Semiquincentennial Lessons for Homeschool Freedom

Bartholet’s mixed blessing

You’ll recall homeschooling’s frequent critic, Harvard law professor Elizabeth Bartholet, who called for banning homeschooling in 2020, even as public schools shut down worldwide. She recently gave a speech titled “The Mixed Blessing/ Curse of the Meyer-Pierce Legacy,” which was adapted into an article for the Journal of Contemporary Legal Issues.^[1]

Pierce v. Society of Sisters (1925) first recognized the constitutional right of parents to direct their children’s education,^[2] and Meyer v. Nebraska (1923) held that it was unconstitutional to prohibit education in languages other than English.^[3] Bartholet calls Pierce and its predecessor Meyer “one part blessing and one part curse.”^[4] She is exactly right—words I have not often written about Professor Bartholet. Though we disagree on which part is which.

In her view, the “blessing” is the doctrine of substantive due process, because the Supreme Court later used it to create rights to contraception, abortion, and same-sex marriage. The “curse” is the elevation of parental rights, which she does not believe should be treated as fundamental.

She again portrays homeschooling as harmful, though she stops short of a ban. Still, she calls for much tighter regulation. She favors the UN Convention on the Rights of the Child, which we have consistently opposed in the Senate because it empowers officials to overrule parental rights to make fundamental decisions for their children.

In my view, Pierce was right to affirm the natural rights and duties of parents to guide their child’s upbringing. But by rooting that truth in the vague doctrine of substantive due process, the Supreme Court handed itself a blank check to invent new rights—a trail that eventually led to Roe v. Wade in 1973.

Bartholet trusts the state to decide what’s best for children over the objections of their otherwise fit parents. That worldview could not be more opposed to the principles in the Declaration of Independence.

Muñoz’s three revolutions

Notre Dame Professor of Political Science Vincent Phillip Muñoz recently offered a different perspective than Bartholet’s on these principles in a National Affairs article, “The American Revolutions of 1776.”^[5] Through the lens of the Declaration, he identifies three distinct revolutions our Founders achieved:

1. Source of authority: Political authority comes from the consent of the governed, because our rights come from our Creator.
2. Purpose of government: Government exists to secure those rights—not to grant them—and to leave vast areas of private life to the people.
3. Role of religious truth: Politics must be limited in part because of the nature of religious truth and the proper domain of religious authority 

In this article, I’ll focus on the third. Muñoz cites the 1776 Virginia Declaration of Rights: “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.”^[6]

Among the duties we owe our Creator, Muñoz includes “the parental duty to care for every aspect of a child’s well-being, including nurturing his spiritual and religious development.” He explains: “The state’s cession of authority in matters of religion also enables parents and churches to exercise their respective authorities.”

Though Muñoz focuses on religious liberty here, these parental duties transcend religious belief―every parent shares both the responsibility these duties require and the liberty that they entail. Liberty here is not license. Properly understood, liberty and obligation go together.

As Muñoz has written elsewhere: “[The right of natural liberty] like all natural rights, is bounded by the natural moral law. . . . Human beings by nature are both free and bounded: free to direct our own lives but bounded by a moral law we apprehend but do not create.”^[7]

Here we see a direct clash of worldviews. Bartholet sees expanding state control as a moral good, while Muñoz sees it as a violation of natural law and the Founders’ vision of liberty.

The semiquincentennial test

As America turns 250, we face a question the Founders would recognize: Who is in charge of raising children—parents or the state?

These two articles present opposing perspectives. Bartholet trusts the state. Muñoz reminds us that the Founders trusted parents and churches within the bounds of natural law. Of the two views, one is clearly more aligned with the Founders’ vision.

And based on several recent cases, it seems the Supreme Court may be beginning to lean back toward that vision.

The homeschooling movement has been a quiet but determined revolution. After a century of compulsory school attendance laws, parents in the 1970s began reclaiming education as their highest duty—just as schools were becoming more ideological and adversarial. This shift happened because parents believed that duty belonged to them, not the state.

Homeschool freedom is not a boutique preference or a passing fad. It is a living declaration that parents, not the state, are the first and primary educators of their children. It is the duty of good government to secure these rights, not to intrude upon them.

The homeschool movement didn’t arise by permission, and it won’t endure by neglect. As we approach the semiquincentennial, let us answer our generation’s test with the same clarity and courage that first made homeschooling possible.