An Introduction by HSLDA Attorney Jim Mason:
My colleague, Darren Jones, is a versatile attorney, a spiritual leader, and a homeschool dad par excellence.
From back to front, Darren—unlike me and a lot of dads I know—has meaningfully divided the responsibilities for homeschooling his four kids with his wife, Sara. His Home School Court Report cover article that he wrote with Sara, entitled “What’s a Homeschool Dad to Do?,” is one of the best I’ve read about how homeschooling families meet the challenges of homeschooling in creative and affirming ways.
As a devoted Christian, Darren serves his church in a quiet and unassuming—yet important—way. And if you have a question about church history, Darren is your man.
Darren brings that same unassuming excellence to his job at HSLDA. Over the years, Darren has taken on many roles to advance homeschooling and help HSLDA as an organization. In addition to litigation responsibilities, Darren helps out homeschool co-ops and support groups with their organizational issues.
With the COVID-19 uncertainty surrounding next school year, many families see private homeschooling as an option they might not have considered otherwise. This wave could be a tsunami of historic proportions.
For many families, homeschooling success depends on personal connections: connections with friends who homeschool or through the vibrant network of local groups that serve each other and are best situated to mentor new families. Darren is already getting many more calls from groups. By helping the groups prepare for this historic moment in the homeschool movement, Darren is playing a vital role in birthing a whole new generation of homeschool families.
“Keep Homeschooling Free,” Darren’s response to Harvard professor Elizabeth Bartholet’s call to ban homeschooling, brings a special perspective to the issue. As a high school student, Darren asked to be homeschooled. He liked being homeschooled so much that he participated in the democratic process in his home state of New Hampshire to get a better homeschooling law passed—while he was still being homeschooled.
In Professor Bartholet’s world, Darren’s remarkable life story would not be possible. Keep homeschooling free, indeed.
— Jim Mason, Vice President of Litigation and Development
* * *
In the 25 years that I’ve been working at HSLDA, I’ve had the privilege of speaking at a number of homeschool conferences, encouraging parents that homeschooling works. I know it does, because I have personal experience.
Homeschooling Works: My Story
In elementary and middle school, I first attended a public school, then a private Christian school. In 9th grade, I wanted more credit hours than the private school was offering, so I talked with my parents about going back to public school. After a number of discussions, they enrolled me in the local public school, where I attended for two years.
When I was in 10th grade, my parents began seriously considering homeschooling. My mother was a certified teacher, providing instruction at a Christian school where my siblings attended, and my father worked out of our home—so they figured it wouldn’t actually change much of our family’s personal schedule. They decided to try it for a year, with just one of us (my younger sister).
But I wanted in. I’d attended a panel discussion that spring about the benefits of public, private, and home education, and I really felt that homeschooling could be a great way to finish high school. So after more lengthy discussions, my parents decided to let me homeschool, too.
In my opinion, that was a great decision. My last two years of school went really well, as I got to focus on some areas of study—like history—that I was interested in. As a senior, I was offered an internship at a local nonprofit, where I learned the basics of fundraising, writing persuasive articles, and researching the founding of the American republic. Of course, homeschooling wasn’t all roses; I still had to do math and science, which were never my favorites.
But one of my favorite memories of those homeschooling years is testifying before two different state subcommittees about a proposed homeschool law, which would give more freedom to families like ours to choose a homeschool program. And since New Hampshire is a small state with a large legislature, I also had the opportunity to meet several of the representatives at social gatherings organized by the homeschool community and explain why the change in the law was a good idea. I flatter myself that hearing from an articulate homeschooled high school student may have had a positive impact on the legislators—in any event, the law passed.
But if we adopted the reasoning that Professor Bartholet encourages in her Arizona Law Review article, “Homeschooling: Parent Rights Autonomy vs. Child Rights to Education & Protection,” then I would have had no opportunity to have this input as a student.
Instead, any decision regarding my education would have been left to lawyers and judges, who would have claimed to have my best interest at heart.
