This post reviews Timothy B. Waddell, “Bringing it all Back Home: Establishing a Coherent Constitutional Framework for the Re-Regulation of Homeschooling” in Vanderbilt Law Review, 63, 541-598. [Available fulltext here]
Waddell, a recent graduate from Vanderbilt Law School and now a clerk for the U.S. District Court of Alabama, here presents a constitutional argument for increased regulation of homeschooling and much else besides.
Waddell begins with a very capable review of the recent history of homeschooling. He has clearly read deeply in the secondary literature and has developed a keen understanding of how activist homeschoolers have been so successful in transforming the legal and political landscape in their favor since the 1980s. He describes in some detail the key role of HSLDA in all of this, noting especially how they have claimed over and over, for years now, that the 1st and 14th Amendments give parents a constitutional right to homeschool and that state regulations violate this right.
Next he claims that we are perhaps in the midst of a gradual process of re-regulation. As homeschooling continues to grow the practice is coming under increased scrutiny. He mentions efforts (all unsuccessful) in New Jersey, Michigan, and New Hampshire to increase regulations and focuses especially on Washington, D.C. which in 2008 became “the first jurisdiction in the United States in over 15 years” to successfully increase regulations (p. 554). The D.C. regulations were put in place after the discovery of the decaying bodies of four girls who had been removed from school to be “homeschooled.” Despite intense lobbying by HSLDA and other homeschooling activists, the horrific nature of the crime gave legislators the backbone to see the new regulations through. D.C. now requires homeschooling parents to have at least a high school diploma, to give 15 days’ notice before removing children, and to keep a portfolio. Waddell believes that as more of these tragic cases of neglect and abuse come to light (which they will, he thinks, as homeschooling spreads beyond the white, middle-class, conservative, two-parent families that have dominated the movement) other States may acquire the moral outrage necessary to steel themselves against the onslaught of homeschooling advocacy groups and pass more stringent regulations.
But on what grounds? Next Waddell takes up the constitutional argument. Here he relies heavily on Kimberly Yuracko’s arguments, which I summarized here. He basically argues that states have a constitutional responsibility to provide equal protection under the law, and that homeschooling threatens equal protection by 1. removing children from view to such a degree that the state can no longer ensure the child’s welfare or the community’s protection against disease (if homeschoolers aren’t getting vaccinated), and 2. allowing parents to provide woefully inadequate academic or social preparation. For the second point Waddell is quick to acknowledge that most homeschoolers are receiving excellent academic training and adequate socialization, but he tells many anecdotes, some quite horrific, of parents who either don’t teach their kids much of anything or indoctrinate them with reprehensible views (such as white supremacy).
The current state of wild-west style unregulation is the result of HSLDA’s largely successful public campaign to get local officials to believe that the 1st and 14th amendments to the Constitution give parents “fundamental liberty” rights to educate their children free of government oversight. Is this true?
Waddell here provides the clearest summary of the Constitutional issues I’ve ever read. He explains how Meyer, Pierce, and Yoder fit and do not fit into the emerging legal understanding of due process and free exercise rights, bringing in other Supreme Court decisions as well. The basic point here is that, like in so many other domains, the Supreme Court has made a hash of things both by lack of clarity and outright inconsistency, which has left lower courts with a sense of confusion as to what the law really is.
For example, Waddell explains how when Yoder was decided the Supreme Court was operating under a free-exercise of religion paradigm articulated in Sherbert v. Verner (1963), which had required the high “strict scrutiny” standard to be applied to laws that infringed on personal religious belief. But Oregon v. Smith (1990) changed that, only requiring strict scrutiny when a “hybrid situation” of both 1st AND 14th Amendment rights are at stake. Homeschool lawyers jumped on this “hybrid-rights” theory and have used it regularly in court. They won in Michigan in 1993 in People v. DeJonge, which I describe in detail in my book, but that case is a real outlier. In every other lower court case the “hybrid-rights” argument has failed, and Waddell notes that the Supreme Court has never again referred to it in its jurisprudence. Waddell concludes this remarkably clear summary of an incredibly murky legal issue by noting that even though courts typically have rejected HSLDA’s constitutional claims, state legislatures have been far more easily swayed by HSLDA’s sweeping rhetoric.
