Last month, a three-judge panel of the United States Court of Appeals for the Sixth Circuit broke with decades of legal precedent and ruled that students in Detroit had a federal constitutional right to be provided a basic minimum public education.
Home School Legal Defense Association (HSLDA) and others called on the full court of 16 judges to reconsider that ruling, and on May 19, 2020, the court decided to take a second look. The full court set aside the previous ruling, meaning that, legally, it is as if the panel’s ruling had never happened. The question of whether such a federal constitutional right to a basic minimum public education exists will now be reviewed afresh by all 16 judges. The parties in the lawsuit must submit new legal briefs by early August, and HSLDA intends to participate as a friend of the court.
Harvard Professor Bartholet’s “campaign”
As we explained when we filed our friend-of-the-court brief urging the Sixth Circuit to reconsider the original decision, the ruling had potentially grave long-term implications for homeschool freedom. That was so because it represented the first legal step in a considered campaign to use federal courts to outlaw homeschooling.
In what one commentator called “an 80-page screed,” Harvard law professor Elizabeth Bartholet published a law-review article in April 2020, calling for a ban of homeschooling. Recognizing that she could not achieve that goal by persuading the 50 state legislatures to outlaw homeschooling—indeed, the 40-year history of the homeschool movement has been in the opposite direction—she described a long-term legal strategy to use the federal courts to override the 50 state legislatures. Here is Professor Bartholet in her own words:
Lawyers have recognized the potential in the Constitution for achieving educational reform. They are mounting challenges in different federal courts throughout the country with the goal of getting the Supreme Court to find that devastatingly inadequate public schools, and schools that fail to teach such core courses as government and civics, violate child rights to due process and equal protection. A similar campaign could be mounted challenging the current homeschooling regime.
A “campaign” is defined as “a series of military operations intended to achieve a particular objective.” Operation number one in Professor Bartholet’s legal campaign against homeschooling is represented in the now-defunct decision of the Sixth Circuit.
And now, back to 1868
To understand Professor Bartholet’s anti-homeschooling campaign—and why the Sixth Circuit’s decision was dangerous—we must go all the way back to 1868 and the adoption of the Fourteenth Amendment.
After the Civil War, the United States amended the US Constitution to protect freed slaves. The Fourteenth Amendment provides, in part, “No state shall deprive any person of life, liberty, or property, without due process of law.” The amendment also gave Congress the authority to adopt federal statutes to enforce the provision.
In 1871, Congress passed an enforcement statute known as the Civil Rights Act, now codified at 42 U.S.C. section 1983. That statute allows any person who has been deprived of a federal right to sue the state official who has done the depriving. These so-called “section 1983” lawsuits are often referred to interchangeably as “civil-rights” lawsuits.
Civil-rights lawsuits were relatively scarce until a decision of the Supreme Court in 1961 provided for many more ways to invoke the statute. Today, civil-rights lawsuits are plentiful.
HSLDA has filed many civil-rights lawsuits, mostly on behalf of homeschool families who were deprived of their Fourth Amendment right to be free from unlawful searches and seizures, usually during a child protective services (CPS) investigation. For example, we are in the middle of a civil-rights lawsuit against a CPS investigator in Kentucky. The investigator wrongfully threatened to take Holly Curry’s children into foster care if Holly did not allow the investigator into her home. Once inside, the investigator strip-searched all of Holly’s children without legal justification. That case is awaiting a decision by the federal judge
Does “deprive” mean “provide”?
Words matter. The Fourteenth Amendment uses the word “deprive,” which means “to take something away.” In Holly Curry’s case, the CPS investigator took away her right to be free from warrantless entry into her home, and the investigator took away her children’s right to keep their clothes on in front of strangers.
The kind of rights the Fourteenth Amendment is designed to protect are sometimes referred to as “negative” rights. Negative rights limit the government from taking away individual liberty in areas like religion, free speech, the right of parents to educate their children, and the sanctity of the home. In other words, state officials may not deprive individuals of these rights.
The public-school students in Detroit argued, however, that the Fourteenth Amendment required the state to provide them with a basic minimum public education. This argument is known as a “positive-rights” legal theory because it requires the state to provide basic needs like housing, food, medical care, and education. The Supreme Court of the United States has consistently rejected the positive-rights legal theory.
Two of the three sixth-circuit judges who originally heard the case agreed with the students’ positive-rights theory. In a decision that took five dozen pages to explain, they acknowledged they were breaking new legal ground: “The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something the state must affirmatively provide.”
The lone dissenting judge objected. Paying attention to the word actually used in the Fourteenth Amendment, he summarized the claim as “the state had deprived [the students] of an education because the state had not provided them with an education [emphasis in original].”
The difference between “deprive” and “provide” in this context may not seem to be such a big deal. The now-vacated majority opinion used 61 pages of crafty wordsmithing to make it seem as if the decision was just a baby step away from the constitutional norm—and that in a good direction.
But the difference between the two words is like two snowflakes that fall six inches apart on either side of the continental divide. They are not too far apart when they land, but one will end up in the Pacific Ocean and the other in the Gulf of Mexico.
And that is why Professor Bartholet views cases like this one to be the first step in her legal campaign to outlaw homeschooling. One baby step in the direction of a positive right to a basic minimum public education on behalf of very sympathetic Detroit public school students leads to the next baby step, and the next. Unchecked, we eventually reach the Pacific Ocean, where federal courts are called on to say that state homeschool laws are unconstitutional because homeschooled children have a positive right to a public education.
Legal campaigns of this sort are nothing new. Lawyers who advocate to move the law in a specific direction look for test cases. The best test cases are those with people whose circumstances pull at the heart strings. And we must acknowledge that the cause of the Detroit students does just that.
Good test cases on behalf of sympathetic clients are also more likely to succeed if it can be made to appear that a judge can help the person by taking an ever-so-small step away from the established legal norm. Swinging for the fences is not a good test-case approach. Getting to first base with a blooper single is far better. Then the next batter can use the precedent to advance the runner a little farther along.
A positive right to a basic minimum public education for Detroit public school students today. A positive right to a public education for all children tomorrow, whether their parents want it or not.
That is why HSLDA got involved in this public-education case today. Thanks in part to Professor Bartholet revealing the other team’s playbook, we recognized they were attempting improperly to steal a base.
HSLDA and others threw a flag on the play, to mix sports metaphors. Fortunately for homeschoolers, when a federal court takes a case under review, the rules allow us to help the referees make the right call.
 Katie Jay and Sarah Campbell, “Harvard Attack On Homeschooling Has Nothing To Do With Children’s Best Interests,” The Federalist, April 27, 2020, https://thefederalist.com/2020/04/27/harvard-attack-on-homeschooling-has-nothing-to-do-with-childrens-best-interests/.
 Elizabeth Bartholet, “Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection,” Arizona Law Review 62, no. 1 (2020): 68–69, https://arizonalawreview.org/pdf/62-1/62arizlrev1.pdf.
 Monroe v. Pape, 365 U.S. 167 (1961).
 Gary B v Whitmer, Nos. 18-1855/1871 (6th Cir. April 23, 2020) (vacated May 19, 2020).
 Id. at 67-68, Murphy, J., dissenting.