This post reviews Catherine J. Ross, “Fundamentalist Challenges to Core Democratic Values: Exit and Homeschooling.” in William and Mary Bill of Rights Journal 18, 991-1014 (2010). [Available Here]
Ross, Professor of Law at George Washington University, here argues several claims:
1. assertions homeschoolers make to constitutional authority for their practice are false
2. the state’s interest in preparing children for life in a pluralist democracy trumps parental liberty interests in controlling children’s educations
3. in custody battles where homeschooling is at issue, the state should prefer formal schooling to homeschooling
4. states should engage in “far more stringent oversight and regulation of homeschooling than exists in any state at present.” (p. 992)
Ross begins with a brief legal history of homeschooling, sort of. It’s actually pretty interesting in that it has a couple of details one doesn’t usually find in such accounts. For example, she notes that several of the early-to-mid 20th century court cases that permitted parents to keep their children home for school did so because of rural contingencies like bad roads, lack of available schools, and so on. She ends her brief survey by noting that recent court decisions have held parents responsible for more than many homeschoolers like to think.
Next Ross demonstrates that religious, especially conservative Christian, families predominate in the homeschooling and private schooling world, and that they frequently view such practices as exit strategies from a society of which they disapprove.
With this groundwork laid, Ross gets down to business. First, she goes to great length to explain that homeschooling parents do not have the right to sequester their children from the influence of ideas their religion doesn’t like. She places special weight on the 1990 Supreme Court decision Employment Division v. Smith, which found that government doesn’t have to prove a “compelling interest” even if a law burdens religious belief. Ross calls this an “emerging narrow view of how little the state must do to make the ultra-religious feel comfortable.” (p.1001) A “hybrid rights” doctrine that developed out of this ruling has been subsequently rejected by several courts: Swanson v. Guthrie (1998) found that parents couldn’t force a public school to let them send their daughter to a few cherry-picked classes and avoid those they found objectionable. Combs v. Homer-Center School District (2004) rejected the claim argued by HSLDA’s Michael Farris in behalf of his Christian plaintiffs that state homeschooling requirements violated their constitutional rights.
Ross cites other cases as well, but the point is that unregulated homeschooling is not a constitutional right and that regulations are not only legal but required to insure the good citizenship of all. Good citizenship, furthermore, is characterized especially by tolerance. But this raises an obvious debater’s point. Is it not intolerant of the state to disallow intolerant homeschoolers from doing their thing? Ross says no:
Respect for difference should not be confused with approval for approaches that would splinter us into countless warring groups. Hence an argument that tolerance for diverse views and values is a foundational principle does not conflict with the notion that the state can and should limit the ability of intolerant homeschoolers
to inculcate hostility to difference in their children—at least during the portion of the day they claim to devote to satisfying the compulsory schooling requirement. (p.1005)
States already impose regulations on private schools requiring them to expose their students to ideas their religions might find objectionable. Ross mentions one very interesting case in Virginia where the state closed down a private Muslim school operated by the Saudi government that used textbooks advocating all sorts of things most Americans would find noxious. If we can do this with private schools, argues Ross, we should do so with homeschooling as well.
To clarify her point, Ross uses an example from 1973. In that year the Florida state court refused to allow parents who believed that race-mixing (desegregation) was unBiblical to pull their children out of public schools and educate them at home. The Supreme Court agreed with the sentiment, holding in Runyan v. McCrary (1976) that parents did not have a constitutional right to send their children to segregated private schools because of their religious objection to integration. Ross concludes her argument here with a quote from Justice Brennan,
The Nation’s future depends upon leaders trained through wide
exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.
The next, and briefer, section of Ross’ paper canvasses several recent custody cases where one parent wanted to homeschool and the other did not. Her argument is basically that the Courts are already showing a preference for schools over fundamentalist homeschooling and that we should simply make this preference official. She calls it a “rebuttable presumption that, all other things being equal, where the parents disagree, the state prefers public school to homeschooling because public schools serve the state’s interest in exposure to diverse viewpoints and people.” (p. 1012)
I found this to be a much better attack on homeschooling than that of Robin West that drew so much attention a couple of years ago. It is very similar to arguments made recently by Kimberly Yuracko and Timothy Waddell (who I’ll review next week). While I agree with the spirit of what Ross wants (that all kids be exposed to a wide variety of views), I have two reservations.
First, who gets to decide which views should be tolerated? It’s not too hard to get most Americans to agree that the state can discriminate against Muslims advocating suicide bombing and the imposition of Sharia law. But can it discriminate against people who believe homosexuality is a sin? Can it discriminate against people who believe objections to homosexuality constitute illegal hate speech? This is the classic problem of liberalism. It has no moral content itself–only a series of procedural rules put in place to keep us from killing each other. Absent a set of universal moral norms, how can the state determine what it should tolerate and what it should not?
Secondly, there is the empirical reality check. At one point Ross says “public schools at their best…” The problem is that they are rarely at their tolerant, exposure-to-all-views best. Many homeschoolers would quickly retort to Ross that the public school should work on the plank in its own eye before presuming to remove the speck from homeschoolers’. Many public schools are bastions of all sorts of anti-civic, intolerant views, of student bodies segregated by race and class, and much else. I agree wholeheartedly that it would be wonderful for students to be exposed to a wide variety of beliefs. But how many public schools actually do this? How many require philosophy classes or religion classes? How many teach tolerance beyond the character education platitudes that repeatedly are shown to have limited impact on student habits? And on the other side of the ledger, do we have empirical evidence that homeschooled kids are actually growing up to become intolerant adults?
That last point is most important. In my view what homeschooling research needs more than anything else is careful study of this question. What actually happens to homeschooled kids who grow up in these fundamentalist families? Do they go on to be clones of their parents? Do they soften? Do they grow even more hard-line and intolerant? Before we impose a whole new set of requirements on all homeschoolers we need to know the answer.