PARENTAL EDUCATION RIGHTS IN THE U.S. AND CANADA: a Doctoral Dissertation

Record

Julio Alberto Lagos, “Parental Education Rights in the United States and Canada: Homeschooling and its Legal Protection” (J.C.D. Dissertation, Pontifical University of the Holy Cross, 2011) [Available Here]

Lagos’ dissertation seeks to explain the understandings that have emerged in U.S. and Canadian law as to the extent of parent, child, and state rights.  Homeschooling serves as a powerful example of the conflicts that can emerge between the legal rights of these three groups.  He explores the subject in six chapters:

Summary

In Chapter One Lagos reveals that of the three competing groups, he himself prioritizes parental rights.  This chapter works through six international human rights declarations and treaties that collectively have upheld the right of parents to direct the education of their children, from the post WWII Universal Declaration of Human Rights to the more recent U. N. Convention on the Rights of the Child.  Interestingly, Lagos’ discussion of the Convention makes no mention of the frenzied opposition to it by some American conservatives, who thus far have succeeded in keeping it from being ratified by Congress, making the U.S. one of only three countries not to have done so (the others being Somalia and South Sudan).  Lagos himself interprets the Convention to be consistent with earlier international declarations and to thus support parental efforts such as homeschooling.  The chapter concludes with a similar examination of Roman Catholic Canon Law, concluding that Canon Law upholds an even stronger vision of the positive right of parents to direct the education of their children, which means that homeschooling is certainly sanctioned by the Church.

In Chapter Two, Lagos provides a cursory summary of the history of homeschooling in the United States, a demographic profile, a discussion of parental motivations both in the U.S. and Canada, a glance at Catholic and Fundamentalist Protestant homeschooling, a look at pedagogy, and finally a brief summary of the literature on academic achievement and socialization .  His historical facts are occasionally a bit off, and his survey does not include some of the more recent literature, but overall his reports are a competent summary of what for most homeschooling researchers will be very familiar terrain.

Chapter Three looks at the legal status of homeschooling in the United States.  After more flawed history he summarizes the current status of homeschooling laws in the 50 states, taking as his frame of reference HSLDA’s famous 4-tiered categorization.  He then canvasses recent articles by legal scholars advocating for increased regulation of homeschooling, many of which have been reviewed at this site, including articles by Yuracko, Ross, and Waddell.  He concludes by summarizing legal articles supportive of the current more permissive regulatory climate, such as those of Dumas, Gates, and Schwartzer and of Moran.  He concludes that the tide may be turning a bit toward more rigorous regulation after several decades of laxity.

Chapter Four summarizes the much less well-known legal situation for homeschooling in Canada.  Canada’s two part federal Constitution, the British North America Act and the Constitution Act, 1982 have been interpreted by the Canadian judiciary as providing parents with a constitutional right to educate their children at home (p. 148).  Actual regulations of education, however, occur at the Provincial level.  Here as in the United States regulations vary by province, with some requiring more of homeschooling parents than others.  There are some unique circumstances as well.  In Alberta, for example, provincial government reimburses 16% of a homeschooling parent’s expenses.  British Columbia provides each homeschooling family with several thousand dollars’ worth of computer hardware.  But with funding comes increased regulation.  Lagos summarizes,

In general, the western provinces tend to favour homeschooling and provide varying degrees of funding, but impose a series of regulatory requirements.  The central and Atlantic provinces allow for the practice, but place a few administrative hurdles.  Finally, Québec which has a unique socio-cultural and statist identity, approaches homeschooling as with a high degree of caution. (p. 154)

Chapter Five again covers the U.S. legal context, and it does so very well.  Meyer, Pierce, and Yoder receive abundant attention, as do many state-level decisions.  The 2000 Troxel v. Granville Supreme Court decision gets special attention given its frequent application by homeschooling activists to lend support to their claim that any infringement on homeschooling rights must pass strict scrutiny.  Lagos masterfully summarizes both the “conservative” case for parental rights and the “liberal” case for state oversight, correctly noting the fundamental tensions in U.S. case law which make both sides’ positions tenable.  For researchers looking for a primer on the American legal context, this chapter is a wonderful guide.  Lagos concludes,

while many homeschooling parents want the government completely out of the education of their children, the state has a duty to enforce a compelling interest in ensuring their citizens are adequately educated. A compromise solution may not be possible, but the present patchwork of judicial precedents in the United States guarantees a large measure of parental choice for families dissatisfied with the public school system or private school options. (p. 226)

Chapter Six analyzes the Canadian judicial situation.  Interestingly, most of the pre-1982 cases had to do with minority religious groups (German Mennonites for the most part) who wanted out of the state education system for religious reasons.  Such groups found little relief until the 1978 when Alberta passed a Bill of Rights that granted robust religious freedom that formed the basis for the Wiebe decision, which has become a landmark Canadian case for homeschooling freedoms.  At the Supreme Court level, R. v. Jones established that while provinces have the authority to regulate home and private schools, they should do so in a manner that accommodates religious freedoms guaranteed by the 1982 Canadian Charter of Rights and Freedoms.  After surveying more recent decisions, Lagos concludes, “it appears well-settled law in Canada that the privileged role of parents in directing their children’s education, and by extension, to choose homeschooling, is constitutionally protected…” (p. 245)  In general in Canada there has been more compromise and less confrontation between homeschooling parents and government officials than in the U.S.

Lagos concludes his dissertation with a few recommendations.  In general he’s in favor of the more Canadian compromise attitude rather than the confrontational U.S. orientation.  Specifically, he’d like to see the U.S. Supreme Court take up a homeschooling case and lay out explicitly the relationship between parent and state rights for children’s education.  He hopes that such a future decision would result in a relatively laissez faire approach to this issue, as it seems that for the most part homeschooling parents are doing a fine job of educating their children.

Appraisal

With the exception of chapter 2, which tried to do too much and relied at times on untrustworthy or dated sources, this dissertation is a very helpful resource to have.  I was especially heartened by the extensive coverage of Canadian law and jurisprudence.  There exist many fine surveys of U.S. law and court cases respecting homeschooling, but this is the first full treatment I’ve read of the situation in Canada.  Not being familiar with the Canadian material I cannot appraise Lagos’ treatment, but I was very impressed with the balanced and comprehensive manner in which he covered the U.S. material and am thus inclined to presume that he was equally careful and judicious in his work on Canada.

Milton Gaither, Messiah College, author of Homeschool: An American History.

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