This post reviews Linda Wang, “Who Knows Best? The Appropriate Level of Judicial Scrutiny on Compulsory Education Laws Regarding Home Schooling” in Journal of Civil Rights and Economic Development, 25 (Winter 2011); 413-448.
Wang, a recent J.D. from St. John’s University School of Law, here seeks to make sense of the conflicting and hazy Constitutional principles at play in cases regarding homeschooling law and liberty.
There are two basic issues. First is the 14th Amendment, which says that no state can deprive a person of life, liberty, or property without “due process of law.” This is the due process clause, which has been used in the ensuing decades to do all sorts of things, from extending the bill of rights to the states to protecting all sorts of rights that are not explicitly mentioned in the Amendment itself, most notably the “right to privacy.” It is this right to privacy jurisprudence that is most important for homeschooling law. Interestingly, it was the cases on birth control and abortion (both of which many homeschoolers renounce) that secured the right to privacy on which constitutional claims for homeschooling rights rests. Cases like Meyer v. Nebraska, Pierce v. Society of Sisters, and Troxel v. Granville have made it clear that the right of a biological parent to direct the education of his or her child is fundamental, meaning that if a state is going to abridge that right it needs to have a compelling interest for doing so and must do so in the least invasive means possible. This is called strict scrutiny, and it is the highest threshold possible for government infringement of individual rights.
The problem is that many, many lower court decisions have validated compulsory education laws, which infringe on parental homeschooling freedoms, at lower levels of scrutiny (often called “rational basis” or “intermediate scrutiny”). Why? Because the same Supreme Court that declared parenting a fundamental right has also declared on many occasions that public school laws are valid forms of “reasonable relation.” The Supreme Court ITSELF has not applied strict scrutiny to compulsory school laws despite its own holding that parental rights are fundamental.
Wang explains that part of the problem is that the key cases that are always cited on this topic, Meyer and Pierce were both decided before the development of the Supreme Court’s levels of scrutiny jurisprudence. So it’s hard to read current distinctions between strict scrutiny and rational basis back into those decisions without introducing incoherence.
So what should we do? Wang wants us to go with intermediate scrutiny for homeschooling laws, which means that all the state has to show is that their regulations further an important government interest, not that they are doing so in the least restrictive way possible.
She goes on to qualify this by explaining that the state still must show that regulations are addressing “real threats” of a “particularized problem.” They must show that there is a demonstrable need for the regulation in question.
For example, Wang says that a state law requiring homeschooling parents be certified teachers would have to demonstrate that parents who don’t have such certification are incapable of providing their children with a good education. She here gives a pretty shoddy survey of the literature on academic achievement. Though it could have been better footnoted and argued, she’s right that lack of certification does not correlate with poor academic achievement.
Notice requirements, to use another example, ARE demostrably helpful, allowing the State to keep tabs on the kid, making sure he or she is healthy and safe.
Finally, she wants states to be clear that they should be concerned with the results of education, not the process. Hence a test of competence would be a good regulation, while extensive curricular mandates would not.
All of that was under the 14th Amendment. Now Wang shifts gears and looks, more briefly, at 1st Amendment jurisprudence. The First Amendment includes the “free exercise” of religion clause. Many homeschoolers argue that homeschooling regulations violate their right to freely exercise their religion. Wang describes how Employment v. Smith (1990) found that strict scrutiny is NOT required of state infringements on religious liberty (this was the one where the Supreme Court rejected Native Americans’ argument that the use of the hallucinogen Peyote, a banned drug, was part of their religion). Strict scrutiny can only be applied in “hybrid situations” when some OTHER right is violated along with first amendment rights.
Wang goes on to explain that this hybrid rights thing has been much debated and has met with mixed reviews in lower courts. The term itself is so slippery that it’s been hard to determine when exactly a hybrid right exists. Nevertheless, Wang accepts here the hybrid rights theory and argues that when it exists homeschooling regulations should have to pass strict scrutiny.
For example, a state mandate that homeschoolers must teach a specific set of religious doctrines (even if the intent was to maintain neutrality as to the merits of those doctrines) would need to pass strict scrutiny because it not only impedes the homeschooler’s free exercise but also runs afoul of the First Amendment’s establishment clause. Thus TWO principles are at stake, so strict scrutiny kicks in.
