{"id":3756,"date":"2017-09-11T11:00:03","date_gmt":"2017-09-11T11:00:03","guid":{"rendered":"http:\/\/icher.org\/blog\/?p=3756"},"modified":"2017-09-11T15:17:49","modified_gmt":"2017-09-11T15:17:49","slug":"safe-at-home-establishing-a-fundamental-right-to-homeschooling","status":"publish","type":"post","link":"https:\/\/icher.org\/blog\/?p=3756","title":{"rendered":"SAFE AT HOME: Establishing a Fundamental Right to Homeschooling"},"content":{"rendered":"
\n
\n

Record<\/b>: Billy Gage Raley, \u201cSafe at Home: Establishing a Fundamental Right to Homeschooling.\u201d Brigham Young University Education and Law Journal<\/em>, 1<\/span>\u00a0(2017): 59-90.\u00a0[Abstract<\/a>]<\/p>\n

Summary<\/b>:\u00a0Billy Gage Raley<\/a> is a\u00a0professor at\u00a0Hanyang University<\/a> School of Law in South Korea, and in this article he attempts, as<\/a>\u00a0many<\/a>\u00a0have done<\/a>\u00a0before<\/a>\u00a0him<\/a>, to describe how homeschooling may be considered a fundamental right protected by the U.S. Constitution.<\/p>\n

<\/p>\n

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\u00a0against 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\u00a0law that curtails a fundamental right must satisfy three tests:<\/p>\n<\/div>\n

    \n
  1. The regulation\u00a0must be justified by a compelling governmental interest.<\/li>\n
  2. The regulation\u00a0must be narrowly tailored to achieve that goal or interest.<\/li>\n
  3. The regulation\u00a0must be the the least restrictive means for achieving that interest.<\/li>\n<\/ol>\n<\/div>\n
    \n

    In Part II Raley dispels the commonly-held but false belief that homeschooling\u00a0is currently recognized as a\u00a0constitutionally-protected right. While homeschooling advocates have said that\u00a0Wisconsin v. Yoder<\/a> establishes a right to homeschool, Raley calls\u00a0this 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<\/a> and Pierce v. Society of Sisters<\/a>,\u00a0since these cases have already failed to establish a fundamental right to homeschool in several challenges\u00a0against 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.<\/p>\n

    In Part III Raley describes\u00a0two possible routes for establishing homeschooling as a fundamental right under the Constitution. First, as determined\u00a0in Washington v. Glucksberg<\/a>, something may become a fundamental right if it can be shown that the practice is \u201cdeeply rooted in this Nation\u2019s history and tradition.” Alternatively, in a procedure\u00a0established by\u00a0Obergefell v. Hodges<\/a>, homeschooling\u00a0could become\u00a0a fundamental right if it were shown that homeschooling falls under the already-established fundamental right of parents having the ability to\u00a0\u201cdirect\u201d the education of their children. However, for Obergefell v. Hodges<\/a> to take effect, it would have to be shown that the Court\u2019s rationales in\u00a0Meyer v. Nebraska<\/a>\u00a0and\u00a0Pierce v. Society of Sisters<\/a>\u00a0are equally applicable to homeschooling.<\/p>\n<\/div>\n

    \n

    Part IV analyzes the first of these routes, which is whether homeschooling could become a fundamental right because of deep roots in American\u00a0history and tradition. Raley argues that\u00a0homeschooling 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).\u00a0Even when America’s\u00a0first compulsory education law appeared in Massachusetts in the late 1800s, the Massachusetts Supreme Court concluded that homeschooling should be permitted due to the fact\u00a0that, \u201c[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 \u201cdeeply rooted\u201d fundamental right.<\/p>\n

    In Part V, Raley returns to the case of\u00a0Obergefell v. Hodges<\/a>, 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<\/a>\u00a0and\u00a0Pierce v. Society of Sisters<\/a>)\u00a0may 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\u00a0Pierce<\/em> and Meyer<\/em>, Raley identifies two reasons for the Court\u2019s recognition of the right to private school education: the \u201cnatural bonds of affection [that] lead parents to act in the best interests of their children” and also the\u00a0\u201ccritical role\u201d that\u00a0autonomous nuclear families play in\u00a0\u201cdeveloping the decentralized structure of our democratic society.\u201d Raley concludes that both rationales \u201capply with equal force\u201d to homeschooling, which means that the right to homeschooling should also fall under the realm of parent-directed education.<\/p>\n

    \n
    \n
    \n
    \n
    \n
    \n

    In Part VI Raley concludes the article by urging families to utilize the arguments presented here as they protect their ability to homeschool.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

    \n

    Appraisal<\/b>: Overall, Raley’s points are relatively balanced and well-argued. His argument is\u00a0certainly more compelling than some of the other articles that we have reviewed in our legal section<\/a>!\u00a0However, Raley is clearly a homeschooling advocate, and that hurts him due to his over-reliance on the popular cases of\u00a0Meyer v. Nebraska<\/a>\u00a0and\u00a0Pierce v. Society of Sisters<\/a>.\u00a0As Jennifer Karinen<\/a> (and also Raley, to an extent) points\u00a0out, homeschooling advocates tend to overstate the significance of these rulings for their position. Unfortunately, Raley builds half of his argument on the assumption\u00a0that these two cases demonstrate that\u00a0a 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.<\/p>\n

    Ironically, Raley makes considerable use of cases such as\u00a0Obergefell v. Hodges<\/a>\u00a0(same-sex marriage) and Roe v. Wade<\/a>\u00a0(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\u00a0Obergefell v. Hodges<\/a>, it was shown that a practice\u00a0that is not<\/em> 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.<\/p>\n

    Disclaimer<\/strong>: The views expressed in reviews are not the official views of ICHER or of its members. For more information about ICHER\u2019s Reviews, please see the \u00abAbout these Reviews\u00bb Section.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

    Record: Billy Gage Raley, \u201cSafe at Home: Establishing a Fundamental Right to Homeschooling.\u201d Brigham Young University Education and Law Journal, 1\u00a0(2017): 59-90.\u00a0[Abstract] Summary:\u00a0Billy Gage Raley is a\u00a0professor at\u00a0Hanyang University School of Law in South Korea, and in this article he … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_links_to":"","_links_to_target":""},"categories":[11],"tags":[1699,1698,1703,1700,122,1702,121,1704,1701,123],"class_list":["post-3756","post","type-post","status-publish","format-standard","hentry","category-legal","tag-billy-gage-raley","tag-brigham-young-university-education-and-law-journal","tag-fourteenth-amendment","tag-hanyang-university","tag-meyer-v-nebraska","tag-obergefell-v-hodges","tag-pierce-v-society-of-sisters","tag-roe-v-wade","tag-washington-v-glucksberg","tag-wisconsin-v-yoder"],"_links":{"self":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/3756","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3756"}],"version-history":[{"count":19,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/3756\/revisions"}],"predecessor-version":[{"id":3824,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/3756\/revisions\/3824"}],"wp:attachment":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3756"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3756"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3756"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}