Record: Consuelo Valenzuela Lickstein, “Race and Education at a Crossroads: How Parents Involved in Community Schools v. Seattle School District No. 1 and Wisconsin v. Yoder Shed Light on the Potential Conflict Between the Black Homeschooling Movement and K-12 Affirmative Action Programs” in The Journal of Gender, Race and Justice 13 (Spring 2010): 835-857.
Summary: Lickstein, an associate at Choate Hall and Stewart LLP and recent graduate of University of Iowa College of Law, here presents an interesting thought experiment about homeschooling and diversity in public schools.
It goes like this. Suppose there were a group of African Americans in an Iowa town who, dissatisfied with the public schools, chose as a group to leave them and homeschool instead. Now suppose that the Iowa district really wants to increase racial diversity in their public school classrooms and, frustrated by this secession, passes a law prohibiting homeschooling by minorities because they are needed to ensure diverse classrooms. Now imagine that the African American families sue and that the case makes it to the Supreme Court. What would happen?
Lickstein tells us there are three things to consider as we work toward an answer. First is the empirical reality of increased African American homeschooling. Second are claims made by homeschooling advocates that parents have a fundamental right to direct the upbringing of their children. Third are school district claims that the state has a compelling interest to promote racial diversity in k-12 schools. We’ll take each in turn.
First, African American homeschoolers. It’s refreshing to see a recent article on this topic. But reading it through it becomes clear that Lickstein must have written it in 2008, before the most recent NCES data came out showing a pronounced drop in African American homeschooling numbers. Lickstein’s empirical basis for claiming increases rests on a few newspaper articles and an NPR story, all from 2008 or before. Lickstein uses these sources to argue that African American homeschoolers often choose the option out of frustration with failing public schools. Homeschooling allows them to devote more attention to Afro-centric topics and individuals, to develop positive race consciousness, and to avoid having their children become part of the disproportionate representation of blacks in special education.
Having established that this hypothetical is plausible given how many African Americans are embracing homeschooling, Lickstein moves to the arguments homeschoolers make for the constitutional right to homeschool. She begins where such discussions always begin, with Meyer, Pierce, and Yoder. On Yoder Lickstein agrees with the mainstream view that the case does not establish a far-reaching right to homeschooling since it was so clearly limited to the uniqueness of the Amish experience.
Next she takes up the school’s possible argument that diversity is a compelling state interest. Here she starts with Brown v. Board of Education and moves to Bakke and Grutter v. Bollinger. In such cases as these the Supreme Court upheld diversity as a civic good and affirmed policies seeking to promote affirmative action on behalf of minorities. In a 2007 case called Parents Involved in Community Schools v. Seattle School District no. 1 the Court had the opportunity to either extend Bakke-style affirmative action to K-12 or not. A group of parents sued the Seattle School District because the district was using race to assign students to schools in an effort to promote diversity. The Court, in a 5 to 4 ruling, agreed with the parents and struck down the school’s affirmative-action style plan, arguing that higher ed and k-12 ed are different animals. Lickstein notes, however, that the way the case was decided leaves open the possibility that a better-formulated policy might have been acceptable.
Next Lickstein summarizes the arguments both sides would likely make if they were debating this issue before the Supreme Court. African American homeschoolers would argue that, like the Amish, black children’s public school experience is detrimental to the black community and detrimental to black children at a crucial time in their development, and that public schools do not adequately prepare black children for their adult responsibilities in the black community.
Public school advocates would argue that there is less difference in terms of diversity goals between K-12 and higher ed than Justice Roberts (who wrote the plurality opinion in Parents Involved) thinks, that schools should be able to address de facto segregation as well as de jure.
What would the Supreme Court, given these arguments, do? Lickstein thinks “it is likely” that it would rule in favor of the school district. (p. 855) Why? Because the court wouldn’t put African American children in the same category as the Amish and because the school’s arguments for affirmative action “is particularly persuasive.” (p.855)
Appraisal: As a thought experiment this article is intriguing, but in reality I don’t think a case like this would be decided along the lines presented by Lickstein. A school district that actually tried to pass a law prohibiting one racial group from homeschooling would get into serious trouble. I simply can’t conceive this part of the hypothetical ever happening under any circumstances. The only way it could even possibly happen would be for the district to make a blanket policy prohibiting ALL homeschooling, and that wouldn’t work either, because a district can’t just decide for itself to override state law. So it would have to be a STATE decision. And we all know what would happen if a state, any state, but Iowa works nicely, tried to do that. There would have to be some serious lobbying on behalf of a motivated constituency to overturn Iowa’s current law. And what constituency might that be? Who’s going to mount a campaign to outlaw homeschooling in Iowa? And even if somebody did, and even if they were successful, the Iowa courts would strike such a law down. But let’s say just for the sake of argument that they didn’t. The Supreme Court would then do so. THAT would be the most likely hypothetical if the issue was homeschooling.
However, after reading Lickstein’s article through I wonder if her real goal wasn’t so much to talk about homeschooling but to argue against the Court’s finding in Parents Involved. Her arguments against some of the plurality Justices’ claims and for the claims of some of the dissenting Justices were crisp and interesting. I didn’t get into them here because they weren’t really relevant to homeschooling. To me the homeschooling angle was just a distraction. And let’s say that, hypothetically, a more carefully-crafted K-12 affirmative action program were to pass muster with the Supreme Court, I don’t think any school district would really find so many African American or Hispanic or other minority homeschoolers that it couldn’t meet its targets.
For the issue of homeschooling and diversity, the better hypothetical is not the one created here by Lickstein but the one addressed in some of the other recent legal articles I’ve been reviewing of late. Can the state force homeschoolers to expose their children to a wide range of ideas and perspectives? If the state really does have a compelling interest to promote diversity, the likely next step would not be to force minority homeschoolers to attend public schools but to force (mostly white, mostly Christian) homeschoolers to have at least some contact with outside views and people. Can the state do that? If so, how? Those would be better questions for Lickstein to ponder in my view.
Milton Gaither, Messiah College, author of Homeschool: An American History
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