Home Education Magazine
January-February 1998 - Columns
Larry and Susan Kaseman
Homeschooling Organization's Lawsuit Threatens Homeschooling Freedoms
(This is a fuller discussion of the points presented in the summary.)
How can we respond to this lawsuit and minimize the chances of problems in the future? As indicated above, (1) we can understand the reasons this lawsuit threatens our freedoms. (2) We can figure out ways to deal with homeschooling organizations to prevent such lawsuits or other problems in the future.
(1) Basic principles that are overlooked or violated in this lawsuit:
* The lawsuit undermines our status as private schools. When homeschools are identified as private schools, we homeschoolers gain many advantages.
-Because the general public is familiar with and generally accepting of private schools, homeschools seem less unusual, strange, or threatening when identified as "private schools."
-The general public understands that private schools are and should be independent of government regulation, so this freedom and independence are extended to homeschools as well.
-The general public expects private schools to be different from public schools in ordinary, basic ways (like their vacation schedules), so when homeschoolers are identified as private schools, we are given more latitude than we would be otherwise.
-We have conventional private schools as potential allies, at least for some of the battles we have to fight to maintain our freedom.
-We are less vulnerable to special regulations and requirements that would be easier to impose on homeschools as a very small, very isolated minority than on all private schools.
We can legitimately claim that homeschools are private schools. We need to remember this ourselves and insist that others recognize that this statement holds true even if laws in our state refer to homeschools as something other than private schools, such as educational programs or simply homeschools. Homeschools are legitimately private schools because:
-Homeschools are recognized as one way to comply with compulsory school attendance laws.
-Homeschools are places where children learn, a commonly recognized definition of a school.
-Homeschools are privately controlled and managed.
-Homeschools are obviously not public schools, and schools that are not public are recognized as private.
-Other alternative approaches to education are recognized as schools, even if they do not meet in official school buildings. One example is correspondence schools.
(It is very important to remember that we homeschoolers have as much right as anyone else to define terms and present logical arguments concerning homeschooling. Period. That means we have as much right as attorneys, legislators, school officials, or other professionals or so-called experts. In fact, in some ways we have more right and certainly more ability than others, because we know more about homeschooling and are more directly affected by how homeschooling is defined. Therefore, it is legitimate for us as homeschoolers to decide whether homeschools are private schools. In fact, we need to take responsibility for this and other definitions. To remind ourselves and others of this point, we can say "homeschools and other private schools" instead of "homeschools and private schools" and refer to conventional private schools as "other private schools.")
Of course, there are also downsides to being considered private schools. Many homeschoolers feel so strongly about the problems with conventional schooling that we do not want to think of ourselves as schools or be identified by others in this way. This is an important perspective. It would be easier for us to focus on learning and growing if we didn't have to call ourselves "schools."
In addition, being linked to conventional private schools is risky in light of the willingness of many of them to accept public funds and become more like public schools. For example, if conventional private schools agree to administer state-mandated standardized tests and assessments in exchange for vouchers, many of us homeschoolers will need to distance ourselves from this agreement. Fortunately, small independent private schools have set a very good example for us for many years in the ways in which they have resisted pressure to do what conventional private schools do. However, this may be more difficult to do in the future if more money is being offered to private schools who go along with government testing and standards.
Despite these disadvantages, it still seems important for homeschools to be identified as private schools. In addition, the legal status of many homeschools depends on their being identified as private schools. Therefore, asking that homeschools be declared not private schools, even for the purpose of only one law, does homeschoolers a tremendous disservice and undermines a key foundation of our freedoms. It is also incredibly naive to think that such an exception could be limited to only one law. It would be a problem to have school officials, legislators, or others threatening our status as private schools. To have homeschoolers doing so is much more serious!
The organization filing this lawsuit still does not understand the importance of homeschoolers' being identified as private schools. In response to pressure from homeschoolers around the country, it did remove the worst sentence from the lawsuit, "9.5 Plaintiffs are entitled to a declaratory judgment that home schools are not private schools for the purpose of this Act." But even the amended version of the lawsuit undermines the freedoms we homeschoolers gain from being identified as private schools. It claims that homeschools are private schools in 17 states and are not private schools in 33 states. This undermines the legitimate claim that homeschoolers in 33 states have to be identified as private schools. In addition, the amended version of the lawsuit still claims that the law in question is unconstitutional because it treats homeschoolers in states that identify homeschools by law as private schools differently from homeschoolers in states that call homeschools some other term. This invites a judge to rule that homeschools should not be treated as private schools. If the organization really understood what homeschoolers are saying about the importance of homeschools being identified as private schools, it would have withdrawn the entire lawsuit rather than just amending it.
* The lawsuit divides homeschoolers. Homeschoolers need to remain united. All of us together comprise a small minority without much conventional political clout in the way of money, prestige, etc. Remaining united gives us the best chance to maintain our freedoms. At the same time, of course, we need to respect the diversity that exists among homeschoolers and each family's right to make their own decisions regarding learning, education, curriculum, life styles, religious and philosophical beliefs, etc.
