Home School Legal Defense Association

J. Michael Smith, Esq.
President

Michael P. Farris, Esq.
Chairman

A Reply to the Badman Report

English Home Education: Already In Proper Balance

July 2009

Michael P. Farris, J.D.
Chairman
Home School Legal Defense Association

Introduction

His name is Badman. Graham Badman. His June 2009 “Report to the Secretary of State on the Review of Elective Home Education in England,” which proposes draconian changes in English home education law, lives up to his name.

The Story so Far

On June 11, 2009 a report on home education in England by Graham Badman, a former Managing Director of Children, Families and Education in the County of Kent, was accepted in full by the British Secretary of State for Children, Schools and Families. The report makes the case that homeschooling should be extensively regulated in England.

Read HSLDA's June 16 article: “UN Treaty Jeopardizes Homeschool Freedom in Britain”

His core premise is that the current education law does not properly balance the rights of parents and the rights of children.

However, he reaches this conclusion on a faulty basis. Most significantly, he fails to fully and accurately describe the current legal framework that governs home education. He avoids any discussion of the power of local education officials to intervene with the force of law in a situation where they have found a home education program to be unsuitable.

Despite his failure to accurately describe the current situation, he makes a series of recommendations to remedy the problems he has “discovered.” Central to his scheme is the requirement that a government official be empowered to compel entry into the homes of families engaged in home education. Then he wishes the official to have the power to interrogate each child in order to “hear” the child’s wishes and make an independent determination of the suitability of the home education program.

A cryptic quotation appears as a preface to the entire report:

The need to choose, to sacrifice some ultimate values to others, turns out to be a permanent characteristic of the human predicament.

This statement was by Isaiah Berlin in a 1969 work published by Oxford University.

Badman’s apparent meaning is that one cherished value needs to be sacrificed to achieve a different cherished value. From the body of the Badman Report there is little doubt as to his intended application of this principle.

The Badman Report opines that traditional English concepts of parental rights and liberty must be sacrificed to achieve the value of adherence to children’s rights theory—specifically, the theory contained in the UN Convention on the Rights of the Child.

But as so often is the case with meddlesome interlopers, it is easy to demonstrate that Badman’s conclusions are premised on numerous fallacies.

How the English Legal System Works

Section 7 of the Education Act of 1996 provides the legal framework for home education in England.

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(a) to his age, ability, aptitude, and
(b) to any special educational needs he may have, either by regular attendance at school or otherwise.

Badman asserts that the terms “efficient” and “suitable” are not defined. This is true enough insofar as the statutory language is concerned. However, this does not mean that English courts are incapable of interpreting and applying these terms with common sense. Badman cites and quotes judicial definitions of both “efficiency” and “a suitable education,” but fails to give us the source for the quotation of the suitability determination.1 Accordingly, it is simply false to say that these terms are undefined in English law.

Section 437 (1) of the Education act imposes a duty on “a local education authority” to give notice to any parent “if it appears that a child of compulsory school age in their area is not receiving suitable education.”

After quoting Section 437(1), Badman merely states that local authorities are encouraged to use informal means.

At this point, Badman simply stops reading the statutes and fails to include in his report the balance of the statutory scheme which empowers local authorities to take action to seek remediation if a home education program appears to be unsuitable.

Here is what he left out:

Under Section 437, “[i]f it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education” the officials may issue a notice to parents requiring them, within 15 days, to demonstrate that the education their child is receiving is in fact suitable. If the school officials are not satisfied with the response, they have the ability to issue an attendance order, forcing the child to attend a school designated by the officials. The parents may ask for a lawful alternative school placement. However, there is no lawful option to simply continue a program of home education that had been found to be wanting.

But the law permits parents two paths to seek review of the attendance order.

Administrative review. Under Section 442, a parent may request the local authority to remove the attendance order on the grounds that suitable education is being provided. If the local authority refuses to remove the order, the aggrieved parent may appeal to the Secretary of State who is given wide discretion in fashioning a course of action for the child in question.

Judicial option. A parent may simply refuse to comply with the attendance order. This is an offense which may be prosecuted under Section 443. Parents may raise an affirmative defense in such a prosecution. A parent will be exonerated if “he proves that he is causing the child to receive suitable education otherwise than at school.” Upon such a judicial determination, the attendance order would be vacated.

The Badman Report leaves the distinct impression that there are no effective means available for local education officials to pursue home educating parents who are failing to provide a proper education for their children.

