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Home Education Magazine
July-August 1998 - Columns
Taking Charge
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Larry and Susan Kaseman
Responding to Current Legislative Challenges Promoted by National Organizations
Two different kinds of legislation are undermining our rights and responsibilities as parents and our homeschooling freedoms. It would be serious enough if this legislation was coming from opponents of parents' rights and homeschooling. But the fact that the legislation is being promoted by national organizations that claim to support parental rights and homeschooling is very confusing and frustrating.
This column will discuss two different legislative initiatives. Topic 1 covers efforts being made by several national organizations to get parental rights legislation or constitutional amendments passed in many states, why this concerns homeschoolers, and what we can do. Topic 2 focuses on problems that accompany efforts to include homeschoolers in federal legislation designed to give parents tax breaks for educational expenses and what we can do about this.
Topic 1
Problems With State Legislation and Constitutional Amendments on Parental Rights
To examine the problems being raised by parental rights legislation and amendments that are being pushed in many states, let's consider what happened recently in Wisconsin. Assembly Joint Resolution (AJR) 122 was prompted by an organization outside Wisconsin and introduced in the Wisconsin Assembly on March 16, 1998. The full text of AJR 122 was: "(1) The right of parents to direct the upbringing and education of their children is a fundamental right. (2) The state maintains a compelling interest in investigating, prosecuting, and punishing child abuse and neglect as defined by statute."
At first glance, part 1 may sound logical and reasonable. It is. But a problem arises when we allow the state to claim and define rights that we already have, independent of the state. Rights that are written into statute or the constitution then come under the jurisdiction and authority of the state. For example, consider the ways in which such constitutionally protected rights as religion, the press, assembly, petition, and the right to bear arms have been limited by statute and court rulings.
Part 2 of this amendment would take an even greater toll on parents' rights and responsibilities. It is a significantly stronger mandate for state intervention in families' lives than any law or regulation that currently exists. At present, there are statutory laws and court decisions that uphold the right of the government to interfere in some circumstances, but there is no statement in Wisconsin's constitution or the federal constitution that says the state has a compelling interest in investigating, prosecuting, and punishing persons for child abuse and neglect. Part 2 would increase and, in effect, seal the power of the state in the area of child abuse and neglect law, which is expanding all the time.
To grasp the full impact of part 2, consider the term "compelling interest." To protect the rights and liberties of individuals and families as much as possible without sacrificing social order, it is commonly accepted in legal terminology that the state must have a "compelling interest" before it can intervene in the private lives of its citizens. In other words, the state cannot restrict citizens' behavior or compel them to act in a certain way simply because it would be more convenient for the state or public officials. The state must demonstrate that it has an overwhelming necessity, a "compelling interest" that justifies its intervention and the resulting restrictions on citizens' lives and actions.
In the vast majority of cases where a balance has to be maintained between the rights of citizens and the needs of the state, the state has to work to demonstrate that it has such a compelling interest. Legislatures sometimes refuse to pass legislation and courts sometimes rule in favor of citizens when the legislatures and the courts decide that the state does not have a compelling interest that justifies its interference in the lives of citizens. It is unusual (to say the least) for people who are supposedly working to maintain the rights of citizens (in this case, parents) to freely offer to work to add to the constitution a statement that the state has a compelling interest. Such a statement removes a very important check on the power of the state because it no longer needs to work to demonstrate that it has a compelling interest.
Another major problem with part 2 comes from the phrase "child abuse and neglect as defined by statute." Given the rapidity with which child abuse and neglect laws are being increased, possibilities for child abuse and neglect as defined by statute in the not too distant future could include: failing to ensure that a homeschooled child meets state standards in education, refusing (for religious or other reasons) medical treatment someone has recommended for a child, or failing to have a child examined and treated by mental health care providers or disability experts. Parents who think they don't have to worry about part 2 because they wouldn't abuse or neglect their children may want to reconsider.
So why are individuals and organizations who claim that they are working to protect parents' rights and responsibilities trying to get states to adopt constitutional amendments that give the states so much power over parents and families? That's a good question, and the answer certainly is not clear to us. Part 2 appears to be either a big mistake or an indication that the promoters of the parental rights amendment do not really support parents' rights. The representative from the Family Research Council in Washington, D.C. who testified in support of AJR 122 explained that when only part 1 of the parental rights amendment is introduced, people refuse to support it because they fear that it would undermine current laws on child abuse and neglect. To alleviate that concern, drafters of the parental rights amendment added part 2. This may be an accurate description of what happened, but it certainly indicates poor thinking at best or, more seriously, a willingness on the part of the promoters of the amendment to support the interests of the state at the expense of parents.
