The Ongoing War on Homeschooling- Part One: Prohibitors and Regulators

It has now been a year since schools across America first closed their doors and switched to distance learning in response to the Covid-19 pandemic. Many of the parents who were forced to monitor their children’s schooling at home over the course of that year, are now looking at public education with a fresh set of eyes.

They have seen first hand (perhaps for the first time) how much busy work was routinely given to students versus how little actual education goes on in public schools, as well as the complete lack of order and discipline during online classroom sessions. They have also witnessed how public education as a whole has, just like every other major social issue or institution that has been affected by the Covid-19 pandemic, become hopelessly entangled in partisan politics and the ongoing culture wars.

Thus, while many private and some charter schools either never closed or were able to reopen by the start of this academic year, thanks to a new administration that is beholden to the teacher’s unions (who not only seem to be in complete control of education but Covid policies as well!), only a handful of public schools (solely at the elementary level) are beginning to reopen as local shutdowns haltingly abate. Meanwhile, public middle and high schools are continuing to teach either completely online or with a hybrid model where students will attend class in person only one day a week. Given this reality, more parents than ever are either considering private schools or to just continue to teach their children at home directly or with the help of tutors rather than sending their kids back to a dysfunctional school system where students are demonstrably falling behind in their education.

In fact, even before the Covid-19 outbreak, household alternatives to government schools had been growing and have empirically demonstrated to be capable of producing better-educated and more socially adjusted kids. Those alternatives were poised to expand even further despite fierce and ongoing opposition from the near-monopoly of entrenched public education institutions. Institutions which can now rely on the support of the executive branch, a majority control of federal legislative branches, and many state and virtually all urban governments. All of whom have, as a group or as individuals, advocated for increased state encroachment on personal prerogatives based on critical theories regarding rights and obligations. They have also demonstrated a dedicated and enduring opposition to homeschooling which, as we shall see, they view as a direct challenge to their authority to shape the minds of future citizens as they see fit.

This article is the first in a two-part series that will delve into the means and mindsets of the most prominent voices of those who have sought to strictly regulate or outright ban homeschooling. Part two will examine the gravity of the stakes involved in having the freedom to homeschool, and why the battle to maintain that freedom is well-worth fighting.

Homeschooling is Not in the Child's Best Interest

Originally scheduled for June 2020 but postponed until later this year, Harvard University will host a conference on what to do about homeschooling- as leaving it alone apparently isn’t an option. In a Harvard Magazine article that was to have coincided with the conference’s original date, one of its law school professors, Elizabeth Bartholet, has demanded a presumptive homeschool ban. Referring to homeschooling practitioners as a “regime” she complains that it gives parents the ability to “isolate their children entirely from society” and to “commit egregious child abuse” by allowing them to teach their children that “women should be subservient to men, that [racial minorities] are inferior to whites” and that “nontraditional sexual orientations or gender identities” should be condemned.

Other like-minded law professors have sought the eradication of homeschooling by using the parens patriae doctrine. Professors such as Martha Fineman and George Shepherd at Emory University have written that no alternative to public education should be seen as legitimate and they criticize governments that permit such liberty. To them “homeschooling should be understood to be a failure of the state” to provide “a strong educational foundation” to children, as its absence in society “presents the possibility of harm to both the child and society” and “validates and encourages forces dismissive of the whole idea of universal public education.”

These words and sentiments are important in that at least their authors are being open about where they think the authority over your children lies, as Fineman and Shepherd state that parenting or “caregiving” should not “be considered a directive of ownership.” Furthermore, running beneath their belief that educating children is the sole purview of the state, is an undercurrent of animosity and disdain for those who would reject that authority. For as Fineman and Shepherd later opine, “homeschooling parents tend to ignore the societal benefit of public education” and instead teach “radically separatist and individualistic ideas” such as “American individualism and of our specifically negative-rights-based legal culture, which reflects a preference for liberty over equality.”

However, their chief concern seems to be that when “the state abdicates its responsibilities” and tolerates homeschooling, it “concedes an unregulated educational space in which children can be isolated, shielded from diversity.” Thus to them, it is better that the state be trusted to impose its own “lessons in civic virtue” in a public school setting such as the ones found in far too many public schools today where they condemn patriotism, and instead promote tendentious selections of pseudo-historical narratives with collectivist bromides aimed at personal entitlement and impotent irresponsibility.

Interestingly enough, Fineman and Shepherd are not unaware of the chaos that currently goes on in public school classrooms across the country, the lackluster academic performance and the acrimony their ideas engender in some parents. Nevertheless they dismiss the critics out of hand by insisting that “existing failure in public schools is not a sufficient argument for abandoning them…. Who is to judge?” To them not only must the state be trusted with your child’s education but the principle of independent or alternative formats must be impugned and insist on holding all pupils hostage to educational functionaries for the state’s own purposes. The Emory professors conclude “The only way to ensure that all children have access to the best education possible is to prohibit homeschooling.” Again, we can be grateful for honesty.

