The Politics of Survival: Homeschoolers and the Law
I. IntroductionTwenty years ago, home education was treated as a crime in almost every state. Today, it is legal all across America, despite strong and continued opposition from many within the educational establishment. How did this happen? This paper traces the legal and sociological history of the modern homeschool movement, and then suggests factors that led to this movement's remarkable success.
II. Why Homeschooling Should Have FailedA. Limited Resources
Homeschooling never should have succeeded in the modern era. It may have been adequate for the agricultural setting of our colonial ancestors, but who would have thought that untrained parents could throw together a homemade curriculum that would actually prepare a child for life in the twenty-first century? In the early days of the modern homeschooling movement (c. 1965), there were no support groups or newsletters for parents who taught their children at home. Many parents who taught their children at home never knew that there were any other people doing the same thing. Every family had to invent home education from scratch. They did not even have a name for what they were doing.
B. Legal Penalties
The school officials had a name for what they were doing, however - criminal truancy. Each time parents pulled a child out of public school, the unexcused absences began to accumulate. Some open-minded school officials were willing to look the other way, but others insisted on enforcing the law. The only safe way to start homeschooling was to start before the child reached school age, or to move to a new school district where no one knew the child existed. When parents got caught, they had no legal excuses, no useful precedents, and usually, no money to hire the kind of lawyer who would fight for an unwritten freedom. Parents were arrested, jailed, or fined until they put their children back in school. The only sure way to avoid legal trouble was to hide. This kept the authorities from finding out about homeschooling, but it kept everyone else from finding out about it, too.
C. Powerful Opponents
The school officials who prosecuted homeschoolers strongly believed that they were protecting innocent children from serious harm. Certified teachers and highly trained school administrators had no reason to believe that parents could cover the basic academic subjects, much less provide the social interactions that were offered in the public schools. To many public school teachers, home education seemed to be child neglect, at best.
The public school officials who were charged with enforcing the truancy laws had every reason to be thorough. Their professional training was founded on the assumption that teaching was not a job for laymen or amateurs. School officials had powerful and selfless reasons to oppose home education. They were not merely motivated by the fact that school budgets were based upon a certain number of dollars for every child in attendance. (In the early days of home education, few school officials ever imagined that home education could ever have a real financial impact on the schools.) But each homeschooler did undoubtedly cost the district some small amount in lost revenues. All these factors added up to a solid wall of opposition to homeschooling within the public school establishment.
D. Social Disapproval
Homeschoolers also faced a wall of opposition from their neighbors. The general public believed that children need a rich set of interactions with other children if they are ever to succeed in later life. Whenever a homeschooler tried to explain what he was doing to some other person, he could always count on two questions: Is that legal? And what about socialization?
There was a deeper sense that home education was somehow un-American. Graduates of the public school system had been consistently taught that public schools bring together rich and poor and male and female to teach children to be true Americans. After the Supreme Court ended legal segregation in Brown v. Board of Education, 347 U.S. 483 (1954), the schools finally brought together black and white, and then, with the school prayer cases, even Jews, Catholics and nonbelievers gained equal standing within the schools. Homeschoolers seemed to turn their back on the preeminently democratic institution of America.
III. A History of Home SchoolingHomeschoolers started out as scattered individuals with little or no resources who faced powerful enemies as they violated the law in a climate of social disapproval. How did these people get from where they were then to where they are now? The history of modern homeschooling shows that this journey took wave after wave of different kinds of people educating their children at home for very different reasons. Without this diversity, homeschooling would still be a marginal movement.
A. Left-Wing Intellectuals
Growing Without Schooling
Patrick Farenga is the president of Holt Associates and the publisher of the magazine Growing Without Schooling. He worked with the late John Holt from 1981 until Holt's death in 1985. Farenga writes:
The sixties and seventies were times of great ferment for new ideas about education. Some education and social critics, like John Holt, became popular writers by questioning methods of schooling. The battles over look-say reading methods versus phonics, training teachers to be gentle facilitators or drill instructors, whether to encourage hands-on learning or test-taking skills, were well-worn battles to these writers even in the sixties. Many school reformers, such as Herbert Kohl, noted that it is a wide variety of methods, materials, schedules, and techniques that help children learn, and that the teacher should have the freedom to use any combinations of things and ideas to help students. Further, some writers, such as A.S. Neill and Holt, suggested that the student should have complete freedom to choose how, when , and from whom they wanted to learn. In the early sixties, Paul Goodman, in Compulsory Miseducation and Growing Up Absurd, argued that compelling children to attend school is not the best use of their youth, and that education is more a community function than an institutional one. This idea was developed and amplified over the years by many authors, but most forcefully by John Holt. (Farenga, 1999, p. 34)
John Holt began his career as a fifth grade teacher in a private school. He thought deeply about what worked and what didn't in modern American education, and recorded his observations in How Children Fail in 1964. How Children Learn soon followed, in 1967. The two books, which are still in print, have sold a total of one and one half million copies and have been translated into 14 languages. Other educational thinkers were working on similar issues during the same time period. According to Farenga, none influenced Holt as much as Ivan Illich, who published Deschooling Society in 1971.
After Deschooling Society appeared, Holt studied and corresponded with Illich at length, and was deeply influenced by Illich's analysis, particularly with his analysis that school serves a deep social function by firmly maintaining the status quo of social class for the majority of students. Further, schools view education as a commodity they sell, rather than as a life-long process they can aid, and this, according to Illich, creates a substance that is not equally distributed, is used to judge people unfairly, and-based on their lack of school credentials-prevents people from assuming roles they are otherwise qualified for.
