A famous political cartoon published by Benjamin Franklin of a rattlesnake cut to pieces was used to urge American colonists to “join or die” in a fight for independence against the mother country. In Goodred v. Portsmouth, a court ruling is sending a similar message to homeschoolers in the United Kingdom and elsewhere: to preserve their freedom, homeschoolers must organize and be strategic in their advocacy.
In the case, UK High Court Justice Lane found that the local city council’s policy requiring homeschooling families to respond to informal inquiries, even though there is no legal requirement that they do so, was entirely “reasonable.” The judge also ruled that the school was best situated to decide what kind of “evidence” was needed to demonstrate that the children were receiving a “suitable” education.
This is the first major UK high-court case involving homeschooling in decades.
Homeschoolers were stunned by the outcome but are not able to appeal due to procedural obstacles. This ruling may embolden authorities in other cities to adopt more aggressive policies toward homeschooling families.
According to home educators in the UK, most city authorities are not nearly as aggressive as the City of Portsmouth. Juliet English, a homeschooling advocate in the UK, recently shared in my podcast, “Homeschooling Around the World,” that Portsmouth City has a 40% vs. 2% percent rate of issuing school attendance notices (“SAOs”) to the homeschool population. SAOs are a formal court order that children must attend school.
“Portsmouth County Council would like to see all children in school and are making it as difficult as possible for parents to home educate. They make demands on parents that other local authorities do not, such as issuing school attendance orders to force compliance,” English said. “Most parents have won in lower courts, but the council just slaps on more school attendance orders. This is vindictive and not good for children. I believe that the Department of Education is involved in encouraging this kind of hostile behavior in order to set precedent.”
UK law vs. UK interpretation
In the Portsmouth case, when city authorities requested information about her home education program, Mrs. Goodred agreed to give city authorities a self-written progress report. In the past, this method had been accepted. This time, however, the local education officials demanded more “objective” evidence that the children’s education was “suitable.” There was even talk of visiting the family’s home.
Under the UK Education Act, there is no explicit legal requirement that parents inform local authorities that they are homeschooling or even to respond to inquiries. The law simply states that parents must ensure their children receive a “suitable” education by sending their children to school or “otherwise.” However, “informal” guidance issued by the English Department of Education, along with other laws, has created more confusion.
And to add to the confusion, the judge ruled in favor of the City Council, effectively placing the burden of proof on Mrs. Goodred to show that her education program was sufficient without establishing any procedural safeguards against capricious behavior by the school authorities. This is a dangerous precedent for home educators in the UK because it opens the door to arbitrary demands by city authorities, which will inevitably lead to more conflict and litigation.
This case reflects efforts by governing education politicians and bureaucrats over several decades to gain more control over home educators.
Decades in the making
The 2009 Badman report, which called for severe restrictions of home education, galvanized home educators in the UK. But efforts to enact legislation inspired by the report were placed on hold after the 2010 change in government leadership from Labor to Conservative.
However, even under the “conservative government,” there have been attempts to impose dramatic new regulations on UK home educators. In 2017, a bill put forward by Lord Solely of the British House of Lords called for the institution of drastic new regulations. And in 2020, the ruling government organized a public consultation on home education, which prompted nearly 1,000 submissions.
Following the consultation, the government wrote a report called “Strengthening Home Education” (which, really, meant strengthening “government control”). The report proposed a mandatory register of students and additional “data collection” to find out more about what was going on in home education.
What is happening in the UK is concerning because the UK is a leading Western European democracy, and other countries are influenced by its policies. The UK’s education legislation regarding home education reflects a presumption that citizens are free to educate their children without government interference.
Goodred v Portsmouth turns this presumption upside down to reflect what supporters of the UN Convention on the Rights of the Child advocate: that government must be more involved in the lives of children as a matter of standard policy
I have written a response to this statist idea, which presumes that governments ought to be the preeminent decision makers for children. You can read it here in the Journal of Law and Education.
This idea is not new, but it should still motivate homeschoolers to protect their freedoms. As Ronald Reagan, my favorite American president, has said, “Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same or, one day, we will spend our sunset years telling our children and our children's children what it was once like … where men were free.”
The risks of litigation
Another thing Goodred v Portsmouth illustrates is the risks involved in litigation. A bad ruling can affect many more people than just the one family involved in the case. Sometimes, when the law is clearly on your side (as it was here), it’s preferable to settle out of court.
It is better to address policy issues by influencing policy makers rather than trying to get judges to rule against policy. Judges are not lawmakers, and they strive to avoid overturning policy enacted by legislators (even a city council, as in this case) if they can.
Of course, it is not always possible to avoid court. When a family is being prosecuted for truancy or being charged with neglect, they need to be defended in court. In most cases, criminal or even neglect allegations are accompanied by more favorable due process protections and burdens of proof. In the case of Goodred v Portsmouth, it was the homeschooling parent, with the support of the whole Portsmouth home education community, who was the plaintiff; they were suing the City Council to vindicate their interpretation of the law.
Another concern the UK case highlights is how much government officials are using the issue of child protection—or “safeguarding” as they call it in the UK—to justify increasing regulation and control over home educators.
One particularly chilling paragraph from the judge’s opinion is his use of the Department of Education’s guidance, striking at the foundational presumption of “innocent until proven guilty” as the underpinning of a justice system in a free country. In Paragraph 27, the judge writes, “Paragraph 7.3 [of the Department of Education’s Guidance] observes that there is no proven correlation between home education and safeguarding risk. However, a child being educated at home is, in the Secretary of State’s view, not necessarily being seen on a regular basis by professionals such as teachers. This can logically increase the chances that any parents who set out to use home education to avoid independent oversight may be more successful by doing so.”
Although written carefully, this suggests that home educated children are more at risk because they are being home educated. The Department of Education, in its “guidance,” and the judge also assume the logical certainty of this proposition without question. But that is a logical fallacy: assuming facts without evidence.
This same criticism of homeschooling is used also in the United States. It assumes, implicitly, that children who are in school—and, ostensibly, under “independent oversight”—are safer. But there is no evidence that this is true; it is only assumed.
This paragraph is the “tell” of the underlying philosophy held by too many authorities—they suspect anything they do not control and don’t trust their fellow citizens. That is why they want a mandatory register and better data collection for homeschooled students.
But this is NOT how a free nation should govern. Policy should presume citizens are innocent but permit government to intervene when there is evidence of harm. And rather than making policy on logically faulty arguments, stereotypes, or exceptions, it is better to make policy based on evidence and actual data.
The issue of home education regulation has become more urgent because home education has grown dramatically in response to the pandemic, and governments are noticing. Parents are demanding more options for educating their children as they deem fit because home education is a natural, fundamental, and inalienable right they should be able to exercise, freely. Governments may not unreasonably restrict this right, but some are trying to.
This is why national home education legal defense organizations are needed in every country. All parents who support the idea that parents come before governments in making decisions about how their children are educated, as the Universal Declaration of Human Rights states, should support each other in protecting this important right. Joining together at the local, national, and global level for mutual support, information sharing, and action makes sense. That is the mission of HSLDA and the Global Home Education Exchange Council.
Over the decades, HSLDA has observed the providence of God in the unlikely story of homeschooling freedom, which can also be attributed to the hard work and organization of many individuals along with the creation of formidable and enduring organizations
that carry on the work of defending this freedom across generations. Together we can advance this great cause for our families and for generations to come on the local, national, and global level. Join us in advancing freedom by supporting your local
organization, a national organization like HSLDA, and global organizations like GHEX.