HSLDA News
July 18, 2002

Woodruff Memorandum to the D.C. City Council on Mandatory Pre-school


INTEROFFICE MEMORANDUM

TO:COUNCIL OF THE DISTRICT OF COLUMBIA
FROM:SCOTT A. WOODRUFF, ESQ.
SUBJECT:CONSTITUTIONAL CHALLENGES TO BILL 14-261
 COMPULSORY SCHOOL ATTENDANCE AMENDMENT ACT OF 2001
DATE:7/16/02

Councilmember Kevin Chavous has introduced a bill that would lower the compulsory attendance age in the District. Under the terms of Bill 14-261, all four year-old children, all three year-old children, and one-third of all two year-old children would be required to attend school. We believe this bill unconstitutionally infringes the fundamental rights of parents. Since we are obligated to represent the interests of our members in the District, we would have no choice but to file suit if this bill is enacted into law. We submit this memorandum in a good faith effort to avoid litigation.

BILL 16-241 CANNOT BE SCIENTIFICALLY JUSTIFIED

The General Accounting Office, perhaps the most neutral and objective federal government agency in existence, set out to determine whether the $30 billion our government has spent over the last 30 years on Head Start, an educational program for 3 to 5 year olds, was well spent. The GAO reviewed over 600 separate studies. The GAO concluded that it could not be determined whether Head Start truly benefited children. Their report stated:

"…the body of research is insufficient for use in drawing conclusions about the impact of the national program."

Bill 16-241 targets children in the same age range as Head Start and would provide a highly similar program. Since the body of research does not demonstrate that Head Start benefits children, according to the agency whose job it is to help us determine whether taxpayers' money is well spent, the conclusion cannot be escaped that it is questionable that the compulsory education mandated under Bill 16-241 would provide any benefit to children.

Compulsory attendance laws have been on the books for about 150 years. Adults who entered society during that time seemed reasonably well educated, some even brilliant. This was achieved without any child being forced into school who was under 5 years old (except in DC, where a child 4 years and 9 months may be forced into school). Why, all of a sudden, do some think people need to start formal education at age 3 to get a proper education?

BILL 16-241 IS A RADICAL CHANGE

Bill 16-241 is sure to wind up in court because it is a radical change in the law. It would change the nature of compulsory attendance at the most basic level. Before addressing the constitutional dimensions of this change, it is worth taking stock of just how significant a change it would be.

The District of Columbia already enforces the lowest compulsory attendance age in America. The following are the compulsory attendance ages for a child as of September 1 of each school year:

  • Eight: PA, WA
  • Seven: AL, AK, CO, ID, IL, IN, KS, LA, ME, MN. MO, MT, NE, NV, NM, NC, ND, OR, WY
  • Six, or seven at parent's option: SD, TN
  • Six: AZ, GA, HI, IA, KY, MA, MI, MS, NH, NJ, NY, OH, TX, UT, VT, WV, WI
  • Five and two-thirds: CA, RI
  • Five and one-half: FL
  • Five, or six at parent's option: AR, CT, MD, OK, SC, VA
  • Five, or six at school's option: DE
  • Four and two-thirds: DC

Bill 16-241 changes the very nature and purpose of compulsory attendance. Since it will compel one third of all two year-old children to attend school, a significant number of children in the District will start "school" in diapers. If the District school buses to transport children of this age, those buses will need infant seats: no motor vehicle operator may transport a child under three without the child restraint seats required by law. D.C. Code § 40-1203(a).

Washington, DC is at one extreme of the compulsory attendance spectrum. In a curious coincidence, Washington State marks the other extreme, with a starting age of eight. If Bill 14-261 passes, children in Washington State will be three times as old as children in the District before they must start school (eight is exactly three times two and two-thirds).

In the rigidly militaristic society of ancient Sparta, children only had to attend school at age 7. In communist China, an oppressive statist society, children are not forced into school before age 6 or 7. In Germany, the first land to ever have a compulsory attendance law, children are not required to attend school until age 6. DC would be surpassing the notorious totalitarian systems of both ancient and modern times if this bill passes.

BILL 16-241 IS A CHANGE IN KIND, NOT JUST A CHANGE IN DEGREE

Bill 16-241 does nor merely change the age at which school starts. It changes the nature of what school is. Throughout our history as a people, school has begun with books. The District's present compulsory attendance age is already as low as one can go --or lower-- and still expect school to be about books. Bill 16-241 compels attendance at preschool, not school. Compulsory school attendance has been upheld by many courts against constitutional challenges, but no court has ever upheld compelled attendance at preschool. If Bill 16-241 is enacted, it will face such a challenge.

