Record: David M. Wagner, “Homeschooling as a Constitutional Right: A Close Look at Meyer and Pierce and the Lochner-Based Assumptions They Made About State Regulatory Power” in Oklahoma City University Law Review (2014): 1-30. [Abstract]

Summary: Wagner is a former professor from Regent University School of Law. In this article he questions whether homeschooling could be considered a constitutional right when the Supreme Court precedents are examined.

Wagner starts by looking at the plight of the muchdiscussed Romeike family, a German family that sought asylum in the United States because their religiously-grounded homeschooling was forbidden in Germany. The Romeikes’ lost their case (but were allowed to stay anyway). The important point for Wagner is that the Sixth Circuit’s decision seems to assume the existence of a constitutional right to homeschool. To paraphrase the court’s decision, while the constitution protects parents’ rights to, “direct the upbringing and education of children under their control,” that does not mean that a contrary law in another country would justify persecution. To come to this conclusion about parents’ rights, the court cited Wisconsin v. Yoder, Pierce v. Society of Sisters, and Meyer v. Nebraska.

Wagner next asks whether the Sixth Circuit Court’s implicit assumption that homeschooling is part of the Yoderesque right of parents to direct their children’s educations is a fair one.  Homeschooling could be justified as a constitutional right because some evidence suggests that it has deep roots in American history and tradition. Before the common school movement of the 1800s, it was normal to receive education at home. After the Civil War Wagner claims that, “Public schools were simply introduced as ‘service providers’ to parents who would delegate some, but not necessarily all, of their teaching authority to that provider, without losing that authority” (pg. 6). To prove this point, Wagner cites a number of lawsuits resulting from parents who did not want their children to study certain subjects. For the most part, the court decided that students cannot be compelled to study a subject against the will of the parents. While not evidence that homeschooling/domestic education was still popular after the Civil War, these decisions do demonstrate that parents acted as consumers who delegated some, but not all, of their teaching authority.

Towards the end of the 19th century, the idea emerged that education could best (or only) occur in schools. It is thought that the growth and power of public schools was fed by America’s industrialization, which led to the mindset that schools prepare students for the needs of society.  By the 1920s, when Meyer and Pierce were decided, both the courts and local governments tended to assume schooling as the standard and to accept the authority of government to regulate schooling.  Meyer and Pierce put a check on that authority so courts and legislatures knew where to draw the line.

With this context in place, Wagner turns to the proper interpretation of Pierce v. Society of Sisters and Meyer v. Nebraska.  Though homeschooling advocates tend to see them as parental rights cases, and though legal historians often focus on the precedents they set that led eventually to the right-to-privacy that undergirds contraception and abortion rights, in fact they were about the rights of workers.   Wagner reminds us that this was the era of the Lochner court, where the conservative Supreme Court regularly handed down decisions that undermined state and federal efforts to regulate business.  Both Meyer and the Sisters involved in the Pierce case were teachers, not parents, and it was their right to unregulated commercial activity that the Court was protecting.

The counsel from the Pierce case urged the Court to link teachers’ rights to earn a living with parental rights to choose a school: if teachers have a right to maintain a private school, parents should have the right to send their children to it.  The court did so, and its language here has gone on to have a remarkable life of its own.  One of the most cited passages from Meyer and Pierce is this one:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations (pg. 9).

If the State may not interfere with parental selection of a private school, it would not be a stretch to assume that the State cannot interfere with the selection of homeschooling either. However, this dictum does not prove that homeschooling is a constitutional right since the practice of homeschooling is not explicitly mentioned. More important, though, Wagner thinks that if we understand Meyer and Pierce in light of its Lochner era context, we can better appreciate that when the court granted government power to regulate private schools (and, hypothetically, homeschooling), it would not have conceived of this regulatory environment as very rigorous.  The Lochner court was generally against government regulation of business, and private education is a business.

The Lochner decision itself is now typically seen as one of the worst in Supreme Court history, while Pierce is celebrated.  Wagner thinks this odd.  Lochner‘s conclusion that government regulation of business must be justified by what we would today call “strict scrutiny” rather than the “rational basis” we now use, was viewed by many progressives as a devastating blow to their good faith efforts to contain runaway capitalism in the early 20th century.  Conservatives, on the other hand, often deride Lochner for the impetus it gave to the emergence of personal liberties (like the right to privacy).  Wagner, on the contrary, rather likes Lochner and would like to see us return to a judicial situation where government exerts minimal oversight over both business and personal life.  Homeschooling would of course be part of this.  Recovering the Lochnerian context also helps the homeschooler argument that government regulation should be very minimal.  Though he doesn’t come right out and say it like this, the implication of Wagner’s argument is that any regulation of homeschooling should be required to pass strict scrutiny.

Appraisal: Wagner is an engaging writer, making this a much more enjoyable read than legal articles of this nature typically are.  His argument that Meyer and Pierce should be understood as part of the Lochner era’s rejection of government regulation of business is fascinating.  If he’s right, and we’ll have to leave it to more knowledgeable legal historians to determine that, then it seems that one of two potential implications hold.  The first is his own, that homeschooling is probably a constitutional right subject to only very minimal government regulation (on a strict scrutiny basis).  The other is that when the Supreme Court subsequently rejected Lochner (as it did in a string of cases beginning with 1937’s West Coast Hotel Co v. Parrish and culminating in 1955’s Williamson v. Lee Opitical of Oklahoma), it thus also rejected the regulatory limits assumed in Pierce.  Wagner, a very conservative thinker, would like us to return to a pre-new deal jurisprudence that so respects the rights of business that laws like minimum wage laws (which is what Lochner was about) are deemed unconstitutional.  It is highly doubtful that that is going to happen, which is why his argument, fascinating as it is, will probably not win the day.

Milton Gaither and Robert Lyon

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