Record: Jennifer Karinen, “Finding a Free Speech Right to Homeschool: An Emersonian Approach.” The Georgetown Law Journal, 105, No. 1 (2016): 191-215. [Abstract]
Summary: Karinen, a lawyer in New York and graduate of Georgetown University Law Center, in this article explains that a right to homeschool, including for secular purposes, can be assumed from the free speech protections of the First Amendment.
In 1993, the Supreme Court of Michigan denied the right to homeschool to a secular family but granted it to a religious one. While legislation in Michigan and elsewhere has changed dramatically to grant both religious and non-religious families the ability to homeschool with minimal oversight in all parts of the country, homeschooling advocates at the Home School Legal Defense Association (HSLDA) continue to push for a constitutional right to homeschool that would offer additional protections against encroaching state regulations. However, since the HSLDA originates from the Christian side of the homeschooling world, their arguments frequently involve the freedom of religion, which is not helpful to secular homeschoolers. That is why Karinen wants to articulate a right to homeschool from a secular perspective.
In Part I Karinen discusses the history and regulation of homeschooling. She pays particular attention to the two strands of the homeschooling movement, the religious and non-religious groups, and she points out that the non-religious (pedagogical and pragmatic) homeschoolers are becoming increasingly prevalent.
In Part II, Karinen focuses on the constitutional protections of homeschooling and parental rights. While most court cases protecting homeschooling have drawn on the Fourteenth Amendment, Karinen finds this odd because homeschooling, through the process of teaching and creating lessons, is fundamentally expressive. Why has it not been protected as free speech under the First Amendment? One reason is that some of the earlier cases ostensibly in favor of homeschooling (Pierce v. Society of Sisters, 1925 and Meyer v. Nebraska, 1923) were decided before the process of incorporation reversed the well-established precedent that the Bill of Rights could not be applied against state and local governments. Another reason is that cases seeking greater constitutional protections for education due to the relationship between education and the maintenance of a system of free expression through the First Amendment have not be successful.
Next Karinen shifts her attention to parental rights and whether they might provide a viable case for homeschooling under the First Amendment. The earliest cases on parental rights were Pierce v. Society of Sisters, 1925 and Meyer v. Nebraska, 1923. In Meyer, the Supreme Court found that outlawing the teaching of foreign languages to students younger than eighth grade was unconstitutional. This ruling introduced the idea that parents should have at least some control over their children’s education. However, Karinen points out that homeschooling advocates tend to grossly overstate the significance of this ruling for their position. Meyer speaks as much to the importance of the school system as it does to parental rights.
In Pierce v. Society of Sisters, 1925, the Supreme Court found that a state law requiring public education was unconstitutional. Like with Meyer, homeschooling advocates tend to overstate its reach. While it does say that such a law unreasonably interfered with the parents’ right to direct the upbringing and education of their children, the case was about allowing students to receive instruction from private school teachers, not their parents.
Wisconsin v. Yoder, 1972, is another Supreme Court case that homeschooling advocates attempt to use. However, this case, which found that the state could not force Amish parents to send their children to school after eighth grade, is highly context-specific. The Court’s statement that parents have a fundamental right to direct the religious upbringing of their children does not help secular homeschoolers who find themselves in legal trouble, and it is not even certain that it helps religious families, as the Court was very clear that the ruling applied only to outlier groups like the Amish.
Since there does not appear to be a valid argument for the right to secular homeschooling under the Fourteenth Amendment or its related case law, Karinen proposes an alternative argument under the First Amendment by invoking Thomas Emerson, a leading and influential First Amendment scholar, who argued for the protection of free speech by citing the benefits of free expression in a democratic society: individual self-fulfillment, the attainment of truth, participation in decision making, and a balance of social control. Karinen takes these four benefits and demonstrates how homeschooling meets all of them.
Homeschooling is related to individual self-fulfillment because homeschooling parents frequently state that their decision to homeschooling comes from a desire to strengthen family ties and be responsible parents. Homeschooling is also related to the students’ self-fulfillment because it offers children the chance to receive an education tailored to their needs. In regards to the attainment of truth, homeschooling contributes to the marketplace of ideas that brings us closer to the truth not only because homeschooling is a de facto challenge to mainstream pedagogy but also because homeschoolers frequently emphasize content such as art, philosophy, and practical jobs skills that students may miss out on in a traditional school setting.
The next benefit of free speech is that it provides for participation in decision making. Although homeschoolers are frequently accused of separating themselves from society, there is some research which indicates that homeschool graduates engage in cultural activities and voting at a higher rate than their traditionally educated peers. Finally, as far as social control goes, free speech serves to stabilize society because it is a check against totalitarianism. In other words, homeschooling prohibits the government from having totalitarian control over what is taught in school.
Thus, in conclusion, when homeschooling is viewed as speech, homeschooling becomes protected but regulable. For example, based on how free speech has been regulated by the courts in the past, criminal background checks and minimum education laws for homeschooling parents would probably be reasonable regulations due to the government’s substantial interest in ensuring the physical and mental well-being of children. However, mandated content of lesson plans or a requirement that homeschoolers must be evaluated could potentially be considered violations of the First Amendment depending on how the government’s interest in a child’s education is defined.
Appraisal: Many authors such as David Wagner, Linda Wang, and Courtenay Moran have sought a right to homeschooling by mentioning the major cases of Meyers, Pierce, and Yoder. However, as Karinen points out, these parental rights cases have many holes that homeschooling advocates tend to overlook. This is why court after court has consistently rejected constitutional challenges to state homeschooling laws grounded in 14th Amendment claims. It is worth noting as well that First Amendment claims have been equally unsuccessful, with the one notable exception of the 1993 People v. DeJonge decision in Michigan mentioned at the outset. In that case it was not the free speech clause but the free exercise of religion clause that the court found compelling. Excepting that decision, however, First Amendment arguments grounded in the free exercise clause have failed again and again.
Thus it is refreshing to hear Karinen articulate a possible right to homeschooling under the free speech protections of the First Amendment. As we have noted in past reviews of articles published in law journals, what is happening here is not a scholarly attempt to summarize the First Amendment situation objectively. Instead, Karinen presents a hypothetical argument a lawyer might use in court to try to win a case. Recognizing this rhetorical situation, I think Karinen gives a respectable go at positing a First Amendment right to homeschooling that would be valid for all homeschoolers. It would be interesting to see how a judge would respond.
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