(From WPA’s Handbook, Homeschooling In Wisconsin, Chapter 22)

• Legal Foundations

• Compulsory Attendance, Not Compulsory Education

• Logical Foundations

• Historical Foundations

• Practical Foundations

• Moral Foundations

• Religious Foundations

The following list of foundations of homeschooling rights and responsibilities is based on principles that support reasonable homeschooling laws and oppose unreasonable ones. Many of these ideas also support other important family rights, and the list itself provides a model for ways in which rights can be maintained. A wide range of ideas is presented so that the most appropriate and compelling ones can be selected for a given situation. It is important to understand that we have inalienable rights. These rights are not given to us by the state. We should not look to the state as the source of these rights, we should not give them over to the state, and we should not ask the state to protect them for us through laws or constitutional amendments.

Many of these ideas are based on common sense and a willingness to question assumptions and practices that are widely accepted. They are organized into categories for convenience, but in reality they overlap and interrelate. Some basic ideas are repeated so each category is nearly self-contained and so subtle points can be included.

Legal foundations are listed first because homeschoolers and other parents must deal with them so often. However, legal arguments are often not the most compelling or effective way to support and maintain family rights and responsibilities and should not be heavily relied on. See Chapter 23.

Legal Foundations

(1) Constitutional provisions. The U.S. Constitution does not specifically mention education. This was not an oversight. The idea of including education was discussed and rejected. However, the several amendments to the Constitution guarantee rights that are important to homeschoolers and others.

• The First Amendment covers freedom of religion, speech, and the press, and the rights of assembly and petition.

• The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, but upon probable cause.” In other words, the state must have reasonable cause or evidence before officials can enter the houses of citizens or threaten their persons or insist that they answer questions.

• The Fifth Amendment protects citizens from being compelled to testify against themselves. It guarantees the right to trial by jury and the right not to “be deprived of life, liberty, or property, without due process of law.” The right to due process has been used to protect personal liberties. It is strengthened and given more authority under the Fourteenth Amendment.

• The Ninth Amendment says that there are some rights that are retained by the people even though they are not listed in the Constitution. This amendment is important for people who want to reclaim rights that the state has usurped by custom and even by statute, since they can argue that the state had no constitutional basis for taking away these rights in the first place. On the basis of this amendment, courts have recently upheld parental rights in education and rights to privacy.

• Section 1 of the Fourteenth Amendment provides civil rights that are very important to individuals, especially minorities.       
First, “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In other words, state laws may not take away fundamental privileges (rights and liberties) guaranteed by the U.S. Constitution.       
Second, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” While this provision seems to repeat the language of the Fifth Amendment, here it is establishing that a state government may not do this. For example, a state may not pass laws that deny parents’ constitutional rights to choose for their children an education consistent with their principles and beliefs.    
Third, the section continues, “nor deny to any person within its jurisdiction the equal protection of the laws.” Each individual has equal rights and liberties under the law. Homeschoolers can use this in dealings with public school officials. For example, officials cannot legally deny homeschoolers the opportunity to participate in public school programs and activities merely because they are homeschoolers. They cannot legally require more of former homeschoolers who are entering public schools than of students transferring from other schools.

(2) Case law. Rulings by the U.S. Supreme Court and federal, state, and local courts interpret and expand on the Constitution. Important for homeschoolers are the U.S. Supreme Court cases Pierce v. Society of Sisters (268 U.S. 510 [1925]) and Farrington v. Tokushige (273 U.S. 284 [1927]) in which the court ruled that parents have a right to secure for their children an education consistent with their principles and beliefs and that the state may not have a monopoly in education.

Homeschoolers involved in serious legislative or court battles are strongly encouraged to study the Constitution and case law in greater depth. More detailed information is in John Holt and Patrick Farenga’s Teach Your Own and John W. Whitehead and Wendell R. Bird’s Home Education and Constitutional Liberties. Of course there is no substitute for reading the original documents themselves.

(3) Common law.This is a system based on practice, court decisions, and customs and usage rather than on statutes. Some of the legal maxims or principles that are so widely accepted that they do not need to be written down and can be applied to homeschooling in the United States are:

• “Innocent until proven guilty.” In other words, the state must prove an individual is guilty; individuals do not have to prove they are innocent. Although the state has an interest in ensuring that children do not grow up to be a burden on the state, courts have confirmed that parents have rights in education which the state may not violate. Homeschooling parents should not need to prove themselves innocent (by meeting certification requirements or showing that their curriculum is substantially equivalent to that of a public school or having their children tested) as a condition for exercising their parental rights in education.