An Important Question
This leads me to a question raised in my mind by Professor Bartholet’s recent article, and it’s one worth thinking about on a regular basis, even if—maybe especially if—the answers we have aren’t the same as the professor’s.
What kind of society do we want to live in?
I will start by saying that HSLDA definitely has the same end goal as the professor: we want children to be safe, well-educated citizens who can eventually contribute to our world in a positive way. And, like her, we see the “importance of an education that exposes children to a range of viewpoints and to fundamental democratic values.”
But the way that we think is best to get there is different than Professor Bartholet’s.
HSLDA has argued for literally generations now that society gets the best results when it empowers parents to choose what is best for their children, because parents best know and love their children. We believe that homeschooling works. And we’re not the only ones—education leaders from across the globe at a recent Global Home Education Exchange (GHEX) online event agreed.
We also believe that our country is best when it functions as a democratic republic: a nation where the broadest spectrum of the citizens elects its leaders, and then those leaders make and enforce the laws. This type of government is most responsive to its people.
Moving in the Wrong Direction
And that’s why it is so worrisome to me to see articles like Professor Bartholet’s, which acknowledge that homeschool families have won their freedom through hard-fought democratic battles and yet argue that unelected state or federal judges should strip away that freedom without recourse to the legislature.
Her blithe assumption that we must look to “State court decisions based on state constitutions” to “help . . . the Supreme Court find new meaning in the Federal Constitution” is frightening, because it reassigns the power to change the law from the legislative branch to the judicial branch. The judicial branch is the least responsive to our democratic process, and a single decision by an uninformed or antifamily judge can have major unforeseen consequences. (See two previous articles in this series, here and here.)
Professor Bartholet argues that state constitutions “in almost half the states have held that their constitutions’ educational provisions guarantee the right to an adequate education, and that a primary purpose of education is to prepare students for civic participation, including employment.”
In one way, this is nothing new; our society has recognized for a century that, as the Supreme Court held in 1925, “those who nurture [a child] and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”  But it is vitally important to remember, as HSLDA constantly has to point out to government officials, that this quote about duty is preceded by the reminder that “The child is not the mere creature of the State . . . ”
Professor Bartholet contends that “These state constitutional provisions on education provide a strong basis for challenges to the homeschooling regime.” However, she fails to recognize that states, following their constitutions, have worked through the democratic process and balanced the necessity for education with the right of parents to choose how and where that education takes place for their children. Whether heavily regulated like New York or freedom-based like Alaska, every state recognizes that parents should have the right to teach their children at home.
I’m not sure if it’s amusing or scary that while Professor Bartholet gives lip service to “democratic values,” she then advocates throwing out all the democratically chosen homeschool laws by court fiat. One key democratic value is the careful balance between majority rule and protection of minorities. This article apparently wants neither. It doesn’t truly want majority rule because the majority makes homeschool laws that she thinks are too lax. And this position also doesn’t want to protect the minority group of homeschooling families.
Professor Bartholet does finally get around to recommending that legislatures should be the state agency responsible for changing the homeschool laws, but her position is that “courts must make clear that the current regime violates children’s constitutional rights, and that restrictions along the lines described below are required” [emphasis in original].
Homeschooling for the Very Few
And what are those restrictions?
1. A presumption against parents being allowed to homeschool
Professor Bartholet argues that the law “should impose a presumptive ban on homeschooling, allowing an exception for parents who can satisfy a burden of justification.” The list of exceptions is quite slim. She suggests that exceptions could include the following:
- Gifted artists or athletes
- Local schools are “seriously inadequate,” with too much bullying or racism
- Parents who can provide “a significantly superior education” to public school
Even if parents are allowed to homeschool, she states that “children should still be required to attend some courses and other programs at school including, for example, civic education, arts and physical education, and extra-curricular activities.” 
2. Approval of homeschool curriculum each year
Professor Bartholet argues that before being allowed to homeschool, parents should demonstrate that they will “provide the essentials of public school education.” It’s clear that she doesn’t simply envision a cursory review of the proposed curriculum or an agreement that the parents will teach all required subjects.
