Record: Martha Albertson Fineman, “Home Schooling: Putting Parental Rights Over Children’s Best Interest” in Robert A. Fox and Nina K. Buchanan, eds., The Wiley Handbook of School Choice (Malden, MA: 2017), pp. 362-375.
Summary: Fineman is one of the most important living feminist legal scholars. Since the mid-1970s she has taught at a string of universities, the latest of which is Emory, where she is now the Robert W. Woodruff Professor of Law. She is the author of many, many books on family law. Many of these books connect in one way or another to what has long been her central project–to move legal privileges and fiscal support away from the “sexual family” toward the broader network of caregiving relationships that form the context within which we live our lives.
In this piece Fineman turns her gaze to education. She begins by explaining that historically public schools offered both public goods (civics instruction, historical understanding, fostering of public-spiritedness) and private goods (skills and literacies that would lead to personal economic well-being). Unfortunately, thinks Fineman, recent decades have seen a dramatic retreat from public goods and a near exclusive focus on private goods. Because of this, school choice initiatives continue to gain ground, the most extreme of which is homeschooling.
The more families who secede from public education, the more besieged becomes the idea of a public or common good. Families retreat to their own private goods, and the nation is weaker as a result. For Fineman, “the form of private education potentially most threatening to the transmission of public or civic values is homeschooling, which is radically separatist and individualistic.” (p. 366)
After briefly orienting readers to the U.S. homeschooling movement, Fineman discusses the three Supreme Court cases so frequently mentioned by legal scholars who study homeschooling: Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925) and Wisconsin v. Yoder (1972). She notes, as many have before her, that these cases do not establish a constitutional right to home educate, nor do they give parents unilateral control over their children. Meyer and Pierce were at pains to note that the State has the power to regulate children’s education to ensure its interest in preparing good citizens. Yoder was at pains to limit the impact of the decision to the very unique case of the Amish. But what Yoder failed to do, asserts Fineman, was to protect the rights of Amish children. In more recent years, however, the law has increasingly sided with children, protecting them, for instance, from corporal punishment in public institutions and limiting the rights of parents to abuse them.
Fineman next canvasses how homeschooling advocates (mostly HSLDA) never miss an opportunity to voice opposition to any development that increases the rights of children, be it decisions like the one in Canada to prohibit home schools from teaching that being gay is a sin, to the UN Convention on the Rights of the Child, which argues that children have a right to an education. The danger in homeschooling, says Fineman, is that it “allows a parent to impose, unchallenged, a limited and all-encompassing worldview and set of beliefs that will inhibit a child’s ability to question, disagree with, or reject that worldview.” (p. 371)
Appraisal: First of all I would like to make a point about Fineman’s legal argument. Her major complaint against homeschooling is that it is individualistic, weakening commitment to the public good. Yet in her coverage of the Yoder decision she stresses how the Court’s conclusion in that case violates the individualism of Amish children. Fineman has made a career out of rejecting the concept of autonomy, but when it comes to thickly interdependent, countercultural communities like the Amish, she swings the other way and wants the kids to be free to be whoever they want to be. In my view the Amish social structure has a lot in common with the things Fineman has been advocating for her entire career–networks of care and communal support trumping the sexual dyad of the nuclear family. But Fineman has also been at war with religion, which she tends to see as tribalistic and destructive to the public good. Which is worse to her–tribalism or individualistic autonomy? From her coverage of Yoder I think I know the answer, and it is ironic. Religion has been the major historical force giving birth to the values of care for the weak, help for the poor, and dignity for all that are Fineman’s core commitments. True enough, religion has also been a major source of tribalistic conflict, hatred of the other, and intolerance of difference. But without it Fineman’s own ideals would have never emerged in human history.
Second, and more importantly, we need to get a little perspective on Fineman’s doomsday fears about homeschooling creating an army of robot children who parrot their parents’ anti-democratic, intolerant views. We need to recall that concerns like these were exactly what led states like Nebraska and Oregon to pass laws outlawing instruction in foreign languages (Meyer) and outlawing religious schooling altogether (Pierce) a century ago. Early 20th century Anglo-Protestant fears that ethnic Catholic private schooling would produce an army of young Papists who would be a threat to U.S. democratic institutions look absurd in hindsight. The Catholic schools ended up being at least as good at Americanizing immigrant children as were the public schools. The evidence so far suggests that homeschooling is not all that different. Those who follow the homeschooling movement know full well that the most vocal advocates for increased regulation of homeschooling and the most motivated critics of HSLDA are a large group of formerly homeschooled young people, the very people Fineman fears will become illiberal tribalists. Moreover, the movement itself has in the past several years grown ever more mainstream, even corporate.
What I think Fineman misses in her tendency to oppose private and public goods is the central Tocquevillian insight about American culture. Economic freedom in the United States has created the opportunity for people to discover, generation after generation, that it is actually in my own interest to look out for my neighbor. De Tocqueville called this the “principle of self interest rightly understood.” Social Capital theorists call it “reciprocity.” In my opinion a lot of homeschooled children learn about reciprocity when they watch their mothers work with other mothers to run a co-op, cook dinners for a friend who recently had a baby, or organize a political campaign. They learn that entrepreneurial enterprises will be more successful if you don’t offend your customers with intolerant rhetoric. They learn, in short, that the private and the public are not necessarily at odds. They come together. True enough, some homeschooled children may end up with political opinions that Fineman finds close-minded. But public schoolers do too. I agree with Fineman that reasonable regulations to limit the potential for abuse should be implemented in every state. But her fear of homeschooling as such, her worry that its very existence threatens the public good, to me suggests that she needs to get out and talk to some actual homeschoolers.
Milton Gaither, Messiah College