The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.

-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia 

Fall
2013

State Interference with Parents’ Duties and Rights Over Their Children’s Education


Brian D. Ray


America’s founding and tradition and the current thinking of many of its citizens are consistent with the premise that people are free to pursue life, liberty, and happiness unless they are harming others while doing so. This free-of-state-control perspective includes the education and upbringing of children.

The correct and pertinent question in the land of the free and the home of the brave is not, for example, “Is it legal to operate a private school with three unlicensed teachers and 45 students?” or “Is it legal to homeschool?” The correct question is, “Does the state have a right or the moral authority to interfere with or make illegal the education parents decide to give to their children?”  Or, in other words, “Who should have first and final authority over a child’s education?”

Followers of classical liberalism would largely agree that the education of children should be under the authority and responsibility of their parents.1  Christians clearly understand that God gives to parents the duty to educate their children and the full authority over that education. Various forms of statism, however, claim that the state (statism’s devotees might claim it is “the people” if democratism’s majority decides thus) should and shall have final authority over a child’s education
and upbringing.

Either the family, with freely chosen associations such as extended family and church organizations, have crucial authority over a child’s education, or the state does. These are the only two choices. Some have argued that there are three stakeholders—that is, parents, state, and children—and that all three can in some way hold the authority.2  This claim does not hold legally, however, because for minors (in the United States) children essentially have no say in their education.

For over a century, the clearly prevailing view in the United States was that parents do and should have the ultimate authority over a child’s education and upbringing. The purpose of this article is to consider how the state (i.e., the government at the state and federal levels in the United States) implicitly and explicitly interferes with parents’ duties and rights over their children’s education in the realms of both public and private education/schooling in general, and upon homeschooling in particular.

History of Educational Freedom in the United States

From colonial times through the late 1800s, parents were clearly free to raise children as they so chose.3 Parents, in conjunction with volitionally chosen associations such as extended family, friends, and church brethren, controlled the education of children (the teaching and instilling of values, morals, ethos, knowledge, skills, and thinking patterns). There was a widely held presumption of freedom from state control over and interference with this most fundamental function of the natural family.

Eventually and gradually, the state began to take that authority from the people, families, and volitional associations. Those who believed they knew what was best for children and society began stirring public favor for education, via institutional schools, that would be more controlled by local government and less by parents. They wanted to make “good citizens” of children, after their conception of the “good society,” via teaching, training, and indoctrination of children in schools. They had to convince lawmakers and the public and courts that tax-funded schooling, common schools, was good, right, and not prohibited by constitutions. There was an historic and colossal society-wide debate.4 Statism prevailed, and classical liberalism and Christianity lost.

The establishment of common schools (i.e., state- or government-controlled schools) became widespread by 1900. By 1899-1900, 72 percent of 5- to 17-year-olds were enrolled in public schools, but their average attendance was still only 99 days per year.5 By then, public schooling had become predominant, and not long thereafter it possessed a near monopoly over the teaching, training, and indoctrination of children during the daytime Monday through Friday, about nine months per year. Along with the public schools came compulsory school attendance laws that were enacted from the early 1850s (e.g., Massachusetts) through the late 1920s (e.g., Alaska). That is, in most states, children were compelled to attend schools regardless of their parents’ wishes. Some observers realized that state-compelled funding (by the citizens) of state-controlled schools and compulsory attendance laws were a powerful tool to mold the thinking of each next generation of American adults, the soon-to-be policymakers, voters, taxpayers, business executives, teachers, and professors.6 Many warned that public schools would be used to form students’ minds, and some observers point out that from the very beginning tax-funded schooling, with its worldview of secular humanism and statism, was well on its way to becoming the established religion/church of America.7

After the educational freedom of the colonial period and up through about 1900, some Americans went so far as to try to ban private schooling. This effort eventually resulted in a U.S. Supreme Court decision ruling that states could not force children to attend public schools (Pierce v. Society of Sisters, 1925). Amazingly, the view that private education should be banned still exists today. Professor of law Martha Fineman, for example, writes that “… public education should be mandatory and universal.”8

