This post reviews J. C. Blokhuis, “Whose Custody is it Anyway?: ‘Homeschooling’ from a Parens Patriae Perspective,” in Theory and Research in Education, 8, no. 2 (August 2010): 199-222. [Abstract available here]
Blokhuis, Assistant Professor of Education at Renison University College at the University of Waterloo in Canada, here presents a bracing challenge to the common claim that parents have a Constitutional right to raise their children as they see fit. He does this by explaining how the common law doctrine parens patriae limits their custodial authority. He hones in especially on how this doctrine limits homeschooling rights. Blokhuis begins by explaining that common law has historically distinguished between competent and incompetent persons. Competent persons are presumed able to recognize and advance their own interests and are thus subject to law. Incompetent persons are not and are thus subject to custody. The goal of custody is to help incompetent persons become competent. Parenthood is a form of custody, whose goal is to make children competent.
Since it often hard for adults to put the development of dependents above their own interests, the state has established the common law notion of parens patriae, or “parent of the nation.” This principle allows the state to step in when a child (or other incompetent person) does not have a custodian or if the custodian is acting against the interests of the child. It’s this idea that stands behind the American practice of having judges decide what to do with children in custody disputes connected to divorce, in situations of abuse and neglect, and so on. It’s the idea that stands behind compulsory attendance and child labor laws, prohibitions against giving alcohol or drugs to minors, incest, and so on. Parens patriae, Blokhuis notes, applies to all parents, not just those guilty of a crime.
Blokhuis then explains how the language of such famous parents’ rights cases as Pierce v. Society of Sisters (1925) and Prince v. Massachusetts (1944) makes it clear, certainly that the child is not “the mere creature of the State,” but that neither is the child the mere creature of “the individuals to whom she happened to be born.” (p. 202)
The 1972 case Wisconsin v. Yoder, however, thinks Blokhuis, messed all of this up. While the original decision was carefully crafted to apply only to the Amish, the principle it enunciated has taken on a life of its own. Yoder is regularly cited as authority for sweeping claims about parents’ religious rights over their children (for examples of what Blokhuis is talking about see here and here). Blokhuis notes that as of April 2010 Yoder had been cited in 2,060 federal and state cases, including 64 Supreme Court decisions. [It has also had an impact in Canada. For this review I’ll focus only on the U.S. discussion.]
Despite this huge over-reach by homeschooling advocates who have pounced on Yoder and turned it into a mandate for anything-goes parenting, State courts continue to recognize the validity of parens patriae. Blokhuis provides four categories of examples, all from New York. I’ll summarize his first category in some detail and then blitz through the other three more quickly.
The first category is homeschooling parents who violate the state’s compulsory school law. He provides three illustrative cases to show that parents are not recognized to have an unlimited constitutional right to direct the upbringing of their children free from government interference:
1. New York v. Donner (1950)–here the court decided against a group of Jewish fathers who claimed that their religion forbade their children from studying anything other than Talmudic law in a Yeshiva. The court ruled that the state can require ALL children to study secular subjects. As Justice Delaney wrote, “Religious convictions of parents cannot interfere with the responsibility of the State to protect the welfare of children.”
2. In re Adam D. (1986)–here Justice Lamont decided against parents whose homeschool program did not meet the equivalency requirements of New York Education Law. The ten-year-old boy was subject to wardship proceedings and his parents placed under supervision of the Department of Social Services.
3. Blackwelder v. Safnauer (1988)–here the court decided against parents who refused to allow onsite inspection of their home by state officials. Chief Justice Munson noted, “the state’s interest in the intellectual, social, and psychological well-being of the children involved in this action cannot be minimized, as it was in Yoder.”
The other categories concern cases involving foster parents, domestic partners who disagree about homeschooling, and a child exempted from compulsory education because of physical deformity. In all of these situations the New York Court intervened on behalf of the children over and against the parents’ wishes to sequester the child away from public influence. In the most gripping case, In re Kevin Sampson (1970), the court overrode the wishes of a Jehovah’s Witness mother that her child not receive the blood transfusion necessary for a surgery that would alleviate his severe physical disfigurement. The son was also illiterate because his mother had been using his physical disability as an excuse to keep him out of school. He was 15 years old and could not read.
Blokhuis’ moral from all of this is that “while homeschooling may be legal in New York from a statutory perspective, it is not always reasonable from a parens patriae perspective.” (p. 207) What is the source of this unreasonableness? For Blokhuis, as for so many other critics of homeschooling, it is because homeschooling has the potential to hinder children from developing the autonomy necessary to make their own decisions. The modern, liberal state educates for responsible autonomy. It does this by exposing the child to “formative influences beyond the persons to whom she happens to be born.” (p. 213)
Homeschooling, by cocooning children from this wider world, makes indoctrination much easier and thus hinders the development toward competence that is a parent’s primary responsibility to his or her children.