• Rights of minorities. People cannot be prosecuted or forced to abandon their principles or practices just because the majority of the people do not agree with them or choose their approach. Homeschoolers should not be prosecuted simply because they have chosen an approach to education that is different from that of the majority of Americans today.

• Civil liberties. Everyone, including homeschoolers, is entitled to fundamental civil liberties, some of which are described in the Bill of Rights.

• “Hard cases make bad law.” In other words, a law designed to take care of the worst possible hypothetical case is almost certain to be long, difficult to enforce, and more likely to prevent good people from doing good than bad people from doing bad. It is unfair and solves nothing to punish conscientious homeschoolers by passing an unnecessarily restrictive law that does not solve the problem of high risk children anyway. Such a law would damage the effectiveness of good homeschools.

(4) Limitations of the compulsory school attendance law. Homeschooling laws are based on compulsory school attendance laws. (If there were no attendance laws, the state would have no basis for regulating homeschooling. People who wanted to homeschool would simply not attend school.) However, it is extremely important to realize that compulsory school attendance laws require attendance, not education. See below.

Compulsory Attendance, Not Compulsory Education

Compulsory school attendance laws require that children of certain ages attend school. Wisconsin's law (s. 118.15) reads in part: "Any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly." Other laws define what schools must do that is educational, such as having a curriculum that covers basic subjects, but they do not require that students become educated. Additional requirements are placed on public schools that want to receive state tax dollars (which, of course, all public schools do). They often include ensuring that curriculums meet state standards and that students take standardized tests. In addition, schools in states that want to receive federal tax dollars for education (which all states do) are required to meet additional criteria that have recently been greatly increased under the new federal No Child Left Behind law. Private schools that accept state or federal tax dollars or both are also required to meet extra criteria. These extra requirements are not part of the basic definition of a school. Private schools (including homeschools) that do not accept tax dollars do not have to meet them. The fact that laws require attendance can also be seen in the definition of truancy, which is clearly understood as failure to attend school and is independent of education. Laws don't say, "If you can come up with a better way to learn what you need to know than attending classes, you may be excused today." Laws do say, "If you're not in school and don't have what school officials consider a 'good excuse,' which pretty much means a serious illness, YOU ARE TRUANT, regardless of how smart you are, how much you already know about what's being taught, how meaningless or irrelevant or wrong it is, or how much more you could be learning some place else.

Generally speaking, laws do not require compulsory education. Among the reasons:

• There's no common agreement about what it means to be "educated." Can you dislike math and still be considered educated? What if you have outstanding mechanical or musical abilities but are not drawn to the printed word? Or if you're smart enough to see through the phoniness and artificiality of school and strong enough to protest?

• Even if we could agree on what one needs to know to be "educated," we lack the means to determine what people know. Tests can only cover a tiny fraction of a subject. They measure how well a person performed on a given test on a given day, not how much a person knows. Some know a lot more than tests show; in fact, they know so much that they realize many questions oversimplify and distort things, and they have difficulty choosing a "right" answer because, really, all the possible choices are usually at least a little bit wrong. Some people have different perspectives and life experiences from the test makers, so the questions don't make sense to them. Some excel at things that are not covered on tests (such as creativity, mechanical ability, musical ability, compassion, justice) but not on the things that are included. Some have good test-taking skills even though they don't know much about the material being covered, so they score "too high."

• Perhaps most important, schools apparently aren't capable of educating many students. Obviously, many people don't learn what they need or want to know in school. Assuming schools would educate people if they could, we have to conclude that they can't. Passing compulsory education laws that require education would not change this. Instead, such laws would show schools' failings without providing realistic solutions.  

So laws wisely require attendance, not education. If you don't measure up to the schools' idea of what education should be, you and your parents don't have to pay a fine or go to jail. The worst that can happen is that you're not allowed to move on to the next grade, although many, many children keep moving along even though they haven't learned what they were supposed to. Further evidence that laws do not require education appears when parents get really fed up and sue schools for failing to educate their children. In such cases, courts rule in favor of the schools. This is not surprising; in fact, the courts have to rule that way. Think of the chaos and the number of lawsuits that would result if courts allowed parents to sue schools for failing to educate their children!

It is important to note that the lack of laws requiring education plays a major role in maintaining freedom of education for everyone, not just homeschoolers, and thus in maintaining freedom of thought. If laws did require education, the government would directly control education and indirectly control people's thinking, since education has a strong influence on thought and belief.

