Evidence for Homeschooling: Constitutional Analysis in Light of Social Science Research
Tanya K. Dumas
affiliation not provided to SSRN
Morrison & Foerster LLP
HomeSchool Association of California; GCA Law Partners LLP; Gifted Homeschoolers Forum
December 17, 2008
Widener Law Review, Forthcoming
Homeschooling is a time-honored and widespread practice. It often presents, however, a conflict between the constitutional right of parents to direct the education of their children and the State's right to impose regulations in the interest of ensuring an educated citizenry. The Supreme Court has made it clear that any regulation impacting this constitutional right must be "reasonable." The courts have therefore generally resolved homeschooling cases by examining whether state regulation of homeschooling places an unreasonable burden on the rights of parents. The courts, however, have altogether failed to address another, more fundamental question: whether the state regulation in fact advances the State interest. A regulation that fails this criterion cannot be "reasonable." Using the vehicle of a recent California appellate court case, in which the court initially upheld a regulation prohibiting parents from homeschooling their children unless they first obtained a state teaching credential, we show how recent social science research should impact the analysis. Instead of assuming away the issue of whether the regulation in fact advances the State interest, we show that this type of empirical research will allow courts to be able to answer this threshold question.
Number of Pages in PDF File: 36
Keywords: homeschooling, education, constitutional rights, parents, parental rights, reasonable regulation, compulsory education
Date posted: December 19, 2008 ; Last revised: December 29, 2008
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