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Foundations of the Rights and Responsibilities of Homeschooling Parents
(This essay, by Larry and Susan Kaseman, was originally published in their Taking Charge political action column in the May-June 1996 issue of Home Education Magazine.)

As homeschoolers it is our responsibility to recognize, understand, and use the foundations of our homeschooling rights and responsibilities. Awareness of these foundations is particularly important now. Increasing attention is being focused on the need for families to work to reclaim and maintain their rights and responsibilities which are being diminished as the state, the educational establishment, large corporations, and professionals are acting in ways that increase their power and influence in family life. Traditional functions of the family are being taken over by schools and state agencies.

Consider the increasing pressure being put on families, including homeschooling families, to put their children in school at earlier ages. As just one example, the federal Individuals with Disabilities Education Act (IDEA), passed in 1986, includes "Early Intervention Programs for Infants and Toddlers With Disabilities." The programs are designed to find and treat children from birth through age three who supposedly "are experiencing developmental delays...in one or more of the following areas: (i) Cognitive development, (ii) Physical development, including vision and hearing, (iii) Communication development, (iv) Social or emotional development, (v) Adaptive development; or (2) Have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay." (Federal Register, Vol. 58, No. 145, Friday, July 30, 1993, Rules and Regulations, page 40963)

Some people have suggested that we try to protect parental rights and responsibilities by seeking federal or state legislation or amendments to the federal or state constitutions. However, this approach does not work. Parental rights and responsibilities in education are basic and fundamental and do not come from the government. If we allow the government to pass a law or a constitutional amendment which gives the government authority in education, we will be diminishing the rights we have independent of the state and increasing the control the state has over our children's education.

The important lessons of these initiatives is that it is virtually impossible to write a law that protects parental rights in an area that is considered fundamental, such as education and health care, without first requiring that parents assume responsibility. (To be sure, parents are responsible for their children. However, they do not want or need to have the government force this responsibility on them and then check to make sure that they are doing the right thing.)

Even more serious, if the government passes legislation that requires that parents assume responsibility for their children, then parents have to demonstrate to the government that they are being responsible by acting in ways that are consistent with the beliefs, standards, and choices of those people who have the most power in our society. Therefore, the government would decide what kind of education and health care will be required, how families would be monitored to ensure that they are complying with the law, and how they will be dealt with if a government official decides that they are not complying. Legislative initiatives supposedly designed to protect parental rights actually diminish basic freedoms that are the foundations of a democratic society.

Instead of trying to get legislation passed that would supposedly protect parental rights and responsibilities, it makes much more sense and is much safer to use the basic foundations of homeschooling rights and responsibilities to reclaim and maintain them. We are much better prepared to act to reclaim and maintain our rights if we understand just how strong the foundations are. We need to remember that the right of families to choose for their children an education consistent with their principles and beliefs is fundamental. It is not a favor that is granted to us by school officials, legislatures, or other officials or agencies. People who understand the foundations of their rights and responsibilities act differently when dealing with officials than do people who think their rights are granted to them by laws and officials. We can act more straightforwardly, confidently, and effectively when we understand these foundations. We can also avoid giving the state and large institutions more control over our lives by asking them to protect us through legislation and constitutional amendments.

Fortunately, there are a number of strong foundations for our homeschooling rights and responsibilities. The following list of foundations of homeschooling rights and responsibilities is based on principles that support reasonable homeschooling laws and oppose unreasonable ones. Many of these ideas also support other important family rights, and the list itself provides a model for ways in which rights can be maintained. A wide range of ideas is presented so that the most appropriate and compelling ones can be selected for any specific situation. It is important that we understand that we have inalienable rights. These rights are not given to us by the state. We should not look to the state as the source of these rights, and we should not give them over to the state.
Many of these ideas are based on common sense and a willingness to question assumptions and practices that are widely accepted. The foundations are organized into categories so they can be written down, but in reality they overlap and interrelate. Some basic ideas are repeated so each category can be nearly self-contained and so subtle points can be included.

Practical Foundations
(1) Homeschooling works. It works on many levels.
- Children learn and become committed to lifelong learning.
- Parents learn and overcome damage from school.
- Families grow stronger.
- Families reclaim and maintain important rights and responsibilities.
- Support groups and grassroots organizations bring people together.

(2) Homeschooling provides a wide range of learning opportunities and ways of learning. Because of this, homeschools prevent the development of learning difficulties in many children and are good places for children who learn better by doing than through reading and writing, which are the main approaches to learning offered by most conventional schools.