Parents Don’t Even Have the Right to Homeschool

Perhaps the most authoritarian of all the conference attendees is William & Mary law professor, James Dwyer, who outright denies parental rights and insists that the state must be the final arbiter of what children are taught. Citing Doe v.Bolton (1973), he complains that the Supreme Court’s deference to “freedom of choice” is applied to the education and upbringing of children, and proclaims, “No one should possess a right to control the life of another person no matter what reasons, religious or otherwise” and thus concludes that “parental child-rearing rights are illegitimate.” [emphasis original] Instead, Dwyer is in favor of using “social attitudes” to abolish parental child-rearing rights and to encourage a “legal understanding of parenthood as [only] a privilege.”

By examining the Hobby Lobby case, Dwyer pushes this idea of parenthood as “privilege” to rather absurd lengths by declaring that the “widespread belief that parents are legally free to do whatever they want to children” is “absolutely false. People become legal parents as to a child in the first instance because the state makes them such.” [emphasis added] A common sense glance at human history demolishes Dwyer’s claim, as hunter-gatherer clans preexisted the earliest organized societies by at least sixty millennia.

Nevertheless, Dwyer perceptively recognizes that the contest between the rights and wills of the state versus the family is a metaphysical one, as he admits that “the disparity between what certain parents want in terms of schooling for children in their custody and what the state wants has nothing to do with knowledge; it arises from a conflict of values and of aims for the children’s lives.” Here again is another academic elite deriding what he imagines are arrogant parents for wanting to educate “all children” in an arrangement of their own choosing. Aside from projecting his own tyrannical intentions onto the objects of his animus, Dwyer’s view upends any concept of our heritage for limited government.

Yes, Parents Have Rights, but the State’s Needs Come First

In a similar vein, Georgetown law professor Jeffrey Schulman actually views parents as trustees of the state. He starts out by conceding that, “ideally, the interests of the state and parent would be identical—that is, both would want to cultivate the child’s capacity to make free choices”, however he is concerned that “both parent and state can behave despotically toward young people, demanding… uncritical obedience toward authority.” Thus, he demands that “the state must work to protect the moral and intellectual autonomy of all children” and should the state’s actions conflict with parental prerogatives, he asserts that any acknowledged parental rights have “always been contingent on the welfare of the child and the needs of the state.” [emphasis added] His assertion disregards the fact that the state actually has no vested interest in the welfare of children because by its nature it has no love, and its needs are devoid of any child’s well being. To say nothing of that fact that the state has manifestly demonstrated an inability or unwillingness to accomplish such noble objectives many times in the past.

Finally, after outlining the progression of nineteenth and twentieth century family court decisions concerning government authority waxing and waning over the years, Schulman circles back to the same concerns that all the other professors at the conference have been lamenting about. He states that “the courts should uphold the prohibition of homeschooling arrangements that are too socially reclusive.” After all, to Schulman, an education is “more than merely the academic equivalent of the public schools” and that “social isolation” can be an “intellectual incapacitation.” Hence, he concludes that the state has “a compelling interest in creating a curriculum that truly trains children through wide exposure to a robust exchange of ideas.”

Homeschooling Can be Allowed but with Conditions

Perhaps recognizing that a total homeschool ban is at present politically untenable, less strident voices in academia have offered more measured responses. Stanford political professor Rob Reich favors a more circumspect approach by stating that “home schooling should be a permissible educational option”, but that it “must be strictly regulated” despite the absence of evidence that it is effective. He makes this case by addressing two common pitfalls in the homeschooling debate, the first of which is that people choose to homeschool for many different reason, and the desire to do so should not be seen as “hidden arguments about the virtue of public schools” The second point of contention is that the decision to homeschool should not be done so based on “conflicting anecdotes about home schooling’s glorious successes or horrible tragedies that so often make headlines”, as these “extreme and unrepresentative cases” have the tendency to “distort the public representation of and debate over home schooling.”

To be fair, Reich grants that “parents ought to possess wide-ranging authority to raise their children as they see fit, including wide-ranging discretion over the education of their children. After all he acknowledges that “parents are responsible for the care of their children and they know their children better than anyone else”, and thus the state should take it as a given “that parental authority over their children is legitimate and desirable.” However, once again, leaving homeschooling alone does not seem to be a popular option among these educational elites, as Reich then asks whether there might be room for the government to “have any authority over the education of children” or to “curtail the authority of parents?” He (not surprisingly) answers in the affirmative as public schools can teach citizenship and how to develop autonomy. While these are indeed laudable goals, many home-schooling parents express skepticism of the efficacy of public school administrators in delivering on those matters.

Furthermore, Reich once again returns to same tiresome talking points that critics of homeschooling or representatives of the educational establishment fall back on when they don’t get their way- diversity and inclusion. Reich seems to excoriate the parental prerogative by lamenting that with, “little or no exposure to competing ideas or interaction with people whose convictions differ from their parents, children who are home schooled can be raised in an all-encompassing or total environment that fails to develop their capacity to think for themselves.” His worry appears to be that when parents are in complete control of the children’s socialization, there is the danger that they might instill in them “inerrant beliefs in their own worldview or unquestioning obedience to their own or others’ authority.”