At this point, the distinction between compulsory attendance and compulsory education may seem obvious. After all, people generally refer to the laws under discussion as "compulsory attendance laws" or "compulsory school attendance laws." Why then aren't these points obvious to legislators, judges, the general public, and even some homeschoolers? Why don't legislators and the general public realize that it is inappropriate to require compulsory education of homeschoolers (or anyone else)? One reason is the wide acceptance of the notions that "real learning" takes place in a conventional school and that the most important things people learn are what they study in school between the ages of 6 or 5 or 4 and 18 or 22 or 26. We homeschoolers have done a lot to reclaim learning, but the task is far from complete.

In addition, our society gives moral authority to people who have important positions in education, such as teachers, principals, school superintendents, etc. Many people look to such officials for the answers to questions about education and trust their responses. However, we need to remember and explain to others that, although these school officials may have moral authority, they do not have legal authority either to define education or to require compulsory education. We can ensure our freedoms by not confusing the moral authority ascribed to them by the larger society with legal authority.

As homeschoolers, we can use the distinction between compulsory attendance and compulsory education in a variety of situations.

• When legislators or others claim that laws are needed to ensure that homeschoolers are being educated, we can explain that compulsory education is not required of students who attend conventional schools, so it would be discriminatory to require it of homeschoolers. We can also explain that requiring compulsory education of homeschoolers would set a dangerous precedent for students in conventional schools and for our society as a whole.

• In situations where social workers, judges, or court commissioners insist that homeschoolers demonstrate that they are being educated and/or are at grade level, homeschoolers can oppose such compulsory education on principle. If authorities threaten to require that homeschoolers attend conventional schools because they are not learning enough or may not learn enough through homeschooling, a similar argument can be used.

• When someone challenges our homeschooling on the basis of our children's failure to learn something important, we can point out that, although we want very much for our children to be educated, the laws do not require education, people don't agree on what it means to be educated, and we don't have a good way to determine what people know. These points may seem formal and stilted, but using them in this way reminds us of their importance and helps other people understand them.

Logical Foundations

1. Laws regulating homeschools are basically unnecessary. The experiences of hundreds of thousands of parents and children have shown that parents are very capable of educating their children at home. In addition, thousands of formerly homeschooled children have entered or re-entered conventional schools without problems, showing that their homeschooling experience did not handicap them or make them unable to handle the work done in conventional schools.

2. Homeschooling laws and regulations do not improve homeschools. Homeschooling works because children and adults are good at learning if given a chance. Homeschools are small enough and flexible enough to meet the needs of individual children and allow them to use their strengths. They work because parents care about their children and want what is best for them. People do not become loving and caring parents or conscientious homeschoolers because there are laws that require them to do this. (See Chapter 18.)

3. Regulations can be harmful to homeschools and limit their effectiveness. Regulations frequently interfere with the alternative nature of homeschools, limit their flexibility, and make it more difficult for homeschools to be effective and meet the needs of families.

4. It is commonly understood and widely accepted by people who think seriously about it that decisions about children’s educations should be made by parents. Some parents choose to delegate part of the responsibility for their children’s education to a conventional school while others (called homeschoolers) decide to fulfill this responsibility directly themselves.

5. Some proposed homeschooling laws and regulations imply that parents cannot be trusted to homeschool their children. However, parents can be trusted because:

• Homeschooling is a big responsibility and a lot of work. It is not something parents undertake lightly. Free public schools are a readily available alternative for parents who do not want to be strongly involved with their children through homeschooling.

• Children and adults are good at learning if given a chance.

• Homeschooling families regularly interact with other people. Some critics of homeschooling argue that homeschooled children are too isolated and too strongly influenced by their parents. However, rather than being isolated, homeschoolers are active in their neighborhoods, communities, and other groups. Homeschooled children interact with a wide variety of people of differing ages and backgrounds. Also, children are strongly influenced by their parents whether they are homeschooled or not.

6. It is widely held that parents have a stronger influence on children who attend schools than do the schools. For example, when schools are criticized for not educating children, school officials often defend themselves by saying that they are unable to overcome the influence of the children’s families and home life.

Writing in the Journal of Economic Literature (September, 1986), Eric A. Hanushek critiques 147 studies that sought to correlate student achievement with a wide variety of school-related factors including teacher certification and advanced degrees, curriculum, time on task, quality of the facility, expenditures, class size, etc. The single variable that consistently correlated positively with student achievement was family background. (Most if not all of such research is highly questionable, especially since it relies on standardized tests to measure achievement and equates achievement with learning. However, it is worth noting that much of what passes for the soundest educational research indicates that the family rather than the school correlates positively with academic achievement.)

