In a now-infamous gaffe, Virginia gubernatorial candidate Terry McAuliffe responded to concerns about public school curriculum by insisting, “I don’t think parents should be telling schools what they should teach.”

He lost his re-election campaign. So did other candidates of his party running for statewide office. Many voters said that McAuliffe’s comments, as well as controversies in the Virginia public schools, influenced their voting.

Although HSLDA Senior Counsel Mike Donnelly started on his latest law review article months before the Virginia election, the question of who should control the education of children is far from being just an academic one. Ideas like McAuliffe’s often start in academia. Like Harvard Law Professor Elizabeth Bartholet’s extremely controversial Arizona State Law Review article. It’s important to pay attention to what is going on in academia and, whenever possible, respond with opposing arguments.

Donnelly’s recent article, “Homeschooling Response: Questioning Presumptions of the Primordial State,” in the Journal of Law and Education was a reply to a previously published article, “Homeschooling and the Right to Education: Are States Fulfilling Their Constitutional Obligations to Homeschooled Students,” by Sonia Muscatine. She claimed that American states fail in their constitutional duty if they refuse to heavily regulate home education.

Muscatine’s view is that the US Constitution should be interpreted to require a minimum level of homeschool regulation. Her proposed minimum would be equivalent to the most restrictive regulations already in place in states like Massachusetts and New York.

Donnelly counters that the states are "laboratories of democracy" and that the different approaches to regulation by states are a hallmark of a free republic. Most states do not require anywhere near what Muscatine proposes, having judged that minimal regulation is sufficient to meet the state interest to ensure that children receive an education.

Parents come first, not the state

Conflicting understandings of parental rights are at the core of Muscatine’s heavy-handed prescriptions. As Donnelly explains in his essay: “This questionable presumption flows from a larger philosophical idea as to the state’s pre-eminent role in the lives of children as superior to the parent.”

“Fortunately,” he wrote, “so many courts and legislatures have clearly articulated the presumption of parental rights in education and validated the current regulatory approaches that they constitute ‘deeply rooted traditions.’”

The foundational legal presumption that parents have a fundamental right and duty to oversee the upbringing of their children need not conflict with the state’s interest in promoting an educated citizenry. Parents should have the freedom to make educational decisions that seek the best interests of their children, and, in the case of homeschooling, to craft customized education plans that help children thrive.

Autonomy or conformity?

Another central concept Donnelly challenges in his article is Muscatine’s assertion that a main purpose of education is to create “autonomous citizens.”

“Autonomy is often proposed to mean a kind of self-critical education intended to promote students’ questioning the values of their native community and family, particularly of a religious nature,” he wrote. “The conflict comes when parents reject the state’s preferred value system for their own—whether religiously based or not—and seek private means for education, such as homeschooling.”

“I got some ideas about this from University of Virginia professor Rita Koganzon, who has written really interesting material about this. I really recommend people read her National Affairs article about two opposing educational traditions,” he added.

To resolve this apparent conflict over what values to teach, Muscatine argues that the state must invoke what she suggests is its pre-eminent authority—and overrule parents. This would entail doing things like tracking students who are being homeschooled and keeping records of their educational achievement, presumably so officials could step in and mandate changes if they didn’t like what they saw.

The problem with this vision of education, Donnelly wrote, is that “it weighs a person’s political identity too heavily over other equally valid outcomes.”

He added: “Education is far more than simply the formation of citizens who can get a job and vote.”

Two incompatible models of government

More specifically, he explained that America’s model of representational government that focuses on protecting rights and trusting citizens means legislators are empowered to regulate as lightly as they see fit.

On the other hand, Donnelly remarked that legal interpretations advanced by critics such as Muscatine draw inspiration from Marxism and other authoritarian theories of government.

Elaborating in his article, Donnelly said: “It’s either parents who are in charge of education, or it’s the state. We’ve seen in history what happens when the state exercises total control of education, and it’s not good.”

He concluded: “I think we can trust our fellow citizens to do what’s best for themselves and their families. That’s the foundation of our republic.”

Ideas matter

Donnelly has published previous articles in scholarly journals and books. You can learn more about his academic publications here. He says he appreciates the opportunity to communicate with a more specific audience.

“HSLDA is more than just the go-to for homeschoolers in legal trouble or looking for advice—HSLDA is a thought leader in home education, and we need to be present in the academic literature. We should not surrender the academy to the anti-homeschool crowd,” he stated in a recent interview.

Donnelly pointed out that some of the most vocal critics of homeschooling are best countered in the same venues they use to persuade their peers.

“They’re influential people at prestigious law schools,” he said. “We can’t let their ideas go unchallenged. We have to engage them in a serious, scholarly way.”

In the Words of the Supreme Court

In framing his argument in support of homeschool freedom, Mike Donnelly said that he often refers to this citation from the US Supreme Court in West Virginia State Board of Education v. Barnette: 1943.

“As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. … Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”