The Home School Court Report
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School-to-Work—A Defense

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S P E C I A L   F E A T U R E

School-to-Work: Is There a Defense Against Discrimination?

     Informed home schoolers have watched, with concern, as “School-to-Work” (STW) programs have been implemented across America. Like its ideological twin, Outcome-Based Education (OBE), STW is designed to yield a “Certificate of Initial Mastery” (CIM) rather than a diploma. The CIM is supposed to be awarded to those students who demonstrate certain government-defined “outcomes.” Critics of these programs—including HSLDA—believe that STW and OBE programs unconstitutionally burden both free markets and free minds.
     Many astute observers believe these programs are the result of an unholy alliance between Big Government and Big Business. A number of large corporations, such as Boeing, are spearheading the effort to force the public school system to produce high school graduates who can actually do the kinds of jobs that employers expect. Home schoolers would be the first to agree that government schools are turning out unqualified graduates, and point to the spiritual vacuum, moral relativism, and “politically correct,” dumbed-down curriculum as the cause. But instead of acknowledging these fatal flaws in secular public education, these “reformers” want to transform the schools from their historic mission of “educating children” to a new mission of “training” them.
     Home schoolers should be concerned about STW and OBE on a number of fronts: as parents, as educators, as taxpayers, and as citizens. These changes will affect our children, our neighbors’ children, and our grandchildren. As concerned citizens, home schoolers have a duty to vote for school and state officials who will work for a return to the three Rs in public schools and who will flatly refuse to consider monstrously expensive failed experiments like STW and OBE. But home school parents have an even more personal concern: many realistically fear that, eventually, their sons and daughters may be shut out of the job market if they do not have a Certificate of Initial Mastery.
     HSLDA has been following the progress of STW and OBE very carefully, and we agree that there is a real, although indirect, threat to home schoolers in this way. We, therefore, encourage our members to defeat STW programs whenever possible. We cannot assume, however, that every STW program in every state can be defeated politically. At some point, a home schooler may be turned down by an employer because he or she lacks a CIM. Is there any legal defense against such an injustice?
     The right answer to any legal question is, “It depends.” In this case, the question turns on whether the employer (1) acted alone in denying employment, (2) acted in concert with other employers, or (3) followed some government directive. If the employer acted alone, there is no legal defense—nor should there be. Private parties, including businesses, should have the right to set any employment standards they wish, so long as they do not violate the Thirteenth Amendment to the U.S. Constitution, which has been interpreted to prohibit all Americans from race-based discrimination. Congress has added a number of additional restrictions on employers, of course, under the Civil Rights laws, but none of these are likely to cover a home school graduate who has not earned a CIM. Any employer who chooses to hire only STW or OBE graduates is free to do so. If the quality of Outcome-Based Education continues to be as low as it has been, such employers will probably go out of business relatively quickly. Why demand the right to work for a company that is bent on self-destruction?
     Home schoolers have more to fear when large corporations use their economic power to force smaller companies to discriminate against recent graduates without CIMs. If Boeing will only hire workers with CIMs, that is Boeing’s bad luck; but if it refuses to buy products from suppliers who employ workers without CIMs, a much larger group is affected.
     Fortunately, the anti-trust laws provide an appropriate and effective legal defense to this threat. The Sherman Anti-Trust Act was enacted around 1890, in an effort to limit the enormous power that Big Business had accumulated. In the late nineteenth century, certain large corporations had developed enough economic power to enable them to simply crush their competition. Congress, acting under its constitutional power to regulate interstate commerce, condemned all “contracts, combinations and conspiracies in restraint of trade,” and forbade “monopolization, combinations and conspiracies to monopolize.” The anti-trust laws are intended to solve the problems that arise when the free market creates a giant corporation that is willing—and able—to destroy the free market.
     If a large corporation refuses to buy from suppliers who hire employees without CIMs, any home schooler who gets rejected may file a federal suit under the Sherman Anti-Trust Act, alleging a “secondary boycott.” Although “boycotts” are a very common form of political activity, they are expressly forbidden as a way of doing business. When a group of retail lumber dealers refused to buy from wholesalers who sold directly to customers, for example, the United States Supreme Court ruled they had broken the law. Eastern States Retail Lumber Dealers Assn. v. United States, 234 U.S. 600 (1914). In the same way, if a big corporation refuses to buy from people who hire home schoolers, the rejected home schooler can count on collecting triple damages and attorneys fees from the defendant corporation.
     There is one dangerous way that the big corporations might try to get around the anti-trust laws, however. The anti-trust laws do not apply to government actions. This means that states have the power to create legal monopolies. Fortunately, the Fourteenth Amendment prohibits states from depriving any person of life, liberty, or property without due process and the equal protection of the law. The right to work is protected by the Fourteenth Amendment. Any state that bars home schoolers from the job market can plan on being sued under 42 U.S.C. § 1983 for civil rights violations.
     HSLDA believes in free minds and free markets. We encourage our member families to research the complex issues of Outcome-Based Education, School-to-Work programs, and Certificates of Initial Mastery. If we will zealously exercise our constitutional freedoms—the right to speak out, the right to vote, and the right to peaceably assemble and petition our government for redress of grievances—we can keep the vast majority of these grand social experiments from harming our children. If worst comes to worst, however, we will still be able to defend our freedoms from Big Government under the Fourteenth Amendment, or from Big Business under the anti-trust act.
     The price of liberty, back in 1776, was eternal vigilance. It isn’t any cheaper in 1997. By God’s grace, and with the help of the Fourteenth Amendment and the Sherman Act, home schoolers will never let STW programs turn our children into commodities.