By the late seventies Holt had given up on the possibility that schools would welcome and assist the sorts of changes he and others were suggesting. He sought ways to make these changes as individuals and communities, thus bypassing, rather than confronting, school resistance to these ideas. (Farenga, 1999, p. 35)
Holt's thinking led him to an ever-deeper critique of modern compulsory education. In Instead of Education, he wound up suggesting a new "Underground Railroad" to help children escape from traditional schools. In Holt's own words:
Some may say that such a railroad would be unfair, since only a few children could get on it. But most slaves could not escape from slavery, either, yet no one suggested or would suggest that because all the slaves could not be freed, none should be. Besides, we have to blaze a new trail if only so that others may follow. The Children's Underground Railroad, like all movements of social protest and change, must begin small: it will grow larger as more children ride it. (Holt, 1976, p. 218)
Instead of Education is one of the landmarks of the modern home school movement. Pat Farenga explains:
In this book, Holt proposed removing children from school legally or as an act of civil disobedience. While the education establishment barely recognized this particular book of Holt's, it struck a chord with some parents. Some wrote to Holt explaining that they were teaching their children at home legally, others that they were doing so underground. Some were rural families, some city dwellers, others were in communes. Intrigued, Holt corresponded with them all and decided to create a newsletter that would help put these like-minded people in touch with one another. In August of 1977, the first issue of Growing Without Schooling (GWS) was published, and the nation's, and probably the world's, first periodical about homeschooling was born. (Farenga, 1999, p. 36)
Growing Without Schooling finally made it possible for like-minded but widely-scattered people to communicate with one another. This included people like Dr. Pat Montgomery, a Catholic educator who had no children of her own but soon became a strong supporter of unschooling. She formed the Home Based Education Program at the Clonlara School in Michigan. Michigan law, at that time, required every child to be taught by a certified teacher, but the law did not specify how much time that teacher had to spend with each child. Clonlara made it possible to comply with the letter of the law while keeping the spirit of unschooling.2
B. Organic Education
The unschoolers of the late '60s were as political as their era, but the next wave of home educators had a different set of priorities. The '70s saw the rise of "delayed schooling" as an alternative to "unschooling." Dr. Raymond Moore, the spokesman for this new movement, was more concerned with children's health than social change. His book, Better Late Than Early suggested that parents should keep children out of formal education for the first few grades. His research indicated that a healthy child could start formal schooling at fourth grade without any harm.
Dr. Moore's educational and medical conclusions were shaped, to some degree, by religious concerns. Like other Seventh-Day Adventists, Dr. Moore believed that health, nutrition, and exercise are important to a person's overall spiritual well-being. The Moores had taught their own children at home as far back as 1944. This holistic emphasis found ready acceptance within the existing home school community, and soon broadened its appeal to less politically-oriented families. The second wave of modern home education was underway.
Dr. Moore's holistic approach to education made home schooling acceptable to some conservative religious families who would have been repelled by the left-leaning politics of most unschoolers. Dr. Moore began to attract attention in evangelical circles. He appeared on Focus on the Family, an evangelical radio show with a huge national audience. Many of the early Christian homeschoolers date their exposure to home schooling to that interview, including J. Michael Smith, the current President of the Home School Legal Defense Association.
As a developmental psychologist with extensive experience in traditional education, Dr. Moore soon proved to be a credible expert witness in home school cases. He had been a public school teacher, a principal, a superintendent, a college dean, and a college president. He was a prolific writer and speaker who wrote or contributed to more than 60 books. Dr. Moore's tireless efforts advanced home education far beyond its original left-wing base, and his frequent appearances in court helped the fledgling movement survive. According to Dr. Moore's newsletter, he and his wife interceded with school officials on behalf of hundreds of parents over the years. (Moore, 1986)
C. Evangelical Objectors
One evangelical Christian, in particular, was attracted by Dr. Moore's message on Focus on the Family. This was Gregg Harris, who soon took a job working for Dr. Moore. Harris viewed home education as an effective means to a specific religious end. He believed home schooling could lead to a renewal of traditional Christian family living. Harris's desire to present an explicitly Christian message to Christian audiences soon led to tensions with his employer and an eventual split.
Harris began promoting home education to explicitly evangelical audiences through his "Christian Life Workshops." His message came at an opportune time. "The Christian Schools Movement"3of the 1970s was running out of churches that were willing and able to start schools, but individual families were still looking for alternatives to the secular public schools. Harris's evangelical message made sense to parents who could not afford or could not find a local Christian school. It energized a new wave of Christian homeschoolers who left the schools for religious rather than pedagogical reasons.
Harris's Christian Life Workshops were complemented by a new magazine devoted to evangelical homeschooling called The Teaching Home, which began publication in 1983. Just as Growing Without Schooling had created an unschooling movement, The Teaching Home sparked a visible Christian homeschool movement. The number of homeschoolers surged as one church after another discovered home education.
The new wave of evangelical homeschoolers created friction with many local school districts. The first wave of unschoolers were convinced that they had a better educational alternative, and many of them were usually willing to work to persuade skeptical school officials that they had a better mousetrap. Open-minded superintendents were usually willing to let them try. The evangelicals had a whole different reason for leaving the public schools. Some rejected public education as "godless" and thought of school officials as secular humanists who were bent on godless mind-control. Parents like these asserted that the Bible required them, not the school system, to raise their own children. They were often not willing to seek "permission" from the schools.
The Christian homeschoolers brought new legal problems to the homeschool movement, but they also brought some Christian attorneys who were willing to dedicate their time to protecting homeschoolers. These included Michael P. Farris and J. Michael Smith, who founded the Home School Legal Defense Association (HSLDA) in 1983. Membership in HSLDA was open to any homeschooler regardless of religious affiliation or lack thereof, but HSLDA employees were required to sign a Christian statement of faith. Homeschooling had become legal for some families in some states; but HSLDA shouldered the task of making home education legal for every family in every state. By 1989, there were only three states (Michigan, North Dakota, and Iowa) that still outlawed home education. By 1993, home education was legal in all 50 states.