(3) Homeschools provide an excellent opportunity to learn about how children learn. By their nature, homeschools can focus on learning and do not need to deal with concerns of discipline and classroom management that are often the first concerns of conventional teachers. (If teachers cannot control a class, how can they teach?) The flexible, many-faceted, alternative character of homeschools means that they offer a rich opportunity for children to learn in many different ways, and for professional educators to learn from homeschoolers' experiences.

(4) Homeschools save taxpayers money. Children who do not attend public schools reduce the schools' expenses.

(5) No matter how well educated parents are when they begin homeschooling, they inevitably learn a great deal from the experience. Homeschooling is an educational experience for the whole family, providing important learning benefits for a whole range of people.

(6) Neither lay persons nor professional educators can agree on the best way to educate a child. In the absence of such agreement, a range of alternatives, including homeschooling, must be permitted and ought to be encouraged.

Logical Foundations
(1) Laws that regulate homeschools are basically unnecessary. The experiences of thousands of parents and children have shown that parents are very capable of educating their children at home. There is no substantial evidence that the thousands of homeschoolers throughout the country are having any significant problems. In addition, thousands of formerly homeschooled children have entered or re-entered conventional schools without problems, showing that their homeschooling experience did not handicap them or make them unable to handle the work done in conventional schools.

(2) Homeschooling laws and regulations do not improve homeschools. Homeschooling works because people (both adults and children) are well equipped to learn if given a chance. Homeschools work because they are small enough and flexible enough to meet the needs of individual children and allow them to use their strengths. They work because parents care about their children and want what is best for them. People do not become loving and caring parents or conscientious homeschoolers because there are laws that require them to do this.

(3) Regulations can be harmful to homeschools and limit their effectiveness. Regulations frequently interfere with the alternative nature of homeschools, limit their flexibility, and make it more difficult for homeschools to be effective and meet the needs of families.

(4) It is commonly understood and widely accepted by people who think seriously about it that decisions about children's educations should be made by parents. Some parents choose to delegate part of the responsibility for their children's education to a conventional school while others (called homeschoolers) decide to fulfill this responsibility directly themselves.

(5) Some proposed homeschooling laws and regulations imply that parents cannot be trusted to homeschool their children. However, parents can be trusted because:
- Homeschooling is a big responsibility and a lot of work. It is not something parents undertake lightly. Free public schools are a very readily available alternative for parents who do not want to be strongly involved with their children through homeschooling.
- People (both parents and children) are well equipped to learn if given a chance.
- Homeschooling families regularly interact with other people. Some critics of homeschooling argue that homeschooled children are too isolated and too strongly influenced by their parents. However, rather than being isolated, homeschoolers are active in their neighborhoods, communities, and other groups. Homeschooled children interact with a wide variety of people of differing ages and backgrounds. Also, children are strongly influenced by their parents whether they are homeschooled or not.

(6) It is widely held that parents have a stronger influence on children who attend schools than do the schools. For example, when schools are criticized for not educating children, school officials often defend themselves by saying that they are unable to overcome the influence of the children's families and home life.
Anne T. Henderson's Evidence Continues to Grow: Parent Involvement Improves Student Achievement reviews and summarizes 53 studies and shows that parents are the key to student learning. Writing in the Journal of Economic Literature (September, 1986), Eric A. Hanushek critiques 147 studies that sought to correlate student achievement with a wide variety of school-related factors including teacher certification and advanced degrees, curriculum, time on task, quality of the facility, expenditures, class size, etc. The single variable that consistently correlated positively with student achievement was family background. (Most if not all of such research is highly questionable, especially since it relies on standardized tests to measure achievement and equates test scores with learning. However, it is worth noting that much of what passes for the soundest educational research indicates that the family rather than the school correlates positively with academic achievement.)

Historical Foundations
Throughout human history, the vast majority of people have been educated at home. In fact, many people, unfortunately labeled "primitives," have had the good fortune to live rich and full lives without anyone telling them they were being "educated" in the process. The first compulsory school attendance laws in the United States were not passed until after 1850, and it was not until after World War II that all states required people of high school age to attend school. Although homeschooling is often labeled "new and different," it is really a very old, traditional, tried-and-true approach to education that works very well. Some people argue that "times have changed" and that formal education is required in today's highly technological society. However, times are changing so fast that it is most important that people learn how to learn, how to be flexible and handle change, and how to solve problems. Homeschools are especially good environments for acquiring these abilities.

