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Confusing a fundamental right as an absolute right

Three weeks ago, I wrote about Harvard law professor Elizabeth Bartholet’s attack on homeschooling and her assumptions and mischaracterizations of parents who teach their children at home.

Included in her claims was the incorrect assertion that the homeschooling movement argues parents have absolute power over the education of their children, according to Michael Smith, president of the Home School Legal Defense Association.

At page 49 of her article [in the Arizona Law Review] at section C1, she alleges that “The homeschooling movement takes the position that parents have, and should have, the absolute power over the education of their children.”

We can’t speak for the entire homeschool movement, but I have been involved with homeschooling since 1981, and no one who professes to represent the movement whom I have read or heard asserts that parents should have the right to neglect their child’s education or abuse their children without consequences.

According to constitutional lawyer and scholar Michael Farris, there are three different categories of general rights that citizens have.

  • Absolute rights that may never be invaded by government for any reason whatsoever.
  • Very important (or fundamental) rights that should not be limited except when someone abuses their rights by extreme use of their liberty.
  • Ordinary rights that the government could overcome whenever there was a good reason to do so.

Legal scholars and the Home School Legal Defense Association—along with 95 years of Supreme Court precedent—agree that parental rights (including homeschooling) are fundamental rights, not absolute rights, Smith continues.

Where there is clear evidence that the parents are not providing for the basic needs of a child, it is the duty of the state to fulfill its lawful function to protect the child. I am not sure where the professor may have gotten her information, but HSLDA has never taken the position that there is an absolute right to homeschool or abuse children. We believe children are a gift from God to parents, and parents are entrusted with the duty to love, protect, nurture, direct, provide for, and educate their children. To say the obvious, the love for our children is what motivated my wife and me to homeschool them, and this sort of love is what continues to motivate leaders in the movement today.

As I shared here, my mother homeschooled me for the years that she did because it provided me a meaningful education that helped prepare me to positively contribute to a democratic society—both of which Bartholet claims homeschooling denies.

But that is because Bartholet argues that the State, not the parent, should have the power over education choices, suggesting that children belong to the government.

The liberty of parents to direct the education of their child has been upheld by U.S. Supreme Court precedent and international declarations as well. This fundamental right protects “parents and families from excessive state interference in the family and family decision making” and must itself be protected, as future attempts to erode the freedom to educate each child individually will continue.

 

Many state legislatures have addressed the right to homeschool and have protected parental rights through state statute. In Minnesota, H.F. 4494 was recently introduced to do the same. 

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