travel by horse analogy – Homeschoolers Anonymous

Homeschooling Is A Human Right, But That Doesn’t Make It Immune To Regulation

September 29, 2013May 11, 2020HA Editorial Team2 Comments

Homeschooling Is A Human Right, But That Doesn’t Make It Immune To Regulation, By Nicholas Bolzman

HA note: Nicholas Bolzman blogs at Looking for Overland, a joint blog project “authored by three friends who met at Patrick Henry College and then worked together at the Home School Legal Defense Association.” Nicholas Bolzman received his JD from Michigan State University College of Law last spring and is a graduate of Patrick Henry College.

In a recent post, Ryan made the case that homeschooling is not a human right and, as a result, state regulation of homeschooling (or even outright prohibition, as in Germany), does not amount to a violation of human rights. As much as I have been appreciating his examination of homeschooling culture, in this instance I disagree with his analysis. When I posted a truncated version of this on Facebook, he asked if I could expand it.

Ryan uses the example of the right to travel, which is a basic right, and contrasts that with the right to travel by horse, which is not a basic human right. He then equates homeschooling as the right to travel by horse, which is different, he argues, than the basic recognized right. In his argument, the former does not include the latter.

This analogy requires further examination. If the right to travel is a human right, then the exercise of that right (such as by horse, or by boat, or by car) would be likewise protected. Or, to use a parallel argument from American law, Ryan’s argument is like saying that since the First Amendment doesn’t mention blogging, government censorship would not violate the First Amendment.

Absent protections of specific methods of exercising rights, the abstract right does no one any good.

Ryan also included a discussion of Article 26 of the Universal Declaration of Human Rights, which he cited as authority for the child’s right to an education. However, his analysis only lightly brushed on part 3 of Article 26, which explicitly endorses the right of parents to direct their child’s education