Record: Martha Fineman and George B. Shepherd, “Homeschooling: Choosing Parental Rights Over Children’s Interests” in University of Baltimore Law Review 46, no. 1 (2016), 57-106.
Summary: Fineman, Robert W. Woodruff Professor of Law at Emory University, and Shepherd, also a law professor at Emory, here join forces to craft a historical, theoretical, and legal argument for why homeschooling should not be permitted in the United States. We recently reviewed a similar piece by Fineman here, but this article is longer and more aggressive in its policy recommendation.
The authors begin with an explication of “vulnerability theory,” whose basic premise is that government should function to support and foster the resilience of vulnerable members of society, children being the most conspicuous example. From the perspective of vulnerability theory, assert the authors, “homeschooling should be understood to be a failure of the state to be fully responsive to the need of vulnerable subject in childhood for a strong educational foundation.” (p. 63) The state has a compelling interest in assuming responsibility for directing the education of future citizens to ensure that they can function within both our pluralistic democracy and our modern economy.
Next, Fineman and Woodruff provide a brief orientation to homeschooling in the United States. They claim that it was illegal in the majority of states prior to 1981 but that since that time homeschooling interest groups have succeeded in not only legalizing but deregulating the practice. They also explain how the movement has grown beyond its radical roots and now includes families who choose the practice for more pragmatic reasons, often out of frustration with aspects of public education. They respond to this trend by acknowledging that public schools have many failings, but that home education represents a failure on “an even more fundamental level…. The answer to very real problems in public education cannot be the institutionalization of homeschooling.” (p. 70)
In the third section of the article Fineman and Woodruff turn to the public schools. They claim that public education originated in the colonial period, and that by the 19th century it had been institutionalized as a mechanism that tried to bring “students of diverse races, socioeconomic backgrounds, and ideologies together.” (p. 73) Unfortunately, the shift in the late 20th and early 21st centuries toward standardized testing has led public education away from its historic civic mission, reducing schooling to the implantation of private goods like literacy and numeracy. This reduction in turn has led to increasing calls for privatization of public education, of which homeschooling is only the most radical example. The civic mission of education for universal values of tolerance and respect for diversity suffers as private interests increasingly offer “selective and specialized programs crafted around specific religious, political, ethnic, and cultural distinctions.” (p. 82)
The next section lays out several potential harms homeschooling engenders. First, it harms individual students. The authors briefly survey the empirical literature on adult outcomes, stressing the Cardus results that were not so flattering for homeschoolers, but they spend more time laying out hypothetical possibilities. Given lack of regulation, it is entirely possible that many homeschooled children are simply not getting much of an education at all (they mention unschoolers in particular), or are receiving systematic indoctrination into fictions like young-earth creationism. Second, homeschooling harms society. Here the authors mention possibilities like homeschool indoctrination into white supremacist ideology or biblical patriarchy views that hold women and children to be property of males. They conclude, “if significant numbers of alienated and maladjusted citizens reject widely held societal norms and values, it may represent a threat to the well-being of society.” (p. 87)
Next, the authors delve into legal matters. They canvas the three most often cited Supreme court cases in conjunction with parent rights and homeschooling, noting that both Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) were concerned with children who actually attended schools, and that the Court clearly recognized the State’s right to regulate these schools. They also note that Wisconsin v. Yoder (1972) was carefully written to only be about the Amish, and they actually think it was wrongly decided, as did Justice Douglas, from whose dissent they quote. The authors move on to discuss how in many other domains parental rights have been gradually giving way to those of children. Child abuse, for example, was only made illegal in the 1960s after much work by child welfare organizations and medical practitioners, but the laws put in place to criminalize child abuse have had widespread ramifications in family law and practice.
The penultimate section of this article advocates for the abolition of homeschooling. The authors note that homeschooling is not permitted in several countries and is heavily regulated in several more. They note that even when children are in public school the parent still gets 77% of children’s waking hours to influence them. Regulating homeschooling is not good policy, claim the authors, because it would be too expensive and invasive of family privacy. Fineman and Shepherd do not want to monitor families, so it would be best to simply not let them homeschool in the first place.
Finally, Fineman and Shepherd provide an economic argument for prohibiting homeschooling. Education, being a public good, does not respond to market pressures in the same way that, say, groceries do. Public schools function best when they are supported by everyone and attended by all children. When some families opt out and create rivals, it promotes not healthy competition but a shrinking of the public interest. A family that opts out tends to think only about its own interests, not those of its neighbors. Such families start to wonder why they have to pay taxes for a service they do not use. Their voice is no longer part of the conversation that needs to be had for improving the public school, and society suffers as a result. Being part of this society, homeschooling families are thus not serving their own long-term interest by undermining public education. Their children will grow up in a society where fewer people share a common knowledge base and a common commitment to the public good.
Appraisal: First, a couple of minor historical points. It is anacronistic to claim that public education began in the colonial period, and it is false to claim that 19th century common schools were about bringing the races and classes together. They were created by white Protestants of British extraction to try to make all white children like themselves (and to exclude nonwhites). Also, homeschooling was not illegal in most states prior to 1981. Its status was in many places unclear, which is why as the practice grew the states, through both legislation and court rulings, clarified things. I tell this history in detail in my book
Now for the argument. Though they don’t actually say so, it is clear that their legal and economic argument would apply to any private school, not just to homeschooling. Fineman and Shepherd are correct that Meyer and Pierce were not about homeschooling and did recognize the State’s right to regulate private schools, but more fundamentally these cases recognized that the State cannot have a monopoly on education. That is exactly what Fineman and Shepherd are advocating. Anyone who threatens this monopoly by removing a child to attend any other sort of school or to homeschool weakens us all, and therefore we must outlaw all forms of schooling except public education.
So the first problem with their goal is that it is unconstitutional. The second is empirical. As the history of Catholic education has shown, private education has not turned out to be the danger to public life 19th and 20th century critics feared it would be. Far from creating armies of Papists brainwashed into trying to destroy the United States from within, the Catholic schools proved remarkably good at Americanizing immigrants and bringing them into the mainstream of economic and political life. Why? Because Catholic parents wanted their kids to be successful.
I think Fineman and Shepherd are overly worried about private and home schooling mostly because they seem to think that public education alone is what holds the country together. On the contrary, it is what Tocqueville called “the principle of self-interest rightly understood” that is our real social glue. We all implicitly know that our lives will work out better when we help out our neighbors, when we live by the principle of reciprocity. It is our economic system, not our educational system, that is real bulwark of our public culture. So long as everyone is committed to making money, everyone is going to get along for the most part, regardless of where they went to school.
Milton Gaither, Messiah College