J. Michael Smith, President — Michael P. Farris, Chairman
| ||August 10, 2004|
PARENTAL IDENTIFICATION FOR HOMESCHOOL PARENTS IS CONSTITUTIONALLY SUSPECT AND UNNECESSARY
The Nevada State Board of Education is in the process of improving the regulations governing homeschooling. However, there has been discussion of adopting Clark County's homeschool parent I.D. policy statewide.
The Home School Legal Defense Association believes the adoption of a statewide homeschool parent identification policy would violate certain constitutional rights.
No other state has a similar policy requiring homeschool parents to prove their identity.
It seems to be a mistake to adopt such a policy in face of the constitutional problems when parents who have kidnapped children or are illegally in the country will never register under the homeschool law in the first place.
Only the vast majority of law-abiding parents will be penalized because the state does not trust parents to tell the truth. This is highly offensive to homeschooling parents in Nevada.
The proposed language states:
"Proof of the identity of the parent, consisting of a state or federally issued photographic identification card or some other document, sufficient to establish the parent's identity and evidence of their connection to the child being exempted, which shall not be photocopied or kept on file by the school District."
HSLDA believes this would be unconstitutional for the following reasons:
An ID requirement would violate the constitutional privacy rights of homeschool parents
The U.S. Supreme Court has acknowledged a constitutional right to privacy that includes a restriction on the type of information a government agency can collect, as evidenced by the Court's opinion in the 1977 case of Whalen v. Roe. In that majority opinion Justice Stephens included a quote stating "The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed...the first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion."i
The balancing test for whether this privacy right has been violated was laid out in a 1999 decision by a 9th Circuit District Court, which held that "In determining whether the government may seek or use private information, courts balance the government's interest in having or using the information against the individual's interest in denying access."ii The Supreme Court has further found that an individual's privacy interest is noticeably heightened when it relates to the areas of marriage, procreation, contraception, family relationships, child rearing and education.iii Therefore, the more fundamental the information, the higher the state's interest must be to not violate a person's constitutional right to privacy.
The Clark County ID requirement forces parents to prove their identity and their connection with the child in question. Although this requirement sounds on the surface like a simple flashing of a driver's license, because of the frequent family changes in today's society it could easily involve a much more intrusive search of a family's personal history. For example, a stepfather with a different last name than his stepchild would have to produce a plethora of documents to prove his connection with his child, entailing a great intrusion into his personal history. This information directly relates to marriage and family relationships, and if a parent could not produce it, would apparently prevent them from homeschooling, thus substantially interfering with their direction of the education of their children.
Five or six years ago, U.S. Senator Alan Simpson tried to pass a federal bill requiring all citizens to carry an I.D. card in order to crack down on illegal immigrants. As the bill progressed, the national I.D. supporters, after realizing how easy it was to forge driver's licenses and birth certificates, began moving to mandatory retina scans and more invasive identification systems. Simpson reasoned that a mandatory I.D. system was useless if it could be abused.
Needless to say, the bill was soundly defeated and a national I.D. card never became a reality. A coalition of grassroots groups like the American Civil Liberties Union (ACLU), homeschoolers, Hispanic Associations, minority groups, privacy organizations, and scores of family groups rose up and sounded the alarm. This is Americanot a Big Brother tyranny.
An ID Requirement Violates Parents' First and Fourteenth Amendment Rights
While it is common in many government programs for participants to confirm their identity by showing a state or Federal ID card, in this situation the parent is not asking for a handout or permission to drive on state highways, but is informing the state of their exercising of their constitutional right to educate their own children.
To mandate that parents prove their identity in order to exercise their parental right to home educate violates their constitutional rights. These parental rights are protected by the First Amendment which guarantees all parents the right to freely exercise their religious beliefs to teach their children without unreasonable and unnecessary restrictions such as "proof of identity." The Fourteenth Amendment has been applied by the Supreme Court to guarantee parents' "right to direct the education and upbringing of their children."
This unnecessary "proof of identity" infringes on the rights of Nevada homeschool parents.
From the cases outlined briefly below and reviewed extensively in the attached Appendix I, it is clear the constitutional right of a parent to direct the upbringing and education of his child is firmly entrenched in the U.S. Supreme Court case history.
Furthermore, a higher standard of review applies to fundamental rights such as parental liberty than to other rights. When confronted with a conflict between parents' rights and state regulation, the court must apply the "compelling interest test."
Under this test, the state must prove that its infringement on the parents' liberty is essential to fulfill a compelling interest and is the least restrictive means of fulfilling this state interest. Simply proving the regulation is reasonable is not sufficient.
We believe a "proof of identity" requirement when challenged, would fail this test and be found unconstitutional.