Historical Foundations

Throughout history, most people have been educated at home. In fact, many people, unfortunately labeled “primitives,” have had the good fortune to live rich and full lives without anyone telling them they were being “educated.” The first compulsory school attendance laws in the United States were not passed until after 1850, and it was not until after World War II that all states required people of high school age to attend school. Although homeschooling is often labeled “new and different,” it is really a very old, traditional, tried-and-true approach to education that works very well.

Some people argue that “times have changed” and that formal education is required in today’s highly technological society. However, times are changing so fast that it is most important that people learn how to learn, how to be flexible and handle change, and how to solve problems. Homeschools are especially good environments for this learning.

Unfortunately, the historical foundations of homeschoolers were undermined by a paper by Scott Somerville, an attorney for the Home School Legal Defense Association (HSLDA), a national organization claiming to represent homeschoolers. Somerville presented a paper titled “The Politics of Survival: Home Schoolers and the Law” before the American Educational Research Association on April 11, 2001. The opening sentence was “Twenty years ago, home education was a crime in almost every state.” (In response to severe criticism, Somerville has since changed this statement so that the current version on the Internet reads, “…home education was treated as a crime…”)

Among the serious problems with this statement:

• The statement is incorrect. Actions are crimes when laws prohibit them. No state had a law outlawing homeschooling. Some had strict requirements for homeschooling, but that did not make it illegal. Most did not have homeschooling laws. An activity is not a crime just because no law specifically gives citizens permission to do it. If that were the case, most of what we do everyday would be a crime, because there are no laws that give us permission to do most of what we do.

• Saying homeschooling was a crime before the 1980s gives the government too much power and weakens our position as homeschoolers. It implies that the right to homeschool comes from the government when it is based on the sources discussed in this chapter. They give homeschooling a much broader and more solid foundation than laws giving parents permission to homeschool.

• Various media pieces on homeschooling have picked up the catchy idea that “homeschooling was illegal,” spreading misinformation and undermining the true foundations of our homeschooling freedoms.

Practical Foundations

1. Homeschooling works. See Chapter 18.

2. Homeschooling provides a wide range of learning opportunities and ways of learning. Because of this, homeschools prevent the development of learning difficulties in many children and are good places for children who learn better by doing than through reading and writing, the main approaches to learning offered by conventional schools.

3. Homeschools provide an excellent opportunity to learn about how children learn. By their nature, homeschools can focus on learning and do not need to deal with classroom management and discipline, often the first concerns of conventional teachers. (If teachers cannot control a class, how can they teach?) The flexible, many-faceted, alternative character of homeschools means that they offer a rich opportunity for children to learn in many different ways, and for professional educators to learn from homeschoolers’ experiences.

4. Homeschools save taxpayers money. Children who do not attend public schools reduce the schools’ expenses.

5. Parents learn a great deal from homeschooling, which is an educational experience for the whole family.

6. Neither lay persons nor professional educators can agree on the best way to educate a child. In the absence of such agreement, a range of alternatives, including homeschooling, must be permitted and ought to be encouraged.

Moral Foundations

1. Our society has an obligation to provide children the education best suited to them as individuals. Since children vary widely in their needs, abilities, interests, and talents, a wide range of alternative approaches to education, including homeschooling, must be available. Families must be able to choose the best alternative for each child. For homeschools to function as true alternatives, they must be free from unreasonable restrictions, some of which would force them to become similar to conventional schools. They would then cease to be alternatives, and children who have difficulty learning in conventional schools would not have as good an alternative.

2. A society that believes in freedom of thought and freedom of belief must allow parents to choose for their children an education consistent with their principles and beliefs and must allow people to choose alternative approaches to education without unreasonable regulation.

3. The family is the fundamental unit of any society. Homeschooling strengthens families. Opposition to homeschooling and unreasonable regulation of homeschooling weaken families. Parents who choose to homeschool are choosing one way of taking seriously their responsibilities for their children. They deserve the support of the larger community.

Religious Foundations

Religious beliefs and arguments are very important to many homeschoolers and provide very strong support for homeschooling. Under our federal and state constitutions, the state may not pass any law or engage in practices that would either establish a religion or interfere with the free exercise of religion, including parents instructing their children in religion.

Specific religious arguments that support homeschooling are not presented here because they are understandably personal and vary widely.