By: Caitlin Gallagher
Volume X – Issue I – Fall 2024
I. INTRODUCTION
Homeschooling is often presented as an alternative option for parents who are looking for something more personalized and catered to their children’s needs than public schooling. For some families, this can absolutely be true. However, it seems that homeschooling can be a pathway for abuse, social isolation, and delayed development for many children. Take, for example, Hope, a woman who was homeschooled in the early 2000s in Minnesota. She describes her education as being severely limited - mostly she was given textbooks and was told to “teach herself through them”. Neither of her parents were qualified to educate her, and Hope and her four siblings were scarcely allowed to escape their physically, emotionally, and sometimes sexually abusive parents. In describing her nightmarish situation, Hope writes, “I don’t even know how many people knew we existed, since we were never allowed to make friends at a park, or go anywhere by ourselves, or ever, ever speak to an adult who wasn’t our parent.” [1]
Hope’s experience, along with the experiences of many homeschooled students that have spoken about their experience, raise the question: how have parental rights come to outweigh the rights of children to a safe environment and a robust education? Although some may view Hope’s story as one of success - she graduated from college magna cum laude and is now pursuing a masters’ degree, it is clear that there are fundamental flaws within the American homeschooling system. This article will argue that while Courts were correct in ruling that parents have the right to educate their children, new regulations regarding homeschooling need to be imposed to ensure that parents are still able to educate their children, but that their children’s rights are not being restricted by their decision to homeschool.
II. A BRIEF HISTORY OF AMERICAN HOMESCHOOLING
While some may believe that the rise of homeschooling families is the result of the COVID-19 pandemic, attempting to trace the true roots of homeschooling can prove to be quite difficult. Various cultural groups throughout history have believed that the most important and effective teaching happens at home. For example, in the Native American education system, “learning from elders through example was typically the only way in which children were educated.” [2] However, for the purposes of understanding the current landscape of American homeschooling, it is useful to look at the more modern revival of parental desire to homeschool.
Modern homeschooling began gaining traction in the 1960s and the 1970s. The growth of this seemingly new ideology was due in large part to the ideas of John Holt, a prominent philosopher of education at the time. [3] Holt graduated with an engineering degree from Yale University in 1943, but still considered his formal, in-classroom education to be largely useless. Of his schooling, Holt said, “May I say instead that most of what I know I did not learn in school, and indeed was not even 'taught.'” [4] In order to help other people from falling into what he considered to be the “trap” of formal education, Holt began researching and writing about homeschooling. [5] Although he was joined by other philosophers, Holt’s work was the inspiration for many parents to pull their children out of public schooling. Critically important to Holt’s philosophy is the idea that education should be an individual decision made by families that is nobody’s business other than their own. In discussing this idea, Holt said, “I have come to believe that a person's schooling is as much a part of his private business as his politics or religion, and that no one should be required to answer questions about it.” [6] This sentiment has unfortunately become one of the guiding principles of the American homeschooling landscape. The idea that parents should be left to their own devices to educate their children in any way they see fit is the reason for the gaps that homeschooled children experience. This idea has expanded beyond books produced by Holt and his peers and the mainstream media they used to reach families. It has permeated court decisions and state legislation that continue to shape homeschooling to this day.
III. A LEGAL BEGINNING TO THE PARENTAL RIGHT TO CONTROL THEIR CHILD’S EDUCATION: MEYER V. NEBRASKA (1923)
The legal beginnings of parental rights in education precede the popularity of John Holt’s homeschooling movement. Although the philosophy cannot be traced back to the concept of homeschooling directly, it has been traced back to the 1920s in cases about instruction in foreign language. In Meyer v. Nebraska (1923), the plaintiff was a teacher who was convicted of violating a Nebraska state law that prohibited any kind of educational instruction in a language other than English before the eighth grade. At the time, the state of Nebraska believed the law was necessary to integrate immigrants into American culture, as they felt that as a long as a student was instructed in the language of their or their parents’ home country, it would “naturally inculcate in them the ideas and sentiments foreign to the best interests of this [home] country.” [7] The state also did not see a reason why an American-born parent would want to educate their child in a language other than English, so they saw no problem with this law.
However, when the Supreme Court was forced to reckon with the idea that parents should be able to dictate their child’s education, they found that the state of Nebraska had overstepped its constitutional bounds. The Supreme Court in this case aimed to decide whether the Nebraska education rule deprived parents of their Fourteenth Amendment right to Due Process. Among other things, the Fourteenth Amendment states that, “No State shall . . . deprive any person of life, liberty, or property, without due process of law." [8] The term “liberty” is vague, but looking to precedent, the Supreme Court decided that “liberty” includes , “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” [9] Under this doctrine of individual freedom, the Court decided that parents had every right to shape the education of their own children, no matter the religion, language, or culture it is shaped by. While schooling is not the only aspect in raising children, and was never named by the Court specifically in their discussions of what liberty entails, surely how a child learns is central enough to their rearing that is included in the definition of liberty. It is clear that in this case, the Court agreed. To undermine an individual’s right to liberty would be to undermine centuries of jurisprudence and American tradition, and thus the court was left with no choice but to allow homeschooling.
