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April 22, 2002

The Boundaries of Parental Authority:
A Response to Rob Reich of Stanford University

By Thomas W. Washburne, J.D.

Note: This is a summary of our response to Reich's paper. For the complete version, click here.

From August 30 to September 2, 2001, the American Political Science Association held its annual meeting in San Francisco, California. Rob Reich, of the Department of Political Science at Stanford University, presented a paper at this meeting which has captured the attention of many home schooling families, including members of the Home School Legal Defense Association (HSLDA).

Mr. Reich's report was entitled Testing the Boundaries of Parental Authority Over Education: The Case of Homeschooling.1 The paper is a precursor to a book by Reich to be entitled Bridging Liberalism and Multiculturalism in Education, which the University of Chicago Press is anticipated to publish in 2002.2 In his paper, Reich traces the rise of home education, the interests in education held by the government, the parent, and the child, and sets forth his suggestions for balancing these interests. These suggestions lead Reich to conclude that "while the state should not ban homeschooling it must nevertheless regulate its practice with vigilance."3

Reich's proposed regulations include "periodic assessments that would measure their [home schoolers] success in examining and reflecting upon diverse worldviews."4 These regulations are in furtherance of Reich's view that:

"Children are owed as a matter of justice the capacity to choose to lead lives--adopt values and beliefs, pursue an occupation, endorse new traditions--that are different from those of their parents. Because the child cannot him or herself ensure the acquisition of such capacities and the parents may be opposed to such acquisition, the state must ensure it for them. The state must guarantee that children are educated for minimal autonomy."5

The regulation of home education by the government is limited by the fact that parents have a fundamental right to direct the upbringing of their children which is protected by the Constitution. Accordingly, unless the state can show some compelling interest in regulating the parent's involvement in education, the parent's views are heeded.

Thus we see the implications, indeed danger, of Reich's ideas for home education. For Reich, while recognizing that there can be debate on the topic, essentially concedes that the state's interest in education does not lend itself to regulating home education. It is not Reich's contention that parental rights should be overridden because the state's compelling interest in education is not being fulfilled. Reich rather sets forth the argument that children have their own interests in education, which are different from both the parent's and the state's. It is this interest, the child's, which in Reich's view justifies limiting parental rights.

At first glance, Reich's arguments appear persuasive. We cannot deny that children have significant rights which the state protects. But the subject is more complex than what Reich is setting forth. First and foremost, children are not adults and by their very nature are in a class of their own. In examining what rights children enjoy, and what rights they do not, a distinction may be drawn between rights of children for protection and rights of children to a choice.6

Rights of protection involve the right to life, freedom from bodily harm, etc. All people, by being people, are entitled to some liberty in their person. Children are no exception. Rights of choice are legal rights that permit persons to make "affirmative choices of binding consequence. Rights of choice includes such rights as voting, marrying, exercising religious preference, and choosing whether to seek education."7 These rights, however, are not extended to all. These are adult rights and children are not adults. It is in the consideration of rights of choice that Reich's arguments begin to lose their persuasion.

Yes, the law protects children. But law cannot give them something which, being children, they do not have by nature the ability to exercise. The right to autonomy, to view the world as you want to, is only properly enjoyed by adults. While prudent parenting includes efforts to inform and help children understand the world about them, responsible parenting also demands that children be taught right from wrong.

The real root of the problem home education presents to Reich is that home educators have removed themselves from America's educational system and its underlying values. Their children are beyond the reach of the elite and the predominate world view of relativism or secular humanism. As home schooling continues to grow and prosper, this will become increasingly troublesome to the educational establishment. But more than being beyond the intellectual elite, the children of home educators are largely beyond the reach of the state. It will take novel legal theories to break this constitutional protection. And it is here that Reich's theories are most concerning, indeed dangerous.

Note: This is a summary of our response to Reich's paper. For the complete version, click here.

  1. Reich, Rob, Testing the Boundaries of Parental Authority over Education: The Case of Homeschooling, Paper prepared for delivery at the 2001 Annual Meeting of the American Political Science Association, San Francisco, California, August 30-September 2, 2001.
  2. Id. at 2.
  3. Id. at 6.
  4. Id. at 36.
  5. Id. at 33.
  6. John Whitehead, Parents" Rights, p. 127 (Crossway 1985).
  7. Id.