Record: Carmen Green, “Educational Empowerment: A Child’s Right to Attend Public School” in The Georgetown Law Journal, 103, (2015): 1090-1133. [Available Here]
Summary: Carmen Green is a student at Georgetown Law. In this article she explores the issues of abuse and neglect among the homeschool community and whether children have a legal right to attend public school, even if the parents choose to homeschool them.
Green begins with the stories of Josh Powell and Heather Doney, two children who received poor homeschool instruction and were performing far below their peers. At the ages of 14 and 12, Powell and Doney decided that they wanted to attend public school because they recognized that they were not receiving a good education at home. They were hindered by their parents, who wanted them to remain homeschooled. They had very few options because they were not able to employ legal services. Even a report to law enforcement or social services would have been unlikely to amount to anything because their parents had not broken the law. In some states, there is very little oversight of homeschooled children. In fact, Green argues that there is not enough oversight to protect children from harm.
The first major case that Green discusses is Wisconsin v. Yoder. The Supreme Court ruled that Amish parents could remove their children from school after eighth grade because the Amish faith opposes formal secondary education. Despite homeschooling advocates’ frequent usage of Yoder to claim that parents have a constitutional right to direct a child’s education, the case did not answer the question of what happens when the child disagrees with the parents. In his dissent, Justice Douglas remarked that Amish parents could be limiting their children’s future opportunities against their wishes.
Although states have an affirmative duty to provide a free and adequate public education, Green argues that this duty is meaningless if children can be withheld from accessing public education by their parents. Green makes an analogy to minors’ abortion rights, an issue that the Supreme Court has already ruled on. Just as states that place parental consent restrictions on abortions for minors must have a judicial mechanism in place for children to protest their parents’ decision, argues Green, so children must also be able to protest their parents’ decision to homeschool.
In part I Green looks at the current situation of abuse and deregulation. The homeschool movement is inherently diverse, and while some children receive an excellent education, others are taught by unqualified or abusive parents. She explains that homeschooling has become so deregulated over the past 30 years thanks to efforts by the Home School Legal Defense Association (HSLDA) that child protective agencies have few legal tools to help homeschooled children who suffer from abuse and neglect. Green cites a number of statistics that demonstrate the deregulation of homeschooling:
- 25 states do not require homeschooled students to ever take a standardized test. Over half the states that do require testing allow parents to claim some kind of exemption.
- 11 states do not require parents to notify the state that they are homeschooling their children.
- 41 states do not have minimum teacher qualifications, or they provide options to help parents get around such a requirement. This means that parents who did not finish high school could be homeschooling children in grades that they did not complete.
- 14 states do not have subject area requirements. Parents can often avoid teaching certain subjects like science by claiming religious exemption.
Many children from all walks of life are abused. However, homeschooled children also face the additional risk of educational neglect. Children could be “homeschooled” for years without anyone actually ensuring that they make educational progress. Without proper regulation in place, it is very easy for homeschooled children to fall through the cracks. Only about half of the states list educational neglect as part of their definition of child neglect. This means that if it is not included in the definition, the only way that social services can intervene is if parents are not adhering to the state’s homeschool statute. As outlined above, the statute in many states is not extensive.
Furthermore, the fact that most homeschooled children do not take standardized tests makes it difficult for social services to investigate cases of educational neglect. They must instead rely on tips from neighbors, friends, and family members. While some legislation has been proposed, the homeschooling lobby, led principally by the HSLDA, has prevented almost all legislation that would have helped to protect homeschooled children from educational neglect.
Every homeschool study struggles with data collection because no one knows the true number of homeschoolers. Green makes the point that the children who are most likely to suffer from abuse are also the least likely to participate in any kind of study. Instead of empirical studies, what does exist is a growing number of formerly homeschooled children who are speaking out on websites like Homeschoolers Anonymous about the abuses to which they were subject during their time being homeschooled.