Despite the efforts of some to ban or greatly restrict private education, the people of most U.S. states still enjoy moderate to high degrees of educational freedom. In some states, there are essentially no laws regulating private schools.9 Hammons carefully examines the degree to which the states control private schools with respect to factors such as accreditation, licensing and approval, transparency and reporting, curriculum and academics, and health and safety. The people of some states (e.g., Connecticut, Delaware, Florida, and New Jersey) enjoy nearly complete freedom regarding how they operate private schools and educate children, and parents are free to choose these schools, if they can afford the tuition after paying their mandatory taxes to support public schools. In other states (e.g., Alabama, Kansas, Maryland, Mississippi, North Dakota, South Carolina, and Washington) the people are highly controlled by the state through such mechanisms as mandated state certification of teachers, state accreditation of the school, requiring sex education or mandating the content thereof, and mandating state-selected tests to be used on students.

Overall, about 36 percent of the states apply no or close to no control over private schooling.10 Most Americans do not know that many, if not most, private schools are not controlled or regulated at all by the state. A closer look at Hammons’ analysis reveals that several states receive a lower mark regarding the extent to which they control private schools simply because “voluntary” actions by the private schools put them under more state control; considering this fact, about half of the states allow for nearly total freedom on the part of private schools. About half of the states control private schools in notable to very significant ways that interfere with parents’ duty and rights over their children’s education, however. The state curriculum, mandating that teachers be trained according to state beliefs, and also the accreditation of schools allows the state to control the things that parents should be free to control via their choice of a private school.

Homeschooling

For millennia around the world, parent-led home-based education for children was the norm. It was private, not tax-funded, and not state-controlled. Parents and their freely chosen associations decided how to educate and bring up their children.

Americans were largely free to practice homeschooling until the late 1800s, but this basic freedom was stolen from the people in many states by the early 1900s. During the 1980s and 1990s, however, following many legal battles between parents and states, the right to homeschool was returned to many. During 1947 to 2009, 40 states adopted homeschool-specific statutes or regulations.11 Some states, such as Oklahoma, never needed a homeschool law because the state explicitly or implicitly recognized the parents’ right to homeschool. Oklahoma, in fact, has a constitutional provision guaranteeing the right to homeschool. Some states (e.g., Massachusetts, New York, Pennsylvania, Rhode Island, and Vermont) mandate stringent and detailed controls to the education provided to children by parents who choose homeschooling, while other states essentially allow parents complete free exercise of their educational duty and right (e.g., Alaska, Idaho, Illinois, Oklahoma, and Texas).12

Overall, however, homeschooling is more controlled and restricted in the United States than is private institutional schooling. That is, the state interferes more with parents’ duties and rights when they choose homeschooling than when they choose private institutional schools, despite the fact that both are non-government and non-tax-funded education.
For example, if a father goes with the majority approach and the essentially default position in the United States of enrolling his child in a public school, he essentially hands his son or daughter over to the state to do whatever it thinks is good and right for molding a citizen. All the father must do is get his child to the school bus stop or to the school door and his work is done for the day (and about 179 more days of the year). If, on the other hand, the father chooses homeschooling, he must learn the homeschool law, decide whether to follow the law, pay for his daughter’s curriculum materials and services in addition to having already paid his taxes for the public schools he is not using, and spend the time and energy planning for and teaching his daughter. The very fact that the father must worry about a law and its attendant regulations and pay for public schools interferes with his duty and right regarding his daughter’s education. These things encumber, among other things, the parent’s time, his energy, his work, and his property.

A second concrete example is relevant to five states (Connecticut, Indiana, Kansas, Maine, and New Jersey) that require instruction or amount of time to be “equivalent” to that of the public school.13 A homeschooling mother should be able to decide on her own how much instruction time to give to her son, or what type of instruction to give him to help him meet her and her husband’s objectives, or their son’s objectives, for learning and developing knowledge and skills for a successful life. In these states, the mother is legally required to jettison her judgment and submit to the state’s judgment.

