The Fundamental Right to Homeschool: A Historical Response to Professor Bartholet

Abstract

The fundamental right of parents to homeschool their children is under attack. Harvard Law Professor Elizabeth Bartholet recently published an article that proposes to ban homeschooling with a few carefully delineated exceptions. She argues that the ban is necessary to protect children from abusive parents, fulfill children’s right to an education, and guarantee children the right to autonomy and to determine their own futures, among other things. Professor Bartholet’s arguments directly contradict Supreme Court precedent, and more critically, the historical record. While the Supreme Court has never made clear that homeschooling is a fundamental right, the historical record does. Beginning in England and continuing in the colonies and founding generation stands a deeply rooted and unbroken chain of the practice and recognition of the fundamental right and duty of parents to educate their children. Home education was the dominant form of education in England and the colonies and was the exclusive right of parents. Blackstone called the educational duty of parents the “greatest importance of any,” and under the common law third parties could never exercise the educational power over children until the parents voluntarily delegated it to them, and even then they acted “in loco parentis.” The colonies too recognized the fundamental rights of parents to educate their children, and some of them even began enforcing this parental duty by law. Home education continued as the predominant form of education through the founding, and the founders and early jurists, including James Wilson, Joseph Story, St. George Tucker, and James Kent, affirmatively recognized the fundamental right of parents to educate their children. And while many of the states and founders supported some form of public education, they never advocated for or implemented compulsory attendance laws. In fact, Thomas Jefferson expressly rejected the power of the state to force children to attend public school against the wishes of the father, noting that such action would “shock the common feelings and ideas.” Instead, public education for the founders and states was intended to complement the primary right of parents, create an educated citizenry that could protect its own liberty, and serve poor parents, who could not educate their children at home nor afford to hire private tutors, by providing a free option. Accordingly, “history and tradition” confirm that the right of parents to homeschool their children is a fundamental right that should be subject to strict scrutiny review.

Keywords: Homeschool, Home Education, Fundamental Rights, Constitutional Law, Fourteenth Amendment, Founders, Professor Bartholet