Blokhuis ends with an epilogue decrying how the U.S. is the only Country besides Somalia that has not ratified the United Nations Convention on the Rights of the Child. Why not? Because of fundamentalist Christian lobby groups like HSLDA who peddle the “Parental Rights” Constitutional argument that emerged from Yoder. Blokhuis himself thinks these claims are bogus and quotes no less than Justice Scalia to back up his point. He thinks Yoder got it wrong and that there is not in fact a Constitutional right of parents to trump parens patriae for religious reasons.
In contrast to the legal articles I’ve reviewed the past two weeks, this was a very compelling piece. I find Blokhuis’ enunciation of the parens patriae doctrine clear and irrefutable. Where he goes wrong, however, in my view, is how he defines what the state’s interests actually are. For some reason liberal theorists like Blockhuis continue to return to this autonomy issue. That’s a really bad move historically, pragmatically, and theoretically. Let me explain.
Historically, the notion of autonomy is of very recent vintage, a product of Kantian philosophy. It does not have nearly the pedigree of parens patriae itself and has always been a contested thesis. Autonomy was certainly not the goal of public education as it was founded and developed in the 19th and 20th centuries. Far from it.
Pragmatically, the notion of autonomy is harder to establish as a political program than more modest notions. If Blockhuis defined the state’s interest (as it really has historically been defined in law) as making sure all children develop literacy, numeracy, and other content mastery necessary for public life, then he’d have a much easier time. Compulsory school laws were not established to lead all children to autonomy. They were established to make sure kids learned to read and so forth. They were also established, it could be argued, to provide the very opposite of autonomy–namely to make Catholic, immigrant kids into Protestantized Americans.
Philosophically, the concept of autonomy has been in serious retreat for some time now. The arguments are so familiar that it’s tiresome to repeat them, but 1. there’s no such thing as autonomy, as all of us are the product of social conditioning, and 2. even if there were, it’s not at all clear that public schools with their segregation and culture of conformity foster autonomy any better than homeschooling does. We’ve dealt with all of this in more detail before, most thoroughly in my coverage of the debate between Perry Glanzer and Rob Reich over this very topic. Read about Glanzer’s critique of Reich’s autonomy argument here and about Reich’s response here.
Let me close then by making two points:
1. I’d like to encourage liberal theorists who are I think right to be skeptical of the claims some homeschooling advocates make for absolute control over their children to try to get over this obsession with autonomy. The state does have an interest children’s development toward competence, but that competence should be defined more narrowly.
2. I’d also like to encourage liberal theorists not to base their entire view of homeschooling on the kinds of court cases Blokhuis canvasses here. One should not make sweeping claims about an entire phenomenon based on the very worst exemplars of that phenomenon, which are what these cases represent. It is the sad truth, as previous posts have noted, that there are quite a few families who use “homeschooling” as a way to hide abuse and neglect. But that is not the way the vast majority behave. Does homeschooling really fail to prepare children to be competent adults and citizens? Quite to the contrary. Blokhuis needs to delve here into the empirical literature on college readiness and so on before making such elaborate charges. Said differently, this well crafted theoretical argument needs an empirical reality check about both homeschooling and public education.
Well said. Thanks for taking the time to write this up. I think this points to the validity of State involvement in certain instances while pointing to the need for reality to be the guiding point, not hype and stereotypes. Also, if we were able to focus on more concrete data–literacy rates, math proficiencies, etc–it would be easier to see where the real need is.
~Luke
This ties in with the German concept of the state’s “Erziehungsauftrag”, which is interpreted in the same manner that Blokhuis does the parens patriae, i.e. that the state has a compelling interest in the social (not just academic) development of children. This is not a view that is predominant in the USA or in the UK, though, except in very leftwing circles (or amongst certain education authorities).
Just like in Germany, there does seem to be a wide gulf between the paradigms of home educators and those of the education authorities and some of the judiciary and home educators need to become more aware of this, or they might as well just be talking to the wall.
