A Harvard Law School professor is calling for what she calls a “presumptive ban” on homeschooling nationwide.
Elizabeth Bartholet, an expert on children’s rights and reproductive technology, makes the case in a recent law review article for changing the system in the United States from assuming that parents can homeschool their children to assuming that parents should have to prove to government officials why they should be allowed to do so.
“The new regime should deny the right to homeschool, subject to carefully delineated exceptions for situations in which homeschooling is needed and appropriate,” Bartholet writes in The Arizona Law Review. “Parents should have a significant burden of justification for a requested exception. There is no other way to ensure that children receive an education or protection against maltreatment at all comparable to that provided to public school children.”
Bartholet argues that homeschooling often leads to inadequate education, allows abusive parents to get away with abusing their children because public school teachers aren’t aware of what’s going on in the home, and prevents children from learning democratic values of tolerance and from being exposed to beliefs other than those of their parents.
“A large percentage of homeschooling parents are committed to teaching their children that these kinds of democratic views and values are wrong, and to raising their children so that they will stay true to their parents’ beliefs and lifestyle. Parents who are ideologically committed to raising children in isolation from the larger society, with views and values counter to much of the education provided in public schools, are not going to be willing or able to provide an education comparable to what schools provide,” Bartholet argues. “Parents who are committed to raising their children so that they will stay within the parents’ culture and community are not going to educate their children so that they can exercise choice about their future, including the choice to exit.”
Bartholet is a professor of law at Harvard Law School and the faculty director of the Child Advocacy Program at the law school.
Homeschooling, she says in the law review article, is dominated by what she calls “religious ideologues.” Some, she says, “fled the public schools” in part “because of increasing racial integration, gender equality, sex education, and acceptance of gay and lesbian sexual orientations.”
The result of homeschooling is bad for children and bad for the country, she says.
“The nature of the homeschooling population presents dangers for children and society. It means that many of the children involved will not be prepared for participation in employment and other productive activities in the mainstream world. It ensures that many will grow up alienated from society, ignorant of views and values different from their parents, and limited in their capacity to choose their own futures. It subjects many to serious health risks,” she writes.
Bartholet cites several academics who in recent years have called for restricting or even prohibiting homeschooling.
“But it is the conservative religious homeschoolers that engage aggressively in the courts and legislatures and overwhelmingly dominate policy advocacy. They are well financed, organized, and passionately motivated to push their particular cause. As a result, like the gun lobby, they wield political power vastly disproportionate to their numbers,” Bartholet writes.
Bartholet argues that homeschooling supporters’ aggressive lobbying makes attempts to restrict homeschooling by getting a bill passed by a state legislature or by Congress unlikely. She also doesn’t hold out much hope for the U.S. Supreme Court, arguing that the court doesn’t have much appetite for expanding the realm of individual rights (in this case, children’s rights), in part because of the U.S. Constitution’s structure of “negative rights” – things the government can’t take away from people.
“The best hope now for any litigation strategy lies in the state courts,” Bartholet writes.
The reason is that many state constitutions contain what she calls “positive rights” – meaning things the government has to provide. Some state constitutions set forth general standards in language not closely defined that state courts can interpret expansively.
One example is the right to education, which state constitutions generally guarantee. Education is not mentioned in the federal constitution.
“These state constitutional provisions on education provide a strong basis for challenges to the homeschooling regime. They also provide a basis for finding education to be the kind of fundamental right protected under the substantive due process and equal protection clauses that are contained in state as well as federal constitutions,” Bartholet writes.
Favorable state court rulings could eventually lead to a favorable ruling from the federal Supreme Court, she says.
“State court decisions based on state constitutions can eventually provide evidence of the kind of national consensus that often helps the Supreme Court find new meaning in the Federal Constitution,” Bartholet writes.
What’s at stake?
Children have rights that may conflict with what their parents want, the law professor says, and she is troubled by what homeschooled children may be losing.
“Many homeschooled children miss out on exposure to others with different experiences and values. Most all miss out on extracurricular activities like student government,” she writes. “A very large proportion of homeschooling parents are ideologically committed to isolating their children from the majority culture and indoctrinating them in views and values that are in serious conflict with that culture.”
She identifies white supremacy, beliefs that women should be inferior to men, and valuing the Bible over the scientific method as common among a significant group of homeschoolers.
She envisions tight control in the future over what parents can and can’t choose for their children’s education.
“Regulation should be designed with a view to effective enforcement. Policymakers must structure systems that are easy to implement, with clear rules leaving limited room for resistance,” she writes.
School-administered tests and home visits at least twice a year should be required to make sure any homeschooling parents are meeting the local public school district’s standards, she says.
“If deemed appropriate based on suspected problems, visits shall be without prior warning and without consent,” Bartholet writes.
Parents would not be able to use homeschooling as a means of controlling what vaccines their children get.
“Parents must satisfy basic vaccination and other health-related requirements,” Bartholet writes.
She acknowledges that the new system she envisions might result in some parents who should be allowed to homseschool not being allowed to do so.
“Nonetheless, the costs for children in a system of restrictive regulation are limited. Most children will do all right in public schools, even if some of them might do better if homeschooled,” Bartholet says. “And parents will be free to make up at home what their children are not getting at school.”
Parents would still be the dominant factors in their children’s lives, she says, citing a study calculating that kids in public schools spend no more than one-fourth of their waking hours per year in school. But she approvingly quotes another commentator who argues that parents ought not have monopoly control over the minds of their children.
“Monopoly control by parents or by religious groups is very different from freedom to resist monopoly control by the state. Religious and cultural groups that deserve to survive will survive, even if their children are exposed to the larger society’s views and values,” Bartholet contends.
Toward the end of the article Bartholet suggests that “Some private schools pose problems of the same nature as homeschooling,” and that “Policymakers should impose greater restrictions on private schools for many of the same reasons that they should restrict homeschooling.” But she doesn’t spend much time on the topic, noting that private schools are already somewhat regulated by the state, and that — unlike homeschooling — they have been declared by the federal Supreme Court to be protected by the federal constitution.
Harvard Law School’s Child Advocacy Program, which Bartholet runs, is planning an event in June that it calls “Homeschooling Summit: Problems, Politics, and Prospects for Reform.” The event is scheduled to have 16 speakers and to run Thursday, June 18 and Friday, June 19.
