Kimberly Yuracko, at Northwestern Law School, has just posted on SSRN a fascinating and provocative paper titled Illiberal Education: Constitutional Constraints on Homeschooling. Here’s the abstract:
Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over a million children are currently being homeschooled. Although homeschoolers are a diverse group, the homeschooling movement has come to be defined and dominated by its fundamentalist Christian majority many of whom choose to homeschool in order to shield their children from secular influences and liberal values. In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups. Surprisingly, the legal and philosophical issues raised by homeschooling have been almost entirely ignored by scholars.
This paper seeks to begin to fill this void by making a novel constitutional argument. The paper relies on federal state action doctrine and state constitution education clauses to argue that states must — not may or should — regulate homeschooling to ensure that parents provide their children with a basic minimum education and check rampant forms of sexism. This paper argues, in other words, that while there is an upper limit on how much states can constitutionally regulate and control children’s education, there is a lower limit as well. There is a minimum level of regulation and oversight over children’s education that states may not with constitutional impunity avoid.
It is extensively researched and elaborately argued, and is well worth a read by those with a variety of constitutional interests: in state action doctrine, in constitutional enforcement, and certainly those with an interest in law and education and (although more on this later) law and religion. (Take it away, MOJ!) Yuracko makes a reasonably convincing argument on policy grounds that the states and Congress have abdicated a “duty,” of some sort, to ensure that homeschooling meets at least miminal educational desiderata, at least through a reasonable testing mechanism.
Her broader argument that this is, in fact, constitutionally required, is far more contentious and deserves attention, if only to tease out the implications of the piece. For instance, once having attempted to bring homeschooling under the constitutional umbrella, Yuracko argues that the state is constitutionally obligated to ensure that homeschoolers do not treat girls differently from boys. If it’s a question of ensuring equal resources, this is a less controversial move, if you buy the initial moves that turn homeschooling into a constitutionally relevant area in the first place.
But she also argues that the state may be obliged to “preclude the teaching of certain counterfactual claims such as the natural superiority and inferiority of the races or the danger to women’s health of intellectual development. In addition, the basic minimum [educational standard required by the state and federal constitutions] may limit the extent to which parents may teach their children idiosyncratic and illiberal beliefs and values without labeling or framing them as such.” So, in Yuracko’s argument, there is a constitutional obligation for the state to ensure not just that homeschooled kids receive at least a minimally competent education, but also to ensure that they receive at least a minimally liberal education. That is controversial.
Given the breadth of the argument, which surely could apply not just to questions of race and gender but also questions of what moral or religious lessons children are being taught, I might have expected a good deal more discussion of any countervailing First Amendment speech or religion claims here, although the paper’s cup already runneth over. And this little statement, tucked away early on, should also be provocative to readers on MOJ and elsewhere: the paper “highlights the legal distinctness of parents and children and emphasizes that parental control over children’s basic education flows from the state (rather than vice versa).”
A lot to chew over. I commend to readers this elaborate and interesting piece, regardless of one’s ultimate views about its arguments and implications.
Posted by Paul Horwitz on June 1, 2007 at 09:29 AM
» Homeschooling and state regulation from Good Will Hinton Over at PrawfsBlawg, they’ve been discussing this paper arguing for a state constitutional duty to “regulate homeschooling to ensure that parents provide their children with a basic minimum education and check rampant forms of sexism.” The paperhighlig [Read More]
Tracked on Jun 2, 2007 2:37:52 PM
» Homeschooling and the state from Joe Knippenberg Over at PrawfsBlawg, they’ve been discussing this paper arguing for a state constitutional duty to “regulate homeschooling to ensure that parents provide their children with a basic minimum education and check rampant forms of sexism.” The paper [Read More]
Tracked on Jun 2, 2007 3:28:16 PM
» November 7 roundup from Overlawyered “I’ve always thought that promoting yourself as a ‘Super Lawyer’ or ‘Best Lawyer’ was pathetic, self-aggrandizing and meaningless.” [Larry Bodine; Karen Donovan, Portfolio (“cheesiest”); ABA Journal] That big campaign by bossy public health groups and… [Read More]
Tracked on Nov 6, 2007 10:47:46 PM
Comments
Homeschooling is a good way to protect your children at a young age from the outside world. We suggest a familiy-filter for those parents who let their children use the internet.