Three states (North Dakota, New York, and Pennsylvania) impose high-school graduation requirements on homeschoolers.14 New York requires four credits of English, four credits of social studies, two credits of math, two credits of science, one credit of art or music, half a credit of health education, two credits of physical education, and three credits of electives. What gods decided these things are necessary for an American to be sound and successful at meeting her (or God’s) goals in life?  Perhaps half of the time and energy that might have been put into these state-mandated studies should have been put into starting a business or doing volunteer work at a local community center or with a church. The parents’ duty and right is thus disturbed.

Two states, Massachusetts and Rhode Island, require homeschools to be subject to the discretionary “approval” of the local public school district, school board, or state commissioner. The potential homeschool parent must satisfy, appease, or make happy the state before he or she is allowed to homeschool. This kind of “approval” law creates psychological distress in parents and reduces the time and energy that they have for the education of their children. It also can and has led to adversarial relationships and even litigation between the state and the citizen. This kind of “approval” law begs the question, If a state is to be fair and reciprocal in its dealings with the people it is supposed to serve, then should not the parent have to give “approval” of any state school that a child might have to attend? No such law exists in Massachusetts or Rhode Island, or anyplace else in the United States.

Nine states require a parent to have either a high-school diploma or a GED certificate.15 Having one of these certificates, however, does nothing to guarantee a parent will be a good, or even adequate, homeschool teacher. The requirements are not based on any incontrovertible or even solid empirical research. Further, there are likely many thousands, if not millions, of Americans who have neither of these certificates and whose children would yet fare better when compared to thousands of graduates of state secondary schools. Finally, and most importantly, such a state requirement again loads unnecessary burdens and time commitments on parents who may have, for various reasons, never earned a high-school diploma or GED and would not want to do so in order to legally homeschool their children.

A final example of state interference in homeschooling is that 24 states require standardized testing or evaluation if the family is operating under the homeschool law.16 For example, Arkansas requires homeschool students to be given standardized academic achievement tests through the local public school or state-approved alternate testing procedure in grades K to 9. Requiring use of standardized tests is, ipso facto, proof that the state places a very high value on what they test and what the scores tell the state. All tests are affected by the value systems of those who design them or approve of them; these value systems might be antithetical to those of the parents required to use them. In addition, experts in measurement and evaluation know that single test scores should not be used as the main criterion for deciding significant things for a child’s life. Furthermore, the homeschooled child’s test scores in some states are used in an unjust and prejudicial manner. In Oregon, for example, if the scores are below a certain level, the state might be able to order the child out of homeschooling and into public or private institutional schooling. No laws or regulations like this apply to public-school students; that is, if a public-school student’s scores do not meet certain criteria, the state does not force that student to attend private school or be homeschooled. These testing controls by the state interfere with parents deciding what is best for their children.

Not only do such state controls over private education interfere with parents’ right and duty, but they interfere directly with children’s and young adults’ life, liberty, and pursuit of happiness. To various degrees, the state controls how the 7-, 12-, or 17-year-old homeschooled student spends his days despite the facts that his parents did not submit him to public teaching and the student may not enjoy or believe he needs certain values or skills instruction. Only a worldview that is basically statist can conclude that the state, rather than the young adult or his or her parents, is fundamentally better equipped with rights, responsibilities, and wisdom to determine what is good and proper for a person’s human development, success, and happiness.

So in the United States, the alleged land of the free, parents in only about 20 percent of states are basically totally free to home educate their children as they deem right. In the others, the state asserts that it has primary authority over a child’s education.

Laws that control homeschooling imply several things. The first clear implication of state control over children’s education is that citizens are not really free in a nation where founding documents declare that “ . . . all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men . . . ” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; that is to say, the state is free to do whatever it wants to control people through legislation unless the citizen can show that his home state’s constitution is being clearly violated. The burden of proof is wrongly placed on parents to show they are educating their children the way the state deems correct.