HSLDA was open to all homeschoolers, but the rising tide of evangelical homeschoolers began to change the face of home education. The original state homeschool organizations had always been willing to accept any homeschooler, regardless of his reason for teaching a child at home. Christian parents who fled the public schools to escape secular humanism were understandably shocked by the lifestyles of some of their fellow homeschoolers. As home education began to spread through local churches, explicitly Christian support groups began to spring up at the local level.
In one state after another, Christian homeschoolers formed statewide organizations. The Teaching Home was a national magazine for Christian homeschoolers that "co-published" newsletters for state home school organizations. At first, The Teaching Home published anything a state organization put out, but as some of the larger states began to produce rival home school organizations, The Teaching Home had to choose which newsletter to publish. This caused friction in states where older organizations that included all homeschoolers saw no need for the explicitly Christian start-ups. The new organizations grew quickly, however, and by the early 1990s evangelicals so dominated the visible face of homeschooling that many of the original homeschoolers feared the movement would be "written off" as a fundamentalist phenomenon.
D. Home Schooling Takes Off
These fears seemed reasonable at the time, but no one imagined how quickly legal home education would catch on with the general public. No longer did families need to be compelled by ideological or religious reasons to embark on homeschooling. Once the legal barriers to home education fell, a whole new wave of homeschoolers appeared. Soon no informed person could dismiss homeschooling as a right-wing reaction to secular humanism.
The Florida Department of Education used to ask parents why they chose to teach their children at home. Religious and/or moral concerns were the primary reason for homeschooling in Florida until 1993, but "dissatisfaction with public schools" moved into the lead in the 1993-94 school year. Florida discontinued this survey the next year, and no other government agency has been able to gather similar information. (Florida Dept. of Ed., 2001, personal communication)
For the first time, large numbers of families began to choose home education for purely academic reasons. Home education had long been a way to protest the military-industrial establishment, or to seek a more holistic lifestyle, or to flee the secularized schools. These earlier families tended to view homeschooling as a moral necessity, rather than a personal choice. With the new legality and social acceptability of home education however, many newer homeschoolers viewed it as just one more choice on the academic menu.
There were ample positive academic reasons to consider homeschooling, but, in the late 1990s, there were more ominous reasons. A wave of shootings at public school culminated at Columbine High School on April 20, 1999. Many observers thought Columbine would lead to a massive exodus to homeschooling. There was some justification for this, at first. A month after the Columbine shootings, the Associated Press reported:
Educators say more parents are looking into homeschooling in the aftermath of the Columbine High School shootings.
Suzy Parker, program assistant for the Colorado Department of Education, said she has been receiving five calls a day, about twice as many as normal. Many of the calls have come from the Littleton area, she said.
"One woman who lives right near Columbine called me the day of the shooting and told me, 'We're not doing this anymore,'" Parker said last week.
The department reported 68 inquiries from parents on homeschooling in the month since Eric Harris and Dylan Klebold killed 12 students and a teacher before committing suicide.
Christian Home Educators of Colorado, the state's largest advocate organization, has received 400 inquiries since the tragedy, Executive Director Kevin Swanson said.
On average, the organization receives 60 in a month. ("Columbine spurs interest in home schools," Associated Press, May 25, 1999.)
Any expectations that Columbine would be the end of public education died away quickly. A number of people considered homeschooling, but most of them abandoned the idea when they realized how much work was really involved. According to the Rocky Mountain News, the overall impact on the Denver-area public schools was minimal.
The deadly shooting rampage at Columbine High School has not sparked an exodus from public schools in favor of homeschooling, Denver-area school officials said.
After an initial flurry of interest in homeschooling in the month after the April 20 tragedy, inquiries have returned almost to normal.
"I don't see a big influx, or any big change from years past," said Sandy Campbell of student information services at Jefferson County Schools. She said she sent many packets in May to parents interested in homeschooling, but got few back.
"I got a lot more phone calls, but they didn't follow through," she said. ("No rush to home schools in wake of Columbine," Rocky Mountain News, Aug. 2, 1999.)
Columbine did not end public education as we know it, but it did have a profound impact on the homeschool movement. One reason for this is the relative size of the two educational communities. If 50,000 public school students started homeschooling because of Columbine, that would be less than one-tenth of one percent of the public school population. A nationwide loss of 50,000 students would hardly even register as a noticeable blip for the public schools, but it would be a huge increase for the relatively small homeschool movement.
There have been more school shootings since Columbine, and one of the more recent tragedies has a special significance for home schooling parents. One of the two victims at Santee, California, was taught at home for a number of years. According to the New York Post:
One of the teens slain in the Santee, Calif., rampage had been homeschooled for years because his parents feared public school was unsafe, but they relented when he begged to attend high school with his friends, it was reported today.
Bryan Zuckor, 14, was a freshman at Santana HS despite his parents' misgivings, the Los Angeles Times reports.
The boy was schooled at home for five years, but when he insisted he wanted to go to classes with friends, his parents reluctantly gave in, the newspaper said. ("Victim's folks feared HS wasn't safe," New York Post, March 7, 2001.)
Homeschooling parents who have pulled their children out of the public schools are already very cautious about putting them back. Bryan Zuckor's death will make them doubly cautious.
IV. New Home School StrataModern homeschooling was launched by left-wing intellectuals and legalized by the religious right, but homeschooling is not just for the ends of the political spectrum anymore. Homeschooling today consists of an ever-more-diverse array of American families. Although there is little in the way of reliable statistical data on the changing face of homeschooling, it is not hard to identify several new streams that are flowing into the homeschool movement. Three of the more significant new layers of homeschooling are "soccer moms," Roman Catholics, and African-Americans.
A. "Soccer Moms"
So-called "soccer moms" are suburban mothers of school-aged children. Politicians know these are important "swing voters" who are not locked into either political party. Bill Clinton strategically deployed a number of bite-sized policy initiatives (school uniforms, daytime curfews, etc.) that were designed to win the votes of these mothers. But homeschooling is proving to be an even bigger success with these highly motivated mainstream mothers.
