Between Home and School
University of Pennsylvania Law Review, Vol. 155, April 2007
Washington University School of Law Working Paper No. 06-11-04
67 Pages Posted: 29 Nov 2006 Last revised: 22 Sep 2015
Date Written: August 3, 2011
This article challenges family law's traditional paradigm for allocating authority between parents, children and the state. Pursuant to that paradigm, parents enjoy almost complete authority over their children while at home; the state may require children to attend school and may regulate school curricula; and children must submit to the authority of either their parents or teachers. This settled equilibrium ignores a fundamental reality: children are not confined to home and school. Much of childhood takes place in spaces between home and school, at playgrounds, churches, sporting fields, music rooms and after-school clubs. Family law has been virtually silent about what happens or should happen in these spaces.
This article explores what it would mean for family law to consider explicitly all of the sites of childrearing, the actors who occupy those sites, and the types of childrearing that take place therein. Part I draws upon social science literature to identify the important ways childrearing between home and school can influence children's lives. Some courts have also noticed the importance of this childrearing. Indeed, although such childrearing has been largely ignored within family law scholarship, it played a pivotal role in Boy Scouts of America v. Dale. Part II proceeds to provide the first family law reading of Dale, examining how the Boy Scouts can be analogized to both parents and teachers, and how neither analogy completely captures the issues at the heart of the Boy Scouts' desire to engage in childrearing between home and school. Part III highlights the need for a theory of childrearing between home and school by exploring other cases concerning curfew laws and the regulation of nudist summer camps, and then proposes a theory designed to ensure that the spaces between home and school remain vital locations of children's development and an integral part of civil society.
Keywords: family law, children, childrearing, boy scouts, family privacy, pluralism, home, school
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