Clint Bolick is an attorney with the U.S. Department of Justice, Civil Rights Division. He is working on a book entitled, Changing Course: Civil Rights at the Crossroads. The views expressed in this article are solely those of the author, and are not intended to represent the policy of the Department of Justice.
As “movements” go, home schooling is one of the most eclectic, coalescing an extraordinarily diverse group of individuals around a single purpose—the education of children outside the traditional schooling structure.
The growing ranks of home schoolers span the entire political spectrum, encompassing conservatives and liberals, libertarians and populists.
Many home schoolers are rigidly traditional and scrupulously law-abiding, while others are long-time practitioners of civil disobedience. Some are fervently religious and have removed their children from mainstream schools because they are too secular, while others are nonbelievers who consider public schools too religious. Still others are compelled to educate their children at home because they live in geographically isolated areas, remote from ordinary schools.
What binds this heterogeneous movement together is a deeply held devotion to a single overriding principle: that parents have the responsibility—and the right—to direct and control the educational development of their children. But despite the consistency of this view with the principles of liberty on which this nation was founded, the right of home schoolers to freely exercise their choice is in serious dispute—giving rise to one of the most compelling civil rights controversies of our time.
Contrasting Styles, Impressive Results
Another characteristic unifying home schoolers is the enormous commitment—in terms of time, energy, patience, and persistence—they must invest to carry it through. And yet thousands of families across America have made this commitment. The exact number of home schoolers is difficult to determine, but a recent study places the figure as high as 260,000. And by all appearances, those numbers are increasing.
Many critics confuse home schoolers with nonschoolers, counterculturists who reject the value of any formal education. On the contrary, most home schoolers place an extremely high value on education; so much that they are unwilling to entrust that vital process to surrogates. To some extent, all parents are home schoolers, for education does not take place solely in a formal classroom. But the term accurately applies only to those parents who have taken this phenomenon a major step further, by turning their homes into formal institutions of learning—“ schools” in the purest sense of the word.
If a “typical” home school exists, it probably follows one of two widely divergent patterns. The first is the structured home schooling environment. Home schools within this category are generally extremely ordered, with set goals, characterized by rigorous schedules and “attendance” requirements, textbooks and other professional materials, extensive “homework,” and frequent tests. Many religiously motivated home schoolers embrace this approach, and infuse a great deal of religious education into the learning environment.
The other common approach is less structured. Many home schoolers eschew competition and academic pressure, and allow their children to proceed with their own interests in a positive environment designed to stimulate intellectual curiosity, similar to the approach employed in Montessori schools. Learning tools often used in less structured home schools include computers, frequent “field trips” and cultural experiences, and defined manual chores.
Either approach generally produces impressive results. Indeed, the very nature of home schooling virtually insures a high return on the investment. The teacher/student ratio is by definition quite small, providing for a highly individualized learning environment and enhanced capacity to respond to particular needs. Unlike many teachers in public schools, home school teachers are necessarily extremely motivated, and possess a direct interest in the achievements of their children. While many home schoolers are not certified teachers, neither are they encumbered by arbitrary certification requirements or the political and special-interest demands of the educational bureaucracy.
Moreover, home schoolers may draw upon plentiful resources tailored to their needs. The Calvert School and the Santa Fe Community School are just two of the national “satellite schools” that provide formal curricula. teaching materials, and tests for home schools, monitor academic progress, and award diplomas; and local private schools also frequently offer similar “out-student” services. Some public school districts allow home school students to enroll in certain courses, participate in extracurricular activities, or use their facilities. Support networks, such as Holt Associatesin Boston, founded by the late home school pioneer John Holt, and the Hewitt Research Center in Washington state, directed by Dr. Raymond Moore, share practical information via newsletters, books, and seminars; and these organizations are supplemented by active support groups at the local level.
Many critics condemn home schooling for supposedly overlooking “real world” socialization skills. But that is precisely why many home schoolers elect to teach their children at home—they object to the type of “socialization” to which their children would be subjected in the public schools. Instead, many home schoolers provide alternative socialization outlets, such as Scouting, church groups, and community athletic programs.