Both the objectivity and the professionalism of the Badman Report are called into serious question by its failure to fully describe the complete operation of current law.

There is nothing ineffective about the current English law when all of the elements are considered:

  • Homeschooling parents are under the same educational duty as all other parents.
  • This standard has been subject to further definition by English courts.
  • Local school officials have both the duty and authority to take action if they have reasonable grounds to believe that suitable education is not being given to any child.
  • Parents are given notice and an opportunity to cure any deficiency.
  • If the school officials are not satisfied, they may order a cessation to home education.
  • If the parents disagree with this decision, they may elect to appeal to the Secretary or make their defense in court.

An Incomplete Comparison

The Badman Report asserts: “International comparison suggests that of all countries with highly developed education systems, England is the most liberal in its approach to elective home education.”

Seven lines of analysis follow this naked assertion. He mentions Germany, “most European countries” (without elaboration), and New Zealand.

The omission of the United States is a particularly blatant error when it comes to the subject of home education. There is little doubt that more children are being homeschooled in the United States than in the rest of the world combined. By comparison, the Badman Report discloses that there are between 20,000 and 80,000 children being homeschooled in England.2 The United States Department of Education estimates that there were between 1,277,000 and 1,739,000 (median 1,508,000) being home educated in 2007.3 Independent researchers place the number even higher. “There were an estimated 1.8 to 2.5 million children (in grades K to 12) home educated during 2007–2008 in the United States.”4

North Carolina’s Department of Education reports that in the 2007–2008 school year, there were 38,367 homeschools with an estimated 71,566 children being taught in those homes.5 A 2008 decision of the California Court of Appeal estimated 166,000 children were being homeschooled in that state alone.6

It is important to note that, just as in England, the United States cannot provide a precise count of the number of children being home educated. If the implication that the inability to enumerate home educated children was an indicium of educational failure, it should have become apparent by now in the United States. The numbers are simply too great for the problem to have been hidden.

Moreover, once the United States is brought into play in the international comparison, it is simply unfair and inaccurate to suggest that England is the most liberal in it is approach to home education regulation.

The Education Act of 1996 is similar to some of the older American home education laws. For example, Massachusetts law requires “instruction in all the studies required by law equals in thoroughness and efficiency, and in the progress made therein, that in the public schools in the same town.” Mass. Gen. Laws Ch. 76, § 1.

Oklahoma law provides:

It is unlawful for a parent of a school aged child “to neglect or refuse to cause or compel such child to attend and comply with the rules of some public, private or other school, unless other means of education [i.e., home schooling] are provided for the full term the schools of the district are in session.” Stat. Ann. tit. 70 § 10-105(A).

The phrase “other means of education” in the Oklahoma statute is virtually identical to the English phrase “at school or otherwise.” Homeschooling flourishes in Oklahoma with no governmental interference in the ordinary case.

Illinois law provides an example of law with broad, undefined standards for home education. In that state parents must ensure that “children are taught the branches of education taught to children of corresponding age and grade in public schools, and where the instruction of the child in the branches of education is in the English language.” 105 ILCS § 5/26-1.

A summary of the home education law in all 50 American states is attached. It is evident upon review that some states are more lenient than the English system, and some have more specific requirements. None differ greatly from the general approach of English law that parents should be trusted and authorities are empowered to intervene in the extraordinary case.

There is simply no basis for widespread alarm concerning the well-being of children. Freedom works. This is especially true when, as in England, the authorities have the clear statutory power to intervene when they believe that there is a problem.

Badman’s Reliance on The UN Convention of the Rights of the Child

Badman begins his review of the regulatory framework of the current English system by citing Article 12 of the UN Convention on the Rights of the Child (UNCRC). This Article provides that “in all matters affecting the child, the views of the child [be] given due weight in accordance with the age and maturity of the child.”

Badman then says: “Yet under the current legislation and guidance, local authorities have no right of access to the child to determine or ascertain such views.”

Accordingly, Badman suggests that Parliament enact mandatory provisions to require parents to have an official enter their home to interrogate their children concerning their “views” and to make an independent assessment of the suitability of the home education being provided.

However, under the express terms of the UNCRC, Article 12 states a universal principle applicable to all children. If Parliament intends to implement the provisions of Article 12 to determine the “wishes” of the child with regard to his education, then this requirement must be imposed vis-à-vis all children in all forms of education. The Preamble of the UNCRC mentions the principle of “equality” in two separate statements. Article 28 states that education decisions for children must be made “on the basis of equal opportunity.”

