Guest Post: On Fundamental Rights, HSLDA, and Homeschooling

A Guest Post by Kathryn Elizabeth

I wasn’t planning on writing more about HSLDA but I was talking to my mom today about HSLDA’s refusal to do anything about child abuse and how it made absolutely zero sense to defend abusers. As I moved on to talking about how I feel that they’re using the Romeike family as pawns in their effort to establish homeschooling as a fundamental right, something dawned on me.

Notice that phrase “fundamental right”? It’s a phrase they’ve been throwing around an awful lot when talking about the Romeike case. In law, “fundamental right” has a very specific meaning. It refers to those rights that are basic, foundational rights—things like life, liberty, freedom of association, freedom of movement, freedom of religion, the right to marry, and the right to due process.

Under US constitutional law, fundamental rights automatically trigger strict scrutiny. That is, for any law restricting a fundamental right to pass constitutional muster, it must be narrowly tailored to achieve a compelling government interest and must be the least restrictive means of achieving that end. Strict scrutiny is a standard that very few laws can meet. I’ve lost track of the number of times I’ve heard professors describe strict scrutiny as, “strict in theory, fatal in fact.” If you can get the courts to find something to be a fundamental right, you’re pretty much home free. Very few regulations of fundamental rights can survive the strict scrutiny analysis.

So, how does this apply to homeschooling?

Right now, homeschooling is protected under parental rights to direct the education of their children. Religious freedom comes into play to some extent (especially if you’re Amish—the courts don’t like to mess with the Amish), but with parental rights it’s still a balancing of the right of the parent with the right of the child and the interest of the state. In other words, parental rights are not absolute by any means, and while a parent does have the right to direct the education of their children, they don’t have the right to decide that their child doesn’t get an education at all, and parental rights are limited by the fact that children have rights as well.

As it stands, homeschooling is not a fundamental right. No court has ever found that there is a fundamental right to homeschool your child. There is no precedent to support HSLDA’s repeated assertion that parents have a fundamental right to homeschool. Clearly, HSLDA believes there should be a fundamental right of parents to homeschool their children, otherwise they wouldn’t be repeating it over and over again to get the idea into the national consciousness.

Knowing that HSLDA believes that homeschooling should be a fundamental right, how are they to get there?

Here’s how. To review basic civics, our legal system relies on what judges ruled in earlier cases. That is, the decision the court makes in a current case is based on the precedent of what judges ruled in earlier cases. Suppose that the current case law says that Position A is constitutional, but you believe that Position A is wrong and that instead Position Z should be constitutional. You aren’t going to get the court to change from A to Z when 100 years of case law all says that A is correct. The way you change things is to start litigating cases that you can use to build precedent. So you take a case on Position B that’s just a little bit different than A and get the court to distinguish A from B and to rule in favor of B. You then take the ruling in B and use it to support your argument for Position C, and on you go building more and more precedent to bootstrap yourself to where you want to go. That way, when you finally take your case on Position Z to the Supreme Court, you’ve got cases B through Y to point to as precedent for why the court should rule in favor of Z.

Now, here’s where I’m going to be very careful. I’m not saying that this is what HSLDA is doing because I don’t have any sort of inside knowledge about their legal strategy. What I will say instead is that here is what I would do if I were sketching out a legal strategy to turn homeschooling from a subset of the right of parents to direct the education of their children into a fundamental right to homeschool.

What I would do in order to start expanding the right to homeschool is to go to work on the cases that expand the margins for what’s allowed. It’s pretty easy to make the case that good, highly educated parents should be allowed to homeschool and that’s fairly well established. It’s not much harder to extend that right to good, but less well-educated parents who are going to get academic help for the areas where they’re personally weak academically. HSLDA spent the ’80s and first half of the ’90s ensuring that even parents who don’t have high school diplomas are allowed to homeschool.

Once you’ve established that the good parents of children of average intelligence are allowed to homeschool, you then move on to establishing that good parents of special needs children can homeschool. Again, that’s something that HSLDA has already done.