In coming to their conclusion about the necessity of involving a parent in their child’s education, Justice McReynolds writing the opinion of the Court analogized the United States to the ancient Greek means of education. The Court pointed out that in Sparta, young men were educated homogeneously in military training without ever knowing their parents. However, the Court argues that the aims of the two states are completely different. In Sparta, their educational goal was to raise strong military fighters. In America, the educational goal is to breed critical, diverse, and democratic thinkers. In order for this mission to be protected, the Court deemed it necessary to allow people to choose their own means of education for themselves and their families. If any state were to interfere with this mission, it would not only be violating the Due Process Clause, but would be violating the principle mission of American education.
IV. A LEGAL TURNING POINT IN HOMESCHOOLING: WISCONSIN V. YODER (1972)
Another landmark case for families who were interested in home schooling their children was the 1972 Wisconsin Supreme Court Case, Wisconsin v. Yoder. In the Yoder case, members of the Old Order Amish religion and the Conservative Amish Mennonite Church were found by a lower court to have violated the state of Wisconsin’s formal education requirements. The state requirements stated that children had to remain in school until the age of sixteen, which was not what was happening within the Amish communities. Children in Amish communities typically terminate their in-classroom education after completion of the eighth grade. Rather than denying the allegation that they had violated the state law mandating that their children attend school for a longer period of time, parents of these Wisconsin Amish communities argued that the state’s legal education requirements were categorically unconstitutional.
The Amish communities claimed that the state education requirements violated the Free Exercise Clause of the First Amendment of the Constitution. Although this clause specifies the actions that Congress is able to take, the provisions of the Clause and the Amendment as a whole are not to be violated by state legislative bodies either a as laid out in the 14th Amendment. The 14th Amendment makes clear that no person will be deprived of their life, liberty, or property without due process. [10] The Amish parents in this case argued that public schooling past the eighth grade was incompatible with the Amish way of living. After explaining the history of their religion and way of living, they explained that the nature of the Amish faith is not entirely compatible with the public schooling system, and that it is important that their children receive proper religious instruction. [11] Due to this reasoning it was clear to the community, and ultimately to the U.S. Supreme Court, that the Amish way of living was incongruent with public schooling. Even if the Court did not agree with the Amish way of life, they were left with no choice but to find that state rule impinged on the Amish community’s ability to educate their children how they saw fit. In their decision, they wrote, “The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights.” [12] It is clear that it is essential to the Amish religion to homeschool their children, and if the Court were to rule in this case that they were no able to do so, it would certainly impinge of their ability to practice their religion, no matter how strong the State feels that they should receive public education.
V. MODERN LEGISLATION GOVERNING HOMESCHOOLING
The more laissez-faire approach to homeschooling has extended beyond court decisions to both federal and state legislation governing how parents are able to educate their children. Statutes and state legislation have not been immune to the decisions rendered by courts throughout American history. In the same vein as the two pivotal decisions in Meyer v. Nebraska and Wisconsin v. Yoder, legislation has often taken a hands-off approach to governing how parents choose to educate their children. Perhaps the best example of this is the difference between states in homeschooling legislation. Only New York, Massachusetts, Rhode Island, and Pennsylvania have state regulations that “require parents to send notification or achievement test scores and/or professional evaluation, plus other requirements (i.e., curriculum approval by the state, teacher qualification of parents, or home visits by officials).” [13] By contrast, in eleven states, parents are under no requirement to even notify their local school district or a governmental agency that they are removing their child from an in-classroom public school environment and substituting it with a homeschooling model [14]. There are no legally required curriculum guidelines or approval necessary, no testing requirements, no educational benchmarks, or supervision for children in these situations by anyone other than their parents. The rest of the states fall somewhere in the middle of these two extremes, but the majority of them fall on the side of less regulation. Twenty-three states, while they do more than the bare minimum, only require a notice of withdrawal from public schooling. In these states, there is still no requirement for curriculum, hours spent in school, or testing. [15] Given the lack of requirements, it is clear that states have adopted the spirit of taking the side of parental freedom as opposed to rigid educational standards.
V. ANALYSIS
The right to make decisions about education for yourself and for your children is quintessentially American. American tradition is rooted in freedom from state interference in daily life, and to limit these freedoms would be to misunderstand what it means to enjoy the rights of being an American. However, it seems that rather than overstepping their bounds with legislation, states would prefer to take an almost completely laissez-faire approach to education. The American tradition of freedom is an important concern, but it is also true that freedom and the wellbeing of young students can be protected at the same time. America values choice of education and believes it is vital to the success of a healthy democracy, but to what end? Even courts have struggles to identify a limiting principle when it comes to the freedom of parents to homeschool their children. If parents are given no limits to what they choose to teach their children, or in some cases not even teach them at all, are they even choosing education, or are they choosing ignorance for their children?
