Timing is everything—in comedy and in law-review articles. Just ask Harvard law professor Elizabeth Bartholet, who, by publishing the latter, unwittingly engaged in the former.

By the middle of April, the whole world began considering homeschooling as public schools closed due to COVID-19. Just then, Harvard Magazine profiled Professor Bartholet’s newly released 80-page law-review article, which had been many months in the making.[1] And she recommended banning homeschooling in all but a tiny set of special cases.

Talk about bad timing.

We at HSLDA knew about the law-review article months before the magazine profile, because it had been released earlier in draft form.[2] We even planned to write a counter law-review article.

When Professor Bartholet and others announced in February that they would be holding an invitation-only “Homeschooling Summit” called the “Homeschooling: Problems, Politics, and Prospects for Reform” at Harvard, her speaker bio referred to the law-review article. We informed our members and friends about the summit in what became one of our most shared Facebook posts.[3]

But even then, the law-review article itself did not make much of a public splash. Law-review articles of this sort have popped up for decades, and they rarely get much attention outside of a small cadre of academics and activists. Ask yourself, how many other law-review articles have you even heard of—much less cared about?

Harvard Magazine goes viral

I learned about the Harvard Magazine article as I was heading to bed on that fateful Saturday night in the middle of April. As I reached the top of the stairs, my 17-year-old daughter, Abby, thrust her phone into my face and indignantly said something like, “can you even believe this?”

Her indignation escalated as she scrolled down the article, quoting such gems as, “Bartholet notes that some of these parents are ‘extreme religious ideologues’ who question science and promote female subservience and white supremacy.” Religious we Masons may be, but the Taliban we are not.[4]

Thanks to the internet’s accelerant properties, the Harvard Magazine article spread like wildfire. In keeping with its unfortunate timing, one might even say it went viral.

Just about everybody who cared about homeschooling reacted to the magazine article—mostly negatively. And because of the magazine, the underlying law-review article itself suddenly came under immediate scholarly scrutiny. One prominent group of social scientists who study education and homeschooling wrote the following, just days later:

We expected it to be rigorous and fact-based but were sadly disappointed. . . . Upon reviewing Professor Bartholet’s article, we conclude that it suffers from contradictions, factual errors, statements of stereotyping, and a failure seriously to consider that the alternative to homeschooling—public schooling—shares the problems that she attributes to home education.[5]

Dozens of homeschooled Harvard University and Harvard Law students, past and present,[6] also wrote to protest the article’s sloppy portrayal of them and against its shoddy reasoning in support of a ban.[7]

HSLDA Responds

According to my spiffy word-search thingy, Professor Bartholet mentions HSLDA 113 times in her 80-page article. And she makes a pretty good case that HSLDA is an especially effective advocacy organization. To be fair, she casts our effectiveness in darker terms than we would. If her portrayal of HSLDA had been a political ad, we would appear in a grainy black-and-white photo, and as ominous bad-guy music plays, the sinister voiceover would say, “HSLDA—brutal, extremely aggressive, extraordinarily powerful, unreasonable religious ideologues.”[7]

One of the most insidious advocacy tactics our allied state homeschooling organizations, who are the backbone of homeschooling freedom, have frequently used goes by various names—but my favorite is “apple-pie day.” On those days, homeschool families from across the state gather on the steps of the state house. There, the state organization holds an old-fashioned rally, often featuring bad-guy HSLDA lawyers as keynote speakers. More and more, state legislators who were homeschooled themselves make an enthusiastic appearance, thrilling the crowd. After the hoopla is over, the families, children in tow, visit their representative’s office to chat and deliver a piece of homemade apple pie.

The fiends.

We began this series, HSLDA Responds, not because of Professor Bartholet’s jaundiced view of our organization but because we love homeschooling. We have devoted our professional lives to advancing the cause of homeschool freedom because “our belief—our worldview if you will—leads us to conclude that a system where parents have wide latitude in raising their children, while not perfect, is far better for many more children than a system where the raising of children is highly regulated, restricted, and in some cases, dictated by the state.”[9]

In pursuit of that goal, HSLDA has unapologetically used every legitimate tool of public advocacy—including moms and apple pie—to roll back the barriers to homeschooling. As homeschoolers ourselves, we have stood with other homeschoolers for homeschool freedom, in the courts, in the state houses, and in the media.

