Professor Bartholet Wrong on International Law

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At a time when over a billion children in 190 countries are suddenly schooling at home as the result of a pandemic, Professor Elizabeth Bartholet has been publicly advocating that most parents should not be allowed to homeschool.

In her reasoning, she appeals to evolving constitutional norms in other countries and to international human rights treaties. These, she argues, should be “models” for the United States.

She begins by stating that the United States has an outdated constitution that focuses on negative rights, whereas the constitutions of most other countries focus on positive rights. She writes: “The U.S. Constitution’s focus on negative rights represents an older western constitutional tradition, ‘increasingly out of step with emerging constitutional norms . . . in the rest of the world’” [internal citation omitted].

While her statement is mostly true, there are good reasons why we should reject the idea of positive rights generally and in education specifically.

The difference between positive and negative rights

Positive rights are generally considered to be material obligations that governments owe to people, such as the “right” to social security, a livelihood, or health care. Negative rights are primarily considered to be areas in which government is not permitted to interfere. Although this is nuanced—for instance, the right to a jury trial could be seen as a positive right—positive rights tend to be thought of as more material.

The idea of a right naturally carries with it the concepts of “right holder” and “duty bearer.” If an individual has a right, then someone has a commensurate duty to fulfill that right. In the case of negative rights, the government has a duty not to interfere with whatever rights are enumerated. The government is usually the duty bearer in the case of positive rights, too. Thus, positive rights tend to grant more power to government, because if rights come from government, then they can be invented, defined, and ultimately controlled by the government.

In Professor Bartholet’s view, “The key rights for children are positive rights—rights to be nurtured by parents and provided for and protected by government so that they can grow up to enjoy autonomy and other adult rights.”

Our Founders correctly stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The Founders agreed that these rights were inherent in our human dignity and derived from the idea that people were created in the image of God—Imago Dei. From this we derive the premise that our rights are not granted to us by government. We have inherent rights, and it is the government’s responsibility to protect those rights.

I explained how positive and negative rights relate to homeschooling in this Federalist article, where I discussed a recent case in which a federal appeals court panel said that Detroit students had a basic federal right to public education. I criticized the decision because a positive right to public education would only lead to a nationalized education system where one size fits none. Positive rights can lead to everyone being “forced” to receive exactly the same thing, rather than individuals having the freedom to choose what is best for themselves.

Some think that having a positive right to something means you will get “the thing.” That is not the case.

Two examples of this come from South Africa, often pointed to as having one of the world’s most modern and progressive constitutions. In the housing case of Grootboom and the healthcare case of Soobramoney, individuals sued to obtain positive rights promised in the South African Constitution. But the courts held that as long as the government was moving toward the “progressive realization” of a right, that was good enough. So, no housing for Mrs. Grootboom and no kidney dialysis for Mr. Soobramoney.

The judicial theory of progressive realization is how most national supreme courts adjudicate constitutions that are based on positive rights.

In a country like the United States, where the constitution sets up limitations on government, people end up getting more of such things as housing and healthcare through their own efforts and choices. Still, even the United States, with its “outdated” negative-rights constitution, subsidizes and builds low-income housing and provides health insurance to those who can’t afford it. In other words, even governments in negative-rights countries might (and often do) provide basic needs in certain circumstances, although they are not required to.

The truth about homeschool regulations around the globe

Based in part on her belief that education should be a positive right in the United States, Professor Bartholet argues that we should heavily regulate homeschooling to ensure children receive that right. She points to countries with more restrictions on homeschooling as examples we should follow. However, she neglects to report that many other countries do not have strict regulations—or that, even if some countries’ laws appear restrictive on paper, they are enforced in highly permissive ways. She also fails to mention countries like Russia and the United Kingdom, which have large homeschooling populations and relatively nonintrusive regulatory regimes.

She incorrectly asserts that homeschooling in South Africa is “fairly rare” and has “many requirements.” South Africa has one of the world’s larger homeschooling populations, with an estimated 100,000 children being taught at home. ^[1] As a matter of law, the only requirement is that parents register their children with a provincial department of education. As a matter of practice, almost no homeschoolers register because of the limited administrative capability of many provincial governments. There is virtually no enforcement of registration, and courts have explicitly ruled that government curriculum standards do not apply to homeschoolers. ^[2]

With her claim that the Brazilian Supreme Court determined homeschooling to be “unlawful,” Professor Bartholet exaggerates. In 2018, the Brazilian Supreme Court determined that homeschooling was not contrary to the constitution; however, because education was regulated by the National Congress, it would be necessary to pass a law explicitly recognizing homeschooling. Thus, although homeschooling is not provided for by Brazilian law, it is far from “unlawful,” as Professor Bartholet claims. There is a growing homeschool population in Brazil, where President Jair Bolsonaro’s ministries of human rights and of education are both working to obtain a federal law explicitly recognizing homeschooling.

Professor Bartholet points favorably to Germany, where homeschooling is banned. The 1938 school law passed by the national socialist regime is one of the reasons that homeschooling continues to be banned in Germany today. Germany’s highest courts have consistently ruled that the primary responsibility for creating democratic citizens belongs with the state’s public schools. They have said they are concerned that homeschooling could lead to the creation of “parallel societies.” Thousands of families have emigrated from Germany because of this policy.

