This post reviews Anthony Barone Kolenc, “When ‘I Do’ Becomes ‘You Won’t!’–Preserving the Right to Home School After Divorce” in Ave Maria Law Review 9, no. 2 (2010-2011): 263-302.
Kolenc is a lawyer in the U.S. Air Force, adjunct faculty member at Saint Leo University, homeschooling father of five, and author of the monthly column “Legally Speaking” in The Old Schoolhouse magazine. Here he constructs a legal argument aimed at helping divorced homeschooling parents involved in custody disputes.
The Kurowskis divorced in 1999. In 2005 the mother began homeschooling their daughter. The father, who had joint custody, didn’t approve, citing socialization concerns. Lower courts rejected his complaints. In 2007 the father requested the court to appoint a “GAL,” or guardian ad litam, who could safeguard the child’s best interest. He believed that the homeschooling was weakening his relationship with his daughter because it was creating exclusive mother/child bonds grounded in the mother’s fundamentalist religion. The court appointed a GAL, who recommended that the father be granted expanded visitation rights and that he have a say in the child’s educational and religious training. The child began attending three classes in a public school in 2010. The mother tried to get this changed, but the lower court rejected her efforts. She appealed to the State Supreme Court.
New Hampshire’s highest court unanimously agreed with the lower court’s decision. The State Supreme Court held that this was not a case about homeschooling or about religion, but only about what is to be done when two parents with equal constitutional rights and interests in their child’s education disagree. And the Court basically said that in such cases homeschooling does not automatically win. The lower court decided that public school was in the child’s best interest, and the higher court saw no reason to challenge this conclusion.
Kolenc notes that with homeschooling growing and with divorce rates high, such conflicts are likely to become increasingly frequent. What is the best way for courts to deal with them?
Kolenc begins his answer with an admirably clear summary of the issues at stake in two common defenses homeschoolers make in court. The first is the notion that homeschooling is part of the fundamental parenting rights established by the Meyer and Pierce decisions of the 1920s about which I’ve written many, many times on this blog. The second is the claim that at least religiously-motivated homeschooling is a constitutional right due to the First Amendment’s protection of religious liberty. Kolenc doesn’t here spell out his own views on these controversial issues. He just tells us, quite correctly, that there is not a lot of clarity or consistency in the lower courts’ responses to these claims.
Kolenc next discusses three responses courts often give to these two claims homeschoolers make. First, homeschooler claims to fundamental parenting rights and religious freedom rights don’t work in these custody cases because the non-homeschooling parent also can make these claims, leading to a stalemate. That’s what happened in New Hampshire in the Kurowski case. Here Kolenc does give his own opinion, which is that courts shouldn’t be the ones adjudicating these parenting disputes. The court isn’t qualified to dispense parenting advice like deciding when a child be allowed to date or what clothes to wear. Neither, argues Kolenc, does it have the right to choose which form of education a child should receive.
Second, courts can and do appeal to the doctrine of Parens Patriae to argue that the state has a legitimate interest in regulating the education of its citizens. Kolenc ably summarizes here the side of the Pierce decision that homeschoolers often leave out–that the same decision that established a parent’s right to direct the course of a child’s education also said explicitly that government has a right to regulate education.
Third, many courts have responded to First Amendment claims by simply not finding that religious freedom is being violated by public schooling. Kolenc gives several examples here. In Kurowski the judge held that the mother would still have plenty of time to inculcate religious principles in her daughter after school.
Given that the usual defenses homeschoolers make don’t typically work in court, what should homeschoolers do? The rest of Kolenc’s article shifts from legal analysis to something more like legal advice. Assuming an audience of homeschoolers who are trying to win in court, Kolenc explains for them six key issues of which to be aware in a custody dispute:
1. The Custody Factor. Divorcing parents who want to homeschool should do everything they can to get sole custody, for if they do they’ll be much more likely to get their way in a dispute. Kurowski was a joint-custody case. But Kolenc gives a few examples even in sole custody situations where the custodial parents’ educational decisions were successfully challenged by the other parent.
2. The “Judicial Prejudice” Factor. Basically, a lot of judges are still prejudiced against homeschoolers, especially conservative religious homeschoolers. Kolenc provides several powerful examples of judicial bias against homeschooling, and of higher courts recognizing and overturning it.
3.The Education Factor. Here Kolenc says that homeschoolers need to convince the judge that homeschooling is good education. They do this by bringing in expert testimony. Experts have shown that homeschoolers do better on standardized tests and get into better colleges than kids who go to public school regardless of race or social class. This is of course not true, and the sources Kolenc cites to bolster his claims are dated or based on nonrepresentative samples or both, but as readers of this blog know, it’s a very common claim made by homeschooling advocates who conduct “research” for precisely this reason–to convince judges in court that what they’re doing is good. For more on homeschoolers and academic achievement click here.
4. The Socialization Factor. Same as the education factor. Convince the judge that homeschooling = good socialization through expert testimony and academic research that has proven that to be the case. Again, the literature here is much more ambiguous than Kolenc would have us believe, but I guess the judge doesn’t have to know that. If you want more on socialization click on the category to the right by that name.
5. The “Parental Strife” Factor. Kolenc cites here many, many cases that collectively show that the parent who is most abrasive, inflexible, and intolerant tends to lose. This is often the parent with the more conservative religious beliefs, which judges often find to be bad for the child in that they turn education into indoctrination. Kolenc’s advice here is for parents who wish to homeschool to do their best to include the other parent in the educative process if he or she so desires, and to mount a case for why public schooling would not be in the best interests of the child in this particular case. He counsels against homeschoolers digging in their heels and arguing in front of the judge that God demands homeschooling or that the other parent is exposing the child to sinful things or whatever. Judges have a tendency to decide against people they think are religious nutjobs. So don’t act like one. Try to convince the judge that you are the sane, flexible, open-minded one who just wants what is best for the child.
And that’s the article. I was pleasantly surprised at the even-handedness of Kolenc’s treatment of the issues he raised in the first part of the article. He’s clearly a homeschooling advocate reflecting a conservative Catholic point of view. But unlike many other activist lawyers, he is honest about the limits of some of the constitutional claims homeschoolers often make and aware of the other legal principles that problematize such claims. I wish he had the same nuanced understanding of the academic achievement and socialization literature, but whatever. For the target audience this is doubtlessly a very valuable piece. HSLDA has always been clear that it will not directly represent members involved in a custody dispute. Kolenc’s sensitive discussion of the complexities involved in such cases makes it clear why, and his advice to homeschoolers finding themselves in this situation is wise and helpful.