We have done so because we believe that homeschool freedom is a just cause, a civic virtue, and is good for kids.[10]

Clashing worldviews

Our disagreement with Professor Bartholet is probably best described as a clash of worldviews.

We at HSLDA do what we do because we sincerely believe that raising, nurturing, and educating children is best left to loving parents. We also believe that the best interests of children are furthered when the state respects a diversity of approaches to child-rearing and education, while recognizing that parents sometimes fail in ways that require state intervention.

Beginning with the title of her article, Professor Bartholet describes our view as “parent rights absolutism.” That is, of course, a straw man.[11] Our view of the correct relationship of the state to the family is that parents have fundamental rights, not absolute rights. A fundamental right means that the state should only intervene for compelling reasons, and then only in a limited fashion. [12]

This legal distinction between absolute and fundamental rights is not complicated—even Harvard law professors can figure it out. In her law-review article, Professor Bartholet juxtaposes those of us she incorrectly paints as being parent-rights absolutists with her argument that the courts should start recognizing that children have a fundamental right to public education.[13] By this, she means public education compelled by the state, even if the child’s otherwise-fit parents prefer homeschooling. That view turns the traditional relationships between the state, parents, and children upside down.

Parents or the state?

According to Professor Bartholet’s worldview, the state has a prior and superior interest—above that of parents—in the raising of children, which authorizes the state to compel parents to behave in certain ways against their wishes, in the name of children’s rights. This is especially true, she argues, through compulsory public education and an ever-expanding and evermore-intrusive child-protective apparatus.

Her ideological companion and summit co-organizer, law professor James Dwyer, has said, “The reason the parent-child relationships exist is because the state confers legal parenthood.”[14] Professor Bartholet would prefer for the state to step in to make major educational decisions for children—decisions she happens to agree with—and for parents to be compelled out of their traditional role. Professors Bartholet and Dwyer think this is no big deal:

Parents would retain enormous control over children, even if children were required to attend regular school throughout the period of compulsory education. Parents could still raise these children at home with total control over their lives from infancy until kindergarten. They could still dominate the lives of children enrolled full-time in school, with total control during a huge proportion of their waking hours. Dwyer and Peters note that mandatory school time would take up less than one-fourth of a child’s waking hours in a year, assuming that school took up seven hours per day.[15]

The unstated assumption animating the ideas behind the above paragraph is that homeschooling parents cannot be trusted to raise their children to grow up to be self-sufficient, curious, engaged citizens. Mandating these seven hours per day is to insure that children are exposed to ideas different from their parents.

Here is what Professor Bartholet claims: “a very large proportion of homeschooling parents are ideologically committed to isolating their children from the majority culture and indoctrinating them in views and values that are in serious conflict with that culture.”[16] Based on this assumption about homeschooling parents, she builds the “total control” straw man, in the apparent belief that the compelled seven hours per day is not a form of “domination.”

As a homeschooling parent of seven children myself, I can honestly say I never had “total control,” even if I had wanted it—which I did not. Faith, reason, and hard, cold experience taught me early on that my children were autonomous beings with minds of their own. I came to see it as “my job to prepare them for their life to come—both temporal and eternal—not to live it for them.”[17]  Based on my personal experience with the homeschooling community for nearly 30 years, my wife and I are not unusual in this regard. And after being an advocate in this space for almost 20 years, that observation has not changed.

Homeschooled students are more tolerant

It is ironic that, in the name of exposing children to different views, Professor Bartholet has worked so hard to stamp out a tiny group of nonconformists. Especially when compelling social science research strongly suggests that “those [college students] with more exposure to homeschooling relative to public schooling tend to be more politically tolerant.” The author of this study, Albert Cheng of the University of Arkansas, also wrote:

Two theories for why homeschooling may cause an increase in political tolerance were suggested earlier. First, students who are homeschooled may attain a greater degree of self-actualization because homeschooling is highly conducive to personalized instruction and enables students to be taught a consistent worldview. Second, the religious values taught in a homeschooling environment as well as in many religious private schools are consistent with political tolerance and other values necessary for a liberal democracy. [18] 

Professor Bartholet does not cite Professor Cheng’s study in her law-review article.[19]