She quotes another law school professor, Ira Lupu, who wrote 25 years ago that “approval of teacher competence, curriculum, or textbooks may each create situations of conflict between secular educational goals and religious norms.” Instead of resolving this “situation of conflict” in favor of families, though, Professor Lupu has been proposing since at least the 1980s that parents should never be allowed to be their children’s only teachers.
The National Education Association has officially stated for years that homeschooling should only be allowed if “a curriculum approved by the state department of education” is used, a stance Professor Bartholet commends. However, she fails to explain how it is more in line with “democratic values” to use only curriculum from one viewpoint.
Isn’t it more democratic to allow a variety? As an example, there are probably hundreds of different ways homeschool families teach US history and government. Just with my four children, we’ve used textbooks from at least four different curricula—and each of them brings a different perspective to the subject!
3. Testing “at least annually”
Professor Bartholet argues that in order to protect children’s rights to an education, the public schools must administer a standardized test to homeschool students annually.
There is no exception in her recommendations for special education students or even students who do not do well on standardized tests. This would be a huge change: even though a number of states currently require an annual evaluation, almost all of them make provision for an alternative assessment, such as a portfolio review by a certified teacher.
Additionally, this would be a financial burden on public schools, who would now be forced into additional testing.
4. Home visits
Professor Bartholet’s last proposed restriction is that states must require “home visits by school authorities to assess educational environment and child welfare a minimum of two times per year, with more visits or an order to enroll in school triggered by evidence of problems. If deemed appropriate based on suspected problems, visits shall be without prior warning and without consent.”
It is worth pointing out that Harvard’s own state, Massachusetts, has already firmly rejected this requirement.
In the early 1990s, the Lynn school district required families that wanted to homeschool to consent to home visits. Represented by HSLDA, two homeschooling families sued the district. The Massachusetts Supreme Judicial Court examined the policy “carefully in light of constitutional considerations” and ruled in 1998 that the home visits were not essential and therefore were not allowed under Massachusetts law.
Even California—hardly a bastion of religious fundamentalist homeschoolers such as those that Professor Bartholet stereotypes in her article—refused to require homeschools to be subject to annual “fire inspections” as proposed by a legislator in 2018. Thousands of homeschool supporters turned out to oppose it, and after hearing hours of testimony, the legislative committee refused to even bring it up for a vote.
Remember: according to Professor Bartholet’s theory, these four restrictions are “required” by state constitutions, and thus any homeschool law that did not implement all the restrictions would be unconstitutional.
Wait, This Sounds Familiar . . .
And now, because I’m a history buff, I’d like to take a short digression to discuss a part of American law that the Supreme Court says has a “shameful pedigree”: the Blaine Amendment and its progeny. It’s not really a digression, though, for reasons I’ll explain later.
Professor Bartholet’s arguments and Professor Lupu’s writings specifically call out two areas of education that they believe homeschoolers may not be able to properly teach as their children deserve: the teaching of creation science and the potential conflict between duties of citizenship duties and religious duties. Professor Bartholet quotes from sources as varied as John Dewey to the Supreme Court to show that a primary goal of public education is “exposure to the values of tolerance and deliberative democracy” and “exposure to civic values including respect for the rule of law and for basic democratic institutions.” She then claims that “while some homeschooling parents might be able to provide some of these things, many clearly could not and would not.”
These arguments stem from the same antireligious views that were in evidence during 1875, an era the Supreme Court describes as “a time of pervasive hostility to the Catholic Church and to Catholics in general,” when Senator James Blaine proposed a new amendment to the federal Constitution.
The Blaine Amendment would have prevented any state money going to “sectarian schools,” which was what we would today call “dog-whistle language”: “it was an open secret that ‘sectarian’ was code for ‘Catholic’” to Blaine and his supporters, since the public schools at the time were predominantly mildly Protestant. Remember, this was the same year that Thomas Nast’s famous anti-Catholic cartoon was published, showing Catholic clergy emerging out of the river to corrupt the youth defended in the fortress of the public school.