Waddell concludes his paper with a proposal that he believes will cut through the confusion. Here it is:
1. Homeschooling should be explicitly recognized as a constitutionally valid method of education, on par with public and private schools as a matter of fundamental liberty.
2. Just as it is Constitutional for public and private schools to be regulated, so with homeschooling, but these regulations must not infringe on the fundamental right to homeschool (as, for instance, requirements that homeschooling parents be state certified would do).
3. These regulations must be adequate to permit the state to fulfill its parens patriae role of ensuring that the child grows up to be a productive member of society. Hence some sort of “monitoring mechanism” is needed that ensures a child is not being abused, is getting vaccinations, is receiving adequate academic instruction (as defined by the state), and is not being homeschooled against his or her will. Monitoring mechanisms could include periodic home visits and assessment by an accredited outsider.
And that’s it. Waddell finishes up by restating his hope that the Supreme Court will some day speak clearly on this issue, which would help homeschoolers avoid the feeling that their right to homeschool could be taken away at any moment and would help legislators avoid the misleading rhetoric of homeschooling advocates that any regulation of homeschooling is unconstitutional.
As my summary indicates, I really liked this piece. It is the last of a long list of legal articles I’ve reviewed over the past few weeks, and it is the best of the lot in my view. John Holt wouldn’t like it because in his view it was always better to have things unclear than clear, for then you could get away with more. But I for one appreciated not only Waddell’s summary of the issues but his proposal as well. I know some of my readers will react strongly against what I’m about to say, but Waddell’s proposal to me does a good job of maintaining the freedom to homeschool while at the same time providing a mechanism for catching children whose parents are being abusive or neglectful. A homeschooling family that is doing its job should have no fear of outside evaluation–should welcome it in fact, as it will demonstrate to the public at large how effective homeschooling can be.
A second, fully revised edition of my 2008 book Homeschool: An American History, was published in March of 2017. 
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Homeschooling Research Notes 
I’m just wondering what’s going on here? Not the issues being discussed, but the fact that so many academics have come up with the same arguments, seemingly almost concurrently and (unless I’ve missed something in the footnotes of the various articles) independently of each other. I haven’t read the Waddell article yet, in fact, I’ve been going through the Ross article and another I found by Hayley Conard – THE CONSTITUTIONALITY OF TEACHER
CERTIFICATION REQUIREMENTS FOR HOMESCHOOLING
PARENTS: WHY THE ORIGINAL RACHEL
L. DECISION WAS VALID. I found the latter way better than the Blokhuis and Ross articles, but it basically used the same kind of arguments as Ross and, I’m presuming, Waddell, just with each of them approaching it from slightly different angles. Was there some kind of academic get-together where this issue was discussed, and lots of people decided to write articles on it, or is someone plagiarising from someone? Or am I turning into a conspiracy theorist? 😉
I was struck by this as well Rina, as was Michael Farris in the piece a reader linked to in the comments on last week’s post. Farris really does see it as a conspiracy. If you read his piece you’ll see he moves very quickly from a reasoned consideration of some of these legal articles to wild ranting about Stalinism and the impending persecution of anyone in the U.S. who names the name of Christ.
Waddell himself offers a plausible interpretation. As more and more news stories emerge of criminal abuse and neglect going on under the auspices of “homeschooling” there is a growing sense among many people that we need to shore up regulations. I think that’s what’s probably happening. If you want to take it even further you could see it as part of the broader trend away from the deregulation of the Clinton and Bush years that, many argue, led to the financial meltdown and several natural disasters associated with the oil and coal industries. Perhaps the push to re-regulate homeschooling is part of a broader return to governmental oversight in the wake of irresponsible and criminal activity in the private sector.
That’s one of the very telling comments Conard makes in her article, too. She brings up the increasing deference of US courts to government intervention as a motivation for (or cause of?) greater regulation of homeschooling.