Soccer moms are not political radicals. When homeschooling was still a fringe activity, they were not interested. Now that it is acceptable and produces good results, they are willing to try it out. These parents have undoubtedly been influenced by the good press that homeschooling is receiving. Journalists have pumped out a steady stream of articles exploring this intriguing new educational phenomenon, noting the advantages of one-on-one instruction, mastery learning, and parental involvement. When a homeschooler won the Scripps-Howard National Spelling Bee in 1997, parents of children in traditional schools began to wonder if their children were really getting the best education possible. By the time homeschoolers won first, second, and third place in the 2000 Spelling Bee, and the winner also took second place in the National Geographic Bee, the rush was on.
It is still too soon to tell whether the surge in "soccer mom" homeschooling will be more than a fad. Suburban schools have a lot going for them, and homeschooling is very hard work. It is possible that these new homeschoolers will be teaching their children at home for years to come, but it is just as likely that they will return their children to a more traditional setting. But even a brief experience homeschooling tends to change people. Charlene Mabie-Gamble writes about one woman's brief experience of homeschooling:
Joshua will be re-enrolling in school next semester. I have chosen not to return him to the same school he left, because I still feel his education is compromised in that setting. We are currently looking into other options. I feel that homeschooling is still a valuable way to educate children, but it also takes a commitment that we, unfortunately, were not able to make. I do not regret my decision to homeschool my son. Though we learned it is not as easy as we had planned, we also learned a lot about each other and ourselves that we could not have known otherwise; if for no other reason, that learning has made this experience worthwhile. After all, not all of life's lessons are learned in school. (Mabie-Gamble, 2001, p. 55)
B. Catholic Home Schools
Roman Catholic families were initially turned off by the common stereotype of white fundamentalism, but homeschooling has finally taken root in Catholic circles. Catholic homeschooling may be about 15 years behind the evangelical homeschool movement, but it is gaining ground at extraordinary speed. Four mutually reinforcing factors appear to contribute to the rate of growth in Catholic circles.
First, the more observant Catholics have been quick to notice that evangelical homeschoolers put Catholics to shame when it comes to matters of human sexuality. The Catholic teachings that most offend secular America (regarding abortion, contraception, divorce) are enthusiastically practiced by many Protestant homeschoolers. Protestant homeschoolers are some of the most committed pro-life activists, and can often be found side-by-side with Catholic pro-lifers at crisis pregnancy centers or anti-abortion rallies. Instead of seeing homeschoolers as an especially threatening kind of Protestant extremist, the more observant Catholics increasingly view them as kindred spirits.
Second, many parochial schools have lost their Catholic distinctives. This article will not attempt to catalog the many different pressures that affect parochial school systems as they try to serve an increasingly diverse population, but the net result is that traditional Catholics sometimes feel the parochial schools are becoming more and more like the secular public schools. This is particularly true in the sensitive area of sex education. Home education provides Catholic families a way to guarantee a distinctively Catholic education.
The growth of Catholic homeschooling has brought this trend to the attention of the Vatican, which has responded favorably. This constitutes a third factor in the explosive growth of Catholic home education, since the most devout Catholic families are usually those who are most influenced by the opinion of the Pope.
Finally, parish priests have begun to notice the distinctive lifestyle of the Catholic homeschoolers. When a mother attends daily Mass with all her children, including children of school age, her priest is bound to pay attention. Though there are some exceptions, the reaction to homeschoolers at the parish level has been quite positive. This fourth factor also helps spread Catholic home education.
This is not to say that Catholic homeschoolers encounter no opposition within their church. They are supported at the highest level of the hierarchy, and are usually encouraged at the parish level, but there is significant resistance to home education at the middle levels of the church structure. In general, parochial school administrators are far from sympathetic to homeschooling, and few American bishops are openly supportive of the movement. Homeschoolers are a dynamic new force within American Catholicism, and it is too early to tell whether they will become "mainstream" or "marginal" within that church.
C. African-American Home Schools
It is riskier for African-Americans to start homeschooling than it is for other families. Grace Llewellyn is a teacher-turned-unschooler who wrote The Teenage Liberation Handbook: how to quit school and get a real life and education. She was surprised by an invitation to talk about it at a public high school. Llewellyn writes:
The final bell rang, and most of the students hoisted their textbook-filled backpacks and went home. But several stayed and clustered around me, their eyes intense. Among them stood a young man whose voice wavered between resignation and longing. He told me his name was Michael. "I totally see what you're saying about school, how it's a waste of time," he said, "And I know there's a lot more I could learn and do on my own. But I can't do it, because I'm black. I walk into some business to get a job, they want to see my diploma. I tell them I educated myself according to my own interests, and it's over. They say, 'Right. Another dropped out-nigger.'" (Llewellyn, 1996, p. 12)
Yet black families are choosing home education in increasing numbers. Llewellyn suggests several of the reasons why African-American home education is on the rise:
While I've worked on this book, people have often asked me why black people homeschool. Having only communicated with about twenty families in the process of editing this book, I'm hardly the expert. What I do know is that homeschoolers, in general, are an extremely diverse bunch. People, in general, homeschool so that children can learn more naturally and develop their unique talents. They homeschool to lessen the possibility of children being shot with a gun at school. They homeschool to maintain close family relationships. They homeschool to avoid the brutal school socialization process, which often turns thoughtful, unique children into rude conformists. They homeschool to honor their children's individual learning styles, which are not always compatible with sitting in a desk and shutting up. They homeschool to provide more challenging and thorough academic educations. They homeschool because they are tired of the racist, sexist propaganda that masquerades as truth in history textbooks. They homeschool to break down artificial barriers between life and learning. They homeschool for other reasons too, concerning health, religion, geography, and self-esteem.
