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Published in Print: October 20, 2004, as Home Schooling and Religious Freedom

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Home Schooling and Religious Freedom

Who Owns the Child?

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Religious-freedom protection laws, unless thoughtfully applied, can push the deregulatory trend to a dangerous extreme.

Two cases winding through the Pennsylvania state courts present another round in the ongoing conflict between religious freedom and compulsory schooling. Christian parents who educate their children at home are challenging Pennsylvania’s home-schooling requirements. State and federal courts have witnessed similar scenarios in recent years where parents have used their religious beliefs as a shield against government regulation—from mandated reading and sex education programs in public schools, to teacher-certification and student-reporting requirements in private schools. While these new cases may not suggest “big law,” the unyielding nature of the religious claims asserted and their reliance on the state’s Religious Freedom Protection Act make them a prime vehicle for legally reinforcing a problematic shift in decisionmaking authority over children’s education.

At the heart of the controversy is a compromise reached almost a century ago over the shared responsibility of parents and the state to educate future citizens. In Pierce v. Society of Sisters, the U.S. Supreme Court in 1925 recognized the right of parents to opt out of public education in favor of private schools. Yet the justices also affirmed the right of the state to “reasonably” regulate those schools. For some, that option has proven insufficient. In recent decades, an increasing number of families have pushed beyond the Pierce compromise, abandoning institutionalized schooling and claiming the right to educate their children at home. Some offer individualized programs, either themselves or through state-certified tutors. Others develop independent-study programs drawn from the local public school curriculum. A growing number participate in private school satellite programs, typically operated by Christian schools, often in conjunction with other families.

Between 1999 and 2003, the number of children educated in home schools at least part time grew by 250,000, yielding an estimated total of 1.1 million. The underlying reasons are varied and somewhat conflicting—from the belief that public schools are undisciplined, amoral, and even physically unsafe, to concerns about the authoritarian and dehumanizing nature of schooling itself. For almost a third, it’s a matter of religious conviction. For others, it’s philosophical or political. While home schooling is legal nationwide, individual states impose a range of regulations in the name of accountability and educational quality. Most families acknowledge the need for some state oversight. Some have won accommodations such as permission to participate on athletic teams at local public schools. Others, like the Pennsylvania litigants, want complete autonomy and rail against any involvement with what they consider to be intrusive state interference with parental prerogatives.

Home-schooling requirements vary widely in scope, detail, and source. A number of states have relaxed their regulations in response to political pressure strengthened by reports that home-schooled students as a group excel academically and gain entrance into prestigious colleges. Ten states, including New Jersey and Texas, do not even require parents to notify school officials that they are home-schooling their children. Most of these states require no record keeping. Fourteen states, including Alabama, California, Wisconsin, and the District of Columbia, require little beyond notification. Others, such as New York, Massachusetts, and Pennsylvania, require standardized testing, curricular approval, and diversely defined teacher qualifications. Requirements appear in a variety of legal sources, including state statutes, state education department regulations and policy statements, and whatever gloss local school districts may add. All these are subject to court interpretation.

Litigation challenging state regulation has been lively. Parents typically assert violations of 14th Amendment due-process rights to liberty or privacy or First Amendment religious rights under the federal Constitution. The results have been mixed. While the Supreme Court has ruled that parental rights are a “fundamental” liberty interest, which would trigger more exacting judicial scrutiny, it has yet to apply the rule to education. A 1990 court decision holding that generally applicable laws that burden religion need only be constitutionally “reasonable” likewise weakened religious claims. In response, state legislatures have given parents in Kansas, Michigan, and Texas the protection of laws affirming the “fundamental right” of parents to direct their children’s upbringing.


Religiously motivated parents have found further ammunition as they battle to wrest their children’s education from state authorities. In the wake of a 1997 Supreme Court decision striking down the federal Religious Freedom Restoration Act, 12 states—Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas—have passed similar laws that make it more difficult for states to deny religious exemptions. Parents can use these laws defensively, as in the case of truancy charges, and offensively to support claims against the state. Both the ill-fated federal law and its state counterparts have garnered support from across the political spectrum—from People for the American Way and the American Civil Liberties Union to the Christian Legal Society and Concerned Women for America.