But remember, we don’t just want the law to say that good parents are allowed to homeschool as a subset of the right of parents to direct the education of their children. We want to get to the point where it is a fundamental right subject to strict scrutiny where it’s going to be well nigh impossible for any regulations to pass constitutional muster.

To get there, we need to get to work expanding the margins once again. Let’s get to work by fighting for a custodial parent’s right to homeschool in child custody disputes. Yep, HSLDA’s worked on that too.

So far, so good, and we aren’t in territory that’s particularly controversial.

If we want to expand the right to homeschool even further though, we’re going to have to start getting into the iffy areas. Here’s where we get into the kinds of cases that Libby Anne has written about extensively. If I were trying to make homeschooling into a fundamental constitutional right, those are precisely the cases I would take to get there. If I can establish that even parents who have been convicted of abuse or neglect in the past are allowed to homeschool, it gets me pretty far along the way to establishing that any parent who still has their parental rights is allowed to homeschool.

Let’s see then what HSLDA has done.

To begin with, HSLDA is advocating for a “Parental Rights Amendment” to the constitution, and HSLDA founder Michael Farris is the president of ParentalRights.org. Section 1 of their proposed amendment states that, “The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.” See, here is that fundamental rights language again, but here it is not just talking about homeschooling, they want the right to direct the upbringing and care to be a fundamental right as well. To remove all doubts that they want strict scrutiny applied, Section 2 includes the magic words for strict scrutiny, stating that government interest has to be “of the highest order.”

But Kathryn, you say, that doesn’t say anything about parents having the right to abuse their children. Not specifically, but by making the right to direct the care and upbringing of the child a fundamental right, it means that any law banning abuse has to be the narrowly tailored to meet a compelling government interest in the least restrictive way possible—if it’s over-inclusive or under-inclusive, it automatically fails. So, for example, if a law bans the caging of children, defining a “cage” as a movable structure with four walls in which the walls are made up of either bars or chicken wire, it fails the strict scrutiny test because baby cribs can fall under that definition. A law banning parents from preventing their child from leaving the house fails too because grounding a child for a week could fall under that ban. Or a law preventing a parent from striking their child with a wooden dowel, wire hanger, or plastic tubing would fail as being under-inclusive because it doesn’t actually meet the stated interest of protecting children since it doesn’t ban things like rulers, metal spoons, or dictionaries.

It would be bad enough if the Parental Rights Amendment only de facto legalized child abuse, but Section 3 is even worse. Section 3 provides the one and only exception in the proposed amendment. That exception is: “This article shall not be construed to apply to a parental action or decision that would end life.” Do you see what they did there? The only time that strict scrutiny does not apply to a parental action or decision is if that action or decision results in the death of the child. That’s all. No other protection. If you do something that kills your kid, you’re in trouble, but beating your kid within an inch of his or her life? You’re all good, it’s strict scrutiny. So Casey Anthony is still getting prosecuted but someone who just chloroformed and duct taped their child and the kid survived? The liberty of the parent to direct the care of their child is a fundamental right unless the parental action or decision ends life.

Here’s where I have to ask, HSLDA, if you’re not condoning and enabling child abuse, why does the Parental Rights Amendment that you promote provide no exceptions to strict scrutiny other than if the parent causes the death of their child?

Moving on, let’s look at some of the other things that HSLDA says on their website.

In my post on HSLDA and abuse, I argued that HSLDA should not be getting involved in cases involving child abuse until the abuse issue is resolved. HSLDA states that if homeschooling is an issue in an abuse investigation they will assist the family until the homeschooling issue is resolved—note that this is HSLDA getting involved in the homeschool issue while the abuse investigation is ongoing. More importantly, they state that they may get involved, and have gotten involved in the past, when there is a 4th amendment issue but no homeschool issue, in an effort to establish legal precedent. This is not to downplay the importance of protecting the 4th amendment search and seizure protections, but HSLDA is an organization that’s supposed to be about homeschooling and the legal precedent for exigent circumstances in child abuse investigations is well established. The law already provides broad protection for families under investigation. Why is HSLDA getting involved unless they are trying to change precedent to make it harder to protect children from abuse? Existing precedent clearly establishes that it is only exigent circumstances if the child is in immediate danger and there is no time to get a warrant. HSLDA needs to answer and explain exactly how they think the precedent in these cases needs to be changed.