Moreover, if home education parents are not to be allowed to be present when their children are interrogated concerning their “wishes,” both logic and the principle of equality require that local school officials must be excluded from the interviews when children from such schools are likewise enabled to express their “wishes.”

Reading Article 12 and 28 together, favoritism or selective enforcement is not permitted. If the child’s wishes are to be received by independent reviewers, then it must be for all children and the reviewers must truly be independent.

Obviously, the Article 12 system would vest the independent reviewer with extraordinary power of subjective judgment. Such a methodology is antithetical in any society that places any value on the rule of law, privacy, and liberty.

The Badman Interrogation Program: A Violation of Human Rights

Badman’s key recommendation is that local authorities should be given the power to:

  • Compel entry into the homes of families engaged in home education.
  • Separate the child from his or her parents.
  • Interrogate the child both concerning his or her wishes and to satisfy the interrogator that the child’s education is “suitable.”

This approach flies in the face of Article 8 of the European Convention on Human Rights.

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This Article, protecting the privacy of both family life and the home, has been made binding on the United Kingdom by virtue of the Human Rights Act of 1998. No reservations to this Article were made at the time that the United Kingdom became a party to this treaty. According to the Human Rights Act, it is unlawful for any agency of government to violate these protected rights of privacy.

The privacy provision in the Human Rights Act has parallel provisions in the American system of constitutional rights. Significantly, American courts have dealt directly with the question of whether a compulsory invasion for home education inspections constitutes an unconstitutional violation of family privacy.

The Supreme Judicial Court of Massachusetts considered the question of the legitimacy of a compulsory “home visit” for homeschooling families. Under the doctrine of family privacy, the highest court in Massachusetts held that “the school committee … cannot, in the absence of consent, require home visits, as a condition to the approval of home education plans.” Brunelle v. Lynn Public Schools, 428 Mass. 512, 702 N.E.2d 1182 (1998). The court also ruled that “the approval of the home school proposal must not be conditioned on requirements that are not essential to the state interest in assuring that all children be educated.” Home visits are not essential for children to be educated.

Similarly, a New York court held In the Matter of Dixon, No. N-37-86, (Fam. Ct, Oswego County 1988), that the school district’s “desired on-site inspection was arbitrary, unreasonable, unwarranted, and violative of the [home school parents’] due process rights…." Slip. Op. at 5. See also In the Matter of Standish, No. N-125-86, Oswego County, Dec. 23, 1988.

Badman believes that unless officials can enter a home, no one can know for sure what is happening with a child. There is a certain truth to this assertion. However, this is true for all homes, not just those engaged in home education. Unless and until the government is willing to install surveillance cameras in the home of every family, there is no way to absolutely guarantee that officials truly know what is happening in each home. Freedom comes with some risks. But, it is generally believed that the totalitarian alternative is far worse in the long-run.

However, the adherence to principles of human rights and privacy does not mean that the authorities are without power to protect a child’s need for a suitable education. It must be remembered that when there is any appearance that the home education program is unsuitable, the Education Act gives local officials the authority to require proof of the suitability of the education and gives them the power to order the cessation of home schooling if they are not satisfied.

In light of this authority, there is utterly no need for an official to compel entry into a home to make an on-the-spot subjective judgment about the child and the suitability of his or her education.

Would Badman’s Inspectors Be Professionally Qualified to Assess the Suitability of Home Education?

Finally, there is serious doubt that such an inquisitor would be qualified to evaluate the effectiveness of a home education program. Any form of assessment (including testing and measurement) is generally required to meet four professional standards for accuracy and reliability. A clear statement of these standards is found in a publication by the British Council describing certain examinations for English proficiency:

Examinations must be “designed around four essential qualities: validity, reliability, impact, and practicality. Validity is normally taken to be the extent to which a test can be shown to produce scores which are an accurate reflection [of the subject tested]. Reliability concerns the extent to which they can be depended upon for making decisions about the candidate. Impact concerns the effects, beneficial or otherwise, which an examination has on the candidates or other users, whether these are educational, social, economic or political, or various combinations of these. Practicality can be defined as the extent to which an examination is practicable in terms of the resources needed to produce and administer it.”7

Any assessment by a home inspector/interrogator would need to comply with these accepted professional standards for educational assessment.

An American court used essentially identical standards for the validity of educational assessment to overturn an improper crafted program of home education assessment.