Pennsylvania’s Religious Freedom Protection Act prohibits state and local government from substantially burdening the free exercise of religion even where the law or policy is generally applicable and not targeted toward religious believers, unless the burden is justified by a compelling government interest and is the least restrictive means available.

Among the act’s examples of “substantial burden” is one that “compels conduct or expression that violates a specific tenet of a person’s religious faith.” Combined with the state’s detailed home-schooling law, the act makes Pennsylvania an ideal venue for testing the potential for religious-freedom laws to preserve parental autonomy.

Pennsylvania’s home-school statute requires parents to teach certain subjects; to submit to the local school district, at the beginning of each school year, course objectives and medical information (unless the home school is an extension of a church-run school); and to provide, at the end of the school year, a portfolio of records, including standardized-test results for grades 3, 5, and 8, as well as sample materials and a written outside evaluation of student progress.


The families litigating the matter maintain that these restrictions violate specific tenets of their religion. They believe that God has given them authority over their children’s education, and that to surrender that authority to the discretionary judgment of local school officials would be sinful. For them, this is clearly a question of “Who owns the child? Parents, under God’s power, or the state?”

It is difficult for the courts to refute the sincerity of their religious convictions. And if, in fact, their religion grants them full educational authority, any form of government regulation would impose a burden on their beliefs. That shifts the legal discussion to the state’s interest. In Pierce, the Supreme Court affirmed both the purpose of compulsory education to develop in students the skills and attitudes essential for good citizenship and the state’s authority to impose minimal standards on private schools to meet those ends. The same standard therefore should apply to parents who teach their children at home. The state understandably needs to monitor to assure that all children are educated, for the good of society and for the well-being of the children themselves. This latter concern often gets lost in the parent-state debate.

This does not suggest that the Pennsylvania cases are a guaranteed “win” for the state. Setting aside the parents’ all-or-nothing argument, the courts may parse the regulations, sequentially searching for clear and convincing burdens, compelling interests, and less restrictive alternatives. The more detailed and intrusive the regulations, the more likely the challengers may prevail, depending on the state’s interest and available options. Are reading, writing, and history essential to producing good citizens? Arguably, yes. Physical education, on the other hand, possibly weighs more in favor of the child.

The state needs to assure that all children are educated, for the good of society and for the well-being of the children themselves.

The regulations themselves wisely leave parents wide latitude in deciding course content and methodology. Courts are apt to intervene, however, where local officials enforce the rules arbitrarily and unreasonably deny approval to program objectives or materials. Standardized testing, with parents choosing the test, also seems minimally burdensome but essential for accountability. Yet one can question the necessity of both testing and annual evaluations. Massachusetts, for example, permits progress reports or home visits to substitute for formal testing. On the other hand, the burden of Pennsylvania’s annual reporting pales in comparison with New York’s quarterly reports.

Weaving through this maze of subjective factors highlights the inevitable difficulties in using broad rights statutes to evaluate educational decisions. Nonetheless, some regulations seem overly restrictive or unnecessary.

But it is equally troubling that nearly half the states have legislatively unraveled the Pierce compromise and ceded almost unfettered authority to parents while minimizing the good of society and of the children involved. Religious-freedom protection laws, unless thoughtfully applied, can push this deregulatory trend to a dangerous extreme.

The Pennsylvania cases are not likely to find resolution in the state supreme court for several years. Meanwhile, the contentious issues they raise invite close attention. While the right to home schooling needs to be preserved, courts, legislatures, and education officials must consider the total picture and reach an equitable balance in the relationship between family and state where the child’s “welfare” and not “ownership” is among the driving forces.

Vol. 24, Issue 08, Pages 41,52

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