This post reviews John T. Plecnik, “Equal Access to Public Education: An Examination of the State Constitutional and Statutory Rights of Nonpublic Students to Participate in Public School Programs on a Part-Time Basis in North Carolina and Across the Nation,” published in the Texas Journal on Civil Liberties and Civil Rights, Fall 2007 (13: no. 1), pp. 1-30.
Plecnik, who was homeschooled “from cradle to college,” here uses North Carolina as model and constructs a hypothetical argument that would allow homeschooled and private schooled children to take advantage of some public school offerings without having to enroll full-time in the public school.
Plecnik begins by advising those seeking access to public school programs like sport, music, and other extracurriculars to avoid grounding their case in the U.S. Constitution. He rightly notes that with rare exception appeals to the first and fourteenth amendments have failed to sway judges. Rather, he argues, there are grounds in most state statutes and constitutions for allowing home and private schooled children to attend public schools part time.
Focusing in on North Carolina, Plecnik shows that the N.C. state constitution explicitly acknowledges private education and guarantees all North Carolina children equal access to public schools and promises equal protection to all children. State statutes mirror this language.
Yet despite these guarantees, current North Carolina policies prohibit the participation of homeschooled and private schooled children in public school sports or core classes, and they leave it up to school officials’ discretion whether homeschoolers can take enrichment classes at local public schools.
Plecnik argues in this paper that such policies violate state law. He reviews a number of court cases that establish a broad and robust right to equal protection and equal access, rights he claims current policies do not respect. He also reviews cases in other states that made much the same argument he is making in this paper. In Michigan (Snyder vs. Charlotte Public School District, 1984), the Michigan Supreme Court granted private schooled children the right to attend enrichment programs at public schools but not core academic classes. In Maryland, in contrast (Thomas v. Allegany County Board of Education, 1982), the same arguments failed.
Nevertheless, Plecnik argues that since North Carolina’s State constitution and statutes say nothing about full-time enrollment, and since they do grant students a fundamental right of equal access, then “strict scrutiny” is required to infringe on this right, which means that if public school officials wished to oppose in court a litigant who is trying to establish the right to attend public schools part time, they would have to prove that there is a “compelling government interest” making such prohibitions necessary. Plecnik reviews two possible arguments officials might make, both of which he thinks fail.
Plecnik concludes that the time is right to mount a legal challenge to current policies that exclude homeschooled and private schooled children from part time attendence at public schools.
For those not used to legal scholarship who worry that this whole argument sounds too much like sophisticated editorializing, it needs to be noted that this is what legal scholars do for a living. Law journals are full of articles like this that present hypothetical arguments for why this or that policy would and should win in a court of law. Plecnik here is not trying, nor is he supposed to be trying, to present an unbiased assessment of what North Carolina law actually says. He is making the best possible case for his desired outcome. And, while not a lawyer myself, as I read his case it does seem pretty compelling. But with the law it often doesn’t matter how compelling one’s case is–the results are extremely unpredictable, based as they are on the predeliction of judges. In my book on the history of homeschooling I have an entire chapter devoted to the legal battles over homeschooling, and one of the take-home lessons is that the outcomes in court have as much to do with what is going on in the broader society and in individual judges’ own hearts as with statutory or constitutional wording.
So whether or not Plecnik’s argument for opening public school programs to children who do not attend full time will succeed is anyone’s guess. But for anyone who may be contemplating litigation along these lines, Plecnik’s brief here does provide an intelligent and plausible strategy.