And that’s the end. This article was attempting not so much to argue for a specific set of views as to try to clarify the legal terrain, and at that it did an admirable job. It serves as a pretty good primer on the basic constitutional issues at play in homeschooling jurisprudence. Other legal scholars would take issue with some of her conclusions. More pro-homeschooling lawyers would like to see strict scrutiny applied to 14th Amendment issues. More pro-regulation lawyers would want to argue away the hybrid-rights doctrine altogether. I think Wang here has done a pretty good job of trying to read the tea leaves in as nonpartisan a way as possible on this difficult and contentious topic.
is the first scholarly book-length treatment of its theme. It is available for purchase
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“Notice requirements, to use another example, ARE demostrably helpful, allowing the State to keep tabs on the kid, making sure he or she is healthy and safe.”
Really? I’d be interested to know about any demonstrable evidence that notice requirements have helped to make sure kids are healthy and safe. I’ve heard this anecdote repeatedly from pro-reg folks, but I’ve not seen demonstrable evidence that such requirements have actually accomplished such a thing, even in any correlative studies that associate high reg/notification states with greater child health or safety. It *seems* like this would be true, that kids would be safer because of notice requirements, especially if you don’t examine the notion in light of how many children are unhealthy and unsafe even though they attend highly regulated public schools with notice for everything out the wazoo. However, I don’t think we know that notice requirements are, much less ARE (in all caps) demonstrably helpful, which would imply an evidentiary link.
Good point. Please note that I was only summarizing Wang’s text on this score, not making any claims myself.
I’ve noticed that there seems to be a lot of shooting the messenger going on with some of your recent posts. When people read your summaries of research, they tend to forget that you’re describing someone else’s point of view, which may or may not align with your own, in a dispassionate way.
Rina,
It can be confusing to read (and write) these kinds of analyses. On the one hand, Milton sometimes makes critical judgments about some statements and does a great job with quote intros to clearly show where he is summarizing. Wang “shifts gears,” “goes on to qualify,” “wants us to go with,” etc., which is all helpful with attribution. And reading back through his blog, he has seemed to clearly indicate that he thinks that homeschoolers would behoove themselves to succumb to pressures to self-regulate or be regulated, including notification and basic skills testing.
So when false stand alone-statements are written in their own paragraph without documentation or quote introduction, my own critical reading skills kicked in, leading me to believe that this was his commentary or at least an understanding that he assumes to be true on the face of things.
Not that you were necessarily only pointing this at me, Rina, but I’m not generally a “shoot-the-messenger” type. I was merely looking for clarification for an unattributed assertion that also seems to align with Milton’s views on the issue. If he was summarizing in this particular paragraph, it was not clear to me, especially with that added all-caps emphasis. And I have to say, this is exactly the kind of thing I’d expect Milton to argue with in a critical essay — as in, “While Wang believes notice requirements are demonstrably helpful in keeping kids safe, there is no empirical evidence to support her view.”
Do you see what I am saying? In the absence of addressing this, I was left to assume that either there is evidence about the effectiveness of notice requirements that I don’t know about, or that Milton was falling back on what *seems* to be his own common sense, without challenging what may be a sociologically-induced bias — I know I sure have mine!
I do think Milton is read as a pretty serious academic. As a homeschooler, I’d not want a statement like “Notice requirements, to use another example, ARE demonstrably helpful, allowing the State to keep tabs on the kid, making sure he or she is healthy and safe” to move forward as fact, perhaps being quoted by other scholars and adding to the already-many-false-perceptions held by legislators and educators about how homeschooling works.
Thank you for allowing me to clarify. Milton, I do appreciate your efforts in finding and summarizing these papers. Forgive me if I over-read; my way of life is Someone Else’s Study, and it can be really uncomfortable! (my own bias, I’m sure)
It’s all good. I’m just honored that people are actually reading this stuff at all, and I agree that the way I worded that paragraph left it open to be read as you did. Thanks Rina for the friendly support too!
For the record, the studies of notice requirements that I am aware of have typically looked at test scores and have found no correlation between, say, homeschooler SAT scores and a state’s notification requirement or lack thereof. That’s not Wang’s point, though. For her, notice requirements have a positive role to play in furthering the Government’s interest in general welfare and equal protection of the laws. It doesn’t matter to her if notification helps or hinders academics. Her point is that it helps the government ensure child health and safety. To my knowledge there is no empirical study extant that gives us data on whether notice requirements do actually reduce rates of things like child abuse among homeschooling families. I’m not even sure how such a thing could be assessed. But if somebody could figure out a creative way of getting at this question it would be a real contribution to the literature!