This is the first of a two-part review of Randall Curren and J. C. Blokhuis, “The Prima Facie Case Against Homeschooling” in Public Affairs Quarterly, 25, no. 1 (January 2011): 1-19.
Curren, a distinguished philosopher of education, and Blokhuis, a recent graduate student of Curren’s who is now Assistant Professor of Education at Renison University College in Canada, here build on earlier work, especially Blokhuis’ doctoral dissertation, to argue that in the abstract common schools do a better job of preparing children for public life than do parents. The term prima facie in the title is crucial for this argument. It means that they are not claiming that public schools are actually better or that homeschooling parents are actually incompetent to teach. They’re just saying that in principle a common school with professionally trained teachers at first blush seems like a better set up than homeschooling. This first post will limit itself to the authors’ first paragraph. Curren and Blokhuis begin, I regret to say, with a very weak historical introduction. It is weak because it is wrong. They claim first that compulsory schooling laws were passed under the common law principle of parens patriae and second that such laws “were rarely challenged” for imposing “obvious limits on the custodial authority of all parents for the sake of all children.” (p. 1)
First, while the parens patriae doctrine, which was the subject of Blokhuis’ dissertation and of his excellent article I reviewed here, is of vital theoretical importance, when you look at the actual legislative and legal history of compulsory education laws you don’t really see it referred to that much. Philosophers often do this to history. They make things sound a lot more logical than they actually are. Compulsory school laws were passed for a lot of reasons, chief among them Republicans’ fear of immigrants’ radical politics and Catholic religion. While parens patriae is a very important principle of the common law that provides the theoretical underpinnings of much of our family law today, things in the 19th century were not so clear. Sometimes judges talked about Parens Patriae, but lots of times they didn’t, and legislatures hardly ever did. To the degree that compulsory education had any constitutional or legal underpinning at all, it tended to be as an aspect of the state’s “police power.”
Secondly, it is simply not true that compulsory school laws were not challenged by people who saw them as infringing on parental rights. They were. Frequently. For an excellent treatment of the many court cases that emerged in the wake of these compulsory school laws see Stephen Provasnik’s 2006 article, “Judicial Activism and the Origins of Parental Choice: The Court’s Role in the Institutionalization of Compulsory Education in the United States, 1891-1925″ in the History of Education Quarterly.
Provasnik documents how the late 19th century inherited two traditions of jurisprudence on the question of state vs. parent rights–one favoring state authority and the other favoring parents. The dominant tradition was the parental rights one. Provasnik summarizes several cases, but let me quote from only one of them, People v. Turner (1870), which I select because of its explicit rejection of an expansive parens patriae doctrine. Illinois’ highest court held in this case that,
Another branch of parental duty, strongly inculcated by writers on natural law, is the education of children… Before any abridgement of the right, gross misconduct or almost total unfitness on the part of the parent, should be clearly proved. This power is an emanation from God, and every attempt to infringe upon it, except from dire necessity, should be resisted in all well governed States.
After canvassing many, many cases, Provasnik summarizes,
the fact that between the 1870s and the 1890s the courts consistently confirmed parental authority as the ultimate authority over both whether children were to be schooled and what they would study there suggests that the courts were neither in a position in which they were bound to uphold compulsory attendance nor steadily and inextricably moving toward such a position. (p. 328)
Yet when compulsory laws were passed and when they were challenged, in state after state courts did in fact sustain them and rule against parents. Why? Provasnik’s fascinating article answers that question (noting, by the way, that only one of the state courts based its decision on parens patriae. Police power was the more common justification, with profound consequences.), and it culminates in a sensitive look at the famous Meyer and Pierce decisions of the U. S. Supreme Court. My point here is only that Curren and Blokhuis misrepresent the American past when they claim that their view, the pro-state view, was the historic consensus. It wasn’t. It became the consensus at the turn of the century among the powerful, largely because of anti-immigrant, anti-Catholic sentiment among native white Protestants, who looked to compulsory education as the way to Protestantize and Americanize immigrant children.
So their backstory gets it wrong. Does it matter? I think it does. In my next post I will lay out Curren and Blockhuis’ philosophical argument. Here we’ve seen that an ignorance of actual American history has allowed them to make false generalizations about the past. This means that they begin their ostensibly “prima facie” argument on the wrong foot. A prima facie argument is supposed to be an argument based on first impressions, an argument that seems obvious based on the facts of the case, and the burden of proof is on an opponent to show why this prima facie argument is wrong. But what if the “facts” aren’t right in the first place? If you’re going to make a first-blush argument you’d best make sure your facts are right. Curren and Blokhuis don’t do that for the history of the very issue they’re about to discuss. Because they misunderstand and misrepresent the degree to which many Americans, and many American courts, have distrusted state control of education, they think their job is way easier than it really is. It has NEVER been self-evident in this country that the state should be responsible for the education of children, and every stage of growth in state oversight was bitterly contested by people who didn’t like it.
Homeschooling in this sense, then, is just a contemporary manifestation of one side in a long and bitter debate, and Curren and Blokhuis are a manifestation of the other side. Whether or not they are aware of the fact that their ideological predecessors were motivated largely by anti-immigrant and anti-Catholic animus I can’t say, but it does make the argument that they’re going to make seem a little less prima facie plausible, at least to me. But we’ll take up that issue next time.