voice recording is made during or as a part of: (i) A court proceeding; (ii) A law enforcement investigation; (iii) A forensic interview in a criminal or Mississippi Department of Child Protection Services investigation; (iv) The security or surveillance of buildings or grounds; or (v) A photo identification card; (j) To be notified promptly if an employee of this state, any political subdivision of this state, any other governmental entity or any other institution suspects that abuse, neglect or any criminal offense has been committed against the child by someone other than a parent, unless the incident has first been reported to law enforcement and notification of the parent would impede a law enforcement or Mississippi Department of Child Protection Services investigation. (2) This section does not authorize or allow a parent to abuse or neglect a child as defined in Section 97-5-39. This section does not apply to a parental action or decision that would end life. This section does not prohibit a court from issuing an order that is otherwise permitted by law. (3) No employee of this state, any political subdivision of this state or any other governmental entity, except for law enforcement personnel, shall encourage or coerce a child to withhold information from the child's parent. Nor shall any such employee withhold from a child's parent information that is relevant to the physical, emotional or mental health of the child. Such conduct shall be grounds for discipline of the employee, in addition to any other remedies provided to a parent under this Act. SECTION 5. Educational Involvement. (1) The board of education of a school district, in consultation with parents, teachers and administrators, shall develop and adopt a policy to promote the involvement of parents of children enrolled in the schools within the school district, including: (a) A plan for parent participation in the schools, which is designed to improve parent and teacher cooperation in such areas as homework, attendance and discipline; (b) Procedures by which a parent may learn about the course of study for that parent's child and review all educational and learning materials, including the source of any supplemental educational materials; (c) Procedures by which a parent who objects to any specific instruction or presentation on the basis that it is harmful may withdraw that parent's child from the instruction or presentation. Objection to a specific instruction or presentation on the basis that it is harmful includes, but it is not limited to, objection to a material or activity because it questions beliefs or practices regarding sex, morality or religion; (d) Procedures to notify a parent in advance and obtain the parent's written consent before the parent's child attends any instruction or presentation containing sexual educational content or any instruction or presentation that has the goal or purpose of studying, exploring or informing students about gender roles or stereotypes, gender identity, gender expression, sexual orientation or romantic or sexual relationships; (e) Procedures by which a parent may learn about the nature and purpose of clubs and extracurricular activities that have been approved by the school and may withdraw that parent's child from any club or extracurricular to which the parent objects; and (f) Procedures by which a parent may learn about parental rights and responsibilities under the laws of this state. (2) The board of education of a school district may adopt a policy to provide to parents the information required by this section in an electronic form. (3) A parent shall submit a written or electronic request for information pursuant to this section to either the school principal or the superintendent of the school district. Within ten (10) days of receiving the request for information, the school principal or the superintendent shall either deliver the requested information to the parent or submit to the parent a written explanation of the reasons for the denial of the requested information. If the request for information is denied or the parent does not receive the requested information within fifteen (15) days after submitting the request for information, the parent may submit a written request for the information to the board of education of the school district, which shall formally consider the request at the next scheduled public meeting of the board if the request can be properly noticed on the agenda. If the request cannot be properly noticed on the agenda, the board of education shall formally consider the request at the next subsequent public meeting of the board. SECTION 6. Medical Care. (1) Except as otherwise provided by law or court order, a person, corporation, association, organization, state-supported institution or individual employed by any of these entities shall obtain the consent of a parent of a child before taking any of the following actions: (a) Procuring, soliciting to perform, arranging for the performance of, providing a referral for or performing surgical procedures upon a child; (b) Procuring, soliciting to perform, arranging for the performance of, providing a referral for or performing a physical examination upon a child; (c) Prescribing or dispensing any medication or prescription drugs to a child; or (d) Procuring, soliciting to perform, arranging for the performance of, providing a referral for or performing a mental health evaluation in a clinical or nonclinical setting or mental health treatment on a child. (2) If the parental consent pursuant to Subsection (1) of this section is given through telemedicine, the person or entity obtaining parental consent must verify the identity of the parent at the site where the consent is given. (3) The provisions of this section shall not apply when it has been determined by a physician that: (a) An emergency exists; and (b) Either of the following conditions is true: (i) It is necessary to perform an activity listed in Subsection (1) of this section in order to prevent death or imminent, irreparable physical injury to the child, or (ii) A parent of the child cannot be located or contacted after a reasonably diligent effort. (4) The provisions of this section shall not apply to a performance of abortions upon minors, which shall be governed by Sections 41-41-51 through 41-41-63. SECTION 7. Cause of Action. (1) A parent may bring suit for any violation of this Act and may raise the Act as a defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the State government, any private person or any other party. (2) Notwithstanding any other provision of law, an action under this Act may be commenced, and relief may be granted, without regard to whether the person commencing the action has sought or exhausted available administrative remedies. (3) Any person who successfully asserts a claim or defense under this Act may recover declaratory relief, injunctive relief, compensatory damages, reasonable attorneys' fees and costs and any other appropriate relief. (4) Sovereign, governmental and qualified immunities to suit and from liability are waived and abolished to the extent of liability created by this Act. SECTION 8. Rules of Construction. (1) Unless those rights have been legally waived or legally terminated, parents have inalienable rights that are more comprehensive than those listed in this section. The protections of the fundamental right of parents to direct the upbringing, education, health care and mental health of their child afforded by this Act are in addition to the protections provided under Federal law, State law, and the State and Federal constitutions. (2) This Act shall be construed in favor of a broad protection of the fundamental right of parents to direct the upbringing, education, health care and mental health of their child. (3) Nothing in this Act shall be construed to authorize any government to burden the fundamental right of parents to direct the upbringing, education, health care and mental health of their child. (4) If a child has no affirmative right of access to a particular medical treatment, then nothing in this Act shall be construed to grant that child's parent an affirmative right of access to that treatment on that child's behalf. SECTION 9. This act shall take effect and be in force from and after July 1, 2023.