As someone who homeschools in the District of Columbia, I’m pretty familiar with the institution of regulations here in 2008. I think it’s pretty difficult to argue from what happened here that there’s any sort of movement toward re-regulation. Before 2008, there simply were no regulations in place in regard to homeschooling. Unlike a few states which have specifically decided to have minimal regulation, DC, due to a famously disorganized city government and an almost complete lack of the stereotypical homeschool demographic, DC had just never bothered to pass any laws in regard to homeschooling whatsoever.
Now that the new regulations are in place, they have pretty much no bite as far as I can tell. The homeschool “office” supposedly doesn’t even have any full time employees. There is no systematic review of portfolios such as in neighboring Maryland.
So, overall, I find that a weak example, especially considering that moves in other states have failed.
A child not homeschooled against his will? You mean like children are not forced to go to school against their will? The default of compulsory attendance somehow creating the norm that a child is believed to *want* in a vacuum is too precious.
At soccer practice and scouts and in the park, my children’s friends have begged me to homeschool them, telling us how much they hate forced school attendance. Should we apply the standard of “against their will” to school children as well as homeschooled children?
I keep trying to figure this out – how people come to this rationale – how, when so many school-going students are abused and neglected,, and when so many children are assigned to state-provided CPS and continue to be abused, some until death, and when preschoolers — whether they will go on to become school attenders or not — are abused and neglected, how regulation of homeschoolers in particular by the state for the purposes of protecting children is a safeguard? It is such an emotional response. We could pick some abuse cases involving teachers, or we could pick some abuse cases of schooled children by their parents, and isolate them and sensationalize them and say, obviously, these children do not have enough protection by their FAMILIIES, and therefore we must mandate that schools undergo increased regulation by families!
I really have to say that if you approached homeschoolers as a distinct culture or ethnicity and decided that their culture should therefore be regulated by an institution or culture outside their own, the outcry among academics would be all about the cultural bias and insensitivity. The presumption that a school-going, state-centric institutional approach provides protection to more kids (let’s say percentage-wise, since we know there are many more institutionalized children than those educated within their families) than family ed does is the biggest blind spot of all. We are simply, as a society, USED to believing that the state and its state-supported ed protects children. Because if it doesn’t, then the emperor wears no clothes…
I cannot stop thinking about your thoughts today. They scare me. “A homeschooling family that is doing its job should have no fear of outside evaluation–should welcome it in fact, as it will demonstrate to the public at large how effective homeschooling can be.”
This is sort of like asking the innocent to prove they’re not guilty rather than presuming innocence. The old thing of, “If he didn’t have anything to hide, he wouldn’t have run from the police.”
But most grievous is the phrase “doing its job.” According to whom? I don’t use a curriculum; I don’t use tests. Eventually my oldest kids went to college, where they’ve proven quite well that they could perform with a curriculum and tests. But anywhere along the way, an “evaluation” would have (1) not shown what the educational establishment sees as schooling and (2) would have interfered with our holistic approach to education.
I know this, because teachers and school principals constantly outline to me what my homeschool education should look like, and – no surprise – they presume it should look a lot like school. And our home education looks NOTHING like school. My late reading kids would have never passed an evaluation during specific stages of their young lives, but I saw their unique development and was never concerned. The fact that the oldest kids, now in the their twenties, are now voracious readers who read constantly to learn things and do things and know things, might never have occurred if they had been subjected to a school approach. I know many young adults who continue to see themselves as poor readers and reading as a last resort.
I know this, because when we lived in one state that required testing, one of my children totally freaked and developed both a math aversion and a test aversion as a result of our efforts to prepare him for a grade level test for which he happened not to be developmentally ready, which I knew would not be an issue within a year or so. Frankly he still considers that experience to have created post traumatic stress in him. He lost several years of natural development in mathematics that could have served him well.
And, again, WHO exactly do we think has the expertise to evaluate the home educated children who should not mind this? Would it be someone from the system in which 1/3 of its students fail to graduate? Would it be the third grade teacher of one of my kids in the early years before he was homeschooled, whose spelling I constantly had to correct when I volunteered as her classroom assistant, most grievously, even on SPELLING LISTS? Would it be someone, perhaps, from, um, Atlanta?
