Record: 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
Summary: Olsen, an attorney in the Las Vegas area and former law student at Brigham Young University, here provides a fascinatingly detailed 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.
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)
For evidence of this very questionable claim, Olsen 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). 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 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. 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 outlook.
Olsen argues for homeschooling because our society is now beyond the need to impose a particular “American synthesis” on every child. At the same time he acknowledges that homeschoolers are often the very people who look back with nostalgia for the good old days of the American synthesis. His solution to this ironic situation 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.
Appraisal: 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. California courts had in fact historically ruled against the legality of home schooling, but the California Department of Education had long allowed parents to do it if they claimed exemption as private schools. The Rachel decision was, I believe, actually an accurate interpretation of California judicial precedent. There still is no law that specifically gives Californians the right to homeschool. 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).
My final point is that I am really confused by Olsen’s Supreme Court argument. 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
Milton Gaither, Messiah College
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