Fundamentalist Challenges to Core Democratic Values: Exit and Homeschooling

This Essay explores the choice many traditionalist Christian parents (both fundamentalist and evangelical) make to leave public schools in order to teach their children at home, thus in most instances escaping meaningful oversight. I am not primarily concerned here with the quality of academic achievement in the core curricular areas among homeschoolers, which has been the subject of much heated debate.1 Instead, my comments focus on civic education in the broadest sense, which I define primarily as exposure to the constitutional norm of tolerance. I shall argue that the growing reliance on homeschooling comes into direct conflict with assuring that children are exposed to such constitutional values. I begin with a brief social and legal history of homeschooling in the United States during the twentieth century and then discuss the dominance of religiously motivated parents among homeschoolers in contemporary America. Section ? shows that homeschoolers make broad claims for exemption from state oversight that are not warranted by the constitutional doctrine on which they rely. In Section ??, I argue that the state's interest in educating children for life in a pluralist democracy trumps any asserted parental liberty interest in controlling their children's education. Finally, in Section IV, I argue that where parents do not live together and share legal custody of their children, the state should articulate a preference for formal schooling over homeschooling when the parents disagree. I urge states to engage in far more stringent oversight and regulation of homeschooling than exists in any state at present, arguing that there is no constitutional bar to doing so and a compelling state interest in additional oversight tools, especially in the arena of civic education concerning normative democratic values about tolerance and diversity. I. HOMESCHOOLING A. A Brief Legal History The rise of formal schools and the adoption of compulsory school laws transformed schooling in nineteenth-century America. Beginning in the second quarter of the nineteenth century, the common school movement led by Horace Mann and other reformers resulted in the widespread availability of free public schools.2 Homeschooling virtually disappeared in the United States by the early twentieth century as states (beginning with Massachusetts in 18523 and ending with Texas in 19 15)4 adopted and enforced laws requiring parents to make their children literate and, later, to send their children to a formal school for at least part of every academic year.5 The constitutionality of one brand of compulsory school law reached the United States Supreme Court in 1925. In Pierce v. Society of Sisters, the Court overturned a compulsory school law that parents could only satisfy by enrolling their children in public schools, barring the use of sectarian or other private schools.6 The Court held that parents must have the right to choose among approved ways of satisfying the compulsory education law, but in doing so it underscored that the case did not challenge "the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require . . . that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."7 The Court has never fleshed out the extent of the state's power to regulate independent schools. Today, the vast majority of states impose curricular requirements on private schools, and these requirements appear to be largely unchallenged.8 Similarly, the Court has never had an occasion to consider the reach of the state's authority to regulate homeschooling , which is completely unregulated in states such as Alaska, and in other states subject to minimal requirements, ranging from mandatory notice to the state that the parents intend to homeschool to reporting and testing requirements regarding mastery of core curricular subjects such as reading and math. …