As we reported here and here, the United States Court of Appeals for the Sixth Circuit had been considering a case brought by Detroit public school students, which relied on a legal argument that would have presented a threat to homeschool freedom, if adopted. On June 10, 2020, the court dismissed the students’ appeal, leaving in place the traditional rule of law.

To recap, the public school students sued Detroit public schools, alleging that the poor conditions in those schools violated their constitutional right to be provided an adequate public education. That argument turned the traditional view of constitutional rights upside down.

The Fourteenth Amendment provides that the states may not deprive any person of life, liberty, or property without due process. In the education context, that has meant that the state may not take away the right of parents to provide their children with private education. As the Supreme Court said in 1925,

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to 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.[i]

The students in Detroit argued that the same Fourteenth Amendment gave them a “positive” right to be provided a good public education. A trial court rejected that argument, based on the long-standing view that the US Constitution does not require states to provide basic needs like education.

A three-judge panel of the Sixth Circuit reversed that decision by a 2-1 vote. The majority opinion acknowledged it had created a new right. “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 full Sixth Circuit Court of Appeals was asked to review the panel decision, and HSLDA urged the court to do so by filing a friend-of-the-court brief. Our concern centered around a section in Harvard Professor Elizabeth Bartholet’s Arizona Law Review article that relied on the same positive-rights theory, which she argued could be raised in federal courts to ban homeschooling.

Here is what we said in our amicus brief about one of her proposals to ban homeschooling:

One of [Professor Bartholet’s] proposed solutions to get around the people’s representatives in all 50 states is to pursue federal civil-rights litigation to advance a positive-rights theory, as was endorsed by the panel decision.

“Lawyers have recognized the potential in the Constitution for achieving educational reform,” she writes. “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.” Professor Bartholet concludes that cases like the one before this Court could be used to thwart the homeschooling laws of all 50 states. “A similar campaign could be mounted challenging the current homeschooling regime.”

Because the decision broke new legal ground, the full court of 16 judges decided to review the case, which operated to vacate the earlier 2–1 decision that HSLDA opposed. The full court ordered new briefs to be filed later this summer.

Meanwhile, the Governor of Michigan reached a settlement agreement with the students and moved to dismiss the appeal. Unlike decisions by federal appeals courts, the settlement agreement does not establish a rule of law that lower courts must follow.

Because the settlement agreement resolved all the issues between the students and the State of Michigan, the Sixth Circuit dismissed the appeal altogether. Federal courts are generally not permitted to weigh in on legal issues unless the controversy remains alive, no matter how interesting or important. Before the dismissal, it was still possible for the full court to reinstate the bad panel decision, so the issue had not been finally resolved.

In the famous words of Miracle Max, the Sixth Circuit panel’s bad decision is now all dead, not just mostly dead

That is good news. But as the good professor’s law-review article demonstrates, there are opponents of homeschool freedom who will likely try this or other methods to diminish our freedom wherever they see an opportunity.

As we told the Sixth Circuit in our brief, “Pursuing both litigation and legislation, HSLDA and a vibrant network of state and local homeschool organizations, together with an engaged grass roots, have moved homeschooling from being treated as illegal in many states to unquestionably legal in all 50 states and the District of Columbia.”

Contrary to Professor Bartholet, whose dim view of homeschooling is based on an ill-informed stereotype, we at HSLDA believe homeschool freedom is a just and good cause, especially for children.

We are deeply aware of and grateful for the Lord’s help and for the diverse and growing number of dedicated homeschool families and groups who stand together whenever homeschool freedom is at risk.

Because of the courageous commitment of hundreds of thousands of loving homeschool families to their kids and to the cause of homeschool freedom, together we will preserve this option for our children, for our grandchildren, and for future generations.