HSLDA to Harvard Prof: Homeschooling is a Fundamental Right

“Homeschooling is a realm of near-absolute power. Homeschooling parents can under the current law deny their children a meaningful education and subject them to abuse and neglect free from the scrutiny that helps and protects children in regular schools.  . . .  [T]he current homeschooling regime means that parents can deny their children rights to education and to protection against maltreatment simply by not sending them to school.”

The above quotes are from the introduction to an article in the Arizona Law Review by Harvard Law School Professor Elizabeth Bartholet. Her article attempts to make the case for effectively outlawing homeschooling in America.

Home School Legal Defense Association will be systematically addressing different points in the article to reveal how extreme the opposition is that is working to terminate or drastically reduce the freedom to homeschool.

We address the author’s incorrect assertion that the homeschooling movement, and HSLDA specifically, argues that parents have absolute power over the education of their children—put another way, we address Bartholet’s insistence that we believe there should be no negative consequence for failing to educate our children.

I strongly suggest that you plan to read all of HSLDA’s upcoming articles in this series, as they will respond to the most dangerous arguments Professor Bartholet makes.

The Arizona Law Review article has gained a lot of attention lately because of the author’s connection with a now-canceled event that she was co-sponsoring—“The Homeschooling Summit: Problems, Politics, and Prospects for Reform.” The planned summit triggered concern and scrutiny from the homeschool community because of the topics and lineup of speakers, who all generally share the professor’s views about the future direction of homeschooling.

Make no mistake, the goal of the summit was, and will be, to strategize how to accomplish the goals of the professor.^[1] Her article spells out in detail how to stamp out the freedom that homeschoolers have achieved over these last 40 years.

As you can tell from the above quotes, Bartholet is urging that the state assert control over homeschoolers by requiring that most children attend public schools. If this were to happen, homeschooling as we know it today would not exist.

Positions and Tactics of the Homeschooling Movement

At page 49 of her article at section C1, she alleges that “The homeschooling movement takes the position that parents have, and should have, the absolute power over the education of their children.”

We can’t speak for the entire homeschool movement, but I have been involved with homeschooling since 1981, and no one who professes to represent the movement whom I have read or heard asserts that parents should have the right to neglect their child’s education or abuse their children without consequences.

To quote our founder and premier constitutional lawyer and scholar, Michael Farris, there are three different categories of general rights that citizens have.

1. Absolute rights that may never be invaded by government for any reason whatsoever.
2. Very important (or fundamental) rights that should not be limited except when someone abuses their rights by extreme use of their liberty.
3. Ordinary rights that the government could overcome whenever there was a good reason to do so.

Mike points out that it is generally agreed by most legal scholars, and HSLDA, that parental rights—including homeschooling—are not absolute rights. They belong just below absolute rights, in the very, very important category, but no fair-minded person would want parents to have the absolute right to abuse or neglect their child without legal consequences. HSLDA has argued from its inception that homeschooling is a fundamental right and should not be limited except when a parent abuses that right, but the state should not be able to terminate parental rights when homeschooling is the only allegation of neglect.

Where there is clear evidence that the parents are not providing for the basic needs of a child, it is the duty of the state to fulfill its lawful function to protect the child. I am not sure where the professor may have gotten her information, but HSLDA has never taken the position that there is an absolute right to homeschool or abuse children. We believe children are a gift from God to parents, and parents are entrusted with the duty to love, protect, nurture, direct, provide for, and educate their children. To say the obvious, the love for our children is what motivated my wife and me to homeschool them, and this sort of love is what continues to motivate leaders in the movement today.

Presumption That Parents Act in the Best Interest of Their Children

In conjunction with our belief that homeschooling should be treated as a fundamental right, our position is that when parents make decisions regarding the upbringing and education of their children, there is a legal presumption that they are acting in the child’s best interest. This includes when they choose to homeschool. This position is supported by a United States Supreme Court case, Parham v. J.R., which will be discussed in detail below.

