Home Education Magazine
September-October 2001 - Articles and Columns
Taking Charge - Larry and Susan Kaseman
HSLDA's "History" Erodes the Foundations of Our Freedom
As homeschoolers, we must paddle upstream to maintain our freedoms. The educational establishment, The most powerful interest groups, sees us as a threat. It often uses statutes to increase government regulation of homeschooling and force homeschools to become more like conventional schools. Such government regulation does not seem unreasonable to much of the general public. To maintain our homeschooling freedoms, we must educate the general public and legislators, counter the educational establishment, and oppose statutes that lead to unnecessary regulation.
Fortunately, our homeschooling freedoms rest on very solid foundations. Unfortunately, these foundations have been and continue to be eroded by the writings and actions of the Home School Legal Defense Association (HSLDA), a national homeschooling organization. This was recently crystallized in a so-called history of homeschooling written by a staff attorney for HSLDA. Its central point is that homeschooling was illegal in nearly every state until HSLDA secured the freedom to homeschool. However, this thesis was not supported or documented in the paper and is totally false. Actually, HSLDA has relied on statutes, including legislation and court cases, which do not give us our freedom and which instead erode its foundations.
We can no longer sit by, perhaps thinking critical thoughts but merely wishing things were different. If we do not correct the information and approach that HSLDA is broadcasting, our freedoms and their foundations will continue to be eroded by HSLDA's actions.
To understand why HSLDA's actions have done so much harm and continue to do so, it is important to understand the foundations of our freedoms, which are identified in the first part of this column. Then the column discusses problems with HSLDA's reliance on statutes. Finally, suggestions are given for what we can do.
Is Working to Maintain Our Freedoms Worth the Effort?
Without a doubt! When we are pressured by state-mandated standardized tests, quarterly reports, annual evaluations, or review and approval of our curriculum, it is more difficult to find the time, energy, and confidence to encourage our children to learn to read at their own pace rather than pressuring them; to spend as much time as we really want to studying religion; to become involved in time-consuming community service projects that offer abundant, meaningful opportunities for learning and service; to let our kids discover important math concepts for themselves so the ideas make sense and are remembered; to engage in family activities that create lifelong bonds; or to allow our children to play, The best learning experiences. These are the activities, the values, the rewards, and, yes, the joys that make our homeschooling freedoms worth working for! What we do each day as homeschooling families is either enhanced by the extent to which we have maintained our homeschooling freedoms or limited by the extent to which we have lost them.
Foundations of Our Homeschooling Freedoms
Our right to homeschool and our homeschooling freedoms stand on solid, sure foundations. It is sometimes challenging to recognize the strength and power of these foundations, because doing so requires clear, long-range perspective and a willingness to question common assumptions such as "Children need to go to school to learn." However, it is our responsibility to understand these foundations, to educate others (homeschoolers, legislators, the media, and the general public), and to prevent their being lost.
Among the most important of these foundations:
The primacy of the family: The family is the basic unit in all known societies. It is widely understood and acknowledged that parents have the right and the responsibility to help their children learn. This fundamental fact persists, even though today most parents turn much of this responsibility over to a conventional school.
Private education: Families have always been able to comply with the compulsory school attendance law by sending their children to private schools, which are much more independent of state regulation than are public schools.
Legal foundations include rights that amendments to the U. S. Constitution guarantee to homeschoolers and others. In addition, 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 ) and Farrington v. Tokushige (273 U.S. 284 ) 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. Important note: Although these two cases have been very helpful to homeschoolers, it is generally not a good idea for a small minority without a broad base of support to initiate court cases because courts generally uphold the beliefs, values, and interests of the majority and/or power centers.
Principles from common law include "Innocent until proven guilty," which means homeschoolers should not have to prove they are educating their children; the state should have to show that they are not. "Hard cases make bad law" means that 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 important to realize that the compulsory school attendance law requires school attendance but does not require that children become educated.
