Record:
John T. Plecnik, “Equal Access to Public Education: An Examination of the State Constitutional and Statutory Rights of Nonpublic Students to Participate in Public School Programs on a Part-Time Basis in North Carolina and Across the Nation,” published in the Texas Journal on Civil Liberties and Civil Rights, Fall 2007 (13: no. 1), pp. 1-30.
Summary:
Plecnik, who was homeschooled “from cradle to college,” here uses North Carolina as model and constructs a hypothetical argument that would allow homeschooled and private schooled children to take advantage of some public school offerings without having to enroll full-time in the public school.
Plecnik begins by advising those seeking access to public school programs like sport, music, and other extracurriculars to avoid grounding their case in the U.S. Constitution. He notes that with rare exception appeals to the First and Fourteenth Amendments have failed to sway judges. Rather, he argues, there are grounds in most state statutes and constitutions for allowing home and private schooled children to attend public schools part time.
Focusing in on North Carolina, Plecnik shows that the N.C. state constitution explicitly acknowledges private education and guarantees all North Carolina children equal access to public schools and promises equal protection to all children. State statutes mirror this language.
Yet despite these guarantees, current North Carolina policies prohibit the participation of homeschooled and private schooled children in public school sports or core classes, and they leave it up to school officials’ discretion whether homeschoolers can take enrichment classes at local public schools.
Plecnik argues in this paper that such policies violate state law. He reviews a number of court cases that establish a broad and robust right to equal protection and equal access, rights he claims current policies do not respect. He also reviews cases in other states that made much the same argument he is making in this paper, with varying outcomes.
Plecnik argues that since North Carolina’s State constitution and statutes say nothing about full-time enrollment, and since they do grant students a fundamental right of equal access, then “strict scrutiny” is required to infringe on this right, which means that if public school officials wished to oppose in court a litigant who is trying to establish the right to attend public schools part time, they would have to prove that there is a “compelling government interest” making such prohibitions necessary. Plecnik reviews two possible arguments officials might make, both of which he thinks fail.
Plecnik concludes that the time is right to mount a legal challenge to current policies that exclude homeschooled and private schooled children from part time attendence at public schools.
Appraisal:
As law professionals frequently do, Plenick’s goal here is not to provide an accurate description of current statutory or constitutional law. Rather, his goal is to make the best case he can for his desired outcome as a sort of hypothetical version of what he or others might argue in court. As such this article has only limited empirical value but much value for proponents of increased homeschooler access in the form of possible legal strategies they might employ, and for their opponents as well, who now have a good sense of the sort of arguments homeschoolers are likely to raise on this issue and are thus better situated to offer a rebuttal.
Milton Gaither, Messiah College
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