The legislature of South Carolina required that homeschooling parents be subjected to an examination employed for public school teacher candidates. However, the legislature conditioned this requirement on the performance of a professional validation study to determine whether or not the items being tested were in fact valid measurements of the skills required for successful home instruction.

After the validity study was performed, parents sued claiming that the study was done improperly and that half of the panelists in the study were unqualified participants and had no basis for measuring factors needed for successful home instruction.

The parents relied on the expert analysis of Dr. Lawrence Rudner, the Director of Testing and Measurement for the ERIC Clearinghouse (a program of the United States Department of Education).

In Lawrence v. S.C. State Board of Education, 412 S.E.2d 394 (S.C. 1991), the Supreme Court of South Carolina described the panel members that had been assembled to conduct the study:

[T]he Department of Education contracted with IOX Assessment Associates to evaluate the EEE’s suitability to test home schooling instructors. IOX assembled a panel of thirty-three members; seventeen panelists were home schoolers, the remaining sixteen were public school and college teachers.

Panelists who were not home schoolers were given no description of the requirements for successful home schooling. These sixteen panelists were not familiar with home schooling or were never asked if they knew anything about it.

Task-relatedness evaluations required a panelist to judge whether the EEE item tested some knowledge or skill that was “a necessary prerequisite” to home schooling. Sixteen of the panelists were not qualified to make this evaluation since they were given no information as to what the prerequisites for home schooling were.

This is a very important principle. Public school teachers and college professors of education were held to be “not qualified” to evaluate effective home education. The application of professional educational standards to the task at hand demonstrated that there are significant differences in the methods and strategies of successful home education and the strategies employed in institutional schools. Evaluators who have neither professional expertise nor in-depth study of home education simply are unqualified to make valid assessments.

The Badman method of home interrogations fails all four of the criteria outlined by the British Council for proper assessment and measurement:

Validity. The interrogators would have no objective tools of measurement and would lack the proper expertise in home education.

Reliability. Subjective home interrogations of children would never survive a reliability assessment. This method simply cannot produce results that have any semblance of national consistency, accuracy, or fairness.

Impact. The massive invasion of family privacy as well as the contraction of the Human Rights Act and the European Convention on Human Rights are just the beginning of the negative impact of the Badman home interrogation methodology. The impact on the child must be considered. When a strange adult appears in the home with the announced purpose of interrogating the child separately and apart from his or her parents, a considerable degree of anxiety can be anticipated. Moreover, the long-range impact on the child’s view of a free society is severely damaged. If the government may enter the child’s home, with no requirement of any showing of wrong-doing, the child is left with a residual view toward his government that is not unlike that experienced by children who feared the KGB in the USSR. Even though adults may well be able to distinguish between the KGB and a Badman home interrogator, to a young child all he knows is that a stranger is in his home asking questions of him in private and his future depends on the stranger’s views of his answers. This is an incredibly high-stakes venture with almost no chance of producing results that would survive the other measures of assessment for validity and reliability.

Practicability. The costs for implementing the Badman method of home interrogations would be staggering.

It is once again important to remember that the choices are not between “doing nothing” versus the Badman home interrogation method. The current law has reasonable measures in place. Rather than invading the home, the local school officials may, if they have reasonable grounds to doubt the suitability of a home education program, require evidence of education—not through subjective interrogation of the child—but through the objective method of looking at the work performed by the child.

The Badman method simply cannot survive any review of its appropriateness as a method of educational assessment. The current law does not need fixing. It contains all the tools necessary for a balanced and proper review whenever school officials have reason to believe that improper education is occurring.

The Article 29 Problem

Badman also urges new substantive requirements to be adopted to define what is “suitable” for a child’s education. He cites Article 29 of the UNCRC as setting the standard for guiding such new requirements.

Accordingly, it is crucial to obtain an in-depth understanding of Article 29’s requirements to understand the dramatic nature of the Badman proposal.

Subsection (a) contains little more than current English law requiring a suitable and efficient education. It is sections (b) through (e) that attempt to control the substantive content of the education and require the promulgation of certain worldviews that are controversial, not just among homeschoolers, but among many segments of the population.

In a 2006 treatise entitled The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification8, advocates of this treaty make this clear and bold declaration concerning the meaning of these sections: “Article 29(1)(b) through (e) directs state parties to instill particular values in children through education.”