I say, if schools have nothing to be afraid of, they should stop worrying about how homeschoolers are doing, or perhaps they should invite homeschoolers to evaluate them.
Point 3 in Waddell’s conclusion is disturbing.
–For parens patriae to kick in the parent must be shown to be abusive or negligent. An assumption may not be made that all parents are guilty without any procedural due process. This contradicts our presumption that all men are innocent until proven guilty.
–Who appointed the state monitor of all vaccinations even in private homes? Generally, the state only requires vaccines when children attend public schools for health and safety of others. Are doctors and the state going assume responsibility for vaccine complications? Last time I checked parents had to sign waivers and release of liability. So what he’s suggesting is that the state now owns our children.
–Who gave the state or any other elite group authority to indoctrinate all students at will, mandating instruction that they deem “adequate?” Education should be determined locally by parents within their communities, not in some distant ivory tower or federal agency.
–Does anyone monitor whether or not a child is being compelled to attend public school against his will? Why selectively monitor a child’s desire to learn at home?
–Periodic home visits and assessments? What more could one expect from a fascist state? Again, this is a presumption of guilt on the part of the state without any evidence of wrong doing.
Waddell’s analysis of the NH home education law and proposed legislation for 2009 betrays his lack of understanding of the issue as well as his strong bias towards HSLDA.
And finally (I know, I should get to a “finally,”) this kind of fallacious thinking is akin to saying women who want to be at-home mothers or choose natural childbirth, if they have nothing to HIDE by their choices, should take on as their job demonstrating how effective at-home mothering is, or how effective natural child birth is. And they should be glad for the opportunity to prove this to working moms and OBs with 30% C-section rates. You know, since they have nothing to HIDE, they shouldn’t mind their personal lives being trotted out to be validated by *experts.* They shouldn’t mind the time that it takes to do this, they shouldn’t mind the impact that it has on their kids, they shouldn’t mind that the *experts* are from within the institutional circle from which they have purposely removed themselves.
I mean, come ON. This has just gotten far too upside down.
I tell you, I was a pretty mainstream homeschooler when I came into it. Within a few years, with all these people telling me how homeschoolers needed to succumb to just a little regulation for their own good, I have become much less so.
What we do here looks nothing like school. And it produces well-educated, well-socialized adults. It should not have to be my role to “demonstrate” anything to people who believe they have authority over me, unless I otherwise break the law. And if you take what’s working and legal now and put it into a box of “not legal,” you’re not going to do a thing to protect children; you’re just going to make the jobs of homeschooling parents more onerous, as they succumb to evaluations by people who have no expertise in home ed. You will dry up the difference between family-based ed and school, thus reducing diversity and opportunities for positive divergent thinking in our society.
It sounds so innocent, so easy, so harmless, like such a modest proposal, to ask homeschoolers to allow their freedom to be gently regulated away.
The two parts of his proposal which concern the most are on pages 591, 592-93, and 594.
“Further, states should be able to put in place procedures to
adjudicate disputes between the educational desires of parents and
students. If such procedures determine that the parent’s choice
hinders or forecloses the student’s educational goals, states should be
permitted to order such additional education, even outside the home,
as necessary to accommodate the student’s ambitions. Generally, an
order to allow for or provide additional education under such a system
would not necessarily deprive parents of any choice, but would simply
require that additional elements be incorporated into a student’s
education. However, even if a ruling overrode parental choice, courts
should hold that such procedures and the determinations they make
serve a compelling state interest “in seeking to develop the latent
talents of its children [and] in seeking to prepare them for the life
style that they may later choose . . . .”
“If the
touchstone of a parent’s fundamental liberty interest in her child’s
education is choice among educational alternatives, regulations that
merely add requirements and do not prevent the teaching of other
subjects by means parents choose would not infringe upon those choices. . . . If a state could impose curricular requirements that contrary
perspectives be taught simultaneously (and enforced by testing or
other means of oversight), the differences between a homeschooler
being inculcated with these ideas and a public school student being
taught them in the evenings would be minimized.”