Posted by: Annemarie Gastouder | Jan 11, 2008 12:19:20 PM
Children can easily learn a lot, and homeschooling can be a very good way to reach that goal. Many interesting sites can contribute in the learning process at home, like some sites give prove to that. E.g. the website in The Netherlands of a non-profit organisation http://www.geschilonline.nl. Soon all the text will be in english as well. Have fun exploring the site, leave your comments and we can all learn a lot. Regards, Ronald Scheer
Posted by: Recht | Dec 13, 2007 9:59:09 PM
The bottom line is that the professor is concerned that home schooled children are not being indoctrinated with the appropriate liberal orthodoxy that pervades state sponsored education. Parents have every right under the first amendment to avoid this manipulation of their children. So long as the home schooled child can meet or exceed the objective academic standards required in the several subject areas, it is no business of the state what values parents pass on to children so long as parents do not instruct their children to violate the law. The state has no more right to demand that home schooled children be educated in liberal values than it has to mandate conservative values.
Posted by: William Garland | Nov 14, 2007 3:14:42 PM
I have a simple way of satisfying Professor Yuracko’s concerns. We can mandate that all homeschoolers attend the University of Delaware so that they can be reeducated.
Posted by: Richard Nieporent | Nov 7, 2007 8:55:09 PM
I can’t believe that this gets past peer review in a legal journal:
“In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups.”
Normally, I am the first to cry foul on usenet or in an internet forum when someone tries to rebut someone else with the grammar-nazi tactic. But, this is supposed to represent professional scholarship! Where are the damn commas! It’s like showing up to a job interview in sweats. But, this person/topic must be some kind of darling of the editorial staff since she “got the job” anyway.
Posted by: Adrian | Nov 7, 2007 1:36:06 PM
“check rampant forms of sexism”
Good grief. I don’t care how intelligent this poor woman thinks she is; that line alone tells me she hasn’t the slightest clue what she’s talking about. Rampant? RAMPANT? This would be laughable if it weren’t so potentially harmful to the homeschool community as a whole.
Posted by: Jennifer | Jun 11, 2007 1:07:06 PM
People who oppose homeschooling should take a hard look at why people are turning to this alternative. It’s because they’ve lost faith in the system. *** A system which itself supports many of the ideas Yuracko might dislike — sexism, racism, classism. A system which itself has a difficult time defining what should and should not be included in a science class. A system not built on serving each individual child’s needs but on preserving itself.
Is it any wonder many of us have left?
Nance
Posted by: Nance Confer | Jun 7, 2007 9:32:21 AM
Coming from a pure policy/social perspective, and not being an expert in Constitutional law, I really have a hard time justifying the state putting all of these resources into monitoring homeschoolers to the extent the authors desire. Evolution took up about one third of a semester of my public high school education, and I’m not really sure what compelling state interest there is in making sure that girls are being encouraged to take home ec while the boys are encouraged to teach shop.
I happen to know quite a few of homeschoolers. A few are socially awkward, but most are not at all. People who oppose homeschooling should take a hard look at why people are turning to this alternative. It’s because they’ve lost faith in the system. The state arguably has some important interests in childhood education–literacy, the ability to write and perform mathematics, having the basic skills to function in society. However, it sounds to me like the author thinks that when a family teaches their little girls that she should be a stay-at-home mother (or something like that), then they have the right to intervene.
The real rationale behind this has nothing to do with constitutional jurisprudence–it has everything to do with viewing homeschooling as an institution which transmits values contrary to modern liberalism–Yuracko does not like that, and instead of using the free marketplace of ideas, she’d rather use coercive state power to control individuals often misunderstood.
Posted by: Don Altabello | Jun 6, 2007 4:54:43 PM
to conceive of education as wholly the state’s province (which it might by grace farm out to parents) is totalitarian in principle.
For some reason, people seem to have no trouble recognizing this principle as to one particular subject in which people often educate their children: religion.
Posted by: Stuart Buck | Jun 4, 2007 2:22:35 PM
Tom Berg — one other troubling implication of the state action argument (which is troubling enough in the schooling context): If private individuals become state actors whenever they engage in an activity within their own family that often is done by the government, then people would become state actors when they provide monetary assistance to their elderly parents (cf. Social Security and Medicare).