Legal Foundations
Important note: Legal foundations are included in this list because homeschoolers and other parents must deal with them so often. However, legal arguments are often not the most compelling or effective way to support and maintain family rights and responsibilities and should not be heavily relied on.

(1) Constitutional provisions. The U.S. Constitution does not specifically mention education. This was not an oversight. The idea of including education was discussed and rejected. However, the several amendments to the Constitution guarantee rights that are important to homeschoolers (as well as other citizens, of course).
- The First Amendment covers freedom of religion, speech, and the press, and the rights of assembly and petition.
- The Fourth Amendment protects people from unreasonable searches and seizures.
- The Fifth Amendment protects citizens from being compelled to testify against themselves. It guarantees the right to trial by jury and the right not to "be deprived of life, liberty, or property, without due process of law." The right to due process has been used to protect personal liberties. It is strengthened and given more authority under the Fourteenth Amendment.
- The Ninth Amendment says that there are some rights that are retained by the people even though they are not listed in the Constitution. This amendment is important for people who want to reclaim rights that the state has usurped by custom and even by statute, since they can argue that the state had no constitutional basis for taking away these rights in the first place. Under this amendment, courts have recently upheld parental rights in education and rights to privacy.
- The Fourteenth Amendment provides civil rights that are very useful to an individual, especially anyone in a minority position. It establishes the right of any individual to services provided by the state. Each individual has equal rights and liberties under law. For example, public school officials cannot legally deny homeschoolers access to public schools merely because they are homeschoolers. Nor can they legally require of homeschoolers more than is required of other students in order to be enrolled or placed in a grade.

(2) Case law. Rulings by the U.S. Supreme Court and federal, state, and local courts interpret and expand upon the Constitution. Among the most important for homeschoolers are the U.S. Supreme Court cases Pierce v. Society of Sisters (268 U.S. 510 [1925]) and Farrington v. Tokushige (273 U.S. 284 [1927]) in which the court ruled that parents have a right to secure for their children an education consistent with their principles and beliefs and that the state may not have a monopoly in education. Homeschoolers involved in serious legislative or court battles are strongly encouraged to study the Constitution and case law in greater depth. More detailed information is in John Holt's Teach Your Own, pp. 271-324, and John W. Whitehead and Wendell R. Bird's Home Education and Constitutional Liberties. Of course there is no substitute for reading the original documents themselves.

(3) Common law. This is a system based on practice, court decisions, and customs and usage rather than on statutes. Some of the legal maxims or principles which are so widely accepted that they do not need to be written down and can be applied to homeschooling in the United States are:
- "Innocent until proven guilty." In other words, the state must prove that an individual is guilty; individuals do not have to prove they are innocent. Although the state has an interest in ensuring that children do not grow up to be a burden on the state, courts have confirmed that parents have rights in education which the state may not violate. Homeschooling parents should not need to prove themselves innocent (by meeting certification requirements or showing that their curriculum is substantially equivalent to that of a public school or having their children tested) as a condition for exercising their parental rights in education.
- Rights of minorities. People cannot be prosecuted or forced to abandon their principles or practices just because the majority of the people do not agree with them or choose their approach. Homeschoolers should not be prosecuted simply because they have chosen an approach to education that is different from the approach chosen by the majority of Americans today.
- Civil liberties. Everyone, including homeschoolers, is entitled to fundamental civil liberties, some of which are described in the Bill of Rights and some of which are common law.
- "Hard cases make bad law." In other words, a law designed to take care of the worst possible hypothetical case is almost certain to be long, difficult to enforce, and more likely to prevent good people from doing good than bad people from doing bad. It is unfair and solves nothing to punish conscientious homeschoolers by passing an unnecessarily restrictive law that does not solve the problem of high risk children anyway. Such a law would damage the effectiveness of good homeschools.

(4) Limitations of the compulsory school attendance law. Homeschooling laws are based on compulsory school attendance laws. (If there were no attendance laws, the state would have no basis for regulating homeschooling. People who wanted to homeschool would simply not attend school.) However, it is extremely important to realize that compulsory school attendance laws require attendance, not education.

Compulsory attendance laws require attendance; they do not require education. This is an extremely important distinction for at least two reasons. First, the only laws that can be enforced are those that require behavior that can be described, observed, and evaluated. It is not very difficult to enforce compulsory school attendance laws. It is pretty clear whether or not children who are enrolled in conventional schools are attending them. Classroom teachers take attendance, and children who are absent without acceptable excuses are reported to the truant officer. Similarly, attendance can be checked for children who are enrolled in private schools, including homeschools. (Homeschooled children who are participating in their families' educational plan and program are obviously attending that homeschool, whether the instruction at any given time is being presented at home or at a museum, nature center, library, or any one of a large number of other places where children can and do learn.) Therefore, if a society feels it must pass and enforce laws about schools, laws that require compulsory attendance are not difficult to enforce.