This lawsuit jeopardizes our unity by unnecessarily and inaccurately dividing homeschoolers into two groups on the basis of whether laws in each state identify homeschools as private schools or as something else. As pointed out above, all homeschools can be identified as private schools, regardless of the terminology used in state laws. Therefore, this lawsuit voluntarily and unnecessarily divides homeschoolers.
* Any lawsuit is risky; lawsuits involving small minorities like homeschoolers are especially risky. Courts by their very nature uphold conventional views and support existing power centers such as conventional schools. It is very difficult for small, unconventional minorities such as homeschoolers to gain much through court rulings, and it is very easy for us to lose a lot. This is exactly what has happened. Federal and state courts of appeals and federal district courts have consistently upheld state laws regulating homeschooling (except for a few cases in which courts ruled that laws were too vague). For details, see the 62-page report titled Recent Court Cases Examining the Constitutionality of Other States' Laws Regulating Home Schools, by Jane R. Henkel, published in 1990, and available free from the Wisconsin Legislative Council, P. O. Box 2536, Madison, WI 53701-2536; 608-266-1304. The report states, "Special care was taken to attempt to find reported cases striking down state regulations. With the limited exception of cases which found regulations to be unconstitutionally vague, that effort was unsuccessful, which tends to indicate that there are few, if any, such cases." (p. 2)
It is important to realize that many of these court cases were introduced by the same organization that introduced the current lawsuit. The organization often claimed "victory" in such cases on the grounds that homeschooling was not declared illegal, even though the legality of homeschooling was not the issue and even though the court upheld unreasonable and unnecessary state regulation of homeschooling. It is very frustrating to realize that if this organization had not initiated these court cases, it is highly unlikely that there would now be such strong case law upholding state regulation of homeschooling. We homeschoolers would be in a much stronger position legally. Isn't it time to stop the pattern of homeschoolers voluntarily introducing court cases that decrease our freedoms?
* Securing exemptions for homeschoolers through either court cases or legislation is a mistake because it will inevitably lead to a legal definition of homeschooling simply so people will know to whom the law applies. Any legal definition we have been able to imagine so far would decrease our homeschooling freedoms. Obviously a definition like "Homeschoolers are people who do not send their children to conventional schools" would not be acceptable and would cause problems with compulsory school attendance laws. Even something as simple as "Homeschoolers are people who learn at home" or "...teach their children at home" gives the government the grounds and in some ways even the responsibility for saying, "All right, you need to prove to us that your children are learning." There go many of our homeschooling freedoms. A definition of homeschooling in federal law would be especially destructive because in one fell swoop it would overturn all the careful arrangements that homeschoolers have made in their states and school districts to be able to homeschool with as little government intervention as possible.
Therefore, it is very important that we stay as far as we can from court cases and legislation, especially on the federal level, unless there is a clear and present danger and no better option. Again, it's hard to believe that a homeschooling organization deliberately got us into this unnecessary lawsuit in the first place!
* Another key to maintaining our freedoms is to rely on common sense and public opinion as much as possible. Especially do not try to solve problems through laws or the courts that are not really problems or that can easily be solved using common sense or the force of public opinion. Common sense and public opinion are much more reliable supports than laws because they are widely understood and cannot be changed in one fell swoop by legislatures or overturned by courts.
(To be sure, public opinion sometimes works against us, so we need to plan ways to work with it. For example, when the modern homeschooling movement was emerging from the free school movement, the general public's response tended to be: "Wait a minute. Children need to go to school to learn. Parents can't just teach their children at home." We early homeschoolers said in essence, "Okay. We hear your concern. We can't prove yet that homeschooling works. But you have to admit that parents have the right to choose for their children an education consistent with their principles and beliefs. For us, that choice means homeschooling." On this basis, early homeschooling was tolerated. Now public opinion is gradually shifting. Almost everyone knows or has at least heard of someone who is homeschooling. Teeth-gritting tolerance is gradually being transformed into at least a begrudging admission that homeschooling works and sometimes into downright admiration and support.)
In the case of the Gun Free School Zones Act, common sense and public opinion say, "This law was clearly intended to keep weapons out of conventional schools. It was not intended to keep sportsmen who happen to be homeschooling from owning guns."
Homeschoolers obviously are not required to comply with regulations designed for conventional school buildings. We are not required to have school bus turn-arounds, gender-specific rest rooms, or stainless steel sinks. Why did a homeschooling organization call into question a commonly accepted idea that protects homeschoolers from senseless and annoying harassment? Why did they attempt to undermine the important principle that we conduct our homeschools in our homes (and communities), not in school buildings?
Remember that this court case was unnecessary; homeschoolers have not been charged or prosecuted under the law concerning Gun Free Schools Zones. The original lawsuit was supposedly supported by the claim that an official at the Bureau of Alcohol, Tobacco and Firearms had written in a letter that the Gun Free School Zones Act could be used against homeschoolers. However, this statement was made in response to a direct question from a congressman's constituent and is exactly the kind of technical, "cover all the bases" response one would expect from a conscientious bureaucrat. The letter also said, "However, there are a number of exceptions to the prohibition, for example, firearms possessed on private property," indicating that prosecution is unlikely and ways are available for homeschoolers not to be impacted by the law.
