In 2014, homeschooling, if not exactly mainstream, has begun to lose its pariah status. When parents of elite child athletes and celebrities (such as actress Mayim Bialik) talk openly and positively about homeschooling experiences, and the N.Y. Times remarks upon the trendiness of homeschooling among educated parents, it’s hard to imagine how radical this choice once seemed.
But in the not too distant past (say, several decades), parents who took their kids out of school could be – and were – prosecuted. Once public education became compulsory as a matter of state law, the legality of home schooling was in question until one U.S. Supreme Court case – Wisconsin v. Yoder (about the right of the Amish to remove kids from public school) – upheld the right, largely on First Amendment free exercise of religion grounds.
Some conservatives maintain that the Yoder case is as much about a parent’s constitutional substantive due process right (meaning that the federal government needs a very good reason to take away your life, liberty, or property) to decide the manner in which to raise and educate a child. I don’t think this is clear; if there were a test case challenging a state ban on homeschooling, I’m not sure secular homeschoolers would win the day in federal court, provided that the law had an exception for religious objectors.
Common Core notwithstanding, however, our educational “system” still operates at the state level. And as a practical matter, states now let you decide where to educate your kid. The state determines how by setting the standards you must meet. Move to a different state, and you face a different set of standards (though in some cases, none at all).
How this works: depending upon your state law, you are typically either a private school or a statutory exception to your state’s compulsory attendance law. In most states, each status carries a certain regulatory burden, but if you meet the requirements, you’re OK.
That’s not to say that states couldn’t simply curtail homeschooling by regulating it to death. In some states (most notably, and recently, California and Ohio), legislators still periodically introduce bills intended to make it really difficult or impossible to home school (by, for example, requiring a teaching credential or a social work home visit). The motivation is understandable: think how often you read or hear a story about child abuse or neglect; invariably, the parents are self-described “homeschoolers.”
For example, last week our local paper reported about a family picked up by the marine police for living in squalor on a tiny, unheated sailboat anchored in a local creek. The kids weren’t in school, and the parents refused to name a state of residence, making it hard for Maryland to take legal action against them (apparently for the purposes of ed law, you don’t live in a state just because you sail your boat through its waterways).
This situation is tragic, but demands that someone state the obvious: not schooling isn’t homeschooling.
What’s more interesting to me, as a lawyer, is a different legal controversy involving home schooling. The facts (as reported) are interesting: a conservative Christian homeschooling family from Germany sought refugee status in the U.S. after the German government tried to compel the parents to put their kids in German schools.
German law prohibits homeschooling across the board; the family has religious objections. The German government sees compulsory education in a state-approved school as social insurance, reasoning that if parents can’t secrete their kids away and teach them bigotry and intolerance, no one can raise another generation of fascists.
Here in the U.S., the family’s asylum petition was rejected by the Board of Immigration Appeals, and the Sixth Circuit upheld the decision, concluding that although the family was prosecuted, it wasn’t persecuted: in Germany, everyone, regardless of religion, must go to school, and the family is free to teach whatever religious beliefs it wants – after school. Without fear of persecution, asylum isn’t an option under U.S. law.
An organization called the Homeschool Legal Defense Fund became involved in the case, filing a brief in connection with the family’s petition to the United States Supreme Court. The Court is expected to decide whether to hear the case this week.
This case, Romeike v. Holder, is about who gets asylum. It isn’t really about homeschooling, unless you think the Supreme Court is looking for a way to construe homeschooling as a fundamental right on a par with religious or political freedom. I don’t think they’ll get there, because the petitioner’s argument that lower courts apply the law unevenly seems a little strained (so the case may not get cert anyway).
To weigh the arguments, skip the media accounts and go directly to the wonderful SCOTUS blog, where you can see the status of the case and read the petitioner’s brief for yourself, along with the DOJ response.
And ponder the paradoxical nature of existing “homeschooling jurisprudence” in the U.S. Must we make homeschooling a religious issue to establish its constitutionality? Are parents who just want a better – or different – educational option entitled to the same legal protection as people who offer some religious or political motive?