[Eugene Volokh] Constitutional Right to Home-School?

An interesting opinion from a Georgia Court of Appeals chief judge Stephen Dillard.

Whether states may ban home-schooling is a surprisingly complex question. The Supreme Court has famously held that staes may not compel parents to send their children to public schools, but the cases on the subject (Pierce v. Society of Sisters (1925)) expressly secure only a right to send the kids to private schools — Pierce itself noted that,

No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

Perhaps this should just be taken literally to mean that the Court wasn’t deciding this question. Or perhaps “require[ments] that all children of proper age attend some school” should — as a constitutional matter — be satisfied by a showing that the child is “attend[ing]” a home school that is allowing the child to perform at or beyond grade level. Or perhaps the means for regulating home schooling (such as tests that show a student’s progress) are much more advanced now than they were then, and that regulated home schooling is a “less restrictive alternative” that would still accomplish the government interest in making sure children are adequately educated. But as best I can tell, the lower court decisions dealing with the subject have generally taken the view that bans on home schooling (or requirements that only people with suitable teaching credentials may home-school) are constitutional under Pierce. In recent decades, home-schooling has been legal in nearly all states, as a result of legislation, not constitutional litigation; so there have been few cases recently having to deal with this question.

Religious homeschooling is a different matter. Wisconsin v. Yoder held that the Amish could pull children out of school at age 14, and then vocationally train the children at home, notwithstanding a compulsory education law that generally required school attendance until 16. Yoder survives the Court’s decision in Employment Division v. Smith (which mostly holds that the Free Exercise Clause doesn’t require religious exemptions from generally applicable laws, but which expressly preserves such claims in parental rights cases like Yoder). And in People v. DeJonge, 501 N.W.2d 127 (Mich. 1993), the Michigan Supreme Court generally held that there is a constitutional right to home-school for religious reasons, though with some regulations (not including a requirement that one parent be a certified teacher, which is the very requirement that the Michigan Supreme Court struck down).

Last week, Judge Stephen Dillard, chief judge of the Georgia Court of Appeals (and, back in the day, blogger Feddie at Southern Appeal), wrote an interesting concurring opinion (Borgers v. Borgers) forcefully defending such a right. I personally think that defining the scope of parental rights is a complicated matter, and while I support the right to homeschool on policy grounds, I’m not positive that it should be recognized as a constitutional right; but the opinion struck me as very interesting, and I thought I’d pass it along.

The case is a child custody dispute, in which the trial judge ordered the mother to enroll a child in school (who would presumably be the Montessori School to which she had gone before) instead of homeschooling. The court’s opinion overturned the order on procedural grounds, and Chief Judge Dillard agreed, but also added:

The liberty interest of parents to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights we hold as a people, and is “deeply embedded in our law.” This cherished right derives from the natural order, preexists government, and may not be interfered with by the State except in the most compelling circumstances. And while I agree with the majority that the trial court lacked the authority to alter the parties’ custody agreement in this contempt action, I write separately to express my serious concerns with the court’s decision to summarily substitute its judgment regarding the child’s education for the mother’s without identifying evidence of the compelling circumstances necessary to interfere with her constitutional parental rights. In doing so, the trial court failed to give sufficient consideration to the federal and Georgia constitutions, both of which afford significant protection of a parent’s right to the care, custody, and control of his or her child—which undoubtedly includes the right to make educational decisions.

Our trial courts must be mindful in every case involving parental rights that, regardless of any perceived authority given to them by a state statute to interfere with a natural parent’s custodial relationship with his or her child, such authority is only authorized if it comports with the long-standing, fundamental principle that “[p]arents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children.”

In this respect, the Supreme Court of the United States has acknowledged that “[t]he liberty interest … of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests ….” And while a parent’s right to raise his or her children without state interference is largely expressed as a “liberty” interest, the Supreme Court of the United States has also noted that this right derives from “privacy rights” inherent in the text, structure, and history of the federal constitution.

In Georgia, a parent’s natural right to familial relations is also recognized “under our state constitutional protections of liberty and privacy rights.” Indeed, Georgia courts have repeatedly recognized that “the constitutional right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” In fact, according to our Supreme Court, “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his or her] offspring.” And the fundamental liberty interest of natural parents in “the care, custody, and management of their child does not evaporate simply because they have not been model parents. …” To be sure, parental rights are not absolute. But when this fundamental liberty interest is at stake, the court must “give full, fair, and thoughtful consideration to the serious matter at hand.”

Suffice it to say, a parent’s right to the care, custody, and control of one’s child includes a constitutionally protected right to make decisions regarding the child’s education—including the choice to homeschool. Indeed, in addition to the Supreme Court of the United States’s landmark decisions in Meyer, Pierce, and Yoder, the fundamental right of a parent to homeschool his or her child is also supported by Washington v. Glucksberg, which held that the federal Constitution “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”

As one legal scholar has observed, homeschooling was “not only legal at the very early stages of our ‘history and tradition,’ but was also the predominate form of education.” A parent’s fundamental right to homeschool his or her children was also, significantly, “recognized and unchallenged when the Constitution was drafted and when the Fourteenth Amendment was passed.” And while the Supreme Court of Georgia has yet to explicitly declare that a parent’s right to care, custody, and control of his or her children includes the right to homeschool them, it is difficult to see how the Court’s reasoning in Patten v. Ardis [striking down a grandparent visitation statute on parental rights grounds]which is steeped in this state’s constitutional and jurisprudential history—would not apply with equal force and extend to such a fundamental parental duty. There is little question, then, that parents have a fundamental right under the United States and Georgia Constitutions to homeschool their children.

Nevertheless, here, in addition to disregarding the plain terms of the current custody agreement, the trial court appears to have given little, if any, consideration of the mother’s constitutionally protected liberty interest in deciding to homeschool her child. Indeed, without even referencing the significant liberty interests at stake, the court questioned and undermined the mother’s choices regarding her child’s education, ordering her to enroll the child in the Montessori school to “ensure the child is not ‘homeschooled'” based on its “own beliefs as to the child’s best interest[.]”

And while the trial court may be right that it would be more “convenient” for the child to attend the Montessori school because the mother works there, a parent’s constitutional right to make educational choices for his or her child is not limited to those a judge (or any other state actor) deems to be convenient or wise. Thus, even if the trial court had been authorized to modify the parents’ custody agreement (which it was not), it did not reference any evidence of the compelling circumstances necessary to substitute its own preferences as to the child’s education for the mother’s decision to homeschool her child. And when state actors engage in this sort of Orwellian policymaking disguised as judging, is it any wonder that so many citizens feel as if the government does not speak for them or respect the private realm of family life.

In sum, I take this opportunity, yet again, to remind our trial courts that, in making any decision or taking any action that interferes with a parent-child relationship, our state statutes are subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions—which both include a parent’s fundamental right to homeschool a child.

As this Court has rightly recognized, “[t]he constitutional right of familial relations is not provided by government; it preexists government.” Indeed, this “cherished and sacrosanct right is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.” Thus, regardless of a court’s personal feelings or perception of a parent’s fitness to care for or retain custody of his or her child, careful consideration of these bedrock constitutional principles and safeguards must remain central to each case without exception. And when this fails to occur, we will not hesitate to remind our trial courts of the solemn obligation they have to safeguard the parental rights of all Georgians.

For an interesting (and I think mistaken) homeschooling / child custody case from several years ago, see here; for a Reason article on homeschooling from 1983 — when, to my knowledge, homeschooling was much less widely accepted — see here.

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