Thankfully for the freedom of religion in the US, the Blaine Amendment failed. But many states later took up the cause and enacted laws or constitutional amendment aiming to defund Catholic schools. Such amendments “currently exist in about two‐thirds of state constitutions.” One such was recently before the Supreme Court, which invalidated Montana’s attempt to ban tax credits that could be used for religious schools.
It was this impetus against Catholic instruction that led Oregon as late as 1922 to enact a law, principally backed by the Ku Klux Klan, that forbade private instruction. That law was struck down as unconstitutional by the United States Supreme Court in 1925 in the landmark case of Pierce v. Society of Sisters, a decision that HSLDA cites in almost every homeschool case we take on.
The arguments raised by Professor Bartholet reek of the same attitude as the Blaine Amendment and its state versions: “We, the experts, will protect the children of America from the forces of superstition and religion by ensuring that they are taught only as the state allows.”
As an example, take the two quotes below. Can you tell whether the author is a modern professor against free homeschooling or the notorious pre-Civil War Know-Nothing party fulminating against those horrible undemocratic Catholics?
[Homeschoolers or Catholics?] are anti-American “in everything that relates to the freedom and the purpose of American institutions and of American society.”
“A large percentage of [homeschool or Catholic?] parents are committed to teaching their children that these kinds of democratic views and values are wrong, and to raising their children so that they will stay true to their parents’ beliefs and lifestyle.”
Keep Homeschooling Free!
I end, then, by again asking, “What kind of society do we want to be?” Do we want to be the kind of society that insists that parents are incapable of providing a “proper” civic education without constant governmental control and scrutiny?  Do we want to be the kind of society that insists that it is “a serious risk” that parents “don’t have to allow health practitioners into their homes during their children’s infancy”?
Or do we want to be the kind of society that gives families the freedom to choose what type of education is best for each of their children, without undemocratic individuals trying to change the law by judicial fiat?
HSLDA knows our answer.
 Bartholet, Elizabeth. 2020. “Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection,” Arizona Law Review 62, 1: 47. https://arizonalawreview.org/pdf/62-1/62arizlrev1.pdf.
 Bartholet, 71.
 Bartholet, 71.
 Pierce v. Society of Sisters. 1925. 268 U.S. 510, 535.
 Pierce, 268 U.S. 510, 535.
 Bartholet, 71.
 Bartholet, 47.
 Bartholet, 67n.
 Bartholet, 72.
 Bartholet, 57.
 Bartholet, 73.
 Bartholet, 75.
 Bartholet, 452n.
 Lupu, Ira. 1994. “The Separation of Powers and the Protection of Children,” Chicago Law Review 61, 4: 1317–1373 https://chicagounbound.uchicago.edu/uclrev/vol61/iss4/3/; Lupu, Ira. 1987. “Home Education, Religious Liberty, and the Separation of Powers,” Boston University Law Review 67:971. https://heinonline.org/HOL/LandingPage?handle=hein.journals/bulr67&div=33&id=&page=.
 Bartholet, 278n.
 Bartholet, 75.
 Bartholet, 76.
 Brunelle v. Lynn Pub. Schools. 1998. 702 N.E.2d 1182, 1186.
 Mitchell v. Helms. 2000. 530 U.S. 793, 828.
 Bartholet, 452n.
 Bartholet, 7.
 Bartholet, 73.
 Bartholet, 73.
 Mitchell, 530 U.S. at 828.
 Mitchell, 530 U.S. at 828.
 McCluskey, Neal. 2015. “It’s Time for the Blaine Amendment to Go.” Cato Institute, July 1, 2015. https://www.cato.org/publications/commentary/its-time-blaine-amendment-go.
 Pierce, Franklin. 1855. Know-Nothingism; or, the American Party. Boston: E.W. Hinks and Company, 7.
 Bartholet, 73.
 Bartholet, 279n.
 Bartholet, 4.