“Visits or evaluations also could
help counteract socialization concerns by ensuring that homeschooling
children, who might otherwise be completely isolated, engage in some
degree of interaction with those outside of the home.”
I guess I should have said those were the THREE parts of his proposal which concerned me the most.
Well I guess I am one of those who disagree entirely with this point of view. I think it is undemocratic at its core and harms families as well as the state to structure educational services in this manner. Families who are neglectful or abusive are subject to investigation and action by authorities in every part of the US. The so-called re-regulation of homeschoolers will be another instance of class warfare whereby poorer families face mandatory attendance even at failing schools while wealthier families get the OK for the educational choices they can afford.
Furthermore, schools themselves will never improve until we allow families to choose the services they want from their local school districts. A truly modern social service like schooling must be voluntary and focused on families and communities. Moving toward more humane and service-focused schooling would also allow families to adjust to environmental and economic stress as well as support children who need relief from the intense peer-orientation and isolation they are subject to in a massively centralized system.
I blog about these issues because so few homeschoolers seem aware that these ideas were discussed by educational activists more than 40 years ago and are the reason some of us chose to homeschool.
I agree with Win and D Pomerat. Waddell’s suggestions sound reasonable * until we consider them carefully. *
Also, I disagree with a point Mr. Gaither made in the last paragraph. It is easy enough to speak for a dead man, but saying that John Holt was concerned with people being able to “get away with” things is pretty insulting. I met him twice, and Holt truly cared about kids. More than just caring about them, he had the capability of empathizing with them, seeing the world through their eyes, coupling his older/wiser broader/more-long-term perspective with kids’ I’m important now!/I’m miserable now! perspective. Holt tried and tried to make changes in education from inside classrooms and as a writer whose books sold. He was pragmatic enough, however, to switch gears when it seemed that the school paradigm was dug in, inert, unmoving, and unchanging. Holt may well have disagreed with Waddell’s suggestions, as I do, but it would be for good, pragmatic reasons that stem from Holt’s sincere concern for children.
Suggesting that more regulation of homeschooling would solve abuse problems is farfetched when many abuse problems happen AT schools, by teachers, administrators, or other students (not to mention priests and nuns); at home but TO kids in public or private school, and nobody notices or intervenes; and BEFORE kids reach school age. Abuse is of course a horrific problem–no question–but “hard cases make bad law.” I am pretty sure that regulating homeschooling will do little to safeguard kids in the rare bad cases and do a lot to put roadblocks in the way of families in the many good cases.
I think an even stronger point is Win’s story about her own kids becoming well educated adults–but along their own timetable. My grown kids, too, were late readers and would no doubt have scored miserably on certain tests at various ages. (I was luckier than Win–my kids never went to school *and* never had to take tests–until their driving test!) Yet now they are flourishing. Two of my three have graduated from college with honors, and one has earned an MPhil. (My third is 19 and a professional dancer.)
If schools were doing a great job–or even a good-to-great job–with the kids who attend them, perhaps homeschoolers would either contemplate utilizing their services or would rail less about listening to the educational “experts” who run them. But schools are doing a pretty terrible job at many things. Many schools have a bad track record of keeping kids safe, and most generate learning problems at least as often as they solve them. An argument could be made that schools don’t properly “socialize” kids, and we have almost society-wide agreement that they don’t properly educate them.
Everyone has been so eloquent here, that I really don’t have much more to offer, being in agreement with Win and Cathy.
As for the poor children who were found decaying in their home in Washington….yes, that’s a sad and horrific case. Was Columbine more or less horrific? How long was Dave Pelzer tortured by his mother before his teachers noticed?
“These regulations must be adequate to permit the state to fulfill its parens patriae role of ensuring that the child grows up to be a productive member of society. Hence some sort of “monitoring mechanism” is needed that ensures a child is not being abused, is getting vaccinations, is receiving adequate academic instruction (as defined by the state), and is not being homeschooled against his or her will. Monitoring mechanisms could include periodic home visits and assessment by an accredited outsider.”
I am blown away by this. These are the exact issues we fought major battles over in Ontario, and that home educators in England have just fought off in England over the past three years.