Traditionally, the years from two to five have been dedicated to parenting children, not schooling them. During the hours when school is in session, parents feed their children, instruct them, correct them, talk to them, play with them, tell them stories, and put them down for naps. In an effort to enhance a child's readiness to read, Bill 16-241 takes away all these opportunities away from parents and hands them over to paid professionals. If preschool employees perform all these parental functions, then they are really doing the job of a parent, not a teacher. If preschool employees do not perform these parental functions, then the children are missing something essential.

"Preschool" is not school: the term self-evidently refers to something that comes before school. Traditionally, what comes before school is home. Courts have universally upheld the government's right to compel attendance at school, but to the best of our knowledge, no American court has ever allowed a state to take a preschool child away from fit parents. Bill 16-241 is an unprecedented extension of government power over homes.

BILL 16-241 BURDENS FUNDAMENTAL PARENTAL RIGHTS

Bill 16-241 places a substantial burden on a parent's fundamental right to direct the education and upbringing of a child. It directly affects "the oldest of the fundamental liberty interests" recognized by the United States Supreme Court:

The liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control."

Troxel v. Granville, 530 U.S. 57, 65-66 (2000).

The Troxel Court recited a long series of Supreme Court cases that have protected parental rights against state action, especially in the area of education. When Oregon tried to forbid every child from attending private school, the Supreme Court struck that down in Pierce v. Society of Sisters, 268 U.S. 510 (1925). When Nebraska banned the teaching of foreign languages, the Court struck that down in Meyer v. Nebraska, 262 U.S. 390 (1923). When Amish parents wanted to teach their children at home, the Court struck down Wisconsin's compulsory attendance law in Wisconsin v. Yoder, 406 U.S. 205 (1972). A law that compels children to go to school in diapers cannot be enforced without first surviving strict judicial scrutiny.

THE D.C. CIRCUIT COURT OF APPEALS RECOGNIZES PARENTAL RIGHTS

The Court of Appeals for the District of Columbia recognizes parental rights. Parents challenged the District's juvenile curfew, arguing that it infringed their right to direct and control their children's upbringing. The court rejected this claim, "not because we think that no such fundamental right exists in any dimension, but rather because we think it not implicated by the curfew." Hutchins v. District of Columbia, 188 F.3d 531, 540, 338 U.S. App. D.C. 11, 21 (D.C. Cir. 1999). The Hutchins Court upheld the curfew because it concluded that the curfew was "carefully fashioned much more to enhance parental authority than to challenge it." Hutchins, 188 F.3d at 545, 540338 U.S. App. D.C. at 38. "If the parents' interests were in conflict with the state's interests, we would be faced with a more difficult balancing of sharply competing claims." Ibid.

All the judges in Hutchins agreed that parental rights are important. The majority limited those rights to the "parents' control of the home and the parents' interest in controlling, if he or she wishes, the formal education of children." Ibid at 24. Four judges believed that parental rights reached further than that, and included the parents' right to direct the children's activities outside the home.

Just how important are parental rights? Judge Edwards wrote, "In my view, parental rights are implicated in this case and they are truly significant - indeed, these rights are at the core of our society's moral and constitutional fiber." Hutchins, 188 F.3d at 549, 338 U.S. App. D.C. at 52 (Edwards, J., concurring).

Judges Wald and Garland upheld the law because they found that the rights of parents had been adequately accommodated by the curfew. Ibid, at 64. Judge Tatel dissented because he believed that the curfew unduly infringed upon parental rights. Ibid at 124.

All eleven judges on the Hutchins panel would hold that Bill 16-241 places a burden on the fundamental rights of parents.

BILL 16-241 CANNOT SURVIVE INTERMEDIATE SCRUTINY

The Hutchins court recognized that any burden on a fundamental right must be subjected to some form of heightened scrutiny. The juvenile curfew in Hutchins was subjected to "intermediate scrutiny." The curfew survived that level of scrutiny because the District "presented reams of evidence depicting the devastating impact of juvenile crime and victimization in the District--the juvenile violent crime arrest rate for juveniles ages 10 to 17 was higher than that in any state and was more than three times the national average." Hutchins, 188 F.3d at 542, 338 U.S. App. D.C. at 27.

