RIGHT TO HOMESCHOOL: Seeking A Free Speech Right to Homeschool

Record: Jennifer Karinen, “Finding a Free Speech Right to Homeschool: An Emersonian Approach.” The Georgetown Law Journal, 105, No. 1 (2016): 191-215. [Abstract]

Summary: Karinen, a lawyer in New York and graduate of Georgetown University Law Center, in this article explains that a right to homeschool, including for secular purposes, can be assumed from the free speech protections of the First Amendment.

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WHO KNOWS BEST: Constitutional Principles and Homeschooling

Record: Linda Wang, “Who Knows Best? The Appropriate Level of Judicial Scrutiny on Compulsory Education Laws Regarding Home Schooling” in Journal of Civil Rights and Economic Development, 25 (Winter 2011); 413-448.

Summary: Wang, who earned her J.D. from St. John’s University School of Law, here seeks to make sense of the conflicting and hazy Constitutional principles at play in cases regarding homeschooling law and liberty.

There are two basic issues.  First is the 14th Amendment, which says that no state can deprive a person of life, liberty, or property without “due process of law.”  This is the due process clause, which has been used in the ensuing decades to do all sorts of things, from extending the bill of rights to the states to protecting rights that are not explicitly mentioned in the Amendment itself, most notably the “right to privacy.”  It is this right to privacy jurisprudence that is most important for homeschooling law.  Interestingly, it was the cases on birth control and abortion (both of which many homeschoolers renounce) that secured the right to privacy on which constitutional claims for homeschooling rights rests.  Cases like Meyer v. Nebraska, Pierce v. Society of Sisters, and Troxel v. Granville have made it clear that the right of a biological parent to direct the education of his or her child is fundamental, meaning that if a state is going to abridge that right it needs to have a compelling interest for doing so and must do so in the least invasive means possible.  This is called strict scrutiny, and it is the highest threshold possible for government infringement of individual rights.

The problem is that many, many lower court decisions have validated compulsory education laws, which infringe on parental homeschooling freedoms, at lower levels of scrutiny (often called “rational basis” or “intermediate scrutiny”).  Why?  Because the same Supreme Court that declared parenting a fundamental right has also declared on many occasions that public school laws are valid forms of “reasonable relation.”  The Supreme Court ITSELF has not applied strict scrutiny to compulsory school laws despite its own holding that parental rights are fundamental.

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TOLERANCE AND LIBERTY: Michael Farris Defends Homeschooling

Record: Michael Farris, “Tolerance and Liberty: Answering the Academic Left’s Challenge to Homeschooling Freedom” in Peabody Journal of Education 88, no. 3 (2013): 393-406.

Summary:  Farris, the United States’ most influential homeschooling leader for the past 25 years, here summarizes and then rebuts arguments made by some academics and lawyers who seek to increase regulation of homeschooling.

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After a Divorce, Who Controls the Education of the Children?

This post reviews Anthony Barone Kolenc, “When ‘I Do’ Becomes ‘You Won’t!’–Preserving the Right to Home School After Divorce” in Ave Maria Law Review 9, no. 2 (2010-2011): 263-302.

Kolenc is a  lawyer in the U.S. Air Force, adjunct faculty member at Saint Leo University, homeschooling father of five, and author of the monthly column “Legally Speaking” in The Old Schoolhouse magazine.  Here he constructs a legal argument aimed at helping divorced homeschooling parents involved in custody disputes.

Kolenc begins with the Kurowski case, which I discussed here and here.  Here’s the summary I wrote a few months ago of the facts of the case:

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How Homeschooling Disrupts the Legal Definition of Public Education and What that Means for Government Regulation

This post reviews Robert Kunzman, “Education, Schooling, and Children’s Rights: the Complexity of Homeschooling” in Educational Theory 62, no. 1 (February 2012): 75-89.

Kunzman, as readers of this blog know very well, is one of the leading scholars currently working on homeschooling.  He is author of the important book Write These Laws on Your Children: Inside the World of Conservative Christian Homeschooling; he’s written many articles on homeschooling; and he maintains a helpful site that catalogs homeschooling research here.

A couple of years ago I reviewed an earlier piece by Kunzman on government regulation of homeschooling that dealt with some of the same themes he addresses here.  Back then Kunzman argued against various kinds of government regulations, concluding that only tests evaluating a homeschooler’s grasp of basic literacy and numeracy should be mandated.

This current article is a bit more theoretical.  It aims not so much to set out an explicit policy proposal as to argue for why certain domains should be considered legal rights (and thus be scrutinized by the government) while other, perhaps equally important domains, should not.

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Constitutional Principles and Homeschooling

This post reviews Linda Wang, “Who Knows Best? The Appropriate Level of Judicial Scrutiny on Compulsory Education Laws Regarding Home Schooling” in Journal of Civil Rights and Economic Development, 25 (Winter 2011); 413-448.

Wang, a recent J.D. from St. John’s University School of Law, here seeks to make sense of the conflicting and hazy Constitutional principles at play in cases regarding homeschooling law and liberty.

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Who’s in Charge of Kids? Parents? Kids? The State?

This post reviews Courtenay E. Moran, “How to Regulate Homeschooling: Why History Supports the Theory of Parental Choice” in University of illinois Law Review, 2011, no. 3 (2011): 1061-1094. [Available Here]

Moran, a J. D. candidate at the University of Illinois College of Law and former homeschooler himself, here offers an ambitious, historically-grounded legal argument for the viability of limited goverment regulation of homeschooling.

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What Would Happen if Homeschooling was Abolished to Integrate Schools?

This post reviews Consuelo Valenzuela Lickstein, “Race and Education at a Crossroads: How Parents Involved in Community Schools v. Seattle School District No. 1 and Wisconsin v. Yoder Shed Light on the Potential Conflict Between the Black Homeschooling Movement and K-12 Affirmative Action Programs” in The Journal of Gender, Race and Justice 13 (Spring 2010): 835-857.

Lickstein, an associate at Choate Hall and Stewart LLP and recent graduate of University of Iowa College of Law, here presents an interesting thought experiment about homeschooling and diversity in public schools.

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Are Homeschooling Regulations Too Lax? Are they Constitutional?

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.

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Does Homeschooling Undermine the Public Interest in Children?

This post reviews J. C. Blokhuis, “Whose Custody is it Anyway?: ‘Homeschooling’ from a Parens Patriae Perspective,” in Theory and Research in Education, 8, no. 2 (August 2010): 199-222.  [Abstract available here]

Blokhuis, Assistant Professor of Education at Renison University College at the University of Waterloo in Canada, here presents a bracing challenge to the common claim that parents have a Constitutional right to raise their children as they see fit.  He does this by explaining how the common law doctrine parens patriae limits their custodial authority.  He hones in especially on how this doctrine limits homeschooling rights. 

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