Statutes are not foundations of homeschooling freedoms. Statutes are NOT the source of freedoms, homeschooling or otherwise. Homeschooling freedoms come from nature, God, and our rights and responsibilities as parents. By contrast, statutes are generally used to limit freedom. The power of statutes to take away freedoms can be seen in the language of the First Amendment to the U. S. Constitution, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Even statutes which seem to grant parents permission to homeschool are actually only restating the obvious, that parents have the right to educate their children. Rather than giving us our freedoms, these statutes list the conditions under which families can homeschool, thereby restricting our freedoms.
In addition, statutes can be changed relatively easily. They do not have the strength, reliability, or staying power of foundations. Minorities that lack a broad base of support, such as homeschoolers, almost always lose big time when they deal with statutes, whether trying to get favorable legislation passed or have unfavorable laws overturned in court. Legislatures and courts uphold the beliefs and interests of the majority and the power centers of our society. Later in this column is more discussion of the problems with relying on statutes.
Among the logical foundations of homeschooling are the following: Statutes that regulate homeschooling are unnecessary. Homeschooling is working well in all states, and some states do not have such statutes. They do not improve homeschools. In fact, regulations can harm homeschools and limit their effectiveness. In addition, it is widely held that parents of children who attend conventional schools have stronger influence on them than do the schools. Such a claim is often made by schools when students are having difficulty. Homeschooling provides children with better opportunities for positive social experiences and interactions with other people in their communities than attending a conventional school.
Practical foundations of homeschooling include the fact that homeschooling works for many, many families. Homeschools save taxpayers money. Some children who do not learn well in a conventional school setting do well as homeschoolers, preventing or solving problems for themselves, their families, and the schools.
Moral foundations include the fact that our society has an obligation to provide children the education best suited to them as individuals. 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 allow people to choose alternative approaches to education without unreasonable regulation.
Religious beliefs and arguments are very important to many homeschoolers and provide strong support for homeschooling. Under our federal and state constitutions, the state may not pass laws 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.
Problems with HSLDA's "History"
With these foundations in mind, consider a history of homeschooling, titled "The Politics of Survival: Home Schoolers and the Law"* that Scott Somerville presented at the annual meeting of the American Educational Research Association, April 11, 2001. Page references below refer to the paper as distributed at this event. (Somerville is a staff attorney at HSLDA and Adjunct Assistant Professor of Government at Patrick Henry College, recently founded by Michael Farris, former President of HSLDA.) HSLDA has published this paper on its web site, has it well cross-linked, and offers a printer-friendly version.
*Note: Readers are encouraged to read this and other documents cited. For easy access to documents marked with an *, see www.homeedmag.com/HEM/185/tchdocs.html.
A central point of the paper is that homeschooling was illegal in nearly every state until HSLDA secured the freedom to homeschool. Let's first consider the idea that homeschooling was illegal and second the claim that HSLDA secured homeschooling freedoms.
Problems with the Statement That Homeschooling Was Illegal
Somerville opens his paper with a shocking statement, "Twenty years ago, home education was a crime in almost every state." [In response
to strong 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 problems this statement creates:
• The statement is false. Homeschooling twenty years ago rested on the foundations described above. In addition, there were no statutes that said it was illegal for parents to teach their children at home.
Somerville appears to base his statement on the idea that homeschoolers were violating compulsory school attendance laws. This also was not true. In some states, statutes defining private schools were broad or vague enough that homeschoolers could simply decide that their homes were private schools. In other states, homeschools were schools that had not yet been recognized as one way of complying with the compulsory school attendance law.
To be sure, some homeschoolers feared they would be prosecuted for truancy, a relatively small number were threatened with prosecution, and a smaller number were actually prosecuted. But being prosecuted does NOT necessarily mean that what you did was illegal. Conversely, the passage of homeschooling statutes has not stopped public officials from continuing to infringe on the freedoms of homeschoolers. In addition, even if homeschooling had been a clear violation of a specific statute, given the broad and solid foundations on which it rests, it would not have been illegal in the broader sense of the term. Our country would be in much worse shape, and we would be less free, if those who went before us avoided doing anything that might be considered "illegal" because there was not a specific statute permitting it.
(On a personal note, we the authors homeschooled our children in two different states during the time Somerville says homeschooling was "a crime." We were careful, to be sure, just as we are careful now because threats to homeschooling freedoms continue. But we knew then that what we were doing was legal, and we homeschooled with conviction and confidence.)
