Friday, June 01, 2007

"Teach Your Children Well"....Or Else!

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. 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, is also quite provocative: 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.