This post reviews Teri Dobbins Baxter, “Private Oppression: How Laws that Protect Privacy Can Lead to Oppression” in Kansas Law Review 58, no. 2 (January 2010): 415-471 [Available for purchase here]
Baxter, Professor of Law at St. Louis University, here seeks to get leverage on how to best handle the FLDS (Fundamentalist Church of Jesus Christ of Latter Day Saints) issue that blew up in Texas two years ago. As I described in a recent post, the FLDS made the news in a big way when their Texas compound was raided in April of 2008 by Texas State authorities, who removed 437 children from the site, prompting the largest child custody battle in U.S. history and enormous media coverage.
After summarizing the raid and its aftermath, Baxter does two things. First, she surveys the various U.S. Constitutional issues the situation raises. Second, she delves deeply into most of the important state-level court cases that have limned the extent of parental rights in terms of homeschooling. Why her focus on homeschooling law? Read on to find out. Baxter’s very balanced summary of the Yearning For Zion raid makes it clear that while the raid was poorly executed and the Texas court of appeals justified in returning the children to their mothers, there are nevertheless legitimate concerns about FLDS children, particularly the widespread practice of marrying girls as young as 13 to older men, many of whom are already married (often to multiple wives). Many of these girls become pregnant prior to the legal age of consent in Texas.
If the raid was an ill-advised method of dealing with the FLDS, what would be better? Well, first we must understand the legal extent and limits of the Constitutional right to privacy. Baxter’s summary of the various Constitutional amendments that together have been interpreted as providing a fundamental right to privacy is remarkably clear and complete. Whether or not one cares about the FLDS or homeschooling, her section on right to privacy jurisprudence is a model of excellent exposition. Without going into detail here, she basically explains that the Supreme Court has found a far-reaching right to privacy in the Constitution that includes the rearing of children and other aspects of family life (including, let us not forget, the right to contraception and abortion). Such rights can only be limited by overriding government interest, or what has come to be known as “strict scrutiny.” Strict scrutiny was undermined, however, in the Supreme Court’s Oregon v. Smith decision (1990) leading many enraged Congresspersons to pass the Religious Freedom Restoration Act (RFRA) in 1993. When this act was declared unconstitutional by the Supreme Court when applied to the states, many state legislatures passed their own versions. The end result is that government still must show a compelling interest when infringing on privacy rights of individuals.
One example of a compelling state interest is the protection of children from abuse or neglect. Courts have consistently overturned religiously motivated parental objections to their children receiving life-saving medical treatments, for instance. Another example is polygamy. Polygamy is currently illegal in every state in the country, and the Supreme Court has consistently rejected challenges to polygamy laws on first or fourteenth amendment grounds. I might note here in passing, though Baxter doesn’t, that current challenges to laws requiring marriage to be between man and woman could conceivably set a precedent for future challenges to laws requiring monogamy, but that is another story.
Privacy law also requires due process be followed in determining whether or not abuse or neglect has occurred. This makes it especially hard to deal with sequestered and insular subcultures like the FLDS. Government officials cannot just barge in and take kids away without just cause. What then can be done with groups like the FLDS whose isolation from outside observation makes it very difficult to get information about possible sexual abuse of minors?
Baxter suggests two avenues by which government can maintain at least a modicum of oversight without violating privacy rights. The first, and the one on which she spends by far the most time, is regulation of a child’s education. In this section Baxter surveys most of the important cases that have established both the right of parents to educate their children at home and the right of states to regulate that education in various ways. If I may say so, I found her account here a bit jumbled compared to my own in chapter seven of my book. Nevertheless, it becomes clear by the end of her discussion that states do indeed have a right to reasonable regulations such as registration, curriculum requirements, and mandated testing. Though she doesn’t quite say it so directly, one of the problems Texas authorities have with the FLDS is that Texas imposes no regulations at all on homeschoolers, not even basic registration. This makes it much less likely that potential abuse situations will ever be noticed by outsiders. If you want to impregnate multiple minors with impunity and use homeschooling as a means of covering the behavior up, Texas is a great place to live.
If Texas and other states with no regulation were to adopt regulations already found to be Constitutional in other states, there would be more opportunity to protect abused children currently going unnoticed by parents hiding behind privacy rights and homeschooling. In addition, curricular requirements like basic civic education would at least have the potential of enabling children growing up in these cloistered environs to learn that the country does have laws that protect their rights as individuals.
Baxter’s second suggestion for helping deal with the FLDS is to enforce laws mandating registration of live births and identification of parents. When authorities raided the FLDS compound they had no way of determining who the parents of the various children were, for there were no records that these children even existed.
As noted, I found the first sections of this article remarkable in their even-handedness and clarity. While the homeschooling law section was not as complete nor as clear as my own, it is nevertheless a competent summary of most of the important cases. Her application of all of this to the FLDS case is extremely interesting, for it exposes a potential fault line in the thinking of many homeschoolers who are the most vocal opponents of any and all government regulation.
Conservative Protestant in the HSLDA orbit have consistently, for decades, argued, lobbied, and litigated for the most permissive homeschooling laws possible. But these same people are no friends of polygamy (or of gay marriage or abortion rights). Which is more important–individual freedom or societal norms? Most homeschoolers would side with individual freedom. But what about when these freedoms form the basis for practices many homeschoolers find reprehensible? Is the bedrock commitment to libertarianism or to Christian morality? The answer is unclear to me, but the case of the FLDS, especially as described in this very compelling article, invokes it.