• In one short sentence, Somerville denies and erases the foundations of homeschooling freedoms. To have an attorney who claims to be defending homeschoolers claim that homeschooling was a crime gives opponents of homeschooling permission and an invitation to claim that homeschooling is basically illegal unless states give parents special permission and set up requirements they must meet. This is a very serious blow to not only homeschooling freedoms but to basic parental rights. It is hard to believe that a homeschooling attorney could make such an appalling statement.
• Saying that homeschooling was illegal 20 years ago also undermines our homeschooling freedoms on a more subtle level. Saying that homeschooling used to be illegal but now is legal makes it sound like the legitimacy of homeschooling comes from the state and statutes and that we should be grateful to the government for allowing us to educate our own children. In point of fact, homeschooling was as legitimate 20 years ago as it is now. Its legitimacy comes from the foundations discussed above.
Problems with the Claim that HSLDA Secured the Freedom to Homeschool
In his paper, Somerville wrote, "HSLDA shouldered the task of making home education legal for every family in every state." (Page 4) He also claimed, "Modern home schooling was launched by left-wing intellectuals and legalized by the religious right." (Page 6) However, his claim concerning the legalization of homeschooling is not supported or documented by the paper itself.
Actually, rather than securing homeschooling freedoms, HSLDA's actions have eroded the foundations of our freedoms. From the beginning, HSLDA has relied on statutes in two ways. First, in its misguided attempts to get statutes it mistakenly thought were necessary to make homeschooling "legal," HSLDA has made compromises that have reduced the freedoms of homeschoolers in several states. Second, in initiating court cases to overthrow statutes, HSLDA has contributed to the development of a body of case law that supports unnecessary government regulation of homeschooling.
Why Working for Legislation to Legalize Homeschooling Often Backfires
As was shown above, our homeschooling freedoms stand on solid foundations. Statutes are not needed to make homeschooling legal. In fact, it is usually a mistake for minorities like homeschoolers to try to have legislation introduced to support them. In the first place, as discussed above, statutes generally do not grant freedom; they limit it. In addition, it is very difficult to control legislation, which can easily be radically changed by amendments. Introducing homeschooling legislation provides a great opportunity for opponents of homeschooling to add amendments that increase government regulation of homeschooling.
HSLDA's leaders do not seem to understand that it does not make sense for a small minority (homeschoolers) that is being strongly opposed by The most powerful interest groups in our society (the educational establishment) to initiate legislation. Instead of introducing statutes or agreeing to regulations to gain the government's permission to homeschool, it generally works better to homeschool on the basis of the foundations of our freedom and work to prevent legislation. This is what homeschoolers are still doing successfully in states like Illinois and California. If legislation that undermines homeschooling freedoms is introduced despite efforts to prevent it, homeschoolers can then educate legislators and the general public and ask for their support. Small minorities have a much better chance of having their rights upheld if they are seen as beleaguered underdogs rather than people initiating legislation in their self-interest.
As an example, this strategy worked very well in Wisconsin, a state in which HSLDA was not involved in the passage of a homeschooling law. For a number of years, an increasing number of families homeschooled by declaring to anyone who asked that their homes were private schools and therefore they were complying with the compulsory school attendance law. When one family was finally taken to court, the Wisconsin Supreme Court ruled that Wisconsin's statutes were "void for vagueness" regarding private schools. The Department of Public Instruction (DPI) introduced legislation to define private schools and put homeschoolers under its authority. Working on the grassroots level, thousands of homeschoolers contacted their legislators who acknowledged the foundations of homeschooling freedoms that homeschoolers described to them. Relying on the foundations of their freedoms, Wisconsin homeschoolers refused to agree to requirements for testing, review and approval, periodic reports, etc. The homeschooling statute that was passed does not include these requirements. Lest it appear that Wisconsin is an "easy" state for homeschoolers, it should be added that Wisconsin has a very strong teachers unions, at the time had a State Superintendent of Public Instruction who was vehemently opposed to homeschooling. and Democrats controlled both houses of the legislature as well as the governor's office.