(2) Ways we can prevent such lawsuits or other problems in the future:
* We can share these ideas with other homeschoolers through informal conversations, discussions in support group meetings, newsletter articles, and other ways that help people understand the importance of working to maintain our freedoms, ways this can be done, and actions that should be avoided. Actions of individual homeschoolers affect the whole homeschooling community, so the better informed homeschoolers are, the better off we all are.
* We can understand and accept the reality that in order to be able to homeschool without unnecessary and restrictive government regulation, we must be prepared to work to maintain our homeschooling freedoms. It should come as no surprise that we need to take the responsibility for this work ourselves. After all, we have already discovered that we need to take the responsibility for our children's learning. No one else understands the importance of our freedoms as well as we do, and our freedoms are not as important to anyone else as they are to us.
Therefore, we can be careful which individuals and organizations we support. We can look for state and local organizations (or start them ourselves, if none exist) that are collections of individuals who want to work together to maintain our homeschooling freedoms. We can be wary of hierarchical, top-down organizations (especially any that operate on the national level since homeschooling is governed by state laws and state and local regulations) and of any organizations that are headed by experts or professionals who assure us that they will take care of things for us.
Among the questions we can ask of or about organizations we are considering joining or supporting are the following:
-Is the organization's primary goal to serve homeschoolers or is homeschooling only one part of a larger agenda? (If the organization is committed to a larger agenda, there's the risk it may sacrifice or bargain away our homeschooling freedoms in an attempt to promote the larger agenda, whatever it may be.)
-Do I agree with this organization's approach to maintaining homeschooling freedoms and with the tactics it uses?
-What is the organization's past history? Has it worked effectively to maintain homeschooling freedoms or has it weakened our freedoms, perhaps as a result of mistakes or poor judgments?
-Does the organization work with all types of homeschoolers in a state to ensure that its actions are not going to be a problem within the state or at the national level or does it primarily use a segment of homeschoolers in a state to advance its own interests or agenda?
* We can ask similar questions of individuals and organizations that offer homeschoolers services, such as curriculums, counseling, certification of homeschooling parents, and legal services and protection. Unfortunately, it is not unusual to find that their tactics or attempts to increase sales may compromise our freedoms.
* When an individual or an organization is acting in ways that threaten our homeschooling freedoms, we can be careful to act in ways that resolve the problem being created but that do not give increased power, prestige, or leadership to the individual or organization in question. Generally speaking, contacting the individual or organization directly strengthens whatever leadership role they may already have. Therefore, it is often more effective to discuss our concerns with other homeschoolers and come as close to an informal consensus as we can about what the problem is and what can be done about it. In this way, we can let the individual or organization know indirectly that others oppose or have serious concerns about their positions or actions without increasing their power or leadership. For example, if the current lawsuit is not dismissed by the judge, homeschoolers will have an opportunity to file an amicus brief with the court to indicate that we do not support the position being presented in the lawsuit.
* We can be careful not to split the homeschooling community as we react to actions by individuals or organizations that threaten our homeschooling freedoms. As explained above, if the homeschooling movement were divided, we would all be weaker and much more vulnerable. Among the ways we can prevent or minimize the risks of division:
-We can focus on issues, not personalities. We can keep discussions calm, reasonable, polite, and accurate without compromising our principles or whitewashing serious problems.
-We can focus on what we have in common as homeschoolers and on our work to maintain our homeschooling freedoms so each family can make its own decisions about learning, curriculum, lifestyle, religious and philosophical beliefs, etc. We can respect and celebrate the diversity of the homeschooling movement.
-We can avoid getting the mainstream media involved. The media likes controversy because it is more dramatic and exciting than simple factual reporting. Involving the media would weaken our position as homeschoolers dealing with the non-homeschooling world and would widen any divisions that might exist within the homeschooling community.
As homeschoolers we frequently need to respond to challenges to our freedoms from outside the homeschooling movement. It is even more frustrating when homeschoolers or homeschooling organizations act in ways that undermine our freedoms. A federal lawsuit recently filed by a homeschooling organization threatens our freedoms in a number of important ways. To maintain our freedoms, we need to understand the basic principles and common sense ideas on which our freedom is based. We also need to think carefully before joining or supporting a homeschooling organization and to react carefully in response to actions by organizations that undermine our freedoms.
(c) 1997 Larry and Susan Kaseman
Larry and Susan Kaseman have been learning through homeschooling with their four children since 1979. Their book Taking Charge Through Home Schooling: Personal and Political Empowerment discusses many of the issues raised in this column. It is available for $14.95 ($12.95 plus $2 shipping and handling) from Koshkonong Press, 2545 Koshkonong Road, Stoughton, WI 53589.
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