Another law professor speaks, and I answer
June 6th, 2007 by COD
From the abstract
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’s 63 pages, I haven’t read it yet. However, you can get it here.
OK, I’ve read it, or at least skimmed it. I’ve also forwarded it to Scott Somerville, so I’ll be looking forward to his detailed legal analysis.
She starts her argument with a strawman.
Ann and Bob Smith are a devoutly religious couple who choose to homeschool their seven year old twins Susan and Sam. In accordance with their religious beliefs, they teach their children only religious doctrine and refuse to provide their children with a basic education in reading, writing and arithmetic. The Smiths are permitted by the laws of their state to adopt such a plan.
The inclusion of “devoutly religious” clues us in to her true motivation. It really is just a poorly argued feminist rant. She doesn’t like Christians teaching their kids stuff she doesn’t agree with, so she wants to use the police power of the state to impose her standards on everybody. Being a lawyer, she thinks she can use existing law to do it.
She is wrong.
She starts with about 10 pages of the standard history of homeschooling. Other than more than a few glaring grammatical errors, some of which change the meaning of what she is saying, there isn’t anything particularly interesting there. (She claims HSLDA mobilized hundreds of thousands of homeschoolers to call Congress on a single bill.) It started off as a liberal thing before the mean old Christians took over homeschooling, and now HSLDA wields a +20 Sword of Power against all foes, striking them down with a single alert email. Michael Faris probably dreams about that kind of power, but he doesn’t have it. It’s all old news.
In part one of her paper, she makes the claim that states have a constitutional obligation to provide some minimum level of education, and that when the states outsource education to the parents, they inherit that obligation. I’m sure most of my readers already see the huge holes in those arguments.
States do not have any obligation beyond providing schools. There is no legally mandated minimum education, and there never will be. If there was, every kid that graduated without the ability to read would have an actionable case against the government. For the exact same reason that you have no right to safety, you have no right to be educated. You have no case if the police fail to protect you, and you have no case if the government schools fail to educate you. Her entire argument is built on a right that simply does not exist. She argues that the right does exist due to state constitutions guaranteeing free public schools. Those guarantees only extend to access, not to results. There is no state guarantee to becoming educated. There is a state guarantee of access to public schools if the parent chooses to use them.
As a thought experiment, imagine for a moment you were guaranteed by your state Constitution that you would be able to read by age 10, or whatever. The resulting lawsuits when the horribly inefficient schools failed to measure up would likely bankrupt the system. This extremely liberal professor’s interpretation of education rights would inflict the very damage on the school system that her allies accuse the conservatives of trying to do with NCLB. Ironic, isn’t it?
On her second point, the government is not outsourcing education to the parents. It’s the other way around. Education existed long before civil government did. Her argument is that government can’t avoid it’s constitutional responsibilities by outsourcing services to a private contractor. If the government hires a private security firm to guard something, those contractors are essentially govt agents and have the same constitutional responsibilities. I don’t have any issue with that, it’s fairly obvious. However, parents are not government contractors. Education is the innate responsibility of parents either because God said so, or because we are biologically driven to ensure the advancement of the species. Take your pick. It works for the birds, it works for the bees, and it works for people. The establishment of public schools 150 years ago may have given parents another option for education, but it did not relive them of the right behind it. That right precedes civil government by a few years, at least.
In part two, she again reverts to the strawman. This time it’s the Christian homeschooling family that teaches Jr. calculus while refusing the teach his sister how to read, because the women’s place is in the home making babies. She makes an equal protection argument that homeschoolers can’t do what she has no proof of them doing in the first place. Really, is there a single documented case of this? Even the most dominionist of Christian homeschoolers teach the girls way beyond anything that would ever result from a state education requirement.
Again, the huge gaping hole in her argument is obvious. The equal protection clause only applies to governments or agents of the state. Homeschoolers are neither. Oddly, all her arguments hinge on racial discrimination case law that precedes the Civil Rights Act. Quite frankly, at times she even seems to realize she is stretching to make her case.
Her solution is as predictable as her complaints, state mandated testing. And again, her proposed solution exposes her lack of understanding on how education, parenting, and people in general work. I have no doubt that she would fail spectacularly in understanding the simple point that any standardized achievement test is arbitrary and therefore useless as a measure of individual achievement. So they decide all kids should be able to read by 10. The 11 year old homeschooler that can’t read gets thrown back into school. And the millions of schoolie 11 year olds that can’t read yet get what? More of what already hasn’t worked for them? Do they get to sue the school system for failing to provide an education? Are they then forced into homeschooling since school failed them?
She doesn’t bother to address any of those issues. Even if we grant her that she is right (just for fun), the system collapses under the weight of the legal responsibility for education results being passed to the government.
She ends by patting herself on the back for giving the states the ammunition they need to withstand the onslaught of the ever more powerful homeschool lobby. Of course, it never occurs to her that maybe, just maybe, the states have been increasing homeschooler freedom for the last 20 years because we are right, and the states realized it?
Updates:
Interesting comments on a law blog.
While you are studying for 642-901 and 642-812, make sure that you don’t leave anything. One does not stand eligible for 70-431 if he has not covered the former courses in addition to 70-536.
