In her Arizona Law Review article calling for a presumptive ban of homeschooling, Harvard Law professor Elizabeth Bartholet bemoans the fact that state legislatures across the country have consistently passed laws respecting the liberty of parents to homeschool their children and rolling back burdensome regulation.
She surmises that the legislatures are unlikely to reverse course and increase restrictions (as she would like), due in part to the political advocacy of homeschoolers generally, and HSLDA, specifically, so she suggests a campaign to challenge “the current homeschooling regime” in the courts.
To succeed with this campaign, Professor Bartholet argues, courts should embrace a legal theory that recognizes that children have a fundamental right to be provided an adequate public education, to the extent that a child could sue the government for failing to provide such an education. Federal courts have consistently rejected this legal theory.
Until last month.
In April, the United States Court of Appeals for the Sixth Circuit breathed life into a lawsuit brought by seven Detroit-area public school students, who are suing state officials for failing to provide them with an adequate education. In the case, Gary B. v. Whitmer, the students alleged that run-down facilities, unqualified teachers, and inadequate teaching materials deprived them of “a basic minimum education,” and thus “access to literacy.”
Clashing Legal Theories
The public school students argue that the Fourteenth Amendment to the US Constitution requires the state to provide them with a basic minimum education.
In the legal world, this is called a “positive rights” legal theory because it places an obligation on government to provide a basic need like food, shelter, medical care, or education. This is distinct from a “negative rights” theory, which limits government’s intrusion into protected areas of individual liberty, like religion, free speech, the right to bear arms, and the right of parents to raise, nurture, and educate their children.
In Gary B., the federal trial-level court ruled that the students do not have a fundamental right guaranteed by the US Constitution to a state-provided education and dismissed the case. That ruling was consistent with many US Supreme Court cases and with a traditional view of the individual liberties protected by the Bill of Rights and the Fourteenth Amendment.
But the students appealed to the federal appellate-level court (the Sixth Circuit Court of Appeals), where their case was reviewed by a three-judge panel. Two of these three judges agreed that the trial court’s decision was wrong, allowing the case to proceed.
The legal theory advanced by the public school students and embraced by the two judges last month is exactly what Professor Bartholet called for in her law review article. She proposes using this “positive rights” theory to challenge state homeschooling laws, based on a child’s right to be provided a public education.
A Dangerous Precedent
If not reversed, this legal precedent will give judges the unprecedented authority to serve as legislators, substituting their own judgment for the judgment of the people’s elected representatives concerning state education policy, including homeschooling laws.
Historically, courts have held that the US Constitution does not compel the federal government—and especially not state or local governments—to provide people with things they need. By limiting the powerful reach of the government, the Constitution prevents states from depriving individuals of liberty. Indeed, the Fourteenth Amendment says, “No state shall deprive any person of life, liberty, or property, without due process of law.”
In the recent Gary B. case panel decision, a lone dissenting judge correctly points out that the students argue “that the state has deprived them of an education because the state has not provided them with an education (emphasis in original).”
This case would create a landmark change for states in the Sixth Circuit—Michigan, Ohio, Kentucky, and Tennessee—and would encourage federal courts in the rest of the country likewise to ignore Supreme Court precedents.
Asking the Sixth Circuit to Reconsider
Federal appellate courts have several judges, but they usually hear cases in small three-judge panels. The Michigan Legislature has requested a rehearing of Gary B. v. Whitmer before all the active judges in the Sixth Circuit (called a rehearing en banc) instead of relying on the three-judge panel’s ruling.
Today, HSLDA filed an amicus curiae (friend of the court) brief urging the full Sixth Circuit Court to rehear this case because it presents an imminent threat to the liberty that homeschoolers currently enjoy.
We are sympathetic to the plight of the public school students who brought the case, but we do not believe that putting federal judges in charge of state and local education policy is the solution. HSLDA is especially concerned about the case because of the far-reaching consequences of this positive-rights legal theory to homeschool freedom.
Want to Learn More?
We encourage you to read our brief, which explains in more detail why we care about this case and how it and Professor Bartholet’s law-review article present serious threats to homeschool freedom. Feel free to skip the technical legal jargon that
occupies the first few pages and start reading at the section called “Interest of amicus curiae,” where it gets interesting!