Like most legal presumptions, this presumption can be rebutted. It is not absolute.

If the state has evidence that satisfies the burden of proof and is subjected to the due process protections afforded every citizen, and the evidence shows that a parent has neglected their child’s education, the state has the power to act.

Pursuant to this power, every state has promulgated laws and regulations to enforce compulsory education. In some states, authorities treat allegations of educational neglect as a matter for the family law court to resolve, acting in the best interest of the child. Some states use truancy laws, which are criminal in nature. And some states have both means of enforcing compulsory education.

Parham v. J.R.

At the center of the controversy raised by the professor’s article is this: who has the power over education choices, the state or the parent? The Supreme Court has given direction on that question. Though not a case involving homeschooling, the court in Parham v. J.R., 442 U.S. 584 (1979), addressed the rights of parents vis-à-vis the rights of children.

Chief Justice Warren Burger, writing for the court, said, “The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.”

The court went on to say that, like any other legal presumption, this presumption may be rebutted. But in the case of parental rights, even though the fact that “some parents ‘may at times be acting against the interests of their children’ . . . creates a basis for caution, [it] is hardly a reason to discard wholesale those pages of human experience that parents generally do act in the child’s best interest.”

This law has not changed. When parents decide to homeschool rather than sending their child to a public or private school, this legal presumption applies to them. Parents are presumed to have the wisdom and maturity that minors don’t. In 1979, this was the law of the land—and it remains the law today. The history and practice that existed in 1979 still exists today. There is no new data, experience, or history that justifies removing the legal presumption that controls the parent-child relationship in America today.

Legislative Experience

This is confirmed by how the state legislatures have addressed the right to homeschool.

In 1983, when HSLDA began its mission of establishing the God-given, fundamental right of parents to homeschool their children, most states either had no specific law addressing homeschooling or interpreted their compulsory attendance law to preclude homeschooling. They required homeschooling parents to be state-certified teachers or required equivalency of instruction with the public school.

There was a strong hostility from some states to homeschooling, with North Dakota, Nebraska, Iowa, and Texas being the leading culprits. This strong resistance resulted in many families facing truancy prosecutions for homeschooling—with the possibility of going to jail. And some state authorities even threatened to remove children from their parents’ homes. This was a scary time.

HSLDA was involved in many court cases as we attempted to establish the constitutional and statutory right to homeschool. We achieved some success in the courtroom with our constitutional arguments, but the real success occurred in the state legislatures.

Why? Because legislators put the same trust in parents that the justices in the Parham case did.

They gave parents the benefit of the legal presumption the Supreme Court laid out in Parham v. J.R., despite fierce opposition by the National Education Association and public school establishment. They applied the law of the Supreme Court by concluding that parents should have the right to choose this innovative method of education.

But the opposition did not give up; they made the argument that “maybe we can trust most homeschooling families, but not all.” They made the “if-we-just-save-one-child” argument. They argued that if they could prevent one child from “falling through the cracks,” it would justify rejecting the right to homeschool or imposing irrational and intrusive regulations on the vast majority of homeschooling parents who were doing a great job with their kids.

To give you a flavor of the argument, I’ll recall my appearance before the Maryland Legislature many years ago, in a hearing before the Education Committee as lawmakers considered a homeschool bill.

An official from the education department passionately argued for intrusive regulation of homeschoolers with this statement: “Even if I concede that most homeschooling parents will educate their children, what about the ones that won’t? If we can save just one child from slipping through the cracks, we are justified in requiring this increased oversight of homeschoolers.”

This was the fallback argument of the opposition when they could see that the legislature wasn’t going to adopt their position on homeschool regulation. We simply pointed out that restricting the freedom of all parents to homeschool because there might be a few that neglect their children’s education was addressed by the highest court in the land in the Parham decision: “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition” (emphasis added).

Current Legislative Battles

We continue to remind legislative bodies of the above legal principle when attempts are made to reverse the freedom that homeschoolers have carved out over the last 40 years. This effort to overturn the freedom to homeschool has been persistent and normally follows the discovery of an alleged homeschool family’s having severely abused their children.

