SAFE AT HOME: Establishing a Fundamental Right to Homeschooling

Record: Billy Gage Raley, “Safe at Home: Establishing a Fundamental Right to Homeschooling.” Brigham Young University Education and Law Journal, 1 (2017): 59-90. [Abstract]

SummaryBilly Gage Raley is a professor at Hanyang University School of Law in South Korea, and in this article he attempts, as many have done before him, to describe how homeschooling may be considered a fundamental right protected by the U.S. Constitution.

While homeschooling is legal in all 50 states, federal courts have not settled the issue of whether homeschooling should be considered a fundamental right. This means that in the future, an anti-homeschooling state legislature could take away the ability to homeschool. To protect itself against efforts to suppress the homeschooling movement, Raley suggests that the homeschooling movement seeks to have homeschooling recognized as a fundamental right under the Fourteenth Amendment. If homeschooling were recognized as a fundamental right, regulations on it would be subject to additional scrutiny. Namely, a law that curtails a fundamental right must satisfy three tests:

  1. The regulation must be justified by a compelling governmental interest.
  2. The regulation must be narrowly tailored to achieve that goal or interest.
  3. The regulation must be the the least restrictive means for achieving that interest.

In Part II Raley dispels the commonly-held but false belief that homeschooling is currently recognized as a constitutionally-protected right. While homeschooling advocates have said that Wisconsin v. Yoder establishes a right to homeschool, Raley calls this conclusion questionable because the Amish’s case had too many particularities. Furthermore, Raley also rejects the arguments of advocates who claim that the right to homeschool was recognized in Meyer v. Nebraska and Pierce v. Society of Sisters, since these cases have already failed to establish a fundamental right to homeschool in several challenges against homeschoolers. Although the three cases all endorse parents’ rights to direct their children’s education, they also contain statements that have caused federal courts to question their applicability to homeschooling.

In Part III Raley describes two possible routes for establishing homeschooling as a fundamental right under the Constitution. First, as determined in Washington v. Glucksberg, something may become a fundamental right if it can be shown that the practice is “deeply rooted in this Nation’s history and tradition.” Alternatively, in a procedure established by Obergefell v. Hodges, homeschooling could become a fundamental right if it were shown that homeschooling falls under the already-established fundamental right of parents having the ability to “direct” the education of their children. However, for Obergefell v. Hodges to take effect, it would have to be shown that the Court’s rationales in Meyer v. Nebraska and Pierce v. Society of Sisters are equally applicable to homeschooling.

Part IV analyzes the first of these routes, which is whether homeschooling could become a fundamental right because of deep roots in American history and tradition. Raley argues that homeschooling has been the primary form of education for most of Western history and that states have almost always refrained from infringing on the ability of parents to educate their children at home. For example, in societies like ancient Greece, the Roman Empire, medieval England and colonial America, only the wealthy could send their children to school. The vast majority of people were instructed at home by family members (e.g. in a trade). Even when America’s first compulsory education law appeared in Massachusetts in the late 1800s, the Massachusetts Supreme Court concluded that homeschooling should be permitted due to the fact that, “[t]he great object of these provisions of the statutes has been that all the children shall be educated, not that they shall be educated in any particular way.” In fact, despite a brief period of questionable legality during the mid-twentieth century, homeschooling has been continuously practiced throughout U.S. history. Therefore, according to Raley, homeschooling should be recognized as a “deeply rooted” fundamental right.

In Part V, Raley returns to the case of Obergefell v. Hodges, which establishes a procedure through which it may be possible to show that the fundamental right of parents to “direct” the education of their children by enrolling them in private schools (Meyer v. Nebraska and Pierce v. Society of Sisters) may be equally applicable to homeschoolers. To use this route, the justification for the right to private schools and the right to homeschool would have to be the same. From Pierce and Meyer, Raley identifies two reasons for the Court’s recognition of the right to private school education: the “natural bonds of affection [that] lead parents to act in the best interests of their children” and also the “critical role” that autonomous nuclear families play in “developing the decentralized structure of our democratic society.” Raley concludes that both rationales “apply with equal force” to homeschooling, which means that the right to homeschooling should also fall under the realm of parent-directed education.

In Part VI Raley concludes the article by urging families to utilize the arguments presented here as they protect their ability to homeschool.

Appraisal: Overall, Raley’s points are relatively balanced and well-argued. His argument is certainly more compelling than some of the other articles that we have reviewed in our legal section! However, Raley is clearly a homeschooling advocate, and that hurts him due to his over-reliance on the popular cases of Meyer v. Nebraska and Pierce v. Society of Sisters. As Jennifer Karinen (and also Raley, to an extent) points out, homeschooling advocates tend to overstate the significance of these rulings for their position. Unfortunately, Raley builds half of his argument on the assumption that these two cases demonstrate that a parents’ ability to direct a child’s education is already a fundamental right that could possibly be extended to homeschooling. A more substantial discussion of parental rights and how they interact with children’s rights would have been appropriate.

Ironically, Raley makes considerable use of cases such as Obergefell v. Hodges (same-sex marriage) and Roe v. Wade (abortion) that evangelical homeschoolers have vocally opposed. According to him, these cases provide strong support for the establishment of homeschooling as a fundamental right. For example, in Obergefell v. Hodges, it was shown that a practice that is not deeply rooted in history (same-sex marriage) may become a fundamental right if the justification for an already-established right (traditional marriage) is found to apply equally to the new practice. In Roe’s case, the right to abortion was established through historical precedent, even though the trend among states was to strengthen restrictions on abortions. This helps homeschoolers because it shows that a practice may become a fundamental right even if it is under attack from legislative bodies.

Disclaimer: The views expressed in reviews are not the official views of ICHER or of its members. For more information about ICHER’s Reviews, please see the «About these Reviews» Section.

This entry was posted in Legal and tagged , , , , , , , , , . Bookmark the permalink.