For example, in Meyer v. Nebraska,iv the Court invalidated a state law which prohibited foreign language instruction for school children because the law did not "promote" education but rather "arbitrarily and unreasonably" interfered with "the natural duty of the parent to give his children education suitable to their station in life..."v The court chastened the legislature for attempting "materially to interfere... with the power of parents to control the education of their own."vi This decision clearly affirmed that the Constitution protects the preferences of the parent in education over those of the State.vii
In 1925, the Supreme Court decided the Pierce v. Society of Sistersviii case, the Court declared,
Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.ix [emphasis supplied]
In addition to upholding the right of parents to direct the upbringing and the education of their children, Pierce also asserts.
The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations.x [emphasis supplied]
Similarly, in Prince v. Massachusetts,xi the Supreme Court admitted the high responsibility and right of parents to control the upbringing of their children against that of the State.
It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder.xii [emphasis supplied]
Twenty-one years later, the Supreme Court, in Griswold v. Connecticut, emphasized that the state cannot interfere with the right of a parent to control his child's education.xiii The Court stated that the right to educate one's child as one chooses is guaranteed in the Bill of Rights and applicable to the States by the First and Fourteenth Amendments.xiv
Forty-eight years after Pierce, the U.S. Supreme Court once again upheld Pierce as "the charter of the rights of parents to direct the upbringing of their children."xv In agreement with Pierce, Chief Justice Burger stated in the opinion of Wisconsin v. Yoder in 1972:
This case involves the fundamental interest of parents, as contrasted with that of the state, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring tradition.xvi [emphasis supplied]
Thus a state's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children . . . This case involves the fundamental and religious future and education of their children.xvii [emphasis supplied]
Since proof of identity of the parent is not required for public or private school parents, it appears that this unique restriction is being placed on parents only if they choose to homeschool their children further demonstrating the discriminatory nature of this proposed requirement.
It would be virtually impossible for parents to fully comply with the ID requirement
In practical terms, it would be very difficult for school personnel to satisfy the provisions of the requirement, since completely establishing a parent's identity and connection with their child would be virtually impossible without medical testing. This, of course, is out of the question, but the language of the proposed regulation requires documents sufficient to prove the familial connection. The vague standard of "sufficiency" leaves great margin for error and possible abuse by school district officials. School officials will be opened to much liability if they do not take sufficient steps to ensure the parent's identity is accurate. They will, as a result, err on the side of being too rigid and invasive in their demands for proof in order to avoid the potential liability. It would be so much wiser to not give school districts this costly burden of proving the identity of parents.
An ID requirement will not solve the problem of custody disputes
Clark County has stated that the purpose of the ID requirement is to keep non-custodial parents from removing their children from public school to homeschool, thus virtually kidnapping them. First of all, there seems to be little evidence that this is actually occurring. Clark County is the first school district in the nation to make this type of requirement, and it seems that if there was a major problem of child-snatching other school districts would implement similar policies. Second, non-custodial parents who wanted to take their children could state that they were transferring the child to a private school, and would not have to show their ID. Requiring ID verification of only parents who homeschool will not prevent the kidnapping of children.
Many parents who legitimately have custody and guardianship of their children would have to substantially delay their homeschool in order to gather the appropriate documentation, without there being any surety that the requirement would stop those who abuse the system.
The State Board of Education of Nevada should trust parents.
It is a common principle recognized in American jurisprudence that parents generally act in the best interest of children. Protection of parental rights and privacy rights has always been paramount by the courts of this land.
Requiring parents to identify themselves to the impersonal state in order to exercise their constitutional and statutory right to homeschool their own children who they taught to walk and talk, is highly offensive and constitutionally suspect. No other state has required homeschoolers to produce "proof of identity"the parent's word is good enough.
We urge the Nevada State Board of Education to abandon any proposed requirement for homeschool parents to prove their identity.
Home School Legal Defense Association
i Whalen v. Roe, 97 S.Ct. 869, 877 (1977)
ii In re Rausch, 197 B.R. 109 (1996). The district court opinion was quoting from Doe v. Attorney General of U.S., 941 F.2d 780, 796 (9th Cir.1991)
iii Paris Adult Theatre I v. Slaton, 93 S.Ct. 2628; Palko v. Connecticut, 302 U.S. 319, 325 (1937); Roe v. Wade, 410 U.S. 113, 152 (1973)
iv 262 U.S. 390 (1923).
v Id., at 402.
vi Id., at 401. Also see Bartles v. Iowa, 262 U.S. 404 (1923) where the Court reached a similar conclusion.
vii Meyer, 262 U.S. 390 at 400.
viii Pierce, 268 U.S. 510 (1925)
ix Ibid at 534.
x Pierce, 268 U.S. 510 at 535.
xi Prince v. Massachusetts, 321 U.S. 158 (1944).
xii Ibid at 166.
xiii Griswold v. Connecticut, 381 U.S. 479, (1965) at 486.
xv Yoder, 406 U.S. 205 at 233.
xvi Ibid at 232. Burger further admonishes, "and when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment." (Yoder, at 233).
xvii Id., at 214.