Part 2 would affect homeschoolers strongly because of the concept of educational neglect. This concept has been developed by social workers, so-called "experts" in child development, and others to further increase the state's role in raising children. "Educational neglect" is intended to apply to situations in which these "experts" and/or government officials claim that parents are failing to ensure that their children are provided an education consistent with standards adopted by the state. The Wisconsin Legislature has proposed including the term "educational neglect" in several different laws recently. So far homeschoolers and other concerned parents have prevented this from happening, but the term will no doubt be proposed again.
The combination of part 2 of the parental rights amendment and state law that uses "educational neglect" would give the state an enormous amount of control over all parents. It would especially affect homeschoolers because it would give the state all the permission and justification it needs to investigate homeschools and to insist that they follow whatever regulations and practices the state chooses. In other words, the state would be able to say to homeschooling parents, "You need to prove that your children's educations are not being neglected by having us review and approve your curriculum, or by having your children take state-mandated tests and assessments, or by some other means devised by the state."
In sum, both part 1 and part 2 of AJR 122 would undermine parents' rights and responsibilities rather than protect them.
Another problem is the way parental rights amendments like AJR 122 are being pushed in a number of states by several national organizations. Such action undermines our role as citizens in taking responsibility for governing our local communities and our states. Those of us who are residents are in the best position to take responsibility and make decisions, instead of having outsiders do so, for several reasons:
* We know the territory, the power structures, who the key players are, how the power structures operate, etc.
* We have the strongest incentive because we are the ones who will have to live under whatever laws and constitutional amendments are passed. National organizations come into a state, work to get laws passed, and then go back to their national headquarters, leaving the residents of the state to live under laws that undermine their freedoms and leave them at the mercy of the state, so they seem to need the supposed protection of the national organization.
* For our free, democratic society to be maintained, citizens have to be involved. This is most effectively done on the local and state level, where we know and can work with our elected representatives, meeting with them in person and being involved in other direct ways.
These important actions by citizens are being challenged when a national organization moves into a state, introduces legislation the organization is promoting regardless of how the citizens of the state feel about it, and pushes to get it passed. Of course, these organization often claim to be grassroots organizations, even though they seldom if ever have a significant number of citizens even aware of the legislation the organizations are promoting. In Wisconsin, they have worked through one or two political leaders directly without any apparent involvement of homeschoolers or other citizens in the state. Of course, they also claim that they have been invited to come into the state.
Consider, for example, Wisconsin's experience with AJR 122. For several years a national organization, Of the People, has been pushing for a parental rights amendment to the Wisconsin constitution. This spring AJR 122 was prompted by Of the People and reportedly supported by Concerned Women of America, the Family Research Council (FRC), and perhaps others. When homeschoolers shared their concerns about AJR 122 with their legislators and one or more of these national organizations, some legislators and organizations responded that homeschoolers didn't need to worry because the Home School Legal Defense Association (HSLDA) had signed off on the amendment.
A Wisconsin legislator introduced AJR 122 on March 16, 1998. A virtually unpublicized hearing was held on March 19. A public hearing before the Wisconsin Assembly Committee on Elections and Constitutional Law was scheduled for March 24, only 8 days after the amendment had been introduced, in an attempt to rush the legislation through during the chaotic days just before the legislative session adjourned. This is high pressure and very unreasonable timing for such a major issue.
In addition, FRC sent a representative to testify at the March 24 hearing. Her testimony further undermined parents' rights and responsibilities. For example, she said:
Passage of this amendment will express the state's confidence in the parents of Wisconsin and encourage them to fulfill their parental responsibilities. The Parental Rights Amendment will say to parents, "we DO trust you. Your role is the most important role in a child's life and we, as a government, seek to uphold and respect that role in as many circumstances as possible."
This amendment will raise the government's expectations in parents and empower them to take back their rightful and proper child rearing role. By returning to our culture the concept that parents are competent to fill the role of the primary decision maker regarding their children, governmental institutions will be sent a message saying, "Give parents a meaningful seat at the table."
Notice the underlying assumptions that put the state above parents. Why would we want or need the state to express confidence in us as parents? Our rights as parents and our confidence certainly come from sources other than the state. If the representative from FRC really believes in parents' rights and responsibilities, why is she talking about the state giving parents a place at the state's table? Why doesn't she understand that it's the other way around, that parents have fundamental responsibility for their children unless there is a compelling reason why the state needs to intervene?
Despite the pressure, interference, and misguided testimony from outside organizations, homeschoolers and others from Wisconsin were able to stop AJR 122. Thanks to real grassroots response from homeschoolers and others, many Wisconsin citizens had contacted their legislators before the March 24 hearing to express their concerns about the amendment. At the hearing, only the legislator who introduced AJR 122 and the representative sent from Washington, D.C. by FRC testified in favor of the amendment. Eight people testified either against the bill or for information only. These people had differing political perspectives and expressed a wide range of concerns about the amendment.