Posted by: Stuart Buck | Jun 4, 2007 12:51:59 PM
I read Professor Yuracko’s article with interest and with a great deal of initial sympathy as I too am skeptical of a legal regime that allows for the substitute of an unregulated and unaccountable home “education” for actual schooling. In large part, I was disappointed with the article. I largely agree with the commenters who think that its use of constitutional doctrine was selective and its tone was very much that of an appellate brief. I think it is a stretch to say that existing constitutional doctrine mandates a decision that the state must regulate home schooling (though I do think the article makes a credible case that a decision is with the realm of permissible outcomes given the current state of constitutional doctrine).
Towards the end of the article, Professor Yuracko hinted at another direction the artcile might have gone that I think would have been more fruitful. There, she suggests that the arguments in the piece were perhaps best directed at conscientious legislators committed to doing their constitutional best. I think it is possible that there are strong constitutional values and precepts that require a legislator genuinely commmitted to our Constitution to support some relatively minor restrictions and oversight for home schools to ensure the prerequisites of democatic citizenship and a base equality of opportunity. To get there though, you need to provide both an account of the Constitution’s normative content and a theory of the degree to which this content binds legislators (a la Larry Sager). Obviously, neither is at the heart fo Professor Yuracko’s project.
Posted by: Andrew Siegel | Jun 4, 2007 11:30:04 AM
Paul, here’s my reaction as an MOJ-er (Mirror of Justice blogger).
First, a comment on evidence not theory: Prof. Yuracko seems to think that the studies showing homeschoolers doing well educationally are undercut by a selection bias of “family characteristics of the home schooling and non homeschooling families being compared.” But this makes no sense. If homeschoolers do better than (or as well as) non-homeschoolers, what does it matter whether that’s because homeschooling itself works better or because families who are inclined or willing to homeschool tend to have certain educationally positive characteristics? We’re not doing a scientific study to isolate the educational effect of homeschooling vs. institutional schooling; we’re discussing whether homeschooling as an overall institution needs more regulation. It seems to me, from anecdotal evidence, that homeschooling has a self-limiting nature that tilts it toward adequate education: i.e. parents drawn to it will tend to have energy for teaching their children well, because otherwise it would be a lot easier just to shoo them out the door to school.
On the legal theory: I can see a basis for the narrow state constitutional argument Prof. Yuracko makes, at least under a provision that requires that the state ensure an adequate education for all children and not simply (as many do) that the state provde adequate free public schools. It is not an outlandish argument to conclude that in some states, some review of homeschooling limited to basic adequacy in non-ideological terms — e.g. through yearly testing — is a constitutional duty.
But the far broader claim that the state has the whole control over education and the parents are merely delegated a role on this and thus are state actors — as the latter part of the article argues — is a huge and unwarranted leap. The long history of private and home education — extending both before and after public schooling, the 14th Amendment, and the state education provisions — shows this. Pierce v. Society of Sisters rested on this history and on the recognition that to conceive of education as wholly the state’s province (which it might by grace farm out to parents) is totalitarian in principle.
In addition, if parents are state actors when they homeschool, it’s unclear why they wouldn’t also be forbidden to promote their family’s religious faith in the course of schooling, forbidden to restrict their children’s expression of viewpoints during the schooling period, and required to provide due process (notice and some kind of a hearing) before punishing their children in away related to their homeschooling conduct, etc. I don’t see that the article really distinguishes other constitutional norms other than basically saying “race and sex nondiscrimination are really important.” In that sense I agree with Stuart that the article seems results-oriented: the theory would prove far more than the article’s conclusion, and the attempts to confine the conclusion have a strong air of ad hockery about them.
Posted by: Tom Berg | Jun 4, 2007 10:44:24 AM
A HomeSchooled thirteen year old from Danville, California won the Scripps National Spelling Bee Contest last week. The Main Stream Media I am sure inadvertently forgot to mention this in their stories about the Contest. Three of the top seven finishers were homeschooled. Homeschoolers over the past 15 years have consistently placed at the top of the Scripps National Spelling Bee. On top of that Home Schooled Children consistently beat out public and private schools children in things like the SAT, Stanford and Iowa Tests. Schooling is about reading, writing and arithmetic – not about teaching family or moral values. Since home-schooled kids consistently do better than their public schooled counterparts, I would deem it safe to say that homeschooling works. What doesn’t work for the Hitlery Clintons and members of the Teachers Unions of this world (No such thing as individuals – just one society – sounds like Karl Marx to me) is that they lose mind control over influential minds. They don’t want kids who grow up and question “their values”. I will file your posting under the 113,424th reason I homeschool my child.