21 Responses to “Another law professor speaks, and I answer”
“Indeed, despite the positive law focus of this paper, it seems very possible that the legal arguments I have made will have their greatest impact in a political rather than traditionally legal forum. States have a social and economic interest in ensuring that all children receive an adequate education. Their political health and economic prosperity depend on it. The primary importance of the legal arguments I have offered may then lie not in their ability to coerce states with threatened judicial sanctions into doing something they do not want to do, but in their ability to support and reinforce states’ efforts to do that which they already want to do. Arguments about constitutional mandates bolster states’ ability to withstand pressure from an increasingly powerful homeschool lobby seeking to gain parents unfettered control over their children’s education.273 While a great deal remains open for debate about appropriate limitations on parental control over children’s education, the arguments I have made here may help ensure that the most extreme forms of illiberal homeschooling are simply, and appropriately, taken off the table and out of the political debate.”
The whole paper is incredibly weak. She fears that some home educators won’t teach their daughters to read.
We can only hope that her prediction in the graf quoted above proves accurate. In the political arena we’re damn near invincible. I’d be more concerned about a judicial ruling.
She fears some Christian homeschoolers won’t teach their daughters to read. It’s not very well veiled religious bigotry.
Sorry- I was typing as you were updating.
I really wish my fellow feminists would stop trying to help me today.
Nance
Good find, still reading. Did you see on page ten that homeschooling is conflated to equal clitoridectomy, polygamy and child marriage as needing state protection laws?? Also did you notice her notes heavily rely on Rob Reich and Pat Lines, at least that far in. Holt too but not in a good way . . .
And I see she actually got a GRANT for this “research.”
Read “The Public Function Doctrine” starting on page 23 — I think this is the heart of her legal theory argument. The notion is that HS parents are carrying out a monopolistic state function from which our kids cannot escape, because we are their sole source. So the state needs to regulate us to protect them.
Sort of a twist on Reich and his “ethical servility” . . .different argument supporting the same claim to intervene between us and our kids’ learning.
There is SO much work to be done building public understanding and clarifying principles, and simply no time to waste.
[...] Yo do not have the right Chris O’Donnell found yet another lawyer attacking our right to Homeschool, and wrote an excellent rebuttal. I still need to read the paper to see if I can contribute to the discussion going on there. [...]
Excellent arguments. I still need to read it carefully to see what I can contribute.
JJ (or anyone): Can you give some perspective on the legal theory. What is required to give the state a monopoly on a function? Any references you could point me to? I’ve handled legal issues by avoidance so far, so I don’t know much.
I need to find out more about “ethical servility”. That sounds pretty dark to me.
[...] COD and Daryl are on the case and Scott has been summoned. More later. Looks like this is gonna be another long, hot summer of skirmishes in the Involuntary Redefinition of Other Women Wars. [...]
Do we know if this Assistant Professor actually spoke to any hsers? I haven’t read the paper yet but thought someone might have noticed.
Nance
I don’t think she left her office. It’s all done by citing case law, Reich, and a few other sources. No actual communication was involved.
Oh, that link WAS worth visiting — http://prawfsblawg.blogs.com/p....._chil.html
Thanks Chris.
Nance
Running out to busy few hours – Rolfe, this is long and high-level but you can handle it.
Read this NHEN discussionstraight through to the end, and you will understand where “ethical servility” comes from, and why it is SO insidiously wrong. And some of the best responses to it, that we’ve teased out as Thinking Parents . . . back later today.
Thanks JJ. It’s funny, it didn’t cross my mind that the homeschooled kids were supposed to be the ones ending up ethically servile. I’ve got some reading to do.
Here in Michigan, being “held back” for failure to progress at “grade level” in a public school can only be recommended by teachers or school systems. A child’s parent or guardian always has the right to decline such a recommendation and the child will be moved into the next grade level. As my neighbor, a public school teacher says, “You can lead a child to information, but you cannot MAKE him think.”
Among the hallowed “subjects” of math, reading, English, science and social studies, there is no specific content required of non-public schools, which is how the “highly regarded” private schools that my nieces and nephews attend avoid teaching the scientific basis for that “nasty little theory” of evolution.
[...] Girls On Girls Gone Wild (defining each other) 9 06 2007 Chris has been on top of liberal ps-supporting women defining homeschool women by class and calling for our status to become a matter of public policy concern, so I’m following his blog closely and urge you to too, if you can. I just posted this comment there: [...]
[...] HEM News & Commentary Editor Valerie Bonham Moon posted a note to her blog about a new research paper which is raising waves in homeschooling circles. Valerie gives a nod to homeschooling dad Chris O’Donnell for unearthing this find, and I likewise send appreciation to Chris for being right on top of things. [...]
[...] Another law professor speaks, and I answer – O’Donnell Web [...]
As a liberal, feminist, university educated (MA +), atheist, former college instructor, retired public school teacher, homeschooling grandmother I resent the faulty assumptions this paper is based upon. And if the paper is based on faulty assumptions, then the conclusions are, by definition, flawed. If you set up a straw man to topple, you should at least have the honesty to say, “If this is the case, then…” and not go on as if this was established fact. Even her ionterpretations of law seem very flawed in my opinion (see original post above).
I also resent the fact that she has set herself up as representing the view point of liberal educated women, at least in the eyes of many readers.
Any paper that is grant funded that has no research into the foundational “problem,” and an unbiased view of previous approaches to it, is not worth the paper it is printed on, and is certainly not worthy of grant funding and publication by a university professor. Even if her law points were valid (I cannot judge that), it is still most unscholarly. I wish I could get grant funding for sitting in my chair and writing about some unfounded pet theory off the top of my head (a most dangerous place to be).
Exactly my beef, Velma — it makes feminism and advanced university degrees look stupid and poorly researched.
[...] Chris, of O’Donnell Web (Not a Homeschooling Blog), pans a big old paper written about homeschooling in “Another Law Professor Speaks, and I Answer“ [...]