Also implied is that the state knows better than parents and families’ voluntary associations what is best for children—the state cannot trust parents to have their children’s best interests at heart. Laws interfering with parents’ duties and rights regarding education imply that parents should look to the state to determine what is best for children. This undermines parents’ beliefs that they have the knowledge and wisdom to properly raise and educate their children. In addition, the laws imply that whether parents do or do not do their best for children, the state is needed to protect children, a priori, from parents’ misdeeds or negligence.

These controlling educational laws not only place on parents the burden of proof that children are learning or being properly “socialized,” but they unfairly and unjustly do not place the same burden of proof on the state regarding children that are enrolled in public schools. Public teachers are not dismissed and public-school students are not mandated to attend private schools or to be homeschooled when the students are not performing at or above a certain percentile on standardized tests or doing poorly socially.

Next there is the implication that it is good and acceptable for the state, via control of home education, to take away parents’ time (that could be used for raising children, earning money, gardening, adult continuing education, etc.), intimidate or harass parents, make homeschooling less attractive, promote the cult of professionalism, and support the near-monopoly of public schooling (about 87% of U.S. students attend them).

Finally, laws controlling homeschooling imply that the state does not need empirical evidence to support its interference with parents’ rights and duties, but parents need empirical evidence to gain or re-gain state respect for and allowance of their rights to be exercised. For example, there is no sound evidence that controlling a parent’s “qualifications” (a high school diploma, a GED, a university degree) is necessary to assuring that the homeschool-student population will do at least as well as the state-school student population. Nor is there any research demonstrating that the state needs to control homeschooling or its curriculum so that adults who were home educated will be decent, civil, and respectful, as some critics claim.17 In reality, research for three decades has shown average to above-average positive things to be associated with homeschooling.18

What Should Be Done?

It is clear that the state at all levels of government has long interfered with the duty and right of parents to educate their children. What should be done by those who are adherents of classical liberalism and biblical scripturalism and advocates of the natural family?

First, these people should be zealous in explicating and transmitting their worldview to others. They need to help people see that state control of education and interfering with parents’ duties and rights is always philosophically based, as are all fundamental positions about important things. One must make it simple and clear, to anyone who wants to live in a free society, that all education/schooling—whether in public schools, private schools, or homeschools—is the teaching, training, and indoctrination of children, the future citizens of any nation or kingdom, whether worldly or heavenly.

Next, advocates of freedom and parental duties and rights must recognize that any concession that the state should have authority over a child’s education is essentially a concession that the state may have all authority over a child’s education. For an understanding of this principle, consider the current and breathtaking example of the German state forcibly taking children away from their parents and family for the alleged crime of homeschooling.19 There is no uncontested middle ground over who has authority over a child’s education. The field of authority over the teaching, training, and indoctrination of children is a dangerous one on which to compromise.20

Along with the recognition of the danger of assigning authority over children’s education to the state, advocates of freedom and the natural family should seriously consider keeping or regaining total freedom for all private education, whether institutional private schools or homeschooling in their own nations (or state/canton/county jurisdictions within nations). The state should not be allowed to control or regulate private education, but only those schools funded by the people via taxation. Unfortunately, advocates of educational freedom must dedicate time, money, and energy fighting proposed bad legislation or changing existing bad legislation. The state is powerful, and it takes much work to keep it in its rightful place. Such work is not anti-state but for the people and for a limited state.

Finally, those who believe in fundamental parental duties and rights regarding children’s education and upbringing should give serious thought to repealing compulsory school attendance laws. If such a law did not exist in a given state, then that state would essentially have no authority over a child’s education. Many observers, both American and otherwise, believe that the people of the United States were a largely moral, industrious, and well-educated people comprising an influential nation long before compulsory attendance laws existed. In addition, the repeal of such laws would not interfere with the state making tax-funded state schools available to the people if the people continued to want them.