Home schooling is not for everyone; in fact, it’s not even for most people. It requires an extraordinary commitment that most parents cannot afford to give. But for those who do make that commitment, it can he very rewarding and fulfilling for both parents and children. Rather than rejecting it out of hand, we should acknowledge the advantages of home schooling and accept it as a viable alternative educational institution wholly consistent with American ideals.
The potential benefits of home schooling are exemplified by the Schneeberger family, which lives in rural Woodland Park, Colorado. The Schneebergers have four children, ages 3 through 10, and have been home schooling for three years with extraordinary success.
Peter Schneeberger is a postman with a college degree in fine arts and mathematics, while his wife Rory, who handles most of the teaching duties, is a former public school teacher and Christian school principal who earned degrees in child development and psychology. The Schneebergers are nondenominational Christians, and decided to become home schoolers because, as Rory explains, “home is where the attitudes and convictions of life are hammered out.” “My experiences in the public schools,” she adds, combined with “the militancy of some so-called Christian schools, also tugged at our hearts and contributed to our decision to educate our children at home, under loving, caring, and firm supervision.”
The school day at the Schneeberger’s “Rainbow Ranch Christian Family School” begins at 8:30 A.M. with pledges and prayers, followed by academic lessons until 11:30 A.M. Peter comes home for lunch, which provides for midday family time. During the afternoon, the smaller children nap while the older children correct their papers or participate in field trips, practical “life experiences,” or Christian service. After school, the older children are active in community athletics, Christian Scouting, 4-H, and animal chores.
Rory designs her own curriculum and supplements it with professionally developed materials, such as Rod and Staff, American Christian Schools, Inc., and library books. When Rory needs assistance, Peter steps in or they consult other professional teachers or tutors.
The academic results produced by the Schneebergers’ home school are stunning. Lucas, age nine, tests regularly and extensively. Last year, compared with other third-graders nationwide, Lucas scored between the 76th and 100th percentiles (93rd percentile overall) on every facet of the Stanford achievement test, demonstrating proficiency at fifth to college grade levels. These results were confirmed by other nationally recognized tests. He was recently accepted into an adult education class in Colorado history, one of his special interests; and his parents hope to eventually enroll Lucas in an early college admission program.
Despite the uncertain legal status of home schooling in Colorado, the Schneebergers have not been challenged by educational officials, and they maintain a “friendly working relationship” with Calvin Frazier, Colorado Commissioner of Education, and their local district. The Schneebergers are active in home schooling support organizations and consider themselves “blessed immensely” by their experience as home schoolers; and it is difficult to comprehend an educational arrangement that would be more beneficial for their children.
The Schneebergers’ experience is not atypical. In recent years, leading institutions of higher learning such as Harvard University have admitted students who have been educated with notable success exclusively at home. With increased exposure, home schoolers may be able to overcome the apprehension and hostility purveyed by the educational establishment while adding to their ranks new families for whom home schooling is an appropriate alternative.
Although the number of home schoolers appears to be growing, the species is constantly endangered by its most voracious predator, the State. A decision to educate children at home requires not only a commitment to undertake an enormous educational effort, but frequently also to take on a hostile public educational bureaucracy, abetted by the compulsory school attendance laws.
State laws governing home schooling are remarkable in their inconsistency. Parents who are educating their children at home with the blessing of one state can move to a neighboring jurisdiction and suddenly become outlaws. As of 1983, for instance, parents could educate their children at home relatively freely in Idaho or Montana, but would do so at their considerable peril in Wyoming or Washington state.