As the writers in this book show, African Americans homeschool for all these reasons and then some. Some homeschool because they see that racial integration in the schools has not always worked for their benefit. (Among other things, they feel that it has disrupted community life and thrust children into hate-filled classrooms where few people encourage or hope for their success.) Some homeschool because they see that schools perpetuate institutionalized racism. Some homeschool because they are tired of curricula emphasizing Europe and excluding Africa. Some homeschool because their children are overwhelmingly treated as problems in schools, and quickly labeled Attention Deficit Disordered or Learning Disabled. Some homeschool because black kids drop out of school at much higher rates than white kids. Some homeschool because they want to continue the Civil Rights struggle for equal educational rights, and they feel that they can best do so by reclaiming their right to help their own children develop fully-rather than by working to get them equal access into conventional schooling. (Llewellyn, 1996, pp. 14-15)
Black families have many reasons to consider homeschooling, but they face opposition from inside the African-American community. Black grandparents remember all too well what it cost to get their children into the public schools, and they are not eager for those children to pull their grandchildren out.
Despite this, home education is catching on within the black community, and each new African-American homeschooler opens the door for many more. As Grace Llewellyn puts it:
Later I thought back to the conversation, and I wished that I had also been able to say, simply, "Well, Michael, black people homeschool too." But at the time I didn't know whether that was even true.
Now I know that it is true, and that many black people homeschool to save themselves from a system which limits and destroys them, to reclaim their own lives, families, and culture, to create for themselves something very different from conventional schooling. I also know that the numbers of these people increase every year, and-especially when I remember my first year of teaching-I hope the numbers will continue to increase, by hundreds and thousands. I remember the horrifying smell of human energy and talent rotting in all schools, any schools, but especially in the mostly black, badly funded schools where I substitute taught in Oakland, California. I remember a Friday when the school secretary told me to plan on coming back Monday because the chemistry teacher liked to take Fridays and Mondays off. I remember walking past vice principals' offices that were bulging with young men who had been kicked out of class. I remember the soft eager eyes of preschoolers and the hard cynical eyes of high school seniors. I remember the principal who introduced me as a long-term sub for a choir teacher, telling the class it didn't matter what they thought of my teaching, the state had given me a certificate (though in English, not music) and that's all they needed to know. (Llewellyn, 1996, pp. 13-14)
If governments don't fix the problems with predominantly black schools, families will. They will pull their children out and teach them at home.
V. Legalizing Home EducationThe modern homeschool movement has many sociological layers, as we have seen. But every stratum of the homeschool community is subject to the same laws. In this section, we examine the legal developments that took homeschooling from an act of civil disobedience to a statutory right.
A. Underground Education
Truancy is a crime in every state, but the truancy laws only work if the government knows that a child is out of school. The homeschoolers of the 1960s discovered that it is not all that hard to keep a child out of school and out of court. No one knows how many "underground homeschoolers" there were in the late 1960s and early 1970s, but in many states, the only way to homeschool was to hide. Thousands of families did so successfully.
B. In Search of Freedom
There were a few states where home education was legal. Oklahoma, for example, has a constitutional provision that refers to home education. The Oklahoma Constitution requires the legislature to provide for compulsory attendance at some public or other school, "unless other means of education are provided of all children in the State who are sound in mind and body, between the ages of eight and sixteen, for at least three months each year." The "other means of education" language was added for the specific purpose of protecting the right of parents to choose homeschooling. In 1907, during the Oklahoma Constitutional Convention, one of the delegates, Mr. Buchanan, proposed that the phrase "unless other means of education be provided" be added to Article 13, Section 4. Favorably responding to Mr. Buchanan's proposal, another delegate, Mr. Baker stated, "I think Mr. Buchanan has suggested a solution. A man's own experience sometimes will teach him. I have two little fellows that are not attending a public school because it is too far for them to walk and their mother makes them study four hours a day." As a result of this discussion on homeschooling, the "other means of education" language was added to Article 13, Section 4.
The Supreme Judicial Court of Massachusetts permitted home education (as opposed to child labor) in Commonwealth v. Roberts, 34 NE 402 (Mass. 1893). The court emphasized that the object of the statute is that "all children shall be educated, not that they shall be educated in a particular way."
An Indiana court permitted homeschools as far back as 1904 in State v. Peterman, 32 Ind. App. 665, 70 N.E. 550 (1904). The court defined a school as "a place where instruction is imparted to the young..... We do not think that the number of persons, whether one or many, make a place where instruction is imparted any less or any more a school." (Peterman, at 551.) Quoting the Roberts decision in Massachusetts, the Indiana court said: "The object and purpose of a compulsory educational law are that all the children shall be educated, not that they shall be educated in any particular way." (Peterman, at 551.) The Court concluded; "The result to be obtained, and not the means or manner of attaining it, was the goal which the lawmakers were attempting to reach. The [compulsory attendance] law was made for the parent who does not educate his child, and not for the parent who ... so places within the reach of the child the opportunity and means of acquiring an education equal to that obtainable in the public schools...." (Peterman, at 552.)
The Illinois Supreme Court recognized a right to teach a child at home in 1950 when it decided People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950). This landmark case held that a "private school" is "a place where instruction is imparted to the young ... the number of persons being taught does not determine whether a place is a school." (404 Ill. at 576, 90 N.E.2d at 215.) The Illinois Supreme Court emphasized the right of parents to control their children's education: "Compulsory education laws are enacted to enforce the natural obligations of parents to provide an education for their young, an obligation which corresponds to the parents' right of control over the child. (Meyer v. Nebraska, 262 U.S. 390, 400.) The object is that all shall be educated, not that they shall be educated in any particular manner or place." (Levisen, 404 Ill. at 577, 90 N.E.2d at 215.)
Virginia was a haven for homeschoolers after it enacted an exemption from compulsory attendance for conscientious objectors in 1954. There were Amish and Mennonite communities that refused to send their children to the public high schools, so Virginia took the conscientious objector language from the federal draft code and adapted it to the school setting. Virginia Code section 22.1-257(B) requires school boards to exempt from compulsory attendance "any child who, together with his parents, by reason of religious training or belief, is conscientiously opposed to attendance at school." Virginia homeschoolers tell the legend of "Mario the Amish Guy," who started off as an unschooler in New York City but then moved to the Shenandoah Valley, put on Amish garb, grew a beard, and successfully claimed Virginia's religious exemption.
