Record: J. C. Blokhuis, “Whose Custody is it Anyway?: ‘Homeschooling’ from a Parens Patriae Perspective,” in Theory and Research in Education, 8, no. 2 (August 2010): 199-222. [Abstract available here]
Summary: Blokhuis, Assistant Professor of Education at Renison University College at the University of Waterloo in Canada, here presents a bracing challenge to the common claim that parents have a Constitutional right to raise their children as they see fit. He does this by explaining how the common law doctrine parens patriae limits their custodial authority. He hones in especially on how this doctrine limits homeschooling rights. Blokhuis begins by explaining that common law has historically distinguished between competent and incompetent persons. Competent persons are presumed able to recognize and advance their own interests and are thus subject to law. Incompetent persons are not and are thus subject to custody. The goal of custody is to help incompetent persons become competent. Parenthood is a form of custody, whose goal is to make children competent.
Since it often hard for adults to put the development of dependents above their own interests, the state has established the common law notion of parens patriae, or “parent of the nation.” This principle allows the state to step in when a child (or other incompetent person) does not have a custodian or if the custodian is acting against the interests of the child. It’s this idea that stands behind the American practice of having judges decide what to do with children in custody disputes connected to divorce, in situations of abuse and neglect, and so on. It’s the idea that stands behind compulsory attendance and child labor laws, prohibitions against giving alcohol or drugs to minors, incest, and much else. Parens patriae, Blokhuis notes, applies to all parents, not just those guilty of a crime.
Blokhuis then explains how the language of such famous parents’ rights cases as Pierce v. Society of Sisters (1925) and Prince v. Massachusetts (1944) makes it clear, certainly that the child is not “the mere creature of the State,” but that neither is the child the mere creature of “the individuals to whom she happened to be born.” (p. 202)
The 1972 case Wisconsin v. Yoder, however, thinks Blokhuis, messed all of this up. While the original decision was carefully crafted to apply only to the Amish, the principle it enunciated has taken on a life of its own. Yoder is regularly cited as authority for sweeping claims about parents’ religious rights over their children. Blokhuis notes that as of April 2010 Yoder had been cited in 2,060 federal and state cases, including 64 Supreme Court decisions. It has also had an impact in Canada.
Despite this huge over-reach by homeschooling advocates who have pounced on Yoder and turned it into a mandate for anything-goes parenting, State courts continue to recognize the validity of parens patriae. Blokhuis provides four categories of examples, all from New York. I’ll summarize his first category in some detail and then blitz through the other three more quickly.
The first category is homeschooling parents who violate the state’s compulsory school law. He provides three illustrative cases to show that parents are not recognized to have an unlimited constitutional right to direct the upbringing of their children free from government interference:
1. New York v. Donner (1950)–here the court decided against a group of Jewish fathers who claimed that their religion forbade their children from studying anything other than Talmudic law in a Yeshiva. The court ruled that the state can require ALL children to study secular subjects. As Justice Delaney wrote, “Religious convictions of parents cannot interfere with the responsibility of the State to protect the welfare of children.”
2. In re Adam D. (1986)–here Justice Lamont decided against parents whose homeschool program did not meet the equivalency requirements of New York Education Law. The ten-year-old boy was subject to wardship proceedings and his parents placed under supervision of the Department of Social Services.
3. Blackwelder v. Safnauer (1988)–here the court decided against parents who refused to allow onsite inspection of their home by state officials. Chief Justice Munson noted, “the state’s interest in the intellectual, social, and psychological well-being of the children involved in this action cannot be minimized, as it was in Yoder.”
The other categories concern cases involving foster parents, domestic partners who disagree about homeschooling, and a child exempted from compulsory education because of physical deformity. In all of these situations the New York Court intervened on behalf of the children over and against the parents’ wishes to sequester the child away from public influence. In the most gripping case, In re Kevin Sampson (1970), the court overrode the wishes of a Jehovah’s Witness mother that her child not receive the blood transfusion necessary for a surgery that would alleviate his severe physical disfigurement. The son was also illiterate because his mother had been using his physical disability as an excuse to keep him out of school. He was 15 years old and could not read.
Blokhuis’ moral from all of this is that “while homeschooling may be legal in New York from a statutory perspective, it is not always reasonable from a parens patriae perspective.” (p. 207) What is the source of this unreasonableness? For Blokhuis, as for so many other critics of homeschooling, it is because homeschooling has the potential to hinder children from developing the autonomy necessary to make their own decisions. The modern, liberal state educates for responsible autonomy. It does this by exposing the child to “formative influences beyond the persons to whom she happens to be born.” (p. 213)
Homeschooling, by cocooning children from this wider world, makes indoctrination much easier and thus hinders the development toward competence that is a parent’s primary responsibility to his or her children.
Blokhuis ends with an epilogue decrying how the U.S. is the only Country besides Somalia that has not ratified the United Nations Convention on the Rights of the Child. Why not? Because of fundamentalist Christian lobby groups like HSLDA who peddle the “Parental Rights” Constitutional argument that emerged from Yoder. Blokhuis himself thinks these claims are bogus and quotes no less than Justice Scalia to back up his point. He thinks Yoder got it wrong and that there is not in fact a Constitutional right of parents to trump parens patriae for religious reasons.
Appraisal: This was a very compelling piece. I find Blokhuis’ enunciation of the parens patriae doctrine clear and irrefutable. Where he goes wrong, however, in my view, is how he defines what the state’s interests actually are. For some reason liberal theorists like Blockhuis continue to return to the autonomy issue. That’s a really bad move historically, pragmatically, and theoretically. Let me explain.
Historically, the notion of autonomy is of very recent vintage, a product of Kantian philosophy. It does not have nearly the pedigree of parens patriae itself and has always been a contested thesis. Autonomy was certainly not the goal of public education as it was founded and developed in the 19th and 20th centuries. Far from it.
Pragmatically, the notion of autonomy is harder to establish as a political program than more modest notions. If Blockhuis defined the state’s interest (as it really has historically been defined in law) as making sure all children develop literacy, numeracy, and other content mastery necessary for public life, then he’d have a much easier time. Compulsory school laws were not established to lead all children to autonomy. They were established to make sure kids learned to read and so forth. They were also established, it could be argued, to provide the very opposite of autonomy–namely to make Catholic, immigrant kids into Protestantized Americans.
Philosophically, the concept of autonomy has been in serious retreat for some time now. The arguments are so familiar that it’s tiresome to repeat them, but 1. there’s no such thing as autonomy, as all of us are the product of social conditioning, and 2. even if there were, it’s not at all clear that public schools with their segregation and culture of conformity foster autonomy any better than homeschooling does.
Let me close then by making two points:
1. I’d like to encourage liberal theorists who are I think right to be skeptical of the claims some homeschooling advocates make for absolute control over their children to try to get over this obsession with autonomy. The state does have an interest children’s development toward competence, but that competence should be defined more narrowly.
2. I’d also like to encourage liberal theorists not to base their entire view of homeschooling on the kinds of court cases Blokhuis canvasses here. One should not make sweeping claims about an entire phenomenon based on the very worst exemplars of that phenomenon, which are what these cases represent. It is the sad truth that there are quite a few families who use “homeschooling” as a way to hide abuse and neglect. But that is not the way the vast majority behave. Does homeschooling really fail to prepare children to be competent adults and citizens? Quite to the contrary. Blokhuis needs to delve here into the empirical literature on college readiness and so on before making such elaborate charges. Said differently, this well crafted theoretical argument needs an empirical reality check about both homeschooling and public education.
Milton Gaither, Messiah College, author of Homeschool: An American History
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