Hope’s story proves that the right her parents had to make decisions about her education was mishandled. One could even set aside the fact that she fell behind her peers developmentally as this could have just as well happened in public school given the different learning capacities of different children. Critically, Hope missed out on one of the greatest freedoms a sufficient education can give a child: the option to explore viewpoints that differ from the ones you are raised to believe. Looking to Justice McReynolds opinion back in 1923 for guidance on this issue, he identified the right to acquiring useful knowledge as synonymous with a person’s right to liberty. Hope herself explained that she was denied access to important knowledge about mathematics and science. She admitted that she was unable to complete any substantial Algebra course or gain access to any source that relayed reliable information about climate change. Perhaps gaining proficiency in Algebra may not be meaningful to a person’s everyday life, but being denied the option to even explore that area of interest seems like a blatant disrespect to the same Constitutional rights that parents are afforded.
This is not to say that all homeschooling deprives children of their rights. Homeschooling can be helpful, and sometimes even life changing, for children who have learning disabilities, children who get bullied, or in circumstances where home may be a safer environment than school, but without regulation, it can be an egregious violation of a child’s Constitutional rights. While courts have made it clear that education must be a personal decision, there must be a balance struck that keeps children from slipping through the cracks of the educational system. The Court attempted to strike this balance in Murphy v. Arkansas (1988). In that case, which concerned state-imposed schooling standards even if a child was homeschooled, the Court struck more of a balance between the right to homeschool and the state’s interest in imposing educational standards. The decision outlines a more discerning rule that has been used in subsequent cases regarding homeschooling. The rule explains that the government is allowed to interfere with a claimant’s “sincerely held religious beliefs” as long as their action is the “least restrictive means” of achieving a governmental interest. [16] While not in complete opposition to previous decisions, this standard does give states more leeway to dictate what standards of education parents must reach if they wish for their children to be homeschooled. However, no Court can mandate that states impose these rules at all. Thus, we are still left with the problem that states can have no educational standards for those learning at home at all. It seems that this rule has allowed some willing states to impose educational standards, however, the country as a whole is still far from universal regulations that would protect students from falling through the cracks.
This would not mean a complete federal ban on homeschooling—both the Supreme Court and courts throughout the country have made it clear that this is not an option given the provisions of our Constitution. The solution to this problem is not a complete elimination, but rather a set of education standards that would be necessary for students to experience. This set of requirements would mirror the requirements of the four states that already have rigorous requirements for homeschooled children. These states do not overstep their Constitutional bounds as they do not mandate what is taught, they just mandate that their respective Departments of Education must review and approve what is being taught. By doing this, parental rights to choose how their children are educated are still protected, but there is still mindfulness of children’s equal right to an education that matches that of their peers in “regular” schooling. In the same way the courts had to intervene to protect parents’ Constitutional rights, the onus is on the states to do the same thing for homeschooled children. Without this stopgap, stories like Hope’s will continue to be commonplace for the sake of the parental right of choice to education.
Endnotes
[1] 1 Coalition For Responsible Home Education. n.d. “Hope M.: “I don’t even know how many people knew we existed.”” responsiblehomeschooling.org. Accessed November, 2024. https://responsiblehomeschooling.org/hope-m-i-dont-even-know-how-many-people-knew-we-existed/
[2] Knowles, J., Stacey E. Marlow, and James A. Muchmore. 1992. “From Pedagogy to Ideology: Origins and Phases of Home Education in the United States, 1970-1990.” American Journal of Education 100, no. 2 (February): 195-235. https://doi.org/10.1086/444014.
[3] Gaither, M.. "John Holt." Encyclopedia Britannica, September 10, 2024. https://www.britannica.com/biography/John-Holt.
[4] Growing Without Schooling. n.d. “Who Was John Holt?” John Holt GWS. Accessed November 24, 2024. https://www.johnholtgws.com/who-was-john-holt.
[5] Growing Without Schooling. n.d. “Who Was John Holt?” John Holt GWS. Accessed November 24, 2024. https://www.johnholtgws.com/who-was-john-holt.
[6] Growing Without Schooling. n.d. “Who Was John Holt?” John Holt GWS. Accessed November 24, 2024. https://www.johnholtgws.com/who-was-john-holt.
[7] Meyer v. Nebraska, 262 U.S. 390 (1923)
[8] Meyer v. Nebraska, 262 U.S. 390 (1923)
[9] Meyer v. Nebraska, 262 U.S. 390 (1923)
[10] U.S. Constitution Amend. 14.
[11] Wisconsin v. Yoder, 92 S.Ct. 1526 (1972)
[12] Wisconsin v. Yoder, 92 S.Ct. 1526 (1972)
[13] Home School Legal Defense Association. n.d. “Homeschool Laws By State.” HSLDA. Accessed November 24, 2024. https://hslda.org/legal.
[14] Home School Legal Defense Association. n.d. “Homeschool Laws By State.” HSLDA. Accessed November 24, 2024. https://hslda.org/legal.
[15] Home School Legal Defense Association. n.d. “Homeschool Laws By State.” HSLDA. Accessed November 24, 2024. https://hslda.org/legal.
[16] Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988)