As a result, the committee decided to let the bill die in committee rather than push it through. Although the passage of AJR 122 would have been only the first in a series of steps that are required for a constitutional amendment to be adopted, such amendments are much easier to stop at the first step, before they have taken on a life of their own, gathered momentum, and spread. It is very important to remember that even when large national organizations are involved, citizens of a state, working on the grassroots level, can still sometimes be heard.
To be sure, there is sometimes a legitimate role for respectful national organizations. Obviously, when people in various states are working on the same issue, they often benefit from networking and sharing information, ideas, strategies, tactics, and mutual support. What makes such national organizations helpful rather than harmful is that they provide a means by which people who have already started working within various states can get in touch with each other or a way in which individuals interested in a given issue can get in touch with others, rather than being a top down national organization that moves into states looking for people who will serve as their contacts in those states and provide a way for the national organization to promote its issues within these states. The difference between these two types of organizations is sometimes subtle, but it is critical.
What We Can Do
* We can determine what is happening in our states right now. During testimony on AJR 122 on March 24, the representative from FRC claimed that "parental rights language...has been introduced in a total of 28 state legislatures." To find out whether our state is The 28, we can call the staffs of the education committee and of the constitutional committee of our state legislatures and ask whether language similar to that quoted above has been introduced either as legislation or as a proposed constitutional amendment or is likely to be introduced in the future. If so, we can ask questions such as:
-What is the next step in the process of turning this language into a statute or a constitutional amendment?
-How likely is it that such a step will be taken?
-When might this happen?
-Who is promoting this legislation or amendment? Which legislator introduced this legislation (assuming it has already been introduced)?
-With whom can I talk to get more information and share my concerns about this proposal?
* Whether or not parental rights legislation or a constitutional amendment has been introduced in our state, we can strengthen our position in the state legislature by communicating now with our legislators. A thoughtful conversation with a well-informed constituent can make a big impression on a legislator and do a lot to lay the groundwork for effective communication in the future. It often works best to have such a conversation in person. To avoid having to travel to the state capitol, we can call our legislators' offices and make an appointment to meet with them when they are in the district. If a personal visit is too difficult to arrange, a phone call or a letter is a good alternative.
-We can share with our legislators our concerns about and opposition to parental rights legislation and amendments.
-While we are talking with them, we can also explain that we do not want offers, favors, or money from the government. These will inevitably increase government involvement in homeschools and reduce our freedom. We can explain that what we want is to be left alone. It might take some doing to get this message across to them, because most people who contact their legislators want something from the government. This is one reason it is so important that we communicate with our legislators.
-When we talk with our legislators, we can make it clear that we are speaking for ourselves; we are not claiming to represent all homeschoolers or to be stating what homeschoolers want. We can also explain that legislators might be contacted by homeschooling organizations or various national organizations that claim to represent homeschoolers. These organizations may also claim, for example, that homeschoolers want parental rights legislation or amendments and/or tax credits or other favors. We can explain that homeschoolers are a very diverse group and that these organizations do not represent our perspectives or speak for all homeschoolers.
Topic 2
Problems With Federal Legislation that Includes Homeschooling
Problems are being created by a national homeschooling organization that is promoting federal legislation that this organization claims would benefit homeschoolers but that actually would cost us important homeschooling freedoms. HSLDA is strongly promoting several pieces of legislation (including H. R. 1633 Children's Education Tax Credit Act and H. R. 1816 Family Education Freedom Act of 1997) and has lobbied for and is claiming significant credit for passage by the U.S. Congress of H. R. 2646.
H. R. 2646, known as the Parent and Student Savings Account PLUS Act, has been amended a number of times and is now a fairly lengthy bill that includes topics such as Equal Educational Opportunity, Even Start Family Literacy Programs, and Dropout Prevention. However, the section that concerns homeschoolers most directly "amends the Internal Revenue Code of 1986 to allow tax-free expenditures from education individual retirements accounts [IRAs] for elementary and secondary school expenses, to increase the maximum annual amount of contributions to such accounts, and for other purposes." (Quoted from the opening statement of the bill) Basically the section increases the tax breaks that parents who have enough money to purchase education IRAs can receive by adding tax breaks for educational expenses for children in kindergarten through twelfth grade to the existing tax breaks available through IRAs for higher education. However, the amount of money parents could save is ridiculously small. According to a staff analysis memorandum from the Joint Committee on Taxation of the U. S. Congress, the savings on such an account would be an average of $8 for public school students and $37 for private school students (because they would be able to deduct tuition).
This bill is not only short-sighted but also a major threat to our freedoms for several reasons.