With this concern in mind and a quaint faith in government at the ready, Reich calls on the state to impose “a curriculum that meets minimal academic standards and that introduces students to value pluralism.” Ignoring the question of whether the government even has the ability to enact such an august task, he instead ponders whether or not there would be “many home schools that would not meet these regulations? I suspect not that many, but I don’t really know” One wonders how such ignorance could in any way justify interfering with a parent’s rights to educate their children as they see fit via zealous and ham-fisted officious inter-meddlers? Reich is unclear on that issue.

Allow Homeschooling but Regulate It

Addressing the issue of homeschooling from a slightly different angle is Georgetown professor Robin West who thinks homeschooling is harmful to children and favors regulation over abolition. While acknowledging the benefits of personalized instruction at home, her real “concern” is that “children who are homeschooled with no state regulation are at greater risk for unreported… physical abuse, when they are completely isolated in their homes.” She then imagines a scenario that only an academic could entertain, in that a school setting is better than the home setting since it “provides a welcome respite [from familial love?]” where a child is regarded at school “not because she is her parent’s child, but because she is a student” (emphasis original).

She then goes onto express concern over the political preferences of home-schooled young adults, but nonetheless concedes (or perhaps laments) “Homeschooling is now such an entrenched practice, recriminalization is not a viable option…” before endorsing Reich’s idea of having the cirriculum reviewed.

Allow Homeschooling but Teach What We Tell You

Still another view of homeschooling is one taken by Northwestern law professor Kimberly Yuracko who reinterprets the Constitution to impose homeschool constraints by reflecting on the “steps a liberal society must take to protect children being raised in illiberal communities.” In particular, she writes that a liberal society should in fact “constrain homeschooling, particularly… by religious fundamentalist families explicitly seeking to shield their children from liberal values of sex equality, gender role fluidity and critical rationality.”

Yuracko believes that the state must regulate homeschooling in order to “ensure that parents provide their children with a basic constitutionally mandated education” (which is left undefined) and to “check rampant forms of sexism in homeschooling so as to prevent the severe under-education of girls by homeschooling parents who believe in female subordination.”

She is also not adverse to using the Equal Protection Clause to ramrod mandates onto who she sees as Handmaid’s Tale-style parents to guarantee an “individual’s a constitutional rights to goods and services”, which to her includes the state’s doctrinal preferences with which to mold impressionable young minds. How Yuracko reconciles this approach to regulating homeschooling with fourth amendment protection against unreasonable search or fifth amendment due process or even the implied first amendment prohibition on compelled speech is never fully explained. Although she does make one chilling tell-tale suggestion, “States might permit third party complaints on behalf of underage children whose education is being interfered with by their parents.” Read that as encouraging snitches to keep the state apprised of how one’s homeschooling neighbor is running things.

However, in spite of all her discomfort, Yuracko realizes that the current political landscape precludes any of her envisioned draconian measures, including an outright ban. Instead she opines that, “probably the most efficient and least invasive way for a state to ensure a basic education is through some form of required testing.” But this apparent concession holds a subtle sting, for while she contemptuously remarks that parents are “free to educate, miseducate and indoctrinate their children as they saw fit” she asserts that a state-mandate “basic education” should serve the purpose of limiting “the extent to which parents may teach their children idiosyncratic and illiberal beliefs and values.”

In her mind Liberalism involves at least minimal commitments to rationality and autonomy, so if homeschooling parents are going to teach against the enlightenment a state-approved curriculum provides then “they have to label what they are doing as such.” So, in the end, she demands that no matter what, home-schooling parents must still serve to transmit the state’s official doctrine as defined and promulgated by progressive bureaucrats.

Allowed but the State Needs to be in Complete Control

Finally, there is the viewpoint of George Washington law professor Catherine Ross, who sees constitutional law as offering little protection to home-schoolers, noting that “the state has an independent interest in the well-being of children who will be the next generation of citizens.” To bolster her case, she cites California Supreme Court case Hartzell v. Connell (1984) which (quoting the state’s constitution) says “that a child’s public education is too important to be left to the budgetary circumstances and decisions of individual families.” Thus while Ross accepts the utility of regulation, her real desire is to use it as a stalking horse to advance an agenda beyond mere academic competency, and should include “civic messages” that teach “shared social goals and also allow children to choose their own identities as they mature.”

From this perspective, she insists that a there should at least be a minimum state-mandated curriculum imposed on home schools that test not just basic academic standards but should include “broader curricular goals” such as “the right of gender equality” and “lessons on mutual respect for diverse populations and viewpoints.” Thus once again the recurring notion that homeschooling needs to be controlled not because it is has been found lacking in its ability to educated children, but in its ability to educated children in the way the progressive academic elites, the educational establishment, and government bureaucrats want kids to be taught, i.e. indoctrinated, in ideas and notions that it controls.

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