She really means to ban homeschooling

Make no mistake, the stated goal of Professor Bartholet in her law-review article is not to nibble around the edges to adopt “reasonable” regulations.[20] Given her druthers—based not on empirical evidence but on what is, at bottom, a competing worldview—homeschooling as we know it today would be outlawed. Professor Bartholet should be commended for forthrightly stating her preferred policy goal of banning homeschooling, notwithstanding her feeble attempt to walk it back later.[21]

For almost 40 years, motivated by a traditional worldview, which is in turn animated by our understanding of Christian teaching, HSLDA has worked to remove legal barriers to allow all parents the freedom to make responsible choices for their children. And “we don’t ask you to share our worldview or its religious underpinnings to receive our help. If you are a parent of a child, we want you to enjoy the same liberty we want for ourselves. For the sake of your children.” [22]

Agree or disagree, we put our money where our mouth is. All our attorneys have homeschooled their children, and four of them were homeschooled themselves growing up.

Professor Bartholet, on the other hand, would compel all other parents to send their children to public schools, even though she has admitted since the Harvard Magazine article was published “having sent her kids to private school.” [23]  

The way we were

In Land of Hope, historian Wilfred M. McClay begins the chapter about events leading up to the Civil War with this reminder:

When we look back to a moment in the past, it is hard not to read into it nearly everything that we know is to come after it. We can’t help but see it as something carrying along with itself a future that we already know about, an awareness that gives us a perspective very different from that of the participants in that past moment.[24]

Looking back at the birth of the modern homeschooling movement, it is easy to forget that what may seem inevitable in hindsight was far from certain back then.

In the 1980s, prosecutors in Texas, Iowa, North Dakota, Michigan, and other states charged parents with crimes for homeschooling without a license—a state teaching license, that is. And across the country, parents faced considerable peril when they navigated the kind of bureaucratic “regime” that Professor Bartholet would have us return to.

The peril was real. The outcome was uncertain. Yet early homeschoolers endured.

HSLDA participated in state supreme court cases in each of the states mentioned above. And we have worked hard with state and local allies across the country to help parents roll back the old anti-homeschooling regime. The fact that homeschooling today is unquestionably legal, mainstream, and widely accessible was never a foregone conclusion. 

The way we are

But homeschooling today is unquestionably legal, mainstream, and widely accessible. And because the public schools are in unexpected disarray due to COVID-19, homeschooling provides millions of families with real choices to address the education of their children.

Homeschooling is not just a legal question about education. An important quality of homeschooling involves its place as one of the most dynamic social movements in modern American history. While Mark Zuckerberg may have created a virtual social network, homeschoolers have formed a vast array of actual social networks—yes, often complemented by Facebook—based on religion, sports, Latin instruction, debate, drama, spelling, ages of children, needs of parents, self-directed learning, and a host of other reasons people choose to voluntarily associate with each other.

And this vast array of lawful, innovative, voluntary associations is strong, vibrant, and active in seeking to meet the needs of struggling families during the current crisis.

So, we at HSLDA are shifting our focus—but not our vigilant attention—away from the anti-homeschooling naysayers. Families today do not need a bunch of grumpy Old Sneeps, like Professor Bartholet, sucking on lemons to stop the band from playing (H/T Robert McCloskey in Lentil).[25]

They need help getting started and help enduring; they need solutions, not barriers; they need mentors like experienced homeschool moms and dads; they need co-ops and pods and micro-schools; and they need all the good things we have built together over these last 40 years.

And we at HSLDA aim to do everything in our power to help.

Closing thought

This will be the last formal essay in our series that we have called HSLDA Responds. Our president, Mike Smith, will wrap up the series next week with his closing thoughts about Professor Bartholet’s law review article and HSLDA’s response.

As I write the last section of the last essay in this series, I am reminded of the last sentence of the last chapter of the last book in the Old Testament. There, the prophet Malachi says this:

And he will turn
The hearts of the fathers to the children,
And the hearts of the children to their fathers,
Lest I come and strike the earth with a curse.[26]

It is our prayer that this present adversity will make us all stronger and more caring, and that, hard as it is, it will become a blessing for you and for many. We hope that you and yours will be safe and well, and that your hearts will turn to each other, as we hope the same for ourselves.

And if we can help you or your friends figure out the many joys of homeschooling, please let us know.