In part II Green proposes a solution modeled after the judicial procedure for minors who wish to get an abortion against their parents’ wishes. In order for a homeschooled student to attend public school against her or his parents’ wishes, the court would either have to find that the child is mature enough to make the decision or that attending public school would would be in the child’s best interest. Green also discusses whether children have a right to public education based on the fact that states are required to provide adequate public education. The fundamental question is if the education is provided to the parents (who can accept or reject it) or if it is provided to the children. Green believes that the case law would support the idea that children have a right to public education.
Furthermore, while some parents believe that it is their constitutionally protected right to make educational choices for their children in all situations, the Supreme Court has not supported this kind of strict scrutiny analysis in the past. Instead, the Supreme Court has ruled consistently that the government has the power to ensure that children are well educated and safeguarded from abuses so that they may grow into free, independent, and well-developed citizens.
In conclusion, Green points out that giving students a legal mechanism to exercise their right to a free and public education is an important starting point, but she also recognizes that more must be done to help homeschool children who are abused and neglected. She believes that the homeschooling movement should turn its attention back to the child’s right to receive adequate education rather than the parents’ right to direct their child’s education. Green closes the article with another story of a student who was forced to leave school against her will. Even with her grandmother’s support, her parents had not broken the law, and there was no way for her to reenter public school without their permission. Her controlling and emotionally abusive parents caused her to develop anorexia and PTSD in addition to academic struggles. If it were not for such lax homeschool laws, she could have been helped.
Appraisal: Careful observers of the homeschooling scene will know that Green has dived into the most contentious issue currently raging among homeschoolers. Popular bloggers like Libby Anne and websites like HARO, Homeschooling’s Invisible Children, and the Coalition for Responsible Home Education, all of them run primarily by formerly homeschooled children whose families were closely allied with HSLDA, have been marshaling evidence of abuse, chiding HSLDA for its enabling of this abuse, and calling for stricter regulations of homeschooling for a few years now. Their activism has created a lot of anger among homeschool leaders and parents, but it also seems to have shaken the HSLDA leadership, especially given the many recent sex abuse scandals involving some of the most high profile homeschooling leaders and families, all of whom had very close ties to HSLDA. These homeschool alums, far from being the “Joshua Generation” HSLDA leader Michael Farris predicted they would be, have turned out to be the most effective critics of HSLDA’s deregulatory agenda that the organization has ever faced, and they have brought HSLDA’s tactics to the attention of the manistream media in a big way.
Green’s timely article provides a more scholarly version of the same critiques and proposals raised by the disgruntled alums. Green’s legal look at abuse and neglect in the homeschooling community takes its place alongside other recent scholarship like the horrific tales of torture discussed by Knox et al. (2014) and Barnett’s (2013) plea for increased regulation of homeschooling in Missouri. Given this increased scrutiny, it would be tempting to suggest that after 20 years of HSLDA’s unbroken (with one exception) success at dismantling regulations aimed at protecting children from educational or physical abuse in state after state, we are now seeing the tide turning. But I am not at all convinced that that is what will happen.
Despite the activism of former homeschooled children and the rectitude of legal arguments such as Green’s, HSLDA has numbers, decades of lobbying experience, a professional full-time staff, institutional stability, and a lot of money. The bloggers are mostly young adults in their 20s. Some of them who began so aggressively have already moved on in their lives. Legal scholars have written articles similar to Green’s for many years, but their recommendations have no impact without a constituency to push for them. HSLDA has been able to deregulate so successfully for so long largely because no equivalently motivated and resourced counterweight has ever taken them on. Legislators get inundated with angry phone calls for days by HSLDA members every time even the most modest of regulations is proposed. Until a similarly motivated group of individuals is willing to band together and lobby equally hard for children’s rights, they will not be written into law.
On the other hand, the concept of the Overton Window suggests that reforms that seem impossible today can, with diligent and strategic advocacy, become plausible tomorrow and even imperative eventually. Perhaps that will happen in this case. As more and more thoughtful voices point out the negative consequences faced by at least some children in the wake of 20 years of incremental yet inexorable homeschooling deregulation, perhaps more citizens and politicians will become emboldened to craft policies that can catch child abuse disguised as homeschooling.
Robert Lyon and Milton Gaither, Messiah College
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