Harvard Law Professor Urges ‘Presumptive Ban’ on Homeschooling: ‘Unregulated Regime’

In this Oct. 9, 2019 photo, Donya Grant, right, works on a homeschool lesson with her daughter Mabry, 8, in their home in Monroe, Wash. The family joined a lawsuit against the Monroe School District and others, alleging that the district failed to adequately respond to PCBs, or polychlorinated biphenyls, …
Ted S. Warren/AP Photo

Harvard Magazine has published an interview with one of the school’s public interest law professors, who recently released a paper in which she calls for a “presumptive ban” on homeschooling.

Elizabeth Bartholet, a Wasserstein public interest law professor at Harvard Law School, said both children and society are at risk due to the lack of regulation of homeschooling, because such freedom from government oversight allows child abusers to hide their abuse and prevents children from making positive contributions to society.

Harvard Magazine’s Erin O’Donnell noted the law professor’s paper, published in the Arizona Law Review and titled “Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection.”

In her paper, Bartholet bemoans the freedom associated with homeschooling, and the fact that “parents can now keep their children at home in the name of homeschooling free from any real scrutiny as to whether or how they are educating their children.”

She explains the reasons why many parents choose to homeschool their children is “they want to isolate their children from ideas and values central to our democracy, determined to keep their children from exposure to views that might enable autonomous choice about their future lives.”

Regarding parents who choose to homeschool their children, Bartholet adds:

Many promote racial segregation and female subservience. Many question science. Abusive parents can keep their children at home free from the risk that teachers will report them to child protection services. Some homeschool precisely for this reason. This Article calls for a radical transformation in the homeschooling regime and a related rethinking of child rights. It recommends a presumptive ban on homeschooling, with the burden on parents to demonstrate justification for permission to homeschool.

At Harvard Magazine, O’Donnell interviewed Bartholet in a piece titled “The Risks of Homeschooling,’ which is accompanied by an illustration that features a homeschooled child behind bars in a house while other children are playing freely outside. One wall of the house is composed of a stack of books labeled, “Reading,” “Writing,” “Arithmetic,” and the “Bible.”

“We have an essentially unregulated regime in the area of homeschooling,” Bartholet asserts, “but if you look at the legal regime governing homeschooling, there are very few requirements that parents do anything.”

“That means, effectively, that people can homeschool who’ve never gone to school themselves, who don’t read or write themselves,” she adds.

Bartholet continues that homeschooling allows abusive parents to isolate their children from state child protective services. O’Donnell wrote:

She argues that one benefit of sending children to school at age four or five is that teachers are “mandated reporters,” required to alert authorities to evidence of child abuse or neglect. “Teachers and other school personnel constitute the largest percentage of people who report to Child Protective Services,” she explains, whereas not one of the 50 states requires that homeschooling parents be checked for prior reports of child abuse. Even those convicted of child abuse, she adds, could “still just decide, ‘I’m going to take my kids out of school and keep them at home.’”

One of Bartholet’s main fears of homeschooling appears to be Christianity.

The magazine reported:

In the United States, Bartholet says, state legislators have been hesitant to restrict the practice because of the Home Schooling [sic] Legal Defense Association, a conservative Christian homeschool advocacy group, which she describes as small, well-organized, and “overwhelmingly powerful politically.” During the last 30 years, activists have worked to dismantle many states’ homeschooling restrictions and have opposed new regulatory efforts. “There’s really no organized political opposition, so they basically get their way,” Bartholet says.

O’Donnell noted the law professor believes freedom from regulation means homeschooled children are at risk themselves and will ultimately be “a threat to U.S. democracy.”

“The issue is, do we think that parents should have 24/7, essentially authoritarian control over their children from ages zero to 18?” she asks. “I think that’s dangerous. I think it’s always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority.”

All of the comments to the Harvard Magazine article currently visible on the website point to the piece’s “total inaccuracy,” and describe it as “one-sided, uninformed,” and showing “a true lack of understanding of what homeschooling is.”

“Fascinatingly out of date,” said another commenter. “I would urge the author and the professor to do some research and homework and check their internal inconsistencies.”

“Government school-prisons are the worst means of education,” yet another person responded. “They should be abolished and a free market achieved.”

A leading homeschooling expert and Harvard alumna agrees there are at least five things the article “got wrong.”

Kerry McDonald, senior education fellow at Foundation for Economic Education (FEE) wrote the piece is “filled with misinformation and incorrect data.”

The author of Unschooled: Raising Curious, Well-Educated Children Outside the Conventional Classroom, McDonald immediately addressed the “child abuse” issue, agreeing wholeheartedly that children need to be protected from abuse, but observing one of the many reasons parents choose to homeschool is to do just that – to protect their children from rampant bullying that exists in government schools and abuse by teachers and administrators.

She explained:

I agree with Bartholet when she says in the article: “I think it’s always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority.” She is concerned with families having this power, while I worry about giving that power to government.

Next, McDonald noted the gross inaccuracy of Bartholet’s and O’Donnell’s view that 90 percent of homeschooling families are “driven by conservative Christian beliefs” that “seek to remove their children from mainstream culture.”

Like the U.S. population as a whole, about two-thirds of today’s homeschooled students identify as Christian, McDonald observed, but noted as well that, as more parents discover the benefits of homeschooling, the population of these students is growing more diverse.

She also pointed out that recent homeschooling data from the U.S. Education Department shows the primary motivator for parents to homeschool their children is “concern about the school environment, such as safety, drugs, and negative peer pressure.”

A 2017 report by William Heuer and William Donovan at the Boston-based Pioneer Institute noted that, in 2012, only 17 percent of homeschooling families cited religious instruction as the predominant motivation for choosing that option.

“’Environment in schools’ had become the predominant reason for 25 percent of homeschoolers, and 91 percent listed it as one of the reasons that was important to them,” the researchers reported.

Additionally, the Pioneer study’s authors found “large increases in black and Hispanic homeschoolers,” as well as “data indicating an increasing number of Jewish and Muslim homeschoolers in the past 15 years.”

Bartholet’s claim that homeschoolers are isolated and likely being raised to be racist, sexist, and intolerant of others is also unfounded, wrote McDonald:

Research on homeschoolers finds that they are tightly connected with their larger community and may have more community involvement and participation in extracurricular and volunteer activities than schooled children due to their more flexible schedules and interaction with a wide assortment of community members.

The allegation that homeschoolers are lacking in civic knowledge and the means to contribute to “democratic society” is perhaps best addressed by the 2015 results of the Nation’s Report Card, released by the National Assessment of Educational Progress (NAEP), that showed only 18 percent of eighth graders in mostly public schools in the U.S. are at or above the proficiency level in U.S. History, with only 23 percent at or above proficiency in civics.

Finally, McDonald observed “most peer-reviewed studies on homeschooling outcomes find that homeschoolers generally outperform their schooled peers academically, and have positive life experiences.”

“Given Harvard Magazine’s reputation for editorial excellence, I was disappointed to see this article’s emphasis on the potential risks of homeschooling without highlighting its benefits,” McDonald wrote. “Bartholet indicates that ‘tolerance of other people’s viewpoints’ is a key civic value. I agree, and I hope future articles in this magazine demonstrate this tolerance.”

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