Education, schooling, and children's rights: The complexity of homeschooling

Educational Theory

Volumn 62, Issue 1, 2012, Pages 75-89

  Kunzman, Robert ^a  

^a INDIANA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84855912774     PISSN: 00132004     EISSN: 17415446     Source Type: Journal    
DOI: 10.1111/j.1741-5446.2011.00436.x     Document Type: Article

References (50)

1. Michael Planty et al., The Condition of Education 2009 (Washington, D.C.: National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education, 2009). The NCES data estimated a total of 1.5 million homeschoolers in 2007. Given the typical reluctance of homeschoolers to respond to government surveys, and the five years since these data were collected, the current total almost certainly tops two million.
2. This essay examines the American legal context only.
3. Meyer v. Nebraska, 262 U.S. 390 (1923).
4. Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).
5. Subsequent Supreme Court cases, including Prince v. Massachusetts 321 U.S. 158 (1944) and Roe v. Wade 410 U.S. 113 (1973), have reconfirmed this fundamental parental right.
6. See Milton Gaither, Homeschool: An American History (New York: Palgrave Macmillan, 2008), 176-179. As Gaither explains, proponents of homeschooling have also presented a First Amendment freedom of religion argument for a fundamental right to homeschool, but these cases have been almost entirely unsuccessful in the lower courts.
7. See also David Tyack and Elisabeth Hansot, Managers of Virtue: Public School Leadership in America, 1820-1980 (New York: Basic Books, 1982).
8. Clayton M. Christensen and Michael B. Horn, "How Do We Transform Our Schools?" Education Next 8, no. 3 (2008): 12-19.
9. David Tyack and Larry Cuban, Tinkering Toward Utopia: A Century of Public School Reform (Cambridge, Massachusetts: Harvard University Press, 1995), 85ff.
10. For a relatively recent debate over the burden of proof argument in homeschooling regulation, see Perry L. Glanzer, "Rethinking the Boundaries and Burdens of Parental Authority over Education: A Response to Rob Reich's Case Study of Homeschooling," Educational Theory 58, no. 1 (2008): 1-16;
11. Rob Reich, "On Regulating Homeschooling: A Reply to Glanzer," Educational Theory 58, no. 1 (2008): 17-23.
12. As I explain in a subsequent section of the essay, however, many of these interests should be considered moral rights. My tripartite framing of interests, while differing significantly in some of its conclusions, draws from Rob Reich, "Testing the Boundaries of Parental Authority over Education: The Case of Homeschooling," in Moral and Political Education: Nomos XLIII, ed. Stephen Macedo and Yael Tamir (New York: New York University Press, 2002).
13. Harry Brighouse, "What Rights (if Any) Do Children Have?" in The Moral and Political Status of Children, ed. David Archard and Colin M. Macleod (Oxford: Oxford University Press, 2002), 34.
14. As Martin Guggenheim, lawyer and longtime child advocate, has argued, the state is not well positioned to make decisions such as these, and such an approach can actually work against children's interests. See Martin Guggenheim, What's Wrong with Children's Rights (Cambridge, Massachusetts: Harvard University Press, 2005).
15. See, for example, Reich, "Testing the Boundaries"; and Eamonn Callan, Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 1997). Legal theorists typically concur:
16. see, for example, David A.J. Richards, "The Individual, the Family, and the Constitution: A Jurisprudential Perspective," New York University Law Review 55 (1980): 1-62;
17. Peggy Cooper Davis, "Contested Images of Family Values: The Role of the State," Harvard Law Review 107, no. 6 (1994): 1348-1373;
18. Kenneth L. Karst, "The Freedom of Intimate Association," Yale Law Journal 89, no. 4 (1980): 624-692.
19. As noted earlier, even then educational neglect can be investigated by the state under child welfare statutes, with states bearing the burden of proof.
20. Parents and the state also have obvious interests at stake in children's eventual self-sufficiency as adults.
21. There is obviously far more to a good education than just these basic skills protected as legal rights, but a good education comes in many shapes, depending upon the needs and goals of the learner. Ultimately, the details vary in ways that prevent standardization and codification.
22. For a fuller analysis of why a broader requirement for all children of academic skills and content (such as typical state standards frameworks) is unreasonable, as well as an examination of procedural issues (including the question of what happens if homeschoolers fail basic skill tests)
23. see Robert Kunzman, "Understanding Homeschooling: A Better Approach to Regulation," Theory and Research in Education 7, no. 3 (2009): 311-330. One approach to homeschooling that especially complicates state oversight is "unschooling," whereby children pursue their own learning interests, often with no formal curricula at all. Traditional distinctions between schooling and LaE disappear entirely; unschooling pushes us to focus even more on ultimate learning outcomes, rather than the route taken along the way.
24. See, for example, Joel Feinberg, "A Child's Right to an Open Future," in Whose Child? Parental Rights, Parental Authority and State Power, ed. William Aiken and Hugh LaFollette (Totowa, New Jersey: Littlefield, Adams, 1980), 124-153;
25. John Christman, "Autonomy and Personal History," Canadian Journal of Philosophy 21, no. 1 (1991): 1-24;
26. Harry Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1987);
27. Meira Levinson, The Demands of a Liberal Education (Oxford: Oxford University Press, 1999).
28. See, for example, Isaiah Berlin, Four Essays on Liberty (London: Oxford University Press, 1969);
29. William Galston, Liberal Pluralism: The Implications of Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002).