To be sure, the basis for homeschooling has been clarified in a number of states through statutes or regulations. But most of these statutes or regulations have been established without the involvement or with only minimal involvement of HSLDA. Actually, among the few states that Somerville mentions specifically to support his claim of what HSLDA has done (and states in which HSLDA did play a major role) are New York and Pennsylvania, which are generally considered to have some of the worst homeschooling laws. HSLDA has been willing to compromise and accept requirements for testing, review and approval, quarterly reports, etc. In fact, they have celebrated such statutes and regulations as victories. For example, consider the regulations HSLDA "helped" homeschoolers get in New York. They require that homeschoolers submit a letter of intent, submit curriculums and quarterly reports to school district officials, and have their children tested. HSLDA claimed that these regulations were a victory for homeschoolers because they permit parents who comply with all the regulations to homeschool. If HSLDA had understood the strength of the foundations of homeschooling freedoms and how to use them, they might have realized that homeschoolers did not need to and in fact should not have made so many compromises.
It seems that often the states with the most reasonable homeschooling situations (some of which have reasonable homeschooling statutes, others of which do not have specific statutes regulating homeschooling) are those in which HSLDA has had little or no involvement in the political process. Homeschoolers in some of these states have recognized the difficulties that often result from the involvement of "outside experts" from HSLDA and have worked and are continuing to work to keep HSLDA out of the legislative or regulatory process.
HSLDA's Role in Leeper
Another way in which Somerville tries to claim that HSLDA played an important role in "making homeschooling legal" is his comment on Leeper v. Arlington Indep. School Dist., 893 S.W.2d432.* (See www.homeedmag.com.) (This case did help homeschoolers in Texas counter the vendetta that school officials were waging against them, so it looms large in the legal history of homeschooling. Statements HSLDA has made about Leeper have given many homeschoolers the impression that HSLDA deserved credit for Leeper.) Somerville says, "The Leeper decision was HSLDA's first big win as a plaintiff in a case." (page 14) That sentence, written by an attorney in a paper that claims that "HSLDA shouldered the task of making home education legal for every family in every state" (page 4) might lead people to think that HSLDA played a significant role in the Leeper decision. This is especially so because Somerville's next sentence is, "Over the next few years, HSLDA lawyers filed a series of broad constitutional challenges for HSLDA members in other states where home schoolers were under attack." (page 14)
Contrary to what Somerville's statement implies, HSLDA did not play a significant role in Leeper. HSLDA was one plaintiff in this class action suit, along with homeschooling families and curriculum providers. Shelby Sharpe was the chief attorney who did the work of originating the case, developing strategy, writing briefs, and making arguments in court. He worked over a period of nearly ten years on the case. To get the facts about Leeper, Larry Kaseman recently called Sharpe because he is listed as the attorney in the case. Sharpe said that the extent of HSLDA's involvement in the case was when Sharpe asked an HSLDA attorney to take the stand as a witness merely to identify HSLDA as an organization.
The Legacy of Blackwelder and Other Court Cases
Given its preoccupation with statutory law, it's not surprising that HSLDA has initiated court cases in an attempt to get statutes and/or related regulations changed. Initiating court cases is not a good strategy for homeschoolers. Courts tend to uphold the beliefs, values, and interests of the majority (in this case, the educational establishment), which means that small minorities that lack a broad base of support quite consistently lose court cases.
To understand firsthand how strongly court cases work against homeschoolers, see Jane Henkel's "Recent Court Cases Examining the Constitutionality of Other States' Laws Regulating Home Schools."* (See www.homeedmag.com.) Henkel examines cases decided between 1980 and 1990 by federal district courts, federal courts of appeals, and state appeals courts, including state supreme courts. She points out that except for a few cases in which statutes were ruled too vague, courts have upheld state regulation of homeschooling. Does this mean that state regulation is unavoidable? No, it means that, not surprisingly, courts do not understand the principles and strengths of homeschooling. Convinced that education is important, courts did not acknowledge what an excellent opportunity for education homeschools afford and how inappropriate and harmful unnecessary state regulation of homeschools is.