To be perfectly honest, although I think that Blokhuis’ analysis is quite gripping, I feel that he sometimes veers away from objectivity into polemic. For instance, he states that “indoctrination is highly improbable when ‘home’ and ‘school’ are institutionally distinct.” This might be the case, and certainly I would agree that this statement is intuitively correct, but I would hesitate to make an assumptive statement like that in a scholarly article without backing it up with solid evidence. Then there is his assertion regarding the “chilling prefatory claim” by the Ontario Federation of Teaching Parents (OFTP)that ‘Many home educating parents do not register with local school officials so an exact number is not known.’ Much as I can sympathise with his reaction here (even if I can’t empathise, being on the opposite end as a mother who homeschooled illegally in Germany and has not registered her children with the authorities in Canada, although I did it in Ireland where I felt that my approach would be understood by the school authorities) I would assert that his adjective “chilling” shows a distinct lack of objectivity that isn’t in keeping with a scholarly article.
As you point out, Blokhuis indulges in some cherry-picking in order to make his point. He makes use of ontological gerrymandering by ignoring a substantial part of the home educating spectrum, from secular homeschooling to unschooling. He makes use of a survey conducted 17 years ago among a small, predominantly Christian group of homeschoolers by Brian Ray on behalf of the HSLDA to underline his claim that most homeschoolers in Canada are currently being religiously indoctrinated. I wonder if he is aware of a survey conducted in Quebec, the province next to Ontario, by Christine Brabant? The abstract can be found here: http://www.tandfonline.com/doi/abs/10.1080/09500790308668296. Although Quebec does have its own “pecularities” compared to the rest of Canada, it’s likely that the parents surveyed by Brabant are very similar to the homeschooling population of Ontario, and Brabant says herself that it’s likely that most of the families were English-speaking or bilingual (I wish she had actually included this as a question in her survey).
According to Brabant, the most frequent motivations for educating at home are: “7. more individualised teaching; 4. family project; 1. curriculum enrichment; 5. parents in a better position to educate; 10. importance on family relationships; 41. better socialisation through family and community life; 28. better adult/children ratio.
The least frequent motivations for educating at home are: 14. godly
prescription; 50. difficult access to desired school; 48. child’s particular
activities; 37. child not ready cognitively; 47. parents’ professional activity;
49. child’s illness.” This conflicts with Blokhuis’ assertions and I am disappointed that he neglects to take this and other such surveys into account.
Blokhuis also states: “The percentage of children whose parents chose ‘homeschooling’ for religious reasons increased from 72% in 2003 to 83% in 2007 (Bielick, 2008). Many such parents claim a right to rear their children as they see fit, in exclusive conformity with their religious beliefs. ‘Homeschoolers’ who repudiate any public role in childrearing and seek to isolate their children from public formative influences deny their children the non-exclusive custodial authority to which they are entitled at common law.”
Blokhuis is misrepresenting Bielik et. al’s findings to support his assertion that a significant group of homeschoolers want their children to conform exclusively to their religious beliefs. Actually, the figure he cites is for those parents who stated that ONE of their reasons for homeschooling was “A desire to PROVIDE religious OR MORAL instruction” (my emphasis – the study in question can be found here: http://nces.ed.gov/pubs2009/2009030.pdf ). If you consider that only about 16% of Americans are unaffiliated with any faith, it’s not surprising that this amount of people answered yes to this question.
http://religions.pewforum.org/reports
The statistic that Blokhuis should really have considered is the 36% of parents cited who listed the desire to provide religious or moral instruction as their main reason for homeschooling. It must also be noted here that endnote 5 states that ““Most important reason for homeschooling” was asked differently in 2003 and 2007 and, therefore, cannot be
compared across time”. Thus, in spite of Blokhuis’ intimation that religious homeschooling is on the rise, it can’t be established from these figures whether this amount of 36% represents an increase or not.
Also, although Blokhuis might not have intended it this way, the fact that the word “homeschooling” is almost always in inverted commas (as in scare quotes) has the effect of marginalizing homeschooling, bringing across the impression that the word signifies anything else – for instance educational neglect, indoctrination, etc – but that which it literally means.
Blokhuis states that homeschooling in Ontario is occurring in a legal vacuum, with the original intention of the law being for children not attending school to be tutored by a qualified teacher. However, this does not negate the validity of homeschooling in Ontario as a legal educational choice. For instance, in California, homeschooling also takes place in a legal vacuum, with many parents declaring their homeschools as private schools. In the case. After first ruling that home education is illegal unless a parent is a certified teacher, Judge Cluskey changed his opinion, stating that “the most persuasive interpretation of the legislative history of the original statutory provisions supports the conclusion that a home school is not a private school. However, the most logical interpretation of subsequent legislative enactments and regulatory provisions supports the conclusion that a home school can, in fact, fall within the private school exception to the general compulsory education law…Clinging to such precedent would undermine a practice that has been, if not actively encouraged, at least acknowledged and accepted by officials and the public for many years.” Judges do not interpret the words of these laws purely as they stand because they are involved in a hermeneutical process of interpretation with
regard to these laws. So, as long as there is acceptance of homeschooling in Ontario, it doesn’t really matter what the exception that is being used for homeschooling originally provided for.
