Record: James G. Dwyer and Shawn F. Peters, Homeschooling: The History and Philosophy of a Controversial Practice
It has been several years now since we’ve had a rigorous scholarly book on homeschooling. This new book by Peters and Dwyer is a welcome addition. I will take two posts to review it. This first post will summarize the book’s contents. In a second post I will make some comments of my own.
Summary:
Dwyer, Arther B. Hanson Professor of Law at William and Mary, and Peters, Lecturer in Integrated Liberal Studies at the University of Wisconsin, here join forces to pen a book that is one part historical description and one part normative argument.
The first three chapters, written by Peters, provide the historical description. Chapter one describes the pervasive use of the home to educate children in early North America during the colonial period and even into the 19th century, as well as the gradual eclipse of that tendency as formal schools were established, made free, and eventually made compulsory. Chapter two describes how after World War II many Americans grew increasingly distrustful of government entities, including public schools. Conservative Protestants, who had historically been strong backers of public education, began turning away from the increasingly secular public schools to private religious schools and, eventually, to homeschooling. At the same time, radicals on the philosophical left grew increasingly critical of the regimentation and bureaucracy of public education, advocating for private schools and, eventually, homeschooling. Peters spends significant attention on the legal history here, showing that American courts, from the Supreme Court on down, have always maintained that state governments have the right to regulate such independent educational ventures. Yet most states have chosen, largely due to very effective lobbying by private school and homeschool interests, not to regulate and, indeed, to abandon even what minimal regulations they had in place in earlier decades. Chapter three describes the growth and diversification of homeschooling and covers some of the controversies that have emerged as the movement has matured.
A fourth chapter segues into the normative component of the book. Its main goal is to rule out extremist positions on either side as inherently irrational. The authors create a hypothetical liberal homeschooling family whose approach would satisfy even the most dedicated defender of public institutions and point out that many if not most actual public schools fail to live up to liberal ideals, thus silencing critics who would abolish homeschooling outright. On the other hand, anecdotal evidence abounds of “homeschooling” families whose abusive and/or neglectful behavior toward their children could not be countenanced by any rational person. Thus there is no pragmatic basis for believing that homeschooling is by definition better than institutional schooling.
The final three chapters, written by Dwyer, make the normative case for regulation of homeschooling in the name of children’s rights. Dwyer begins by noting that “the State” is not an independent entity but is merely a term we use for all of us together. We have historically granted parents rights to their biological offspring. Absent such a legal scenario chaos would reign; people could steal, buy, or kill children with impunity. So the question is not whether but how the state should regulate parenting. Dwyer lays out five normative principles that inform his answer to that question:
- Children are persons, not property.
- People do not have the right to control other people’s lives. All persons possess rights to self-determination. Children, being persons, have this right as well. Children are not yet able to exercise this right, but that does not give others—be they parents or the state—the right to control them. Parents and the state have interests in the outcome of a child’s education, but that is not the same thing as a right.
- Children have the greatest interest in their educations. Parents and the state have their own interests in the child’s education, but the child’s interest is paramount.
- The State must determine what the child’s interests are. The claim that parents automatically know best what their children need is manifestly false. A parent, for example, who might believe that her child should only eat lettuce is simply mistaken. The state should base its calculus on scientific consensus about the universal needs and tendencies of humans as discovered by such fields as child development, medical science, and so forth. Every child, for example, needs protein for healthy biological development, and a parent who might reject protein as ungodly or unhealthy should not be permitted to impose that mistaken conviction on the child. Dwyer does acknowledge here that as a practical matter the state often does a very poor job of formulating and acting on this scientific consensus, frequently responding instead to various pressure groups or fads.
- The state cannot use religion as the basis for determining what a child’s interests are. Here Dwyer is responding to natural law claims that God, not the state, has given parents the right to raise children as they see fit. For the state to accept that claim it would have to accept God, but whose god? Our society’s diversity, not to mention our Constitution, make appeals to specific gods dangerous to the public interest. Moreover, there is no consensus even among natural law thinkers about what the natural law says about parent/child/state rights. The state must simply ignore appeals to divine command in its calculus.
- The state has two functions when performing its custodial role for children. First, the state can limit children’s rights in its police powers function when those rights might threaten society (for example, not permitting young children to drive because they would endanger the public safety). Second, the state maintains a parens patriae, fiduciary role for the child, trying to secure the child’s interests. Education, it turns out, is a parens patriae, not a police powers matter. The goal of a child’s education is not to conform the child to the state’s demands but to foster the child’s future autonomy.
In chapters six and seven Dwyer takes these six principles and applies them to homeschooling regulation. Chapter six aims to lay out the basic goods education should secure for children. He again enumerates six principles education should foster:
- Cognitive and intellectual development
- Knowledge acquisition
- Interpersonal development
- Identity formation
- Family connection
- Physical, psychological, and emotional security
Given that in many of these domains there is no consensus about the specific content of these principles, what should the state do? It should not, asserts Dwyer, operate in its police power function and seek to create an education that merely adapts the child to meet the needs of the broader society (despite widespread rhetoric to that effect). Instead, it should make policies that foster the child’s interest. Thus the state should require an education that maximizes children’s potential for autonomous decision making, exposes them to worldviews different from their own, exposes them to a diverse group of other persons, fosters positive self-concept, encourages healthy parent-child relationships, and ensures their physical and psychological safety.
In chapter seven Dwyer draws out the policy implications of what has gone before. He begins, somewhat surprisingly, by claiming, based on the sixth principle of safety, that children have a right to stay at home that is so strong that the state must show that requiring schooling serves children’s compelling interest. Obviously, a home that does not provide safety would require state intervention. But beyond that Dwyer cannot construct an argument that would require children to leave their homes. Therefore homeschooling should not be abolished. It should, however, be regulated, because of the state’s requirement to require equal opportunity to all children. How? In three ways. First, to be legally empowered to homeschool, a parent should demonstrate before doing so that she is capable. Dwyer thinks a high school diploma or GED serves as a fairly good proxy for basic parental intellectual capacity, but he also wants evidence that a parent can do the job. For a child who has never been to school before, normal healthy development in the preschool years is a good indication of parental competence. For a student being pulled from school, a trial run during the summer with pre-and-post-summer evaluation by the school would suffice. A criminal background check should also be performed on all household members to help guard against potential abuse. Second, periodic review of homeschooled children should be conducted by a school district employee (ideally someone who has homeschooled successfully in the past). This review would function like a well-child checkup but emphasizing cognitive development, and it would be based on a portfolio, not a standardized test, so as to preserve homeschooling pedagogical freedom. Alternately, required partial enrollment in some formal institution might serve as equivalent to periodic review. Third, if a review finds that a child’s homeschooling is not adequate, a sliding scale of interventions should be put in place so that the state’s role can be tailored to need and be as minimal as possible.
In a final concluding chapter the authors acknowledge that their recommendations are not likely to be heeded given the political power of homeschooling advocacy groups (especially the Home School Legal Defense Association). They also slip in two other possible reforms. First, states might use a “carrot rather than stick” (p. 227) approach by offering financial assistance to families who are willing to comply with the sorts of regulations suggested in chapter seven. Second, lawsuits could be filed that, if successful, could force legislatures to do what they heretofore have been unwilling to do, namely to ensure that all children receive equal protection under the law.
Milton Gaither, Messiah College