Abstract:

Contrary to misconceptions, the right to homeschool currently rests on state legislation, not on U.S. Supreme Court precedent. It is dangerous for the homeschooling movement to rely on legislative discretion for its survival, because politically-powerful teachers unions constantly lobby for restrictions on homeschooling. In order to better protect their rights, this Article argues that homeschoolers should seek to establish homeschooling as a fundamental right under the U.S. Constitution, and lays out two separate theories that homeschoolers could employ to advance such a claim.

First, this Article asserts that, under Washington v. Glucksberg, homeschooling is entitled to constitutional protection because it is “deeply rooted in our Nation’s history and tradition.” Through examining historical practices from ancient Greece and Rome, to common law England, and finally to the modern United States, this Article demonstrates that homeschooling has always been practiced in the Western world, and that states have traditionally refrained from interfering with the practice.

It also argues that, under the Court’s recent ruling in Obergefell v. Hodges, homeschooling is entitled to constitutional protection because the Court’s rationales for recognizing the right to private education “apply with equal force” to homeschooling. The right of parents to “direct” their children’s education is justified by the fact that parents naturally act in the best interests of their children, and also by the fact that autonomous families play a “critical role” in “developing the decentralized structure of our democratic society.” Both of these rationales apply with equal (or even greater) force to homeschooling.