Writing in opposition to proposed background checks for homeschool parents in the UK, HSLDA quotes a Norman Wells who argues, “If it is deemed unsafe for children to be with their parents during normal school hours, it is equally unsafe for them to be with their parents in the evenings, at weekends and during the school holidays.” To put it another way, as long as CPS leaves the children in the home, whether during the course of an investigation, or even a conviction for child abuse, they are opposing restrictions. It does not matter if a background check turns up multiple convictions for child abuse, if the child is in the home it appears that HSLDA thinks they should homeschool. HSLDA needs to clarify if this is truly their position because if so, it runs counter to their claim that they believe in protecting children from abuse.

And, speaking in regards to the Banita M. Jacks case, where Jacks murdered her four children (believing them to be possessed by demons) several months after removing them from the prying eyes of public school teachers, they suggest that most cases of abuse in homeschooling exist within families already known to law enforcement, and that “being in school wouldn’t all of a sudden make those children safe.” Again, HSLDA seems to be arguing that even parents who are already known to law enforcement and CPS as abusive should still be allowed to homeschool.

And here is another article where Christopher Klicka argues that the child abuse prevention system is too aggressive. Here is Scott Somerville claiming that parents who withdraw their kids from school to hide abuse already have social services on their trail. No suggestion that these parents should be prohibited from homeschooling if they’re withdrawing their kids to hide abuse, just an assertion that CPS will be watching.

I am unable to find an instance where HSLDA has indicated that they believe that abusive parents should be prevented from homeschooling. This does, of course, fit with the fundamental rights language. Again, speaking to the legal strategy I would use, if I were to set out trying to to establish homeschooling as a fundamental right, I need to protect the right of child abusers and the the really icky people to homeschool too. Fundamental rights aren’t just about the rights of the people we like, they’re about the rights of everybody.

I really hope that I’m wrong, and that HSLDA just made a mistake in judgment that they’re going to correct. The more I think about it though, the only thing that makes sense to me is that HSLDA is doing what they’re doing with abusers as part of a well thought out legal strategy with the end game being the Supreme Court ruling that homeschooling is a fundamental right that is subject to virtually zero regulations. HSLDA is welcome to tell me that I’m way off base with this. I hope I’m way off base with this. The idea that HSLDA would be using children who have been abused by their parents as pawns to expand the right to homeschooling is too horrific for me to really want to contemplate. But yet, it’s also the strategy that makes logical sense if an expanded fundamental right to homeschooling is the goal.

Please, HSLDA, prove me wrong on this. Stop fighting for the right of abusers to homeschool, and start taking proactive steps to ensure that homeschool children are protected from abuse. This is one time where I really don’t want to be right.

—————

Originally posted on Kathryn Elizabeth’s blog, The Opinions of Kathryn Elizabeth, Person.

About Libby Anne

Libby Anne grew up in a large evangelical homeschool family highly involved in the Christian Right. College turned her world upside down, and she is today an atheist, a feminist, and a progressive. She blogs about leaving religion, her experience with the Christian Patriarchy and Quiverfull movements, the detrimental effects of the "purity culture," the contradictions of conservative politics, and the importance of feminism.

  • Stev84

    Section 3 is probably also aimed at abortion.

    Applied to children it’s very biblical:
    “When a man strikes his male or female slave with a rod so hard that the slave dies under his hand, he shall be punished. If, however, the slave survives for a day or two, he is not to be punished, since the slave is his own property” — Exodus 21:20-21

    • Things1to3

      Absolutely. Especially if the Personhood bills ever make it into law.

