The Homeschooling Handbook_ From Preschool to High School - Mary Griffith [15]
In 1923 came the first of three major court cases limiting the power of government to control education. A Nebraska statute forbade teaching any modern foreign language to any student who had not completed eighth grade, and a private school instructor appealed his conviction for teaching German. In Meyer v. Nebraska, the U.S. Supreme Court overturned the conviction, citing the instructor’s right to teach, the student’s right to learn, and the parents’ right, within limits, to determine what their children should be taught. Although formally recognizing the “power of the State to compel attendance at some school and to make reasonable regulations for all schools,” the Court ruled that Nebraska’s statute was an unreasonable and arbitrary restriction of due process rights under the Fourteenth Amendment.
The Court further acknowledged the rights of parents regarding their children’s education in the landmark Pierce v. Society of Sisters in 1925. Invalidating an Oregon statute requiring all children to attend public schools, with no private education options whatsoever, the Court said:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
In Farrington v. Tokushige, in 1927, the Court ruled against Hawaii in its attempts to enforce assimilation and “Americanization” of its diverse population by stringent private school regulations. Where such regulations effectively eliminate the distinctions between public and private schools, the Court said, “they deny both owners and patrons [of private schools] reasonable choice and discretion in respect to teachers, curriculum, and textbooks” and constitute a violation of parents’ fundamental right under the Due Process Clause to direct their children’s education.
In 1972, the Supreme Court gave further support to parental rights with its decision in Wisconsin v. Yoder, reversing the conviction of Amish parents who refused on religious grounds to send their teenage children to school. The Court ruled as follows:
Government interest in universal education is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children….
So what do all these cases mean for homeschooling families? Basically, any government regulations affecting “fundamental” rights are subject to what is known as the “strict scrutiny” test, in which the rights of the affected individuals are balanced against the interests of the government. The government must demonstrate that it has a “compelling interest” in any action it takes that affects fundamental rights, that the action is necessary to promote that interest, and, finally, that it is the “least restrictive means” of doing so. For rights that are less than fundamental, courts use the “rational basis” test: Does the government have a “reasonable” interest in its action, and is its action “reasonably related” to that interest?
Because parents have a fundamental right to direct their children’s education, statutes concerning education must pass the strict scrutiny test: The government must demonstrate that a disputed statute furthers its legitimate interest in promoting the education of children; furthermore, it must prove that there are no less burdensome ways to promote that interest. Hence, although private education in general is clearly protected as a fundamental due process right, home education specifically is not. Though at least two lower courts have