Record:
Kimberly A. Yuracko, “Education off the Grid: Constitutional Constraints on Homeschooling” in California Law Review 96, no. 1 (Feb. 2008): 123-184.
Summary:
Yuracko, a law professor at Northwestern University here makes the case that state statutes and the Equal Protection clause of the U.S. Constitution require that states have a responsibility to regulate homeschooling in certain respects.
She begins with an anecdote that most homeschoolers would find highly objectionable: “Ann and Bob Smith are a devoutly religious couple who choose to homeschool their seven-year-old twins Susan and Sam. In accordance with their religious beliefs, they teach their children only religious doctrine, refusing to provide their children with a basic education in reading, writing, and arithmetic…”
Her point, however, is not that people like the Smiths actually exist, but that given existing law in many states, they could. Drawing on the Home School Legal Defense Association’s (HSLDA) own data, Yuracko notes that ten states have no regulation of homeschooling at all–not even requiring homeschoolers to notify the state that they are homeschooling. Yuracko is concerned that while political theorists have devoted much attention to dealing with such illiberal practices as polygamy, child marriage, and clitoridectomy, they have not heretofore investigated the potential of homeschooling to be a shield used by “religiously fundamentalist families” against such liberal values as “sex equality, gender role fluidity, and critical rationality.”
Yuracko claims that under current federal and state law states must regulate homeschooling families to ensure that they are offering “a basic constitutionally mandated minimum education” and must “check rampant forms of sexism in homeschooling so as to prevent the severe under-education of girls by homeschooling parents who believe in female subordination.”
First the minimum education argument. Yuracko notes that all of the studies showing homeschoolers to perform so well are based on self-selecting, nonrepresentative samples. She then cites several anecdotes of horrific behavior to children by parents who used homeschooling as a cloak for their neglect or abuse, concluding that the leniency given homeschoolers means that we “cannot know for sure how rare such occurrences are…” Breaking state educaion clauses into four categories and summarizing judicial interpretation, Yuracko explains that all state laws require “an adequate education in basic skills.” Furthermore, Yuracko argues, a child’s right to a basic minimum education ought be seen as a fundamental right protected by the 14th Amendment’s Due Process clause (though she acknowledges that this claim has not been tested by the Supreme Court). Yuracko concludes that just as homeowners’ associations and company towns must obey state law, so must homeschooling parents, and states violate their own statutes (and possibly the U.S. Constitution) when they do not hold such parents accountable for basic minimum education.
Now for the gender equality argument. Yuracko begins by noting that a number of prominent homeschool curricula “emphasize that girls should be subordinant to their fathers and later their husbands.” She cites several examples of inequitable thinking about females, the most arresting being an article on the Vision Forum Ministries website asserting that ”God does not allow women to vote” and the popular book So Much More
Yuracko acknowledges that it is a leap to claim that attitudes like this lead to inferior education provided to girls, but she worries that this may be happening in today’s unregulated environment. She asserts that the Equal Protection clause of the Fourteenth Amendment prohibits states from discriminating against protected group members, and females are protected. But does the Equal Protection Clause apply to individual families? Yuracko claims that “there are some forms of private conduct which a state simply cannot with constitutional impunity authorize and enforce,” and she cites many cases to that effect, most of them dealing with racial segregation in private organizations. Yuracko offers a careful and nuanced discussion of several important Supreme Court decisions on this topic to argue that education ought be seen as a domain wherein private action must be held accountable to Equal Protection rights. Thus homeschooling families who give their boys a better education than they give their girls are violating the U.S. Constitution.
Finally, Yuracko offers her suggestions for how states ought to regulate homeschoolers to ensure that all are receiving a basic minimum education and that families do not discriminate against their girls. After canvassing a number of options, she concludes that ”probably the most efficient and least invasive way for a state to ensure a basic education is through some form of required testing.” Ensuring gender equity is more difficult, and Yuracko doesn’t really have a tidy policy recommendation. But she hopes that her legal arguments here will at least “help ensure that the most extreme forms of illiberal homeschooling are simply and appropriately taken off the table and out of the political debate.”
Appraisal:
Yuracko’s evident animus against Conservative Christians is very apparent in this piece. It is not clear why Christians should be singled out as uniquely likely to abuse their children, as Yuracko does here. This bias unfortunately obscures what is otherwise a very compelling argument about the responsibility of the states to ensure that all children are receiving an adequate education.