The lesson here is that as homeschoolers we should try to stay out of court as much as possible. What is the point in asking courts whether states are justified in regulating homeschooling when we know what they are likely to say, especially given the body of case law that was developed in the 1980's? Instead, there are ways of minimizing the number of court cases. First, we can avoid initiating court cases ourselves and rely instead on other strategies that are more likely to increase public support for and understanding of homeschooling. Second, we can act in ways that minimize the chances of charges being brought against us and counsel other families to do the same. We can act as conventionally as possible without compromising important principles. We can be mindful that others may not understand why children are not in school. We can advise families that are likely to be considered "marginal" by the courts (such as single parents and welfare recipients) that they need to be especially careful. In other words, we can use our common sense and avoid provoking court cases just to prove a point.
Another case Somerville mentions is Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y.).* (See www.homeedmag.com.) Michael Farris, then President of HSLDA, was the first of two attorneys listed on this case. In the court's decision, the judge commented: The progress of this case has been hindered by plaintiffs' failure to adhere to the procedural framework of the Federal Rules of Civil Procedure and this court's Local Rules. The court has been indulgent -- perhaps too indulgent -- in forgiving a multitude of procedural errors, because it has not wanted to punish the individual plaintiffs for the shoddy motion practice of their attorneys. There comes a point, however, when forbearance of one party's carelessness unfairly prejudices their adversaries. That point has been reached in this case. (Page 11)
Blackwelder is The most harmful in a series of court decisions that support states' claims that they have the authority to regulate homeschools. One can only wonder how much of this unfortunate case law could have been avoided if HSLDA had not initiated such cases. To get a clearer idea of just how much harm Blackwelder and other cases have done, see Henkel's memorandum discussed above.
It is important to realize that initiating cases such as Blackwelder is different from homeschoolers being taken to court because school districts or prosecutors have initiated actions against them. However, even though HSLDA has consistently exaggerated the threat of being taken to court, relatively few families have actually been prosecuted for homeschooling, and many of these probably could have been avoided if the people involved had been informed about how to avoid court cases.
In sum, instead of securing homeschooling freedoms, as Somerviller's paper claims, HSLDA has actually decreased the freedom of many homeschoolers through state statutes and regulations and has contributed to a body of case law that undermines the foundations of our freedoms.
What We Can Do
First, we can make sure that we understand the foundations of our freedoms and stay focused on them. This is especially important because some of the most common assumptions of our society (such as "Children have to go to school to learn.") contradict these foundations. When we are convinced that what we are doing is right, legitimate, and legal in the broad sense of the term (whether there are statutes that specifically permit homeschooling), our conviction shows in our actions, so others are much more likely to recognize and accept the legitimacy of homeschooling. If, on the other hand, we are tentative, unsure, and not convinced of the solid foundations of our homeschooling freedoms, we open the door for opponents to impose unnecessary and harmful restrictions on us.
Second, we can ask ourselves and other homeschoolers whether we want an organization that is undermining our freedoms to claim to speak for us in their interactions with the media, federal and state legislators, and others.
Before becoming involved in any organization, it only makes sense to think about what the organization has done and is doing. Therefore, we may want to consider the information in this column when we are deciding whether to subscribe to HSLDA's insurance program. Or when we are deciding whether to support one of HSLDA's legislative initiatives or calls to action, either on the federal level or in our state. Or when we're working with legislators or hear a media report that seems to assume that HSLDA speaks for or represents homeschoolers. (In fact, less than 10% of homeschoolers subscribe to HSLDA's insurance program.) Or when HSLDA tries to direct what's happening in our state. Or when other homeschoolers are talking about whether to join HSLDA. (Some people subscribe to HSLDA's insurance program because they are afraid they will be taken to court or will lose their homeschooling freedoms. Some homeschoolers explain to these people that they are better off working on a grassroots level with other homeschoolers in their state. Other people subscribe so HSLDA can then help people less fortunate than they are. Some homeschoolers explain to these people that what HSLDA is doing often undermines homeschooling freedoms.)
When we rely on the solid foundations of our homeschooling freedoms, we are in a very good position to maintain our freedoms. However, we also need to consider carefully which homeschooling organizations we will support.
(c) 2001 Larry and Susan Kaseman
September-October 2001 - Articles and Columns
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