Home schooling laws generally fall into one of three categories. The most permissive are the “equivalency” laws, which generally require only some showing that the alternative education provided is comparable to that provided by the public schools. A second category is comprised of “certification” statutes, in which the “teacher” must be certified by the state or fulfill some other requirements. Finally, the most restrictive are the “prohibition” laws, which limit educational choices to traditional public or private schools. In such jurisdictions, home schoolers often attempt to circumvent the law by claiming that their homes are schools, or by incorporating as such. Most courts have rejected such arguments, even where the home schoolers demonstrate superior educational achievement. Other courts, however, have given a more sensible definition to “school,” such as the Indiana Court of Appeals, which declared in 1904 that [a] school, in the ordinary acceptance of its meaning, is a place where instruction is imparted to the young. . . .
We do not think that the number of persons, whether one or many, make a place where education is imparted any less or more a school.
Relatively few courts have taken such an enlightened approach. Consequently, where state laws are prohibitive or restrictive, the educational bureaucracy can make life miserable for home schoolers. Its interest is typically not the educational well-being of the child, for if the debate is defined in those terms the home schooler will often prevail. Instead, the educational bureaucracy’s interest is pecuniary in nature-the local school district usually loses funding for every child removed from the school system. Accordingly, school districts resort to any means at their disposal—scare tactics, threats, criminal prosecutions—to coerce parents to return what the school districts view as their property. Moreover, by condemning home schooling as deviant behavior, the educational bureaucracy often induces intermeddling citizens to turn in their neighbors in classic police state fashion.
Those home schoolers unfortunate enough to be engaged in a legal imbroglio face overwhelming obstacles. Home schoolers are prosecuted under truancy statutes, violations of which are treated as criminal acts and prosecuted by the local district attorney and the child abuse apparatus, with its presumption of guilt and accompanying network of condescending social workers. The tragic irony is that home schooling is not child abuse; on the contrary, home schoolers who are subjected to this humiliating process are often among the most conscientious of parents.
Once the legal apparatus of the state is unleashed, many home schoolers are ill-equipped to resist effectively. Although most cases can be resolved by a simple phone call to the prosecuting officials from an attorney explaining the parents’ rights, this frequently doesn’t happen, for a variety of reasons. First, by definition, most home schoolers are one-income families since one parent stays home to educate the children; and for this reason many cannot afford attorneys. Second, few attorneys are experienced in home schooling cases. The issues involved are complex, combining elements of such disparate legal fields as constitutional, family, and criminal law; and it costs money to give a lawyer time to develop his expertise. Third, many home schoolers attempt to represent themselves, using one of the numerous home schooling legal defense manuals available. Unfortunately, these manuals often ill serve the home schoolers by misstating the law, and of course they cannot teach people how to practice law. Consequently, many home schoolers are overmatched by skillful prosecutors, and thereby lose not only their cases—and sometimes their children—but also create adverse precedent by which other home schoolers may be bound.
Home schooling will continue to be a risky enterprise in many jurisdictions unless and until the courts definitively address the nature and extent of the rights involved. The preferred course of action is legal reform; but without judicial intervention, states may continue to enact arbitrary laws, and local school districts may continue to intimidate home schoolers with impunity, regardless of how capable and successful the home schoolers are at educating their children.
A number of constitutional arguments can be made on behalf of home schoolers, but two in particular provide the best prospects for success. For those parents whose religious beliefs impel them to teach their children at home, the First Amendment may provide a viable defense. This issue was presented to the Supreme Court in Wisconsin v. Yoder in 1972, but its holding of the case is extremely narrow due to the facts. In the Yoder decision, the Supreme Court ruled that Amish parents could remove their children from formal schooling after the eighth grade and teach Amish values and skills, notwithstanding a state statute requiring attendance in a public or private school until age sixteen. The Amish parents, who were convicted of violating this law, were precluded by their religious tenets from satisfying the “substantially equivalent education” exception to the compulsory education law, since they fundamentally objected to the nature of the high school-level schooling required by the state.