The state, as has been mentioned above, only has parental duty when the ACTUAL parents can be SHOWN to be in a situation of neglect or abuse. it is not a default position. Parents are the parents of children, not the state. I have written extensively about the harm “monitoring” can do to homelearning families, and about the intense stress if causes. It is an artificial situation, and the monitoring is very often performed by individuals hostile to the very idea of homelearning. Also, this creates a two-tiered, unequal society, where homelearning families are second-class citizens, with much less freedom to live as they choose, or to raise their children as they see fit.
By the way, many schooled children are not vaccinated because of parental beliefs. And, as so many have pointed out, above, why is it that children can be schooled against their will, because their parents choose it, but education at home requires the child’s consent? But that is by the by in the real world. I have yet to meet a child who was forcibly home-educated, though I have met hundreds who are forcibly school educated.
And the whole concept of “nothing to hide, nothing to fear” is such a spine-chilling idea that I can barely articulate my horror. This violates every notion of personal privacy. It also, to my mind, violates freedom of conscience, in that the education of our children is definitely a matter of conscience, and the state has no business, WITHOUT EVIDENCE OF NEGLECT, involving itself in private family choices regarding education. As mentioned above, who does the monitoring? People with a vested interest in the state education system, and with their own prejudices and biases regarding home-based education. I have seen this over and over in Canada.
If the state were doing such a bang-up job preventing educational neglect and abuse of children who are SCHOOLED these arguments might make a little more sense. But homeschooling is not the problem. Homeschooled families are under tremendous scrutiny. The English experience proved time and again that when children were pulled from school in abusive situations, and the parents alleged that they were going to “homeschool” them, these families were almost always well known to social service authorities. The cases in which harm has actually come to the children (as is often the case with schooled children as well), was when social services agencies dropped the ball, and the children went off the radar. Rather than “regulate” homeschooling, social services agencies need to be monitored, to ensure that they are, in fact, protecting the children who are ACTUALLY at risk.
Mr. Gaither, I usually have great respect for your writing and ideas, but in my opinion you are way, way off base on this one. If you had lived in an area in which homelearning was targeted by a hostile and oppressive educational establishment, as I have, as thousands of homelearning families have, you would not be so blithe about “nothing to hide, nothing to fear.” Many, many families in England, Canada, and the U.S. have been reported to social services by hostile education authorities. I have heard, and witnessed, hundreds of these stories. Each instance of an unjustified allegation of “educational neglect,” or child abuse puts a homelearning family through a hell it takes years to recover from.
“and is not being homeschooled against his or her will.”
Interesting that they never turn it around and ask whether children are being sent to school against their will.
Waddell’s paper on page 549 mentions that homeschoooers were exempted from the No Child Left Behind Act. Waddell did not see this at the time of his paper, but just this week I learned that our own Minnesota state dept of education applied for an exemption from the Act, along with many other states. This exemption request is currently with the U.S. Dept of Education. It is not just the HSLDA and homeschoolers that dislike the Act. Interesting, isn’t it?
I disagree with Waddell’s call for more regulation of home schooling, based on the fact that the current regulation of public schools is in question. Also, in terms of child abuse, there are still issues in the public schools about bullying and sexual harrasment from teachers and other students. All of these issues are shedding light on the disfunction of public schools and the disagreement over the educational standards for public schools. There should not be more regulation of homeshcoolers until there is an appropriate system of regulation for the public schools along with punishments for educational underperformance in the schools. These issues are not settled.
Waddell and others can always find anecdotal stories about abuse and eduational neglect in homeschool families, but there are also similar stories in public school families. It seems that many of the people who advocate for more regulation also fail to take a look at the dissarray of public schools. Somehow, the homeschoolers get a target placed on them and the state gets a free pass on their own standards and administration of public schools. If you are going to have regulations that could take away a parents right to homecshool, then your public education system must have at least as high, or a higher educational standard that it sets for itself. Also, the punishment must be as severe, or more severe in public shools if those standards are not met. For example, the firing of principals and teachers, etc.. I will continue to suppor the deregulation of homeschooling until a higher enforcement of standards and punishment is set for public schooling.