Lastly (for now) Blokhuis quotes incorrectly from the OFTP website (unless they have updated this since he accessed this website). He states: “The Ontario Federation of Teaching Parents (OFTP), a ‘homeschooling’ advocacy group, estimates that there are currently 20,000 ‘homeschooled’ children in the province. It arrives at this estimate by assuming that, if 2% of children in the US are ‘homeschooled’, the same percentage of Ontario children must be. Wrongly assuming there are 1,000,000 school-aged children in Ontario, 2% = 20,000.”
What the website actually says is this: “… it is estimated that approximately 1% to 2% of all school-age children are homeschooled in North America, which translates as around 20,000 children in Ontario. The number for Canada as a whole is estimated at approximately 60,000 homeschooled children. Estimates for the United States range between 1 million to 2 million children being homeschooled.”
Blokhuis seems to be unaware of the actual percentage of homeschoolers in the USA, which was 2.9% in 2007 (http://nces.ed.gov/fastfacts/display.asp?id=91) so must have been over 3% in 2010, when this article was published. I don’t disagree with him that the OFTP might be sucking figures out of its thumb. However, his misquoting of their statistics (if this is the case) is, at the least, sloppy. I feel that he has let his own biases (which were evident to me, even before I read in the acknowledgements section of his dissertation that he had to leave home at the age of 16 to escape the stronly Calvinist environment in which he was raised) interfere with with a careful, scholarly approach that is necessary for a PhD dissertation.
By the way, Kelly Green brings up some interesting points from the other side of the fence in some of her recent blog postings:
http://kellygreenandgold.wordpress.com/
In my previous comment, I questioned the wisdom of Blokhuis’ stating that “indoctrination is highly improbable when ‘home’ and ‘school’ are institutionally distinct” without backing this up empirically. In this context, I just wanted to mention something that possibly contradicts Blokhuis’ assertion: the concept of motivated reasoning. It is defined as follows by the Skeptic’s Dictionary:
“Motivated reasoning is confirmation bias taken to the next level. Motivated reasoning leads people to confirm what they already believe, while ignoring contrary data. But it also drives people to develop elaborate rationalizations to justify holding beliefs that logic and evidence have shown to be wrong. Motivated reasoning responds defensively to contrary evidence, actively discrediting such evidence or its source without logical or evidentiary justification. Clearly, motivated reasoning is emotion driven. It seems to be assumed by sociologists that motivated reasoning is driven by a desire to avoid cognitive dissonance. Self-delusion, in other words, feels good, and that’s what motivates people to vehemently defend obvious falsehoods.”
In other words, if a child is being heavily indoctrinated at home, it might not be highly improbable, or even improbable at all, that what the child is being exposed to at school is countering this indoctrination. I’m not saying that this is always the case. For me, cognitive dissonance was what took me away from my earlier beliefs and the indoctrination I was subjected to both at home and school (and growing up in Apartheid South Africa meant that there was a lot of indoctrination at school). However, it could be the case that for some people, cognitive dissonance has the opposite effect.
Maybe I’m guilty of motivated reasoning myself, and it’s the reason for my elaborate justifications of home education in these comments. However, I don’t think that this negates my criticism of Blokhuis’ approach.
Does the state have a compelling interest in the education of children?
Several jurisdictions have used the doctrine of “compelling interest” to justify laws that force parents to answer to the state with regard to the decisions they make about the education of their children. Even though such august bodies as the Supreme Court of Canada have expressed this conviction, and made rulings based upon it, I must beg to disagree.
The primary concern behind the state’s supposed compelling interest in the education of children is not, as some might think, that children have a “right” to an education. It is, rather, that individuals who do not receive a basic education will not be able to support themselves, in an economic sense, and will thus become a potential financial burden upon the state.
If we examine this concern, we see that it is based upon a false assumption. This is the assumption that because a tiny minority of parents may abdicate their parental responsibility to educate their children the state must oversee the education of all children to ensure that all children are educated to a level which will allow them to support themselves.
No one denies that a small number of parents, for whatever reason, are unable to fulfill their obligations to their children, and that on occasion the state becomes the parent of last resort. This fact does not, however, justify the state’s interest in the education of all children in existence.
