Olsen on the Constitutionality of Homeschooling

This post reviews Chad Olsen, “Constitutionality of Home Education: How the Supreme Court and American History Endorse Parental Choice” in Brigham Young University Education and Law Journal 2 (2009): 399-423

Olsen, a law student at BYU’s J. Reuben Clark Law School, here provides a fascinatingly detailed, though flawed, analysis of the famous In re Rachel L. case, the 2008 California Court of Appeals decision that unleashed a national outcry by finding that California law did not permit homeschooling.    Olsen begins with a clear summary of the Rachel decision, the backlash it unleashed, and its rehearing, which determined that in fact California law did allow for homeschooling as a variant of the private school exemption to California law.  Though the particular parents involved in the Rachel case were ultimately deemed unfit to homeschool their children due to abuse, the freedom of other Californians to do so was upheld.

All good so far.  But in part two of his paper Olsen abruptly shifts focus to an account of Supreme Court decisions that he thinks have established a “right to home education” especially for parents who do so with a religious motive.  Olsen claims that “the Supreme Court has held that when parents choose to home school their children because of a religious belief, the religious belief fortifies the parents’ right to direct their children’s education.” (pp. 411-412)

The evidence he marshals to make this claim is not impressive.  He begins with Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), historic decisions that established parents’ rights to direct their children’s education (specifically protecting parents from laws requiring English-only language instruction (Meyer) and forbidding private school attendance (Pierce)).  He then moves to Wisconsin v. Yoder (1972), and it’s here that he makes his interpretive error.  Olsen interprets Yoder to have established a right to homeschool for religious reasons.  The actual ruling was far more narrow.  The Court was very explicit about the limited generalizability of its ruling in the Yoder case.  That case established that Amish parents had a constitutional right to disobey Wisconsin’s compulsory attendance statute because of a longstanding and legitimate religious tradition that viewed schooling beyond the eighth grade to be inimical to Amish religion and communal norms.  The Court doubted that there were very many other religious groups that would qualify for such exceptions in the United States.  But Olsen turns what was a very limited ruling (that doesn’t even mention “homeschooling”) into an expansive right.

After this survey of Supreme Court decisions, Olsen’s paper shifts emphasis yet again, this time becoming a survey of the history of home education, a history he derives largely from my book.  Olsen describes how the home was central to early American education, being eclipsed by the school only when Protestant Americans looked for a way to assimilate immigrants into their version of what America should be.  But by the late 20th century this “American synthesis” ended, and schooling narrowed its focus from inculcating broad civic and moral norms to imparting mere academic training.  Homeschooling has emerged as a counterweight against the public school’s reduction of all learning to the cognitive and as a protest against public education’s increasingly permissive moral compass.

It is this last point that potentially gets Olsen into trouble, for he seems to want it both ways.  On the one hand he argues for homeschooling because our society is now beyond the need to impose a particular “American synthesis” on every child.  But on the other hand, he acknowledges that homeschoolers are often the people who look back with nostalgia to those very same values the public school used to enforce.  His own solution is to try to shift public perception of homeschooling.  He wants us to think of it not as a critique of or judgment upon public education but as another form of public education.  Homeschooling joins with public schooling in the broad civic goal of educating all of America’s children.  And though it isn’t quite clear from his text, I think he’s saying that a truly post “American synthesis” public education system would be tolerant not only of traditionally marginal voices (such as those of gays, the example he uses) but also of people who reject gay rights as well.  The best way for this tolerance to be institutionalized, he seems to be saying, is not to have people who disagree go to school together but to allow for the sort of ideological balkanization homeschooling fosters.

It is of course this ideological balkanization that worries critics like Rob Reich.  For him and for many advocates of public schooling, there still is an American synthesis that they would like all American children to be indoctrinated into–the synthesis of tolerance of and engagement with diverse people and perspectives.  Olsen does not address this potential criticism of his thesis.  I’d like to hear his thoughts on the matter.  My own thoughts are that public schools themselves typically do no better than homeschooling at this–most are segregated by race and class and provide very little by way of explicit engagement with ideological difference.

The best part of this paper was the beginning where Olsen provided great coverage of the Rachel case.  Even here though I think he might have given us more in terms of legal analysis.  My book was in the later stages of editing at the publisher when the Rachel case broke as national news, and because of it I had to add a last minute footnote to something I had said about California in one of my chapters.  Prior to the Rachel ruling I had written that despite the fact that California courts had historically ruled against the legality of home schooling, the California Department of Education had long allowed parents to do it if they claimed exemption as private schools.  I noted,  “though California has more homeschoolers than any other state, it has no [homeschooling] law, nor does it seem to need one.”  (p.185)  The Rachels decision was, I believe, actually a legitimate interpretation of California judicial precedent.  There still is no law that specifically gives Californians the right to homeschool.   My guess is that eventually this issue will come up again and the California legislature will have to write language into their compulsory education law that explicitly allows homeschooling to be considered private schooling.  Right now, though the practice is pervasive, if you look at the history of the case law prior to Rachel, either homeschooling is not legal or the current compulsory education statute is “unconstitutionally vague” (People v. Darrah and Black, 1986).  All of that simply to say that Olsen might have given us more legal context.

My final point is that I am really confused by Olsen’s Supreme Court argument.  He obviously read the first part of my book carefully.  As a law student you’d think he would have been especially interested in my chapter on the history of the legal issues, where I discuss Yoder and the other cases he mentions.  But his discussion and footnotes here suggest no familiarity with the weight of scholarly interpretation on these cases (see, for example Shawn Peters’ excellent book The Yoder Case: Religious Freedom, Education, and Parental Rights).  Perhaps we are to read this article like a court-room defense, where the goal is not to present the unvarnished truth but to try to make the best possible case for one’s client.  That’s the only way I can understand how a student who is just about to be awarded his J.D. could read the Supreme Court cases the way he did.