30. Anders Schinkel, "Compulsory Autonomy-Promoting Education," Educational Theory 60, no. 1 (2010): 97-116. The basic autonomy that Schinkel advocates stops well short even of the notion of "minimal autonomy" forwarded by Rob Reich, which retains the emphasis on cognitive self-reflection on one's beliefs that Schinkel criticizes. See Rob Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago: University of Chicago, 2002). For a focused critique of Reich's arguments for requiring homeschoolers to pursue minimalist autonomy, see Glanzer, "Rethinking the Boundaries and Burdens of Parental Authority over Education."
31. See Robert Kunzman, Write These Laws on Your Children: Inside the World of Conservative Christian Homeschooling (Boston, Massachusetts: Beacon Press, 2009).
32. The only reason that the state was involved in such a question was because this was a custody case. Under homeschooling regulations in New Hampshire (and everywhere else in the United States), the state would otherwise have no cause for intervention.
33. State of New Hampshire, Judicial Branch, 603 868 6156, Belknap, 5s Laconia Family Division, In the Matter of Martin Kurowski and Brenda (Kurowski) Voydatch, No. 2006-M-669, Decree on Pending Motions, 4. Like the quest for a sufficiently loving family, arguments for a demanding form of autonomy might better be construed as disputes overwhat is best for children, rather than focused on basic interests that enjoy widespread consensus. A focus on basic interests, Martin Guggenheim warns, "only ensures greater intervention" by the state "to oversee and control families" (What's Wrong with Children's Rights, 247).
34. See Kunzman, Write These Laws on Your Children. There are homeschool settings where it seems even this basic autonomy is curtailed; we have self-reports from adults who felt this way and now rail against homeschooling - but their passionate critique itself makes clear that they managed to develop an autonomous perspective nonetheless.
35. See Callan, Creating Citizens, 152ff; and MurrayMilner Jr., Freaks, Geeks, and Cool Kids: American Teenagers, Schools, and the Culture of Consumption (New York: Routledge, 2006). A review of empirical research comparing the development of personal autonomy in children from strongly collectivist cultures to its development in those from individualistic Western societies, for instance, found little difference between them. See Charles C.Helwig, "The Development of Personal Autonomy Throughout Cultures," Cognitive Development 21, no. 4 (2006): 458-473.
36. Galston offers this criticism of Callan's position specifically. See William A. Galston, "Signs of Progress: The Debate over Civic Education," Theory and Research in Education 4, no. 3 (2006): 333;
37. Eamonn Callan, "Galston's Dilemmas and Wisconsin v. Yoder," Theory and Research in Education 4, no. 3 (2006): 265. For more on this general issue, see William Galston, Liberal Purposes: Goods, Virtues and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991);
38. Amy Gutmann, Democratic Education (Princeton, New Jersey: Princeton University Press, 1987).
39. Paul Weithman, Religion and the Obligations of Citizenship (New York: Cambridge University Press, 2002)
40. Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides and Unites Us (New York: Simon and Schuster, 2010), 443-492;
41. Christian Smith and David Sikkink, "Is Private School Privatizing?" First Things: A Monthly Journal of Religion and Public Life 92 (1999): 16-20.
42. Consider another way in which the blurred boundary between schooling and LaE can complicate matters. According to Pierce, the state has the authority to insist that "nothing be taught which is manifestly inimical to the public welfare." This authority exists only in the schooling endeavor, however, not in the broader LaE context of child rearing. A child absorbing an attitude of racial supremacy when he or she returns home from school each day is problematic enough; in homeschooling, the state would simply not be able to prevent such lessons from being woven into a curriculum that would meet state approval, were such regulations in place.
43. In the 2006 National Assessment of Educational Progress (NAEP) civics assessment, for example, only 27 percent of high school seniors scored at or above "proficient." See U.S. Department of Education, The Nation's Report Card: Civics (Washington, D.C.: National Center for Education Statistics, 2007), http://nces.ed.gov/nationsreportcard/pubs/main2006/2007476.asp.
44. Galston, "Signs of Progress," 332.
45. Schinkel, "Compulsory Autonomy-Promoting Education," 108.
46. A far less imaginative consideration of the trade-offs involved in heightened state regulation of schooling might involve the argument - forwarded by many homeschoolers - that an educational experience tailored to the needs of the individual child, free from the pendulum of educational fads and policies warped by political and economic interests, qualifies as a profound educational interest as well.
47. Such methodological modesty seems warranted even for public school contexts. As Jason Scorza notes, the Lockean distinction between compelling belief and using state power to present systematic arguments is not particularly sharp, especially when the arguments are presented to a captive audience in compulsory civic education. Jason A. Scorza, "Facing Up to Civic Pluralism: A Friendly Critique of Galston," Theory and Research in Education 4, no. 3 (2006): 291-311.
48. Elizabeth S. Scott, "The Legal Construction of Childhood," in A Century of Juvenile Justice, ed. Margaret K. Rosenheim, Franklin E. Zimring, David S. Tannenhaus, and Bernadine Dohrn (Chicago: University of Chicago Press, 2002), 113-141.
49. See Terry M. Moe and John E. Chubb, Liberating Learning: Technology, Politics, and the Future of American Education (San Francisco: Jossey-Bass, 2009)
50. Patricia Burch, Hidden Markets: The New Education Privatization (New York: Routledge, 2009).