In reality, the state has an interest in the education only of those children whose abandonment by their parents can be proven through an unbiased assessment. Such an assessment would allow for parents who chose to challenge the state’s allegations to have access to advocates and reasonable opportunities to present their evidence. It would also permit parents to call their own “expert” witnesses to support their decisions and approaches.
Such as assessment, to be unbiased, could not be conducted by agents of the state’s education system, as these agents have a clear conflict of interest, may have a bias against educational alternatives to public schooling, and often demonstrate a desire to capture as many children as possible for their institutions. (It is for these reasons that Graham Badman was a completely inappropriate person to conduct a review of elective home education in England, and that his report could neither be taken seriously nor used as a basis for legislation.)
If the state abided by these principles, very few parents would be proven to have abandoned their parental duties. It would quickly become apparent if a parent had truly done so. In such a system, parents who chose to employ unusual approaches, such as autonomous education, would have ample opportunities to demonstrate the value, and efficacy of their methods. But most of the time they would never be called upon to make such a proof, because there would be no evidence that they were, in fact, failing to provide for their children’s educational needs.
When did we stop relying on the need for evidence that someone had committed a crime or violated the rights of someone else before we accused them? When did we decide that everyone is under suspicion?
And, interestingly, I was the secretary of OFTP when those numbers were estimated, many years ago. They were always intended, in my understanding, to be a reasonable estimate of how many children might be educated at home in the province. Since Ontario home educators are not required to register with the state, there is no way to know, for sure, how many children are educated at home. Why, you may ask, did we need such an estimate at all?
At the time we were lobbying the provincial government in an attempt to stop active Ministry of Education harassment of home-educating. One of the things we did was estimate the amount of money home-educating families saved the province by assuming full responsibility for their children’s education. So, we used that loose estimate, based on general North American trends, to make our point. We were saving the province millions; there was no evidence that home-educated children were not thriving, but because certain Ministry and school board officials had a bias against home education, families were experiencing everything from doorstepping by school board officials to unsubstantiated allegations of abuse.
By the way, OFTP was able to negotiate a satisfactory compromise with the Ontario Ministry of Education about 10 years ago, and to the best of my knowledge, there has been a reasonably peaceful relationship between home educators and the Ministry since that time. One of the things that compromise acknowledged was that there had been an “institutional bias” against home education in the province of Ontario.
I agree that in a participatory democracy the state has a compelling interest in seeing that children receive enough education to fulfill their civic duties.
However, as long as homeschoolers perform significantly better than publicly schooled children I don’t think the argument that most homeschooled children would be better off in a public school will be taken seriously by any reasonable person.
Perhaps the state should concentrate on improving the education of those children already within it’s care, so they can at least read, write, and figure by the time they graduate.
(Working my way backward through your blog.)
Dear Scattymom,
I was happy to find out that you quoted an article of mine in your comment. I appreciate your perspective and how you make use of our results about motives for the choice to homeschool, in order to contribute to the discussion on Mr. Blockhuis’ book. However, I would like to correct a statement you made about our sample’s characteristics.
You wrote:
“Brabant says herself that it’s likely that most of the families were English-speaking or bilingual (I wish she had actually included this as a question in her survey).”
I didn’t say that and here’s why I could never have. French is the only official language in the province of Quebec. 80% of Quebecois are francophones, 7% are anglophones and 40% consider themselves bilingual – although I’m sure the reality is less than that. (You might even notice that my own English is a little uneasy, since I only learned it in school, as a second-language). So it would be very unlikely that “most of the families» in our sample would have been «English-speaking or bilingual”, unless we would have intentionally targetted this small population – which we didn’t.
Moreover, there was a question about language in our survey. We asked the parents in which language the instruction occured at home. These answers should with no doubt be closely linked to the parents and children’s mother-tongue and the language spoken at home. Results show that 73% of parents answered that instruction occured in French; 24%, in English (which indicates that anglophones were over-represented in our sample); and 2.5% said that instruction was bilingual (French and English).
Our article also stressed other differences between Quebec and English-Canada, in terms of characteristics, both of the general populations and of homeschooling populations, and in terms of motives for the choice to homeschool.
If you wish to discuss this information or topic further with me, I will be pleased to do so. With best regards, to you, Scattymom, and to Milton who kindly hosts this discussion,
Christine Brabant, Ph. D.
http://pages.usherbrooke.ca/cbrabant
Chercheuse en éthique et gouvernance de l’éducation
Centre de philosophie du droit
Université catholique de Louvain
Superviseure de stages en enseignement préscolaire et primaire
Faculté d’éducation
Université de Sherbrooke