The UN Committee on the Rights of the Child has issued General Comments concerning the meaning of Articles 28 and 29. This official UN Committee says:

The effective promotion of article 29 (1) requires the fundamental reworking of curricula to include the various aims of education and the systematic revision of textbooks and other teaching materials and technologies, as well as school policies. Approaches which do no more than seek to superimpose the aims and values of the article on the existing system without encouraging any deeper changes are clearly inadequate. The relevant values cannot be effectively integrated into, and thus be rendered consistent with, a broader curriculum unless those who are expected to transmit, promote, teach and, as far as possible, exemplify the values have themselves been convinced of their importance.

The American Bar Association, supporter of the UNCRC, opined that Christian schools, which reject alternate worldviews and teach that Christianity is the only true religion, “fly in the face” of Article 29.9

It is not necessary to debate the legitimacy of each of the values enshrined in this list of viewpoints to be instilled in every child in every type of school. A few examples of potential conflicts will suffice.

  • Does instruction in “human rights” values require children to be taught the moral legitimacy of homosexuality?
  • Does it require the promotion of same-sex marriage to children?
  • Does a family that rejects the concept of one-world government violate Article 29? The American Bar Association thinks such views are a violation (see fn. 4).
  • Do children have to be taught that religions are equally valid?
  • If parents teach and believe that the husband should be the head of the family, does this violate the requirement of equality of the sexes? Any casual reader of the literature surrounding the UN Convention on the Elimination of All Forms of Discrimination Against Women will know that such traditional views are considered a violation of human rights standards.

We need not contemplate an answer to these individual questions. The real issue is: Does England intend to mandate the inculcation of certain “approved” values to children?

England’s current law is clearly on the side of freedom and contrary to any regime of government-compelled indoctrination in any particular system of values.

The Education Act provides in Section 9:

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

Nothing in English law allows government officials to dictate the worldview, opinions, or viewpoints which must be taught in home education. Moreover, before Britain pursues a policy to implement Article 29 to control the content of its education law, it might wish to compare its current educational practice relative to religious instruction (which teaches broad-based Christianity) with the practice of Christian education in the state schools of Norway10, which was held to be in violation of the UNCRC by the United Nations Committee on the Rights of the Child.

It would be a violation of the principle of equal protection to impose a duty on home schools to teach the values of Article 29, while the English schools operated by the government were in open contradiction with this same Article.

Conclusion

The Badman Report:

  • Failed to give a full, fair, and accurate description of the current law governing home education in England. The system has a comprehensive system of checks and balances.
  • Inaccurately claimed (by this failure of complete disclosure) that local education officials are limited to informal methods of seeking remediation. They possess effective and powerful tools to protect children.
  • Inaccurately claimed that English homeschoolers were governed by the most liberal laws among peer nations.
  • Proposed a method of compulsory home interrogations of children that violates the Human Rights Act of 1998 and Article 8 of the ECHR. This method has been held to be an unconstitutional invasion of family privacy in the United States.
  • Proposed a method of home interrogations as a means of evaluation of the suitability of home education which fails the four standards for proper assessment: validity, reliability, impact, and practicability.
  • Urges that English homeschoolers be required to comply with Article 29 of the UNCRC, which imposes a regime of compelled indoctrination in controversial values.

The Badman Report should be rejected. He advances no sustainable reason for changing current English law on home education.

Endnotes

1. Badman Report, p. 6.

2. Badman Report, p. 2.

3. http://nces.ed.gov/pubs2009/2009030.pdf

4. http://www.nheri.org/Research-Facts-on-Homeschooling.html

5. http://www.ncdnpe.org/documents/hhh233.pdf

6. Jonathan L. v. Superior Court, 165 Cal.App.4th 1074, 1089, 81 Cal.Rptr.3d 571, 582 (fn. 17) (Cal.App. 2 Dist.,2008).

7. http://www.britishcouncil.org/colombia-exams-yle-handbook-2007.pdf

8. Jonathan Todres, Mark E. Wojcik, Cris R. Revaz; Transnational Publishers, Ardsley, New York (2006).

9. American Bar Association, Center on Children and the Law: Children’s Rights in America: UN Convention on the Rights of the Child Compared with United States Law, p. 182.

10. Paragraph 20, Concluding Observations of the Committee on the Rights of the Child: Norway, Committee on the Rights of the Child, 39th sess., U.N. Doc. CRC/C/15/Add.263 (2005).

 Other Resources

A full discussion of the UNCRC

The Badman Report