C. Early Skirmishes
John Holt was as much of a pioneer in homeschool law as he was in the field of education. In his book Teach Your Own, first published in 1981, Holt told families how to present a legal defense of home education. Holt wrote:
Most judges in family or juvenile courts, where many unschooling cases will first be heard, probably don't know this part of the law either, since it is not one with which they have had much to do.
This means that when we write up homeschooling plans, we are going to have to cite and quote favorable rulings. The more of this we do, the less schools will want to take us to court, and the better the chances that if they do we will win. (Holt, 1981, p. 272)
Holt then spells out a number of early cases that homeschoolers could use in their defense in court. (Holt, 1981, pp. 273-294) Most of these were trial court decisions, which never appear in any published legal reporting service. Holt cites State of Iowa v. Sessions, (Winniesheek County District Court, 1978); Commonwealth of Virginia v. Geisy (Norfolk Juvenile and Domestic Relations Court, 1979); and Michigan v. Nobel (57th Dist. Ct., Allegan County, Mich. 1979). The early issues of Growing Without Schooling were filled with citations of trial court rulings homeschoolers had won. These cases gave parents confidence and helped the homeschool movement grow.
The first significant reported4 case of the modern homeschool movement came in New Jersey. According to New Jersey law, a child must attend a public school "or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades ... or receive equivalent instruction elsewhere than at school." Homeschoolers argued that they satisfied the "elsewhere than at school" portion of the statute in State v. Massa, 95 N.J. Super. 382, 231 A.2d 252 (Morris County Ct. Law Div. 1967).
The Massa court agreed. "This court agrees with the above decisions that the number of students does not determine a school and further, that a certain number of students need not be present to attain an equivalent education." (Massa at 256.) The court reiterated Roberts, emphasizing that the object of the statute is that "all children shall be educated, not that they shall be educated in a particular way." (Id.)
D. The Absent ACLU
Homeschoolers did win some cases, but it was hard to find a lawyer who knew anything about home schooling except that it was illegal. As John Holt wrote:
For some time, we unschoolers are not likely to find many lawyers, anywhere in the country, who know as much about the law on unschooling as we know or can easily find out. This is not an issue about which most lawyers have concerned themselves. We cannot rely on them to work out good strategies and write good briefs for us-at least, not at a price that most of us can afford. We are going to have to do much of the research, decide what legal action we want to take, what kind of decision we hope to get from the courts, and put together all our necessary supporting evidence, citations, quotes from rulings, etc. Only after we have prepared the strongest possible case should we think about hiring a lawyer to polish it for us and steer it through the courts. (Holt, 1976, p. 297)
Holt was writing about filing suit against a local school district, which gave a family a choice between going to court or not going to court. Families did not have the luxury of such a choice when they found themselves defending against criminal charges. In those cases, they needed a good lawyer and they needed one fast.
Many of the early homeschoolers were well to the left of the political spectrum, and some assumed the American Civil Liberties Union would rise to defend them.5 They were sadly mistaken. The ACLU's absence was a critical but often overlooked factor in shaping the subsequent development of home school politics.
The ACLU's absence was not for lack of trying. John Holt wrote the national director of the ACLU, Aryeh Neier, to persuade him to support homeschoolers. Holt published that letter in an early issue of Growing Without Schooling:
Dear Mr. Neier—Thanks very much for your kind invitation to take part in your National Convocation on Free Speech on June 13....
I think that compulsory attendance laws, in and of themselves, constitute a very serious infringement of the civil liberties of children and their parents. This would be true, I feel, no matter what schools were like, how they were organized, or how they treated children, in short, even if they were far more humane and effective than they actually are.
Beyond that, there are a number of practices, by now very common in schools all over the country, which in and of themselves seriously violate the civil liberties of children, including ... [Holt goes on to list ten common practices in the public schools. Some of these have since been prohibited by case law or statute, others remain common to this day].
... As long as such outrages go on, I can't get very excited about such issues as the controlling of violence and sex on TV, the rating of motion pictures, the censorship of student publications, or the banning of textbooks and library books on various grounds. People who argue strongly about such things, while accepting without protest the practices I here complain about, seem to me to be straining at gnats while swallowing camels....
To return once more to the matter of compulsory school attendance in its barest form, I think you will agree that if the government told you that on 180 days of the year, for six or more hours a day, you had to be at a particular place, and there do whatever people told you to do, you would feel that this was a gross violation of your civil liberties. The State justifies doing this to children as a matter of public policy, saying that this is the only way to get them educated. Even if it were true that children were learning important things in schools, and even if it were true that they could not learn them anywhere else (neither of which I believe), I would still insist that since in other (and often more difficult) cases the ACLU does not allow the needs of public policy as an excuse for violating the basic liberties of citizens, it ought not to in this case. (Holt, 1978, p. 44)
It is not easy to explain why the ACLU chose to stay out of homeschool cases. After all, the strongest precedent for a right to teach a child at home is Roe v. Wade. Roe's right to abortion is explicitly grounded in a fundamental right to "bear and raise children," and this right was first recognized by the Supreme Court in Pierce v. Society of Sisters, 268 U.S. 510 (1925), a 1925 case which upheld a parent's right to keep a child out of public schools.
If the ACLU had accepted homeschool cases, it is safe to assume that they would have tried to extend the privacy rights of Roe to include home education. After all, if the constitutional right to "bear or raise children" is important enough to allow a woman to terminate a pregnancy even though many Americans view that act as murder, it ought to be important enough to allow a parent to give a child an alternative form of education.6
The ACLU's absence is hard to explain. There is no evidence that the national organization made any top down policy decision to avoid home school cases. There was one successful New Hampshire Civil Liberties Union case, Appeal of Peirce, 122 N.H. 762 (1982), but a computer database search reveals no other reported case in which the ACLU or any of its state affiliates supported the right to home school. For some reason, however, the organization as a whole seemed uninterested in winning this kind of case.