Posted by: cowgirl | Jun 4, 2007 10:21:17 AM
Check out the documentary “Jesus Camp” for a small taste of what some evangelical homeschoolers are teaching their children – namely that evolution is a stupid and impossible theory, that global warming is not real, and that Galileo made the right choice to forsake his science for religion. The film’s site is here: http://www.jesuscampthemovie.com
Posted by: Holly Lynch | Jun 4, 2007 10:17:14 AM
It seems her work is based on certain illiberal assumptions about the role of families and the freedom of religion. Likewise, it seems to flow from an anti-Christian bigotry.
Perhaps her writing is the kind of work that the state should prevent homeschoolers from teaching their children.
Posted by: Eric Enlow | Jun 4, 2007 2:28:59 AM
This article strikes me as entirely results-oriented, not as “scholarship” in the sense of any normal article in the physical or social sciences that tries to discover or elucidate something meaningful about the world or society (or even in the sense of being willing to explore an argument without a predetermined conclusion in mind). It’s essentially the argument section of an (over-length) appellate brief.
Posted by: Stuart Buck | Jun 4, 2007 12:13:56 AM
The article’s idea that the Constitution requires state or federal regulation of private conduct, like sexist home schooling curricula, seems utterly at odds with the Supreme Court’s DeShaney decision (which held that a state had no duty even to prevent a child from being killed by his guardian) and United States v. Morrison (2000) (which held that the Equal Protection Clause and Commerce Clauses don’t even authorize Congress — as opposed to state governments — to pass a law against rape, much less much milder forms of sex discrimination like the sexism involved in home schooling your son in shop and your daughter in home economics).
Nor does home schooling constitute state action subject to the Constitution merely because it is permitted pursuant to exemptions from compulsory school attendance laws.
Isn’t that what the Supreme Court’s decision in Corporation of Presiding Bishop v. Amos made clear, in upholding a broad exemption to the civil rights laws for religiously-owned corporations?
Posted by: Hans Bader | Jun 1, 2007 11:06:31 PM
Perhaps the author should give consideration to the idea that many families have a right not to have her values forced upon their children.
Just reading the post, the biggest problem I have with such an idea is the premise that the family is some sort of instrument of the state. If that’s the case–then it is little more than a utilitarian unit, subject to the whims of those currently in power who wish to disguise their current ideological hobby as some sort of “interest” which needs to be imposed upon the remainder of the population.
Posted by: Don Altabello | Jun 1, 2007 7:28:15 PM
My own “take” — based only on the abstract and Paul’s post! — is like Paul’s: Sure, governments may and should care about education, whether that education is taking place in state schools, non-state schools, or in the home. (That said, it seems to me far more likely that children in America’s state-run schools are being short-changed, in terms of “basic minimum education”, than are home-schooled children.) As Paul discusses, though, it appears that Kim is pushing the argument well past this non-controversial point. And, the claim that “control over children’s basic education flows from the state (rather than vice versa)” is, in my view, quite mistaken.
I wonder, isn’t Kim’s argument regarding a duty to regulate — and, more specifically, about a duty to protect children by preventing “sexist” education — exactly the argument pressed by Jim Dwyer, about 10 years ago, in “Religious Schools v. Children’s Rights?”
For what it’s worth, I’d recommend to anyone interested in this topic, and in Kim’s paper, Steve Gilles’s article, “On Educating Children: A Parentalist Manifesto” or maybe (shamelessness alert!) my own “Taking Pierce Seriously” (available on SSRN!).
Posted by: Rick Garnett | Jun 1, 2007 3:45:54 PM
I feel compelled, without having read the paper itself, toward the conclusion that miss kimberly is probably a more dangerous person than your average homeschooled evangelical christian. The argument that the state has the right and responsibility to constrain what parents may tell their children is frankly fascist and a blatant violation of every letter of the first amendment. Compulsory education seems to be on the very edge of constitutionality, and any further reaching is, if not in intent certainly in action, sinister.
Posted by: Colin Glynn | Jun 1, 2007 2:26:23 PM
Let’s say that hypothetically you disagree with the Supreme Court’s recent holding in 