Under intermediate scrutiny, a governmental action must be "substantially related" to the government's "important interest." Both the "means" and the "ends" must survive judicial review. The Hutchins court identified three interrelated concepts to help determine the closeness of the relationship between the means and the ends: (1) the factual premises upon which the legislature bases its decision, (2) the logical connection the remedy has to those premises, and (3) the scope of the remedy employed. Hutchins, 188 F.3d at 542, 338 U.S. App. D.C. at 29. The juvenile curfew survived intermediate scrutiny because the District (1) presented "reams" of data documenting the seriousness of the problem, (2) demonstrated that juvenile curfews had helped address that problem in other cities, and (3) drafted a curfew with many specific exemptions to reduce the burden on parental rights. Bill 16-241 cannot survive intermediate scrutiny on any of these three points.

Presumably the District will argue that the bill is meant to solve the problems of low test scores, high drop out rates, and high crime rates. No evidence has been presented-and probably cannot be presented-that test scores, drop out rates and crime rates are much different in DC than in many other areas of high urban concentration in America. If DC is compared to other states-all or most of which have extensive regions of relatively affluent rural and suburban areas-- DC statistics naturally tend to look low. However, comparing apples to apples-comparing DC statistics with statistics of other highly urbanized areas-DC statistics will probably be far less conspicuous. The District cannot satisfy part 1 of the Hutchins test in that it cannot demonstrate it has an outstanding problem compared to other similar school districts.

The District cannot demonstrate that a lower compulsory age will solve the problems they have identified. The GAO report quoted above will shout down any attempt to highlight the occasional study of dubious quality, reliability and repeatability that seems to show a benefit. The District cannot satisfy part 2 of the Hutchins test.

Bill 14-261 takes a blunderbuss approach. All children, no matter what, would be subject to compulsory attendance at age 3. A majority of states having 5 years of age as the entrance age give parents power to waive it til the child is 6 years of age. This is a narrowly tailored remedy. Bill 14-261, on the other hand, is a blunt instrument. The District cannot satisfy part 3 of the Hutchins test.

The District may be able to show that some studies of questionable reliabilty show some preschools benefit some children. That kind of data would help justify making preschools available at no cost to disadvantaged parents. It does not, however, justify compelling all children to attend preschool. Furthermore, there is evidence that some children are harmed when education begins too early.

BILL 16-241 IS NOT NECESSARY TO HELP THE CHILDREN OF "UNFIT PARENTS"

Our informal surveys show that the public believes compulsory attendance at preschool is plainly ridiculous unless the parents are "unfit." If Bill 16-241 is intended to help the children of unfit parents by taking away the liberties of fit parents, it is both unconstitutional and unnecessary. The law already provides ways to assist the children of parents who have been determined to be unfit.

Mandatory preschool might help children of substance abusers, but D.C. law already provides a way to ensure that such children receive appropriate services. D.C. Code § 6.2104.1 allows the government to step in on the basis of "reasonable evidence that any member of the child's home uses drugs illegally." This low threshold of evidence allows the Department of Health and Human Services to offer any service authorized or required by any applicable laws or rules of the District. If a child is determined to be neglected, the Department must then determine whether the child should be removed from the home or can be protected by the provision of services or resources, including preschool. D.C. Code § 6.2105. Bill 16-241 is therefore not necessary to help children living in homes where there is evidence of illegal drug activity.

Parents who neglect or refuse to provide for the basic needs of their children have traditionally been considered "unfit." The District already requires able-bodied parents to work (or actively seek work) at least 30 hours each week to qualify for Temporary Assistance for Needy Families (TANF). 42 U.S.C. 607(c); see D.C. Code 3-205.21. In practice, this means that most able-bodied parents must put their children into preschool to get public aid. The only Welfare recipients who are not required to do so are the ones who are genuinely incapable of seeking employment, and there is no reason to treat these parents as "unfit."

CONCLUSION

Bill 16-241 is a radical change that burdens the fundamental rights of "fit parents" while doing nothing new for the children of "unfit parents." It will immediately be challenged in court, where it will undoubtedly be subjected to heightened scrutiny. The court will examine the factual premises for this legislation, the logical connection of means to ends, and the scope of the remedy employed. The court will find that the research is far from conclusive, the means are but distantly related to the ends, and the scope of the remedy is out of all proportion to the problem. Since parents have a fundamental right to direct the education and upbringing of their children, the courts must conclude that Bill 16-241 is unconstitutional. We therefore urge this Council to avoid unnecessary litigation by rejecting Bill 16-241.