By contrast, laws that require compulsory education would be very difficult if not impossible to enforce. First, the state would have to develop a clear set of definitions and criteria for what it means to be educated, what people need to know and be able to do in order to be considered educated. This first step would be very difficult because neither professional educators nor lay people can agree on what it means to be educated. Developing such criteria would require agreement about what people should think and do, and about what attitudes and beliefs they should have. Opinions about such topics vary widely.

Second, the state would have to find or devise a series of tests which would accurately determine which people have acquired the required facts and skills and which people have not. This, too, would be difficult because tests do not show what people actually know. Tests only tell how well a given person did on a given test on a given day. Some people are good at taking tests, even about subjects they know very little about. Many more people do not do well on tests, even about subjects that they know a great deal about. Therefore, finding ways in which people could demonstrate that they have in fact met the requirements that were agreed upon in step one above would also be very difficult. Again, laws requiring compulsory education would not work well. If schools laws are necessary, laws requiring compulsory attendance are much better.

The second reason that the distinction between compulsory attendance and compulsory education is so important is that compulsory education would cost us our freedom. If the state were to require compulsory education, we would lose our freedom of education and learning and even our freedom of thought. A society cannot require compulsory education and remain a free society. To even begin to set definitions and requirements for compulsory education would quickly violate our rights and freedoms. Under compulsory education, people would be required to learn, and think, and believe certain ideas, the ideas that had been chosen as proof that a person is educated. In addition, people would not be allowed to learn other ideas because they conflicted with the required ones. Without freedom of education and freedom of thought, we could not continue to have a free society in any meaningful sense of the word.

As will be discussed below, courts have ruled that schools cannot be held accountable if children attending them fail to become educated. These rulings support the prohibition of compulsory education. Education simply cannot be legislated, and it cannot be legally required. This fact has important ramifications, beginning with strong limitations on the state's ability to dictate curriculum or content of educational programs.

Unfortunately, in spite of the ideas that have just been presented, parts of the state and the educational establishment are trying to move our society toward requiring compulsory education, even though it will cost us our freedom.

Children vary widely in their strengths, abilities, interests, and needs. To ensure that children have access to educational programs that are well suited to them, a variety of programs must be available. Some children don't or can't learn well in a conventional school. Private schools, including homeschools, need flexibility so they can meet the needs of a wide variety of children. Regulation by the state makes it very difficult to be flexible. The state's commitment to increasing centralization and standardization demonstrates that it neither understands nor can fairly assess educational alternatives such as homeschools.

Moral Foundations
(1) Our society has an obligation to provide children the education best suited to them as individuals. Since children vary widely in their needs, abilities, interests, and talents, a wide range of alternative approaches to education, including homeschooling, must be available, and families must be able to choose the best alternative for each child. Also, for homeschools to function as true alternatives, they must be free from unreasonable restrictions, some of which would force them to become similar to conventional schools. They would then cease to be alternatives, and children who have difficulty learning in conventional schools would not have as good an alternative available.
(2) A society that believes in freedom of thought and freedom of belief must allow parents to choose for their children an education consistent with their principles and beliefs and must allow people to choose alternative approaches to education without unreasonable regulation.
(3) The family is the fundamental unit of any society. Homeschooling strengthens families. Opposition to homeschooling and unreasonable regulation of homeschooling weaken families. Parents who choose to homeschool are choosing one way of taking seriously their responsibilities for their children. They deserve the support of the larger community in which they live.

Religious Foundations
Religious beliefs and arguments are very important to many homeschoolers and provide very strong support for homeschooling. Under our federal and state constitutions, the state may not pass any law or engage in practices that would either establish a religion or interfere with the free exercise of religion, including parents' instructing their children in religion. Specific religious arguments that support homeschooling are not presented here because they are understandably personal and vary widely.

Conclusion
Understanding the foundations of homeschooling rights and responsibilities prepares us to use these basic principles to reclaim and maintain our rights and responsibilities. It also prevents us from increasing the power and authority the state has over us by asking the state to protect our rights and responsibilities through legislation or constitutional amendments.
Copyright 1996 Larry and Susan Kaseman

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