Home School Court Report
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March / April 2005

Taylor broke ground with NCAA
Judicial Tyranny Goes Global
Let the Facts Speak

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Realizing dreams

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PHC grad wins prize for economics paper
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Parental rights at risk here and abroad

J. Michael Smith, President of Home School Legal Defense Association
In this issue's cover story, Michael Farris deals with threats to parental rights. While the prospect of direct attacks on homeschooling rights is sobering, the threat to general parental rights is just as dangerous. Since our right to homeschool in America is based upon the two cornerstones of parental rights and religious freedom, Home School Legal Defense Association is concerned whenever we see either at risk.

In addition to the international threats described in the cover story, there are also domestic threats of which we need to be aware.

In an opinion issued on November 29, 2004, California's attorney general prohibited school districts from requiring written parental consent prior to, or notifying parents after, releasing a student from school to receive confidential medical services.

Under general common law, adopted by our country at its founding, parental consent has been considered a prerequisite for minors' medical treatment. However, as we have "progressed" in our thinking, medical exemption statutes have been passed in most states, primarily to do away with parental consent for abortions. For instance, a minor of any age in California may consent to care related to prevention or treatment of pregnancy and HIV testing.

While some state legislatures have tried to protect parents' rights by enacting parental notification and consent statutes before a child can obtain an abortion, the United States Supreme Court has ruled that to be constitutional, these statutes must provide the minor with a way to judicially bypass parental consent or notification. The judicial bypass allows courts to override a notification requirement if the court decides compliance is not in "the best interest of the child."

You might be thinking, "But Mike, what does this have to do with my right to choose home education for my child?"

Well, it is not a stretch to see the possibility of state legislatures attempting to enact a judicial option for children over 12 years of age to seek attendance at public school. A child might argue that it is not in his best interest to be homeschooled because he is missing social interaction, the junior and senior prom, or interscholastic sports participation. The court's standard would likely be "the best interest of the child"—as determined by a judge.

Opponents of homeschooling continue to argue that this form of education prevents children from being exposed to other cultures, ideas, and religions. Critics assume that homeschooled children have no teachers other than their parents during formative years, and that parent-provided education deprives children of a diversity of knowledge. They say that home education runs against the best interest of children and our nation, believing that it creates students who are intolerant of other people and ideas.

This charge is not going away. As homeschoolers become more successful academically and the practice becomes more widespread, the number of voices will increase.

In a recent series of articles, the Akron Beacon Journalput another spin on the "best interest of the child" argument, pointing out what it felt was a "lack of accountability" of homeschool families. According to the Beacon Journal, certified public school teachers do the majority of child abuse and neglect reporting. Therefore, homeschooling families ought to be regulated to ensure routine observation by public school teachers, supposedly protecting the children from abuse. Although this argument is based on erroneous reasoning (see my article "Let the facts speak: Part 2" on page 26), it will certainly be used in legislatures to justify increased regulation of homeschooling.

As these battles for "the best interest of the child" occur in the legislature, homeschoolers will have to be mobilized for strong opposition. Should such measures pass, HSLDA would certainly lodge a constitutionality challenge against them. However, based upon the courts' current lack of general respect for parental rights, we do not want to go there.

What is the solution then? Homeschoolers must continue to advocate vigorously for parental rights in the legislatures and in the courts as well as responsibly teach our children at home, training them up in the nurture and admonition of the Lord.