E. Void for Vagueness
The early homeschool cases were generally won using the kind of arguments the ACLU has perfected. The single most successful argument in the early years was the "void for vagueness" defense that the ACLU has used so successfully as a defense to obscenity or loitering laws.
In states where the compulsory attendance law required attendance at a public school or "equivalent instruction elsewhere," homeschoolers argued that their homes were equivalent. The earliest case on this point took place in New Jersey. In 1965, the New Jersey Supreme Court ruled that a homeschool might be able to provide equivalent instruction. (State v. Vaughn, 44 N.J. 142 (1965).) Public school officials insisted that "equivalent instruction" would have to include more than just equivalent academics. The school establishment insisted upon equivalent social interaction, too. When a homeschool family was prosecuted for lack of socialization, however, the court sided with the homeschoolers. )Massa, supra.)
In states where the compulsory attendance law required attendance at a "private school," homeschoolers argued that their home was a private school. In some states, the courts promptly rejected this claim. In others, the judges gave homeschoolers the benefit of the doubt.
In Roemhild v. Georgia (251 Ga. 569, 308 S.E.2d 154 (Ga. 1983)), the Georgia Supreme Court declared Georgia's compulsory attendance law "unconstitutionally vague." (Roemhild, 308 S.E. 2d at 159.) The court reasoned: "...we conclude that the statute is not sufficiently definite to provide a person of ordinary intelligence, who desires to avoid its penalties, fair notice of what constitutes a "private school...." (Roemhild at 158.) "Furthermore, the statute violated a second due process value in that it impermissibly delegates to local law enforcement officials, judges, and juries the policy decision of what constitutes a private school." (Id.)
In Wisconsin v. Popanz (112 Wis. 2d 166, 332 N.W.2d 750 (Wis. 1983)), the Wisconsin Supreme Court held that the compulsory attendance law was "void for vagueness insofar as it fails to define private school." (Popanz, 332 N.W. 2d at 756.) The Court explained: "The persons who must obey the law should not have to guess at what the phrase 'private school' means. They should have some objective standards to guide them in their attempts to 'steer between lawful and unlawful conduct.' (Grayned v. City of Rockford, 408 U.S. 104 (1972).) Furthermore, standards cannot lie only in the minds of persons whose duty it is to enforce the laws. We must conclude that statute fails to provide fair notice to those who would seek to obey it and also lacks sufficient standards for proper enforcement." (Popanz, at 756.)
The Minnesota Supreme Court ruled that Minnesota's requirement that private and homeschool teachers have qualifications "essentially equivalent" to public school teachers was too vague to "serve as a basis for criminal conviction," and therefore, was an unconstitutional violation of due process under the 14th Amendment. (Newstrom v. State, 371 N.W.2d 525, 533 (Minn. 1985).)
These early cases created a new opportunity for homeschoolers to thrive in those states and in others that had vague, old-fashioned laws.
F. Looking for Loopholes
Not all states had vague laws, however. Some permitted education in the home as long as the local public school district "approved" the instruction in advance. Many early homeschoolers managed to get approval from open-minded school officials, but far more were rebuffed. School officials who refused to approve a homeschool program tended to prosecute parents who went ahead and taught their children at home without permission.
Local homeschool groups began to learn which school districts were receptive to home education and which were not. A patchwork approach to home education began to develop, where local homeschool leaders learned how to negotiate approval out of local public school officials. In hostile districts, homeschoolers learned how to hide or made plans to move.
Approval in advance by local school officials worked reasonably well for some homeschoolers in some school districts, but it was completely unacceptable for a brand-new national organization that was committed to defending every homeschooler in every school district, including those who had strong religious objections to asking "Caesar" for permission to teach Christian values to their own children. The Home School Legal Defense Association (HSLDA) was formed in 1983 with just that mission.
If HSLDA had started off with big budgets and high-powered lawyers, it probably would not have tackled this problem as it did. But HSLDA started off as a cardboard box full of membership applications under Mike Farris's bed. HSLDA's first full-time employee was Chris Klicka, then a law student at Oral Roberts Law School. Klicka had spent a summer at the Rutherford Institute researching the compulsory attendance laws in all 50 states. When he started work at HSLDA, he set in finding every loophole in every law.
There were plenty of loopholes to find. There was some way to get away with homeschooling in the majority of states by 1983, although the vast majority of school district superintendents still assumed they had the power to prosecute homeschoolers if they refused to cooperate with the school system. HSLDA tended to attract the families who were least willing to cooperate, and the legal battles began in earnest.
Klicka sat down to write the book on homeschool law. Home Schooling in America: A Legal Analysis, has since become the definitive statement on home education in America,7 not so much because Klicka's interpretation of the law was widely accepted by local school officials or state departments of education, but because HSLDA settled down to the long, slow process of systematically insisting upon their interpretation of the law in every single interaction with school districts.
Homeschooling was so new that local school districts rarely had any official guidance from above on how to handle it. Each school official had to invent the wheel from scratch. This placed school officials at a systematic disadvantage in dealing with homeschoolers, because HSLDA lawyers knew all the statutes, regulations, policies, and precedents that justified home education. HSLDA made no secret of its willingness to go to court to defend its understanding of the law. In the face of HSLDA's extensive knowledge and single-minded purpose, most districts looked for ways to tolerate homeschoolers instead of prosecuting them.