The cry goes up, “we must protect the children”—and we agree with that. As previously stated, we treasure children and support punishment to the fullest extent of the law for parents who harm their little ones.

In reality, many of these accused families are not homeschoolers at all and make no effort to comply with the law. Therefore, any new law proposed to restrict the freedom of all homeschoolers most likely would have neither prevented the tragedy nor operated as a deterrent for future abhorrent child abuse situations. To the legislators’ credit, they mostly continue to follow the guiding principle for legislation in this area: the Parham case.

As indicated above, the greatest gains for freedom have occurred in the state legislatures. Since 1983, legislatures in 38 states have adopted homeschool laws recognizing the presumption of the right of parents to homeschool. And homeschooling, in one form or manner, is legal in every state.

The New Proposed Law By The Professor

No, professor, we don’t believe that there is an absolute right to homeschool, but we do believe that parents should continue to have the freedom to choose to homeschool. We oppose the notion that we need a new law for homeschooling.

On page 57, the professor spells out what the new law should be: “The new legal regime should impose a presumptive ban on homeschooling, allowing an exception for parents who can satisfy a burden of justification. And it [the new law] should impose significant restrictions on any homeschooling allowed under this exception.”

It’s interesting that she uses the word “regime.” Taken from the Latin word regimen—“to rule”—regime carries militaristic and governmental connotations. It makes you think of a totalitarian rule.

I agree with her characterization; the imposition of her law would require a totalitarian act by any state that would entertain such a law. The homeschool movement would and will continue to oppose any law that attempts to further regulate homeschooling, especially a law that would make homeschooling illegal—except for a few elite families that beg to get permission.

Notice how the author uses the phrase “presumptive ban.” She must know about the Parham presumption, and knows that this presumption must be reversed to shut down homeschooling.

However, the homeschool history and experience between Parham’s “presumption” pronouncement in 1979 (isn’t it interesting that in 1979, homeschooling was just rising from the dust?) and today confirms the court’s creating a presumption in favor of parental rights. Remember, these are rights that protect parents and families from excessive state interference in the family and family decision making. The overwhelming success of the homeschool movement cannot be ignored by unbiased observers.

What’s Next?

When I was talking with my wife (a veteran homeschool mom) about Professor Bartholet's article and the summit, she said that we should just ignore them because the positions they advocate are so ridiculous that no one will take them seriously.

I rarely disagree with my wife (remember that when you read this, honey) but we can’t ignore this threat to homeschooling freedom.

These folks who are calling for the abolition or stringent regulation of homeschooling passionately believe they are right. They see this as the way to institute children’s rights, such as empowering each child to decide if he or she wants to be homeschooled or not. When a child and parent reach an impasse on any child-raising issue, then a court would choose a winner based upon its subjective—and in some cases—biased opinion.

HSLDA knows that freedom is necessary to keep homeschooling successful and sustained as a movement. Parents must be given the say-so over the raising and educating of children because they have proven themselves trustworthy. The alternative is trusting the state to know each child individually and to give the love and support that a parent gives. It is not possible. The Parham court was wise in making its decision.

Call To Action

So how do we preserve the movement? We continue to work together to protect the existing freedom, with the flexibility necessary to separate ourselves from the conventional school experience. We must continue to advocate for the freedom to educate each child individually. This is the key to our academic success.

We must also advocate for the freedom to raise our children up with our beliefs, values, and religion. To do otherwise will allow the state to eventually control homeschooling—like it did 40 years ago.

For the good of our country, and ultimately for the good of our children and grandchildren—for the good of our families—we cannot fail in our effort.

So, the next time we are faced with a challenge to our homeschooling freedom—and it will happen—please respond as you have in the past by rallying to the legislature, the courts, and the arena of public opinion to express your beliefs and opinions.

May God bless you all as you love, provide for, and nurture your children into outstanding adults.