* First, tax breaks, tax credits, or other money from the government almost always comes with strings attached (with the exception of general tax deductions for dependents or tax credits that are available to all families regardless of the approach to education they have chosen and that are not tied to specific expenditures). Does it make any sense to participate in a program that seriously threatens our freedoms, especially for such a ridiculously small amount of money?
* Second and much more serious, the bill contains a special rule for homeschooling that was strongly lobbied for and supported by HSLDA. This rule appears in the bill as follows:
TITLE I-TAX INCENTIVES FOR EDUCATION
SEC. 101. MODIFICATIONS TO EDUCATION INDIVIDUAL RETIREMENT ACCOUNTS.
Section 101 (a) 4. (B) SPECIAL RULE FOR HOMESCHOOLING- Such term shall include expenses described in subparagraph (A)(i) in connection with education provided by homeschooling if the requirements of any applicable State or local law are met with respect to such education.
This rule would cause problems for homeschoolers for two reasons. First is the general principle that including homeschooling in federal legislation opens the door both for federal regulation of homeschooling (because rules and policies would undoubtedly be developed to determine who can legitimately claim to be a homeschooler) and for increased state regulation of homeschooling.
Second, this particular rule is especially troublesome because it mentions "education" twice. This threatens the critical distinction between compulsory attendance and compulsory education. Compulsory school attendance laws require that children attend school, but they do not require that children become educated while they are attending school. Requiring compulsory education would cost us our freedom; a society cannot require compulsory education and remain a free society. But the language in this rule would require compulsory education, not compulsory attendance, for homeschoolers. This is one more example of a lack of understanding and common sense on the part of people drafting and supporting such legislation.
In addition, HSLDA is celebrating the passage of this bill despite the fact that President Clinton has been saying for some time that he will veto the bill. He thinks that these education IRAs are simply tax shelters for rich people and that they use funds for that are needed for other educational expenses. Such a veto would resolve the problems this bill raises for us homeschoolers and our homeschooling freedoms, a development which is ironic since President Clinton certainly is not known as an advocate of homeschooling. In any case, it is misleading for HSLDA to celebrate the passage of a bill when it is widely known that the bill is very likely to be vetoed and not become law.
HSLDA's claim that this bill will end Goals 2000 and School-to-Work programs is also misleading. While many homeschoolers (including the authors of this column) have consistently opposed both these programs and would like to see them ended, even if President Clinton did sign the bill, these programs would not be eliminated. For one thing, these programs are unfortunately firmly entrenched at this point and would continue on the state and local level even if the federal government withdrew its support. Moreover, the bill gives states the opportunity to choose how moneys for these programs would flow to states and local communities. Finally, states that don't want these programs were wise enough to refuse federal funds for them long ago.
What We Can Do
* As of this writing (May, 1998), H. R. 2646 is still in a conference committee that is creating a final bill from the two different versions that were passed by the House of Representatives and the Senate. It seems so likely that President Clinton will veto the bill that it makes sense to put our time and energy into other issues.
* Given the fact that this bill was passed by Congress and that HSLDA is supporting several other bills that would result in federal laws that include homeschooling, it would make sense to discuss this general issue with other homeschoolers we know, in informal conversations, homeschooling support group meetings, etc.
* We can share with the member of the U. S. Congress from our district and our two U. S. Senators the same concerns that are outlined above to be shared with our state legislators. (For the telephone numbers of congressional offices, call the capitol switchboard at 202-224-3121.) We can make it clear that we do not want homeschooling to be included in federal laws relating to education, even laws that supposedly offer tax breaks. It is especially important to make it clear to our legislators that many homeschoolers do not want to be included in federal legislation, even though legislators may be assured by organizations claiming to represent homeschoolers that homeschoolers do want to be included in federal legislation.
* We could tell our legislators that if they want to support families without increasing government control over families, they could increase general tax deductions for dependents or institute tax credits that are not tied to specific expenditures and that are available to all families regardless of where their children go to school.
Conclusion
Legislation before many state legislatures and the U. S. Congress would strongly affect our homeschooling freedoms. We would lose some of our rights and responsibilities through parental rights legislation and amendments, particularly those that include wording such as, "The state maintains a compelling interest in investigating, prosecuting and punishing child abuse and neglect as defined by statute." In a separate issue, federal legislation that offers tax breaks or other benefits to homeschoolers threatens our freedoms by opening the door both for federal rules and regulations concerning homeschooling and for increased control and regulation of homeschooling by individual states. As homeschoolers we can consider carefully the long-term and serious effects of both these types of legislation. We can share this information with other homeschoolers. We can let our federal and state senators and representatives know where we stand on such issues and make it clear to them that national organizations that claim to represent homeschoolers do not speak for us or represent us.
© 1998 Larry and Susan Kaseman
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