G. Constitutional Challenges
There were a few states, however, where there was strong leadership from above. In Texas, for example, the Texas Education Agency instructed school officials that home education was not legal and that homeschoolers should be prosecuted if they would not put their children into traditional schools. HSLDA members in Texas joined a class action suit to block this prosecution. Homeschoolers argued that Texas was discriminating against parents by permitting any private school to operate except a private school operated by parents. The trial court agreed that this was enough of a possibility that criminal charges against homeschoolers should be enjoined until a final determination of that question could be made. Leeper v. Arlington Indep. School Dist., No. 17-88761-85 (Tarrant County 17th Judicial Ct., Apr. 13 1987).8 Homeschoolers in Texas were suddenly free from the threat of prosecution.
The Leeper decision was HSLDA's first big win as a plaintiff in a case. Over the next few years, HSLDA lawyers filed a series of broad constitutional challenges for HSLDA members in other states where homeschoolers were under attack.
Pennsylvania and New York each had an "approval" law that meant that homeschoolers could not operate without individualized approval by their local school superintendent. In each state, scores of HSLDA members were in court. HSLDA filed Jeffery v. O'Donnell (702 F.Supp. 516 (M.D. Pa. 1988)) in Pennsylvania and Blackwelder v. Safnauer (689 F. Supp. 106 (N.D.N.Y. 1986)) in New York.
The two cases made essentially identical federal claims about essentially identical state laws on essentially identical facts. The two courts came to opposite conclusions. The Jeffery court struck down Pennsylvania's compulsory attendance law. The Blackwelder court upheld New York's.
H. Legislative Victories
The loss in New York did not make a big difference to homeschoolers in that state. On the same day that Blackwelder was decided against them, the New York Board of Regents issued regulations legalizing and regulating home education. The Pennsylvania Legislature did much the same when it passed a new compulsory attendance law that permitted home education under certain conditions.
By 1987, homeschoolers had achieved enough legitimacy that lawmakers were finally willing to consider permitting home education, subject to certain regulations. In general, legislators were willing to allow parents to teach their own children as long as they provided an annual notice of their intent to teach a child at home and submitted evidence of academic achievement at the end of the school year. The following states adopted home school statutes or regulations:
1982: Arizona, MississippiBy 1989, there were only three states where home education was still a crime. Iowa, North Dakota, and Michigan were the last homeschool holdouts. The North Dakota Supreme Court ruled against homeschoolers seven times before 1989, when the "Bismarck Tea Party" persuaded the legislature to change the law.
1983: Wisconsin, Montana
1984: Georgia, Louisiana, Rhode Island, Virginia
1985: Arkansas, Florida, New Mexico, Oregon, Tennessee, Washington, Wyoming
1987: Maryland, Minnesota, Vermont, West Virginia
1988: Colorado, New York, South Carolina, North Carolina, Pennsylvania
1989: North Dakota, Hawaii, Maine, Ohio
1990: New Hampshire, Connecticut
1983: Wisconsin, Montana
1984: Georgia, Louisiana, Rhode Island, Virginia
1985: Arkansas, Florida, New Mexico, Oregon, Tennessee, Washington, Wyoming
1987: Maryland, Minnesota, Vermont, West Virginia
1988: Colorado, New York, South Carolina, North Carolina, Pennsylvania
1989: North Dakota, Hawaii, Maine, Ohio
1990: New Hampshire, Connecticut
Homeschooling was still illegal in Iowa, thanks in large part to Kathy Collins, the attorney who used to handle home education issues for the Iowa Department of Education. In 1987, Attorney Collins wrote:
Children are not chattel; they are not personal property. They are not "owned" by their parents, nor do they "belong" to the state. The Christian fundamentalists who want the freedom to indoctrinate their children with religious education do not understand that the law that prevents them from legally teaching their kids prevents someone else from abusing theirs.
Compulsory attendance laws are protectionist in nature. Their purpose is twofold: to protect the state by ensuring a properly educated citizenry; to protect the children by ensuring that their labor is spent attaining an education. Any law that would allow Christians to teach their children without oversight or interference from the state would also allow parents with less worthy motives to lock their children in a closet, use them to baby-sit for younger siblings, or have them work twelve hours a day in the family hardware store. Opening the door for the lamb allows the lion to enter as well....
It has taken nearly two centuries to enact the many legal protections existing today for children. Abrogating the state's compulsory-attendance laws, or weakening them by allowing parents to teach children at home, is no less than a giant genuflection backward. The precarious balance of parents' rights versus children's rights should never be struck in favor of the parents. While the Religious Right carries the Christian flag into battle, the state must steadfastly hold high the banner of the child. (Collins, 1987, p. 11)
Despite Collins' very best efforts, the Iowa Legislature finally passed a homeschool law in 1991. That left Michigan as the very last state to prohibit home education by anyone but a certified teacher. The DeJonge family had spent eight years in court, and had lost every single hearing before they reached the Michigan Supreme Court. By a 5-4 decision, that court held that the Michigan compulsory attendance law violated the rights of parents who had a sincere religious objection to using certified teachers. (People v. DeJonge, 442 Mich. 266 (1993).) In a companion case, the court ruled in favor of the Clonlara School, which used certified teachers as required by law, but only for a few hours each school year. The rest of the instruction was provided by parents. (Clonlara, Inc. v. State Bd. of Educ., 442 Mich. 230 (1993).)
These two cases effectively eliminated Michigan's ability to prosecute homeschoolers, but not their power to try. Two and a half years later, the legislature enacted a home education law that eliminated all notice and reporting requirements.9 The battle for Michigan was finally over.
VI. Holding GroundBy the middle of 1993, homeschooling was finally legal in all 50 states. The challenge for the homeschooling movement shifted from making home education possible to keeping it free. This proved to be as big a task as ever.
A. The National Education Association
Homeschoolers have not yet won over all their opponents. The National Education Association, in particular, has voted to abolish home education every year since 1988:
The National Education Association believes that homeschooling programs cannot provide the student with a comprehensive education experience. When homeschooling occurs, students enrolled must meet all state requirements. Homeschooling should be limited to the children of the immediate f