However, like Professor Bartholet’s arguments, the German court decisions lack support from empirical data. Their positions are based on vague stereotypes, straw-man arguments, and appeals to a child’s rights framework that seeks to treat children as autonomous, mature, rights-bearing members of society rather than as being under the appropriate care and protection of their parents, who make decisions in their children’s best interests.

In 1922, the United States Supreme Court rejected this statist approach in the landmark ruling Pierce v. Society of Sisters, declaring: “The State [may not] standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

When modern homeschooling first arose in the US, the regulations were stricter here, just as in other countries where homeschooling is now starting out. As homeschooling was validated over time, the US scaled back its regulations. Professor Bartholet’s use of the handful of countries with more burdensome homeschool regulations to justify stricter regulations here is self-serving and reflective of where we were decades ago.

The limits of international law

The second prong of Professor Bartholet’s internationalist argument rests on two erroneous interpretations of international law.

At the time of America’s founding, international law stopped at the border; nations made treaties that governed their interactions as nations, mostly in war or commerce. Until after World War II, international law had very little to do with the internal governance of nations. But then the United Nations, led by the United States, decided that a statement was needed to declare what should be universally considered human rights. The Universal Declaration of Human Rights (UDHR) was adopted in 1949—with Eleanor Roosevelt heading the drafting committee.

Article 26.1 of the declaration states that “everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.”

I like how Dr. Peter Gray describes a compulsory right to education (although he is addressing Professor Bartholet’s call for a presumptive ban on homeschooling, not the UDHR): “Professor Bartholet, with no hint of irony, contends that children have the right to government-enforced compulsory schooling. Think about that for a moment. A right that they can’t refuse. A perfect example of Orwellian doublespeak if ever there was one. Somehow, according to Professor Bartholet’s logic, a state that forces children to attend the state schools is respecting children’s rights, but a family that offers their child the option of homeschooling is not.”^[3]

After the adoption of the UDHR, the United Nations decided to draft two treaties to accommodate the United States’ and the Soviet Union’s diametrically opposed positions on whether treaties should include positive or negative rights.

The International Covenant on Civil and Political Rights (ICCPR), supported and ratified by the United States, included mostly limitations on governments. The International Covenant on Economic, Social and Cultural Rights (ICESCR), supported by the Soviet Union, included mostly positive rights—including the right to education.

These two treaties have been described as the “bill of rights” of the international human rights framework. Since 1948, the United Nations has drafted numerous human rights treaties, including the 1989 United Nations Convention on the Rights of the Child (UNCRC), which Professor Bartholet believes supports her view that the US should treat education as a positive right.

This first premise—that because international law views education as a positive right, this should in some way influence American lawmakers and courts—is erroneous simply because the United States has never ratified the ICESCR or the UNCRC.

Unlike most other constitutions, the US Constitution establishes that any treaty we participate in becomes the supreme law of the land. This means that treaties are binding on our federal and state judges. And because treaties are often defined and enforced by UN-appointed “monitoring bodies,” if we ratify them, we risk handing over at least some lawmaking power to unelected international officials.

If ratified, the ICESCR and UNCRC would impose positive obligations on the United States. For example, the biggest objection to the UNCRC is that it permits a government to intervene in parental decision-making if it believes a parent is not acting in their child’s best interests.

This legal formula is irreconcilable with American jurisprudence, which requires the government to demonstrate that a parent is unfit to act in a child’s best interest before it can override the parent’s decision. If we were to ratify the UNCRC, we would be forced to follow the treaty’s provisions rather than our own legal tradition.

What international law really says about parents and education

Professor Bartholet’s second erroneous premise is that international human rights law supports a presumptive ban on home education.

She cherry-picks these two treaties—the ICESCR and the UNCRC, both of which acknowledge education as a positive right—to argue that the US is “out of step” with international law.

However, a more comprehensive analysis of international human rights treaties supports what the US Supreme Court said in the 1979 case Parham v. JR: “Fit parents are deemed to act in the best interests of their children.” I have written an entire book chapter on this subject to show how virtually every major human rights treaty except the UNCRC explicitly acknowledges that, when it comes to education, parents’ rights supersede the government.

Even the UNCRC, drafted primarily from a child’s rights perspective, agrees that parents have an important role in children’s lives. Article 29 describes the purpose of education to include developing “respect of a child’s parents”; it also acknowledges the right of private education. Articles 3 and 5 require states to “take into account” and respect the rights, roles, and duties of parents.

All relevant treaties addressing education contain language similar to that of the ICCPR, which states in Article 18.4 that “the States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” The ICESCR has identical language in Article 13.3. In Article 4.2, the ICCPR further places these family rights of educational autonomy among the highest values, along with the prohibition on slavery and torture.

So even if Professor Bartholet’s interpretation of the UNCRC deemphasizes the treaty’s respect for parents, the great weight of all the other treaties still affirms the primary decision-making role of parents in education.

As other commentaries on Professor Bartholet’s article make clear, many of her factual claims are unsupported by empirical data. Here, I have tried to show that her appeal to international law is on shaky ground.

Children are entitled to the care and protection of their parents. Parents who choose to homeschool are entitled to the presumption that they act in their children’s best interests. Our country’s founding principles include these basic premises and reject Professor Bartholet’s internationalist and statist goals of control.

The United States is the world’s example when it comes to the rule of law, republicanism, and freedom. In our experience with homeschooling, we are decades ahead of other nations—rather than us looking to them, they should look to us as a model that respects the most fundamental of rights when it comes to children, family, and education.