    • Staceyjw

      Of course they know EXACTLY what they are doing.
      It is secular people that need to wake up, get organized, and stop this insanity. Right now the people that fund and support HSLDA, along with pro business rethuglicans, are decimating the middle class as well as limiting the rights of woman and children. They DO want a xtian nation with a huge population of serfs, where they are both privileges and allowed to do whatever they please. If secular people don’t stop them, they will do a lot of damage that is hard to repair.

  • tsara

    I… I’m trying to find a way to articulate how I’m feeling that doesn’t devolve into incoherent profanity speckled with nausea. If this is what they’re doing, it is disgusting, and they are despicable human beings.

    • tsara

      (Libby Anne, feel free to delete that if it crosses your limit for personal attacks.)

  • Rob F

    Pierce v. Society of Sisters is one of the main SCOTUS cases indicating that homeschooling is legal (in the US).

    It contains the following passage (cites removed):

    No question is raised concerning the power of the State reasonably to
    regulate all schools, to inspect, supervise and examine them, their
    teachers and pupils; to require that all children of proper age attend
    some school, that teachers shall be of good moral character and
    patriotic disposition, that certain studies plainly essential to good
    citizenship must be taught, and that nothing be taught which is
    manifestly inimical to the public welfare.

    IANAL, but, in other words, this passage, along with the rest of the decision, indicates that states have the legitimate authority and power to regulate private schooling (and, by implication, homeschooling) but not the power to ban them.

    I’d like to wonder if the Parental Rights Amendment is in part to get around the ability to regulate homeschooling, such as by mandating certain subjects, minimum standards, etc. Namely, to give absolute power to parents.

    A not necessarily incompatible alternative to the above is that it is recognized that Pierce used penumbral reasoning and, along with other cases (especially Meyer v. Nebraska) laid the foundations of substantive due process, the very same things conservatives hate when they were used to (in part) justify the Griswold and Roe decisions, as well as other decisions greatly enhancing personal liberty and limiting government power. Indeed, the following passage is also from Pierce (my emphasis, and again, cites removed):

    We think it entirely plain that the Act of 1922 unreasonably interferes
    with the liberty of parents and guardians to direct the upbringing and
    education of children under their control. As often heretofore pointed
    out, rights guaranteed by the Constitution may not be abridged by
    legislation which has no reasonable relation to some purpose within the
    competency of the state. The fundamental theory of liberty upon which
    all governments in this Union repose
    excludes any general power of the
    state to standardize its children by forcing them to accept instruction
    from public teachers only…

    Making Pierce (and Meyer by implication, since that was also an education case [concerning the language of instruction]) redundant, so to speak, allows substantive due process to be rolled back, while protecting homeschooling.

  • Baby_Raptor

    Notice that this is all about the parents? There’s absolutely nothing in there about the child’s rights–Their rights to a full education unhindered by religious bullshit, their right to decide on their own what religion if any they want to follow, ECT.

    It’s all about the parents. This seems pretty typical of the fundies…They care about nothing but themselves and their own feelings, they just cloak it in pretty sounding words.

    • Stev84

      Children’s rights only exist when it’s about the gays. Then suddenly children have a right to a mother and a father.

  • jemand2

    This is fascinating and terrifying. I want to say “of course, they’ll fail” but in fact, they basically have succeeded in repealing universal education requirements– and few have even seemed to notice!

  • John

    I’m not sure I follow the logic that pursuing homeschooling as a fundamental right is equivalent to making child abuse easy. Suppose homeschooling was a fundamental right, and laws restricting parents from practicing were subject to strict scrutiny, is it not likely that a law preventing a parents who were convicted of child abuse from homeschooling would pass strict scrutiny. Laws preventing felons from owning guns passes strict scrutiny. I can imagine a system where parents have a fundamental right to homeschool and where there are laws that protect the interests of children.

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