Milton Gaither, Messiah College
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“such liberal values as “sex equality, gender role fluidity, and critical rationality.”” An orthodox Catholic, Orthodox, or Anglican private school might also contravene those values. Yet the State probably could not mandate that ideology.
I think it’s highly useful to provide this kind of summary of the arguments being made by those who oppose homeschooling. Advocates of homeschooling had better understand what they are up against. Yuracko starts with the presumption that the state has not only the authority to regulate the education of minors but an obligation to ensure that the educational content meets some legislated standard. The summary indicates that she thinks a child “ought” to have a Due Process right to a basic education, a further expansion of an already vastly over-extended constitutional doctrine. Once established as a basic right, she contends, the state would then have an obligation to ensure that every child receives “the basic minimum.” The minimum is, of course, precisely what states everywhere deliver, and a desire for something more is what drives the homeschooling movement.
Homeschoolers have had to fight legal battles from the outset, and although they have won many of those battles, they should be aware that homeschool opponents are planning new assaults using new tactics. Yuracko outlines a possible avenue of attack. And yes, this is precisely the kind of ungrounded (Yuracko calls it “novel”) legal argument that makes it into law reviews. They are, to borrow Rose Vasquez’s analogy above, very much like letters to the editor: they are letters to judges who will someday rule on a homeschool issue. Law review articles are not old and outdated at four years; they are little time-bombs waiting to go off.
So I thank Milton Gaither for his lucid summary. Most people in the homeschool community don’t read law review articles, but that is one of the forums where their opponents meet and plot their next move. What I don’t understand is why Mr. Gaither thinks Yuracko’s argument would be “compelling” but for the anti-Christian bias. It has serious legal flaws. If there were indeed a basic Due Process right at stake and Equal Protection applies, then all forms of private education would be suspect. Carried to its logical conclusion, only compulsory attendance at public schools could overcome the “separate but equal” problem that drove the Supreme Court decision in Brown v. Board of Education. Yuracko’s argument is, in that sense, “a bridge too far” in our current legal environment. This is before one begins to consider its profound conflict with the First Amendment.
Of course, Yuracko has her eyes fixed not merely on regulating homeschoolers, but on changing the legal environment that permits autonomy in the home. She gives away the game with her examples of what she considers to be higher values: “sex equality, gender role fluidity, and critical rationality.” It is this bias (call it anti-Christian, anti-biology, or anti-anything else) that she wants to establish as the norm, and homeschooling stands in the way. Take that bias out, and she has no argument at all.
Would you please reconcile your statement that you are not an advocacy organization with your decision to publicize the advocacy articles of others? The article above is not research in any meaningful sense of the word. As the title implies, it’s an advocacy piece. So why are you putting it on a website ostensibly devoted purely to research? Furthermore, it’s not even news: it’s four years old. It will strike many as disingenuous that you assert you are not an advocacy organization while at the same time publishing the advocacy articles of others (old ones, at that).
Scott,
You raise a good question. What counts as research? In several academic fields, and the legal profession is one of those, normative argument is what is often published in academic journals. In upcoming weeks this site will summarize the normative arguments of many lawyers, including those you will find more sympathetic to your own point of view. Granted, this sort of thing does not advance scientific knowledge about homeschooling, but it is nevertheless important work that is often the source of significant discussion both among scholars and among the general public.
As for the age of the piece, again your point is a good one. I (Milton Gaither) am in the process of creating a backlog of entries for this blog to serve as reference guides for anyone wanting quick summaries of academic work on homeschooling. Much of this work is inaccessible to the general public unless they are willing to pay significant sums for access. Over the next several weeks I will be gradually working through a huge backlog of reviews, working my way to the present.
Sounds like a law professor desperate to get published without having to bother doing any research before writing random thoughts down on paper. It seems that in her opinion, parents can’t be trusted to do the right things for our children but government institutions can be trusted with our children. This line of thinking will meet great resistance from homeschool families who have already made the decision we can do a better job of educating our children than any government institution. Before attempting to negate the research that has been done showing the success rates of homeschoolers and making unfounded accusations, she needs to be able to back up her opinions with facts. This article barely meets the criteria for a letter to the editor in a small town newspaper, let alone an article in the California Law Review.