Private education should be free from state control—this is what classical liberalism, scriptural Christianity, and natural-family theory posit. Contrariwise, various forms of statism, tyranny, and despotism and the results of some democratism want the state to control children’s education. Private institutional schooling and homeschooling in the United States are not as free as some might believe. Various laws that control such schooling are all, to one degree or another, interfering with the duty and right of parents to direct the upbringing of their children. Compromising with the state in this area, in any way, is dangerous. A free people who believes that parents, and not the state, should control the teaching, training, and indoctrination of children must diligently educate their own children, their neighbors, the media, policymakers, and legislators, and must constantly be vigilant to gain and protect a pure and effective parental duty, authority, and freedom over children’s education.

Brian D. Ray, Ph.D., is the president of the National Home Education Research Institute.


1 Murray N. Rothbard, Education: Free and Compulsory (Auburn, AL: Ludwig von Mises Institute , 1999, originally published in 1971 in The Individualist), Web.

2 Rob Reich, “The Civic Perils of Homeschooling,” Educational Leadership 59.7 (2002): 56-9.

3 Cf. Brian D. Ray, “Evangelical Protestant and Other Faith-Based Homeschooling,” in Praeger Handbook of Faith-Based Schools in the United States, K-12, eds. James C. Carper & Thomas C. Hunt (Santa Barbara, CA: ABC-CLIO, 2012):123-35.

4 Cf. William Bentley Ball, Mere Creatures of the State? Education, Religion, and the Courts, a View from the Courtroom (Notre Dame, IN: Crisis Books, 1994). Also John Taylor Gatto, The Underground History of American Education: A Schoolteacher’s Intimate Investigation into the Problem of Modern Schooling (Oxford, NY: The Oxford Village Press, 2001).

5
United States Department of Education, Digest of Education Statistics, 2009 (Washington, DC:National Center for Education Statistics, 2010).

6 Cf. Charles L. Glenn, “‘Molding’ Citizens,” in Democracy and the Renewal of Public Education, ed. Richard John Neuhaus (Grand Rapids, MI: William B. Eerdmans Publishing Company, 1987): 25-56.

7 James C. Carper and Thomas C. Hunt, The Dissenting Tradition in American Education (New York: Peter Lang Publishing, 2007), and Charles L. Glenn, The Myth of the Common School (Amherst: University of Massachusetts Press, 1988).

8 Martha Albertson Fineman, “Taking Children’s Interests Seriously,” in What Is Right for Children? The Competing Paradigms of Religion and Human Rights, eds. Martha Albertson Fineman and Karen Worthington (Burlington, VT: Ashgate Publishing, 2009): 229-37.

9 Christopher Hammons, Fifty Educational Markets: A Playbook of State Laws and Regulations Governing Private Schools (Indianapolis: Friedman Foundation for Educational Choice, 2008).

10 Ibid.

11 Home School Legal Defense Association, Summary of Laws, retrieved August 17, 2013, Web.

12 Home School Legal Defense Association, “State Laws,” retrieved September 5, 2013, Web.

13 Home School Legal Defense Association, Summary of Laws.

14 Ibid.

15 Ibid.

16 Ibid.

17 Rob Reich, “Testing the Boundaries of Parental Authority over Education: The Case of Homeschooling,” paper prepared for delivery at the 2001 Annual Meeting of the American Political Science Association, San Francisco, August 30‑September 2, 2001.

18
Brian D. Ray, “Homeschooling Associated with Beneficial Learner and Societal Outcomes But Educators Do Not Promote It,” Peabody Journal of Education 88.3 (2013): 324-41.

19
Bob Unruh, “Police Storm Homeschool Class, Take Germany by Force,” WND.com, August 30, 2013, Web.

20 Rousas J. Rushdoony, The Messianic Character of American Education (Nutley, NJ: Craig Press, 1963).

 

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