The Court determined that the parents satisfied the requirements of the First Amendment by demonstrating that their actions were a consequence of their deeply held religious beliefs. Although the Court noted that the state could permissibly impose minimum educational stan dards and compulsory attendance requirements, it concluded that the state’s interest in requiring additional years of formal schooling was outweighed by the parents’ religious beliefs, particularly where the parents provided adequate, if informal, vocational training at home consistent with their religious views. As Justice Stewart explained in his concurring opinion, “Wisconsin has sought to brand these parents as criminals for following their religious beliefs, and [it] cannot constitutionally do so.”
The Yoder decision was certainly good news for home schoolers, but its impact is limited by the narrowness of the Court’s decision. The Court relied upon the unique characteristics of the Amish beliefs and lifestyle, and addressed home schooling only at the high school level.
Moreover, the First Amendment is of little value to those home schoolers whose actions are not impelled by religious beliefs. The strongest constitutional argument on behalf of home schoolers in general rests upon the Fourteenth Amendment, under which the Supreme Court recognized in a trilogy of cases during the 1920s—cases that the Court reaffirmed in Yoder—that parents have a right “to direct the upbringing and education of [their] children.”
The first of these cases, Meyer v. Nebraska, involved the criminal conviction of a school teacher who violated a law prohibiting instruction in German to students below the eighth grade. The Court struck down the law, holding that the teacher’s “right . . . to teach and the right of parents to engage him to so instruct their children . . . are within the liberty of the [14th] Amendment.”
The Court invalidated an even more authoritarian enactment in Farrington v. Tokushige in 1927. The case involved a Hawaii law regulating the affairs of foreign-language (i.e., Japanese) schools. The law limited attendance to one hour per day; empowered the Department of Public Instruction to control curricula and textbook selection; required permits for the schools and their teachers as well as disclosure of the identities of the students; and compelled the teachers to sign an oath pledging to “direct the minds and studies of pupils . . . to make them good and loyal American students.” The Court concluded that the law violated the individual liberty guaranteed by the Fourteenth Amendment since “it would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful.”
The most pernicious deprivation of educational freedom, however, was a state statute prohibiting attendance in any non-public school whatsoever, which was struck down in the landmark Pierce v. Society of Sisters case in 1925. Justice McReynolds proclaimed the vital doctrine that provides the greatest hope for home schoolers today:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public school teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
The jurisprudence of the Pierce era represented the high-water mark for judicial protection of substantive liberty, but the courts have frequently reiterated these principles in subsequent cases. However, until the Supreme Court directly rules on the constitutionality of laws that prohibit or unreasonably restrict parents who choose in good faith to educate their chil-dren at home, such laws will continue to flourish and to deprive parents and children of precious liberties.
A Matter of Civil Rights
The spectacle of a parent being hauled off to jail and deprived of the custody of his or her children—not because the parent is not fulfilling basic responsibilities, but because he or she is doing so, perhaps quite successfully, in a manner that offends some members of the com-munity- is repulsive to the fundamental concept of freedom in America. As a nation, we have chosen to entrust the upbringing of children to parents rather than to the state, a choice that distinguishes ours as a free society.
Where home schooling is tolerated, meanwhile, many young people are obtaining a high- quality education while forming a bond with their parents that should constitute an ideal in a family-oriented society such as ours. And where governments do not obstruct good faith home schooling, they can devote their full resources to matters, such as child abuse, that deserve far greater attention than they presently receive. Clearly, our present quest for education reform should include a relaxation of laws that limit or prohibit the home schooling option—not only because government is failing to educate children successfully, but as a matter of right.
The persecution of home schoolers is one of the gravest deprivations of civil rights in America today. The issue can easily be resolved, however, if only we apply the basic principles on which our nation’s moral claim is staked.
Education and the State
Once the State has accepted full responsibility for the education of the whole youth of the nation, it is obliged to extend its control further and further into new fields: to the physical welfare of its pupils, to their feeding and medical care, to their amusements and the use of their spare time and, finally, to their moral welfare and their psychological guidance. Thus universal education involves the creation of an immense machinery of organization and control which must go on growing in power and influence until it covers the whole field of education and embraces every form of educational institution from the nursery school to the university.