This post reviews Timothy B. Waddell, “Bringing it all Back Home: Establishing a Coherent Constitutional Framework for the Re-Regulation of Homeschooling” in Vanderbilt Law Review, 63, 541-598. [Available fulltext here]
Waddell, a recent graduate from Vanderbilt Law School and now a clerk for the U.S. District Court of Alabama, here presents a constitutional argument for increased regulation of homeschooling and much else besides.
Waddell begins with a very capable review of the recent history of homeschooling. He has clearly read deeply in the secondary literature and has developed a keen understanding of how activist homeschoolers have been so successful in transforming the legal and political landscape in their favor since the 1980s. He describes in some detail the key role of HSLDA in all of this, noting especially how they have claimed over and over, for years now, that the 1st and 14th Amendments give parents a constitutional right to homeschool and that state regulations violate this right.
Next he claims that we are perhaps in the midst of a gradual process of re-regulation. As homeschooling continues to grow the practice is coming under increased scrutiny. He mentions efforts (all unsuccessful) in New Jersey, Michigan, and New Hampshire to increase regulations and focuses especially on Washington, D.C. which in 2008 became “the first jurisdiction in the United States in over 15 years” to successfully increase regulations (p. 554). The D.C. regulations were put in place after the discovery of the decaying bodies of four girls who had been removed from school to be “homeschooled.” Despite intense lobbying by HSLDA and other homeschooling activists, the horrific nature of the crime gave legislators the backbone to see the new regulations through. D.C. now requires homeschooling parents to have at least a high school diploma, to give 15 days’ notice before removing children, and to keep a portfolio. Waddell believes that as more of these tragic cases of neglect and abuse come to light (which they will, he thinks, as homeschooling spreads beyond the white, middle-class, conservative, two-parent families that have dominated the movement) other States may acquire the moral outrage necessary to steel themselves against the onslaught of homeschooling advocacy groups and pass more stringent regulations.
But on what grounds? Next Waddell takes up the constitutional argument. Here he relies heavily on Kimberly Yuracko’s arguments, which I summarized here. He basically argues that states have a constitutional responsibility to provide equal protection under the law, and that homeschooling threatens equal protection by 1. removing children from view to such a degree that the state can no longer ensure the child’s welfare or the community’s protection against disease (if homeschoolers aren’t getting vaccinated), and 2. allowing parents to provide woefully inadequate academic or social preparation. For the second point Waddell is quick to acknowledge that most homeschoolers are receiving excellent academic training and adequate socialization, but he tells many anecdotes, some quite horrific, of parents who either don’t teach their kids much of anything or indoctrinate them with reprehensible views (such as white supremacy).
The current state of wild-west style unregulation is the result of HSLDA’s largely successful public campaign to get local officials to believe that the 1st and 14th amendments to the Constitution give parents “fundamental liberty” rights to educate their children free of government oversight. Is this true?
Waddell here provides the clearest summary of the Constitutional issues I’ve ever read. He explains how Meyer, Pierce, and Yoder fit and do not fit into the emerging legal understanding of due process and free exercise rights, bringing in other Supreme Court decisions as well. The basic point here is that, like in so many other domains, the Supreme Court has made a hash of things both by lack of clarity and outright inconsistency, which has left lower courts with a sense of confusion as to what the law really is.
For example, Waddell explains how when Yoder was decided the Supreme Court was operating under a free-exercise of religion paradigm articulated in Sherbert v. Verner (1963), which had required the high “strict scrutiny” standard to be applied to laws that infringed on personal religious belief. But Oregon v. Smith (1990) changed that, only requiring strict scrutiny when a “hybrid situation” of both 1st AND 14th Amendment rights are at stake. Homeschool lawyers jumped on this “hybrid-rights” theory and have used it regularly in court. They won in Michigan in 1993 in People v. DeJonge, which I describe in detail in my book, but that case is a real outlier. In every other lower court case the “hybrid-rights” argument has failed, and Waddell notes that the Supreme Court has never again referred to it in its jurisprudence. Waddell concludes this remarkably clear summary of an incredibly murky legal issue by noting that even though courts typically have rejected HSLDA’s constitutional claims, state legislatures have been far more easily swayed by HSLDA’s sweeping rhetoric.
Waddell concludes his paper with a proposal that he believes will cut through the confusion. Here it is:
1. Homeschooling should be explicitly recognized as a constitutionally valid method of education, on par with public and private schools as a matter of fundamental liberty.
2. Just as it is Constitutional for public and private schools to be regulated, so with homeschooling, but these regulations must not infringe on the fundamental right to homeschool (as, for instance, requirements that homeschooling parents be state certified would do).
3. These regulations must be adequate to permit the state to fulfill its parens patriae role of ensuring that the child grows up to be a productive member of society. Hence some sort of “monitoring mechanism” is needed that ensures a child is not being abused, is getting vaccinations, is receiving adequate academic instruction (as defined by the state), and is not being homeschooled against his or her will. Monitoring mechanisms could include periodic home visits and assessment by an accredited outsider.
And that’s it. Waddell finishes up by restating his hope that the Supreme Court will some day speak clearly on this issue, which would help homeschoolers avoid the feeling that their right to homeschool could be taken away at any moment and would help legislators avoid the misleading rhetoric of homeschooling advocates that any regulation of homeschooling is unconstitutional.
As my summary indicates, I really liked this piece. It is the last of a long list of legal articles I’ve reviewed over the past few weeks, and it is the best of the lot in my view. John Holt wouldn’t like it because in his view it was always better to have things unclear than clear, for then you could get away with more. But I for one appreciated not only Waddell’s summary of the issues but his proposal as well. I know some of my readers will react strongly against what I’m about to say, but Waddell’s proposal to me does a good job of maintaining the freedom to homeschool while at the same time providing a mechanism for catching children whose parents are being abusive or neglectful. A homeschooling family that is doing its job should have no fear of outside evaluation–should welcome it in fact, as it will demonstrate to the public at large how effective homeschooling can be.