Yuracko on Regulating Homeschooling

This post reviews Kimberly A. Yuracko, “Education off the Grid: Constitutional Constraints on Homeschooling” in California Law Review 96, no. 1 (Feb. 2008): 123-184.

Yuracko, a law professor at Northwestern University whose work deals primarily with antidiscrimination law, here makes the case that state statutes and the Equal Protection clause of the U.S. Constitution require that states have a responsibility to regulate homeschooling in certain respects. 

Yuracko begins with an anecdote that most homeschoolers would find highly objectionable: “Ann and Bob Smith are a devoutly religious couple who choose to homeschool their seven-year-old twins Susan and Sam.  In accordance with their religious beliefs, they teach their children only religious doctrine, refusing to provide their children with a basic education in reading, writing, and arithmetic…”

Her point, however, is not that people like the Smiths actually exist, but that given existing law in many states, they could.  Drawing on the Home School Legal Defense Association’s (HSLDA) own data, Yuracko notes that ten states have no regulation of homeschooling at all–not even requiring homeschoolers to notify the state that they are homeschooling.  Yuracko is concerned that while political theorists have devoted much attention to dealing with such illiberal practices as polygamy, child marriage, and clitoridectomy, they have not heretofore investigated the potential of homeschooling to be a shield used by “religiously fundamentalist families” against such liberal values as “sex equality, gender role fluidity, and critical rationality.” 

In many ways Yuracko’s argument is similar to that of Rob Reich, who I discussed in a previous post, but whereas Reich was making a case for what States ought to do, Yuracko is arguing here that States are already required by law to regulate homeschooling.  She claims that under current federal and state law states must regulate homeschooling families to ensure that they are offering “a basic constitutionally mandated minimum education” and must “check rampant forms of sexism in homeschooling so as to prevent the severe under-education of girls by homeschooling parents who believe in female subordination.”

First the minimum education argument.  Yuracko says what many other scholars have said about all of the studies showing homeschoolers to perform so well–they are based on self-selecting, nonrepresentative samples.  She then cites several anecdotes of horrific behavior to children by parents who used homeschooling as a cloak for their neglect or abuse, concluding that the leniency given homeschoolers means that we “cannot know for sure how rare such occurrences are…”  Breaking state educaion clauses into four categories and summarizing judicial interpretation, Yuracko explains that all state laws require “an adequate education in basic skills.”  Furthermore, Yuracko argues, a child’s right to a basic minimum education ought be seen as a fundamental right protected by the 14th Amendment’s Due Process clause (though she acknowledges that this claim has not been tested by the Supreme Court).  Yuracko concludes that just as homeowners’ associations and company towns must obey state law, so must homeschooling parents, and states violate their own statutes (and possibly the U.S. Constitution) when they do not hold such parents accountable for basic minimum education.

 Now for the gender equality argument.  Yuracko begins by noting that a number of prominent homeschool curricula “emphasize that girls should be subordinant to their fathers and later their husbands.”  She cites several examples of inequitable thinking about females, the most arresting being an article on the Vision Forum Ministries website asserting that “God does not allow women to vote” and the popular book So Much More, wherein two homeschooled sisters argue that college is “dangerous for young women because it diverts them from their God-ordained role as helpmeets for their fathers and husbands.”

Yuracko acknowledges that it is a leap to claim that attitudes like this lead to inferior education provided to girls, but she worries that this may be happening in today’s unregulated environment.  She asserts that the Equal Protection clause of the Fourteenth Amendment prohibits states from discriminating against protected group members, and females are protected.  But does the Equal Protection Clause apply to individual families?  Yuracko claims that “there are some forms of private conduct which a state simply cannot with constitutional impunity authorize and enforce,” and she cites many cases to that effect, most of them dealing with racial segregation in private organizations.  Yuracko offers a careful and nuanced discussion of several important Supreme Court decisions on this topic to argue that education ought be seen as a domain wherein private action must be held accountable to Equal Protection rights.  Thus homeschooling families who give their boys a better education than they give their girls are violating the U.S. Constitution.

Finally, Yuracko offers her suggestions for how states ought to regulate homeschoolers to ensure that all are receiving a basic minimum education and that families do not discriminate against their girls.  After canvassing a number of options, she concludes that “probably the most efficient and least invasive way for a state to ensure a basic education is through some form of required testing.”  Ensuring gender equity is more difficult, and Yuracko doesn’t really have a tidy policy recommendation.  But she hopes that her legal arguments here will at least “help ensure that the most extreme forms of illiberal homeschooling are simply and appropriately taken off the table and out of the political debate.”

I myself have mixed feelings about this piece.  On the one hand I accept her claim that state laws require that all children receive a basic education and that homeschoolers are not exempt from this.  And given the occasional extreme situation of neglect or abuse, some sort of oversight is probably salutary.  But what troubles me in this article is Yuracko’s tone.  One gets the sense that she hasn’t really spent much time with real homeschoolers and that there must be something in her own past that prejudices her against very conservative Christians.  No doubt some parents have used homeschooling as a cloak for their neglect or abuse, but this sort of behavior is by no means limited to conservative Christians.  That they are the exclusive focus of Yuracko’s censure seems misguided.

One of the ironic things about homeschooling, as many commentators have pointed out, is that the results of homeschooling, even among families who are outspoken in their condemnation of feminism, are often consistent with feminist aims.  Homeschooling dads and especially sons are often far more domesticated than their schooled counterparts (see on this Wilcox’s Soft Patriarchs and Colleen McDannell, “Creating the Christian Home” in American Sacred Space).  Homeschooled girls, despite the rhetoric of wifely submission, are on the whole getting first-rate educations.   At Patrick Henry college (PHC, the homeschooler’s college created by HSLDA), for example, the girls consistently outperform the boys.  Hanna Rosin’s 2005 New Yorker piece on PHC noted, “When all the best papers in a constitutional-law class that [Michael] Farris taught were turned in by girls-and not for the first time-Farris yelled at the boys to grow up.”  Consider, as another example, the career (and one must call it that) of the Botkin sisters, whose book So Much More is only one wing of an expanding multi-media business.  The rhetoric is stridently anti-feminist, but the women doing the talking are articulate, empowered entrepreneurs.

None of this really applies to the substance of Yuracko’s argument.  But I do wish that she, as Rob Reich has done, would get out a bit more and actually meet some homeschoolers.  Doing so might actually improve her argument a bit, for it would perhaps help her avoid some of the statements she makes that might distract some readers from her stuatutory and constitutional claims.  These claims, if she’s right, apply to all Americans, not just to Christian fundamentalists.