"Teach your children well . . . or else!"

Paul Horwitz, at Prawfsblawg, has a post up about Kimberly Yuracko's new paper, which argues that the state has an obligation to make sure that home-schooling parents provide children with (what she regards as) a basic, appropriately liberal education.  Paul invites the reactions of MOJ readers and bloggers, so head on over to Prawfsblawg and comment!

Here is a sample of Paul's post:

Kimberly Yuracko, at Northwestern Law School, has just posted on SSRN a fascinating and provocative paper titled Illiberal Education: Constitutional Constraints on Homeschooling.  Here's the abstract:

Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over a million children are currently being homeschooled. Although homeschoolers are a diverse group, the homeschooling movement has come to be defined and dominated by its fundamentalist Christian majority many of whom choose to homeschool in order to shield their children from secular influences and liberal values. In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups. 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 is extensively researched and elaborately argued, and is well worth a read by those with a variety of constitutional interests: in state action doctrine, in constitutional enforcement, and certainly those with an interest in law and education and (although more on this later) law and religion.  (Take it away, MOJ!)  Yuracko makes a reasonably convincing argument on policy grounds that the states and Congress have abdicated a "duty," of some sort, to ensure that homeschooling meets at least miminal educational desiderata, at least through a reasonable testing mechanism.   

Her broader argument that this is, in fact, constitutionally required, is far more contentious and deserves attention, if only to tease out the implications of the piece.  For instance, once having attempted to bring homeschooling under the constitutional umbrella, Yuracko argues that the state is constitutionally obligated to ensure that homeschoolers do not treat girls differently from boys.  If it's a question of ensuring equal resources, this is a less controversial move, if you buy the initial moves that turn homeschooling into a constitutionally relevant area in the first place. 

But she also argues that the state may be obliged to "preclude the teaching of certain counterfactual claims such as the natural superiority and inferiority of the races or the danger to women's health of intellectual development.  In addition, the basic minimum [educational standard required by the state and federal constitutions] may limit the extent to which parents may teach their children idiosyncratic and illiberal beliefs and values without labeling or framing them as such."  So, in Yuracko's argument, there is a constitutional obligation for the state to ensure not just that homeschooled kids receive at least a minimally competent education, but also to ensure that they receive at least a minimally liberal education.  That is controversial. 

Given the breadth of the argument, which surely could apply not just to questions of race and gender but also questions of what moral or religious lessons children are being taught, I might have expected a good deal more discussion of any countervailing First Amendment speech or religion claims here, although the paper's cup already runneth over.  And this little statement, tucked away early on, should also be provocative to readers on MOJ and elsewhere: the paper "highlights the legal distinctness of parents and children and emphasizes that parental control over children's basic education flows from the state (rather than vice versa)." . . .

On your way over to Prawfsblawg to comment, stop here and pick up Michael Scaperlanda's essay, "Producing Trousered Apes," and maybe also my own, "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children."