HOW TO REGULATE HOMESCHOOLING: An Argument for Minority Parents’ Rights

Record: Courtenay E. Moran, “How to Regulate Homeschooling: Why History Supports the Theory of Parental Choice” in University of illinois Law Review, 2011, no. 3 (2011): 1061-1094. [Available Here]

Summary: Moran, a J. D. candidate at the University of Illinois College of Law and former homeschooler himself, here offers an ambitious, historically-grounded legal argument for the viability of limited goverment regulation of homeschooling.

Moran begins with a standard orientation to homeschooling, canvassing the usual topics–history of the movement, socialization, and so on.  He then summarizes Meyer, Pierce, and Yoder, the three Supreme Court cases that are most relevant to the question of homeschooling, concluding that the Court has found a fundamental right for parents to direct the education of their children but at the same time a state right to regulate to ensure that children receive an adequate education.  The states themselves have come up with widely divergent ways of doing this for homeschooling, which Moran summarizes, noting especially how little oversight many states exercise, stating that “most states are abandoning their obligation to ensure that all children receive an adequate education.” (p. 1071)

Next Moran gives us a brief history of American education.  His point here is to show that homeschoolers who claim that parents have historically had the right in the U.S. to do what they want are mistaken.  From the colonial period on the State has been regulating education, which Moran illustrates with some of the chestnuts of history of education textbooks.  On the other hand, this state regulation has often had pernicious consequences, particularly in the mistreatment of minority and immigrant populations.  Here Moran canvasses the sordid history of American Nativism as it played out in public education law and practice.

Having established that homeschoolers are wrong to claim that history is on their side and that regulation advocates should be slow to celebrate regulation because it has historically been used to bludgeon minorities, Moran moves to the main point of the article–the competing interests of parents, the state, and the child.

For Parent Rights, Moran summarizes the argument of Stephen Gilles’ “On Educating Children: a Parentalist Manifesto.“  Gilles argues that parents are naturally inclined to be more interested in their children’s well-being as they understand it than are political majorities.  He sees no reason why the political majority’s values should take precedence over any minority’s.  Even Gilles, however, concedes that the state can use its power to ensure that all children receive adequate instruction in reading, writing, and math.  He is opposed utterly, however, to any attempt by the state to use compulsory education to impose anything else on the nation’s children when their parents do not approve.

On the other hand, scholars like Jim Dwyer, Amy Gutmann, and Barbara Bennett Woodhouse argue that parental rights advocates ignore the fact that the child herself has rights.  She is not a mere extension of the parent.  Children are not, in Dwyer’s words, “objects for others to manipulate for their own satisfaction” (p.1081).  Woodhouse thinks Meyer and Pierce were throwbacks to the dark days when Patriarchs owned their children and could do whatever they wanted with them, even kill them.  Dwyer thinks parental rights doctrine is theoretical indefensible and that parents really only have privileges–the privilege to act on the child’s behalf in the child’s own interest until the child is capable of doing so herself. Moran, however, argues that this belief in children’s autonomy, while perhaps noble and majoritarian, is not shared by all Americans and that parental rights in the Gilles tradition trump it.  Moreover, he doubts that the state would do a better job ensuring the child’s future well-being than parents do.

Finally, there are the rights of the state.  Here he summarizes Gutmann again along with William Galston and Stephen Macedo.  Gutman thinks freedom of choice one of the highest values of our society, and she thinks parental indoctrination threatens the ability of children to grow into adults who will be able to consider a wide range of choices.  Parents can’t use “their present deliberative freedom to undermine the future deliberative freedom of their children.” (p.1083)  Galston denies that the state must be neutral toward all views of the good life.  He thinks instead that the modern liberal state is perfectly justified in its efforts to, if you will, indoctrinate children into the values of liberal democracy.  To that end he believes all children should receive education in “a core of civic commitments and competencies.” (p. 1084)  Macedo likewise believes the state is justified in forcing religious parents to expose their children to views with which they may personally disagree.  Why?  Because the children should have the opportunity to decide for themselves what they will believe, which is one of the basic civic values of our nation.

Moran again appeals to Gilles’ concept of the tyranny of the majority to argue against these pro-statist views, reminding us that history reveals many occasions when the state used public education to persecute views of which the majority disapproved.

Moran concludes with a sort of compromise proposal.  He doesn’t trust the state to be any better this time around than it was in the 19th century or early 20th century in choosing majoritarian values to impose on every child.  So he rejects the idea that we should “use the power of the state to make good liberal citizens out of homeschooled conservative Christian children.” (p. 1092)  Instead, the state should limit its oversight to the “general consensus” of “basic knowledge” like reading, writing, and math, subjects which homeschoolers, Moran claims, also agree are important.

How to do this regulation?  Moran advocates that parents be required to notify the state of intent to homeschool.  The state should require that these parents teach such subjects as reading, writing, and math, and should test students annually on them.  Finally, homeschoolers should be required to take the same statewide tests public schoolers take.

Appraisal: Many will disagree with Moran that all this testing would be helpful, for it would likely promote the same test-craziness that currently afflicts public education.  Rob Kunzman, for example, advocates instead a less aggressive single test, something like the Iowa Test of Basic Skills, given when the child reaches a certain age to ensure that basic literacy and numeracy have been acquired.

Both Kunzman and Moran share the conviction that there is universal consensus on basic curriculum like literacy and numeracy.  But it is not difficult to think of situations in which it might not be.  There might be unschoolers who, on principle, had not taught their children to read or do basic math even into their early teens if the children had not expressed interest in learning such things.  Furthermore, there might be immigrant or some very fringe conservative Christian homeschoolers who felt that girls, whose future is only to be mothers and housekeepers, should not be taught to read or cipher.

The problem here is that Moran has painted himself into a corner by his appeal to minority parent rights.  If the parent feels that his daughter should not learn to read because she’d become an uppity feminist, then according to Moran’s theory, that’s the parent’s prerogative and the state is exerting majoritarian tyranny if it tries to impose its competing values on him.  One could easily construct other examples (foot-binding, female circumcision, Jihadism, White Supremacy, the aggressive physical punishment promoted by some homeschoolers…) of distasteful minority values that would also be protected under Moran’s parental rights regime.

It seems to me that there is simply no theoretical solution to this dilemma of parent/child/state.  Instead, we have what we actually have–an incoherent patchwork of laws and practices that are always changing as our society changes.  Homeschooling regulations are so varied because each state has its own story–and these stories are not over.  Future developments may lead some states to grow more relaxed, others more strict, who knows?  The process that makes it happen will rely less on the considered arguments of political theorists and more on the vicissitudes of public opinion, lobbying, and broad social forces like technological change and economic imperatives we won’t even recognize except in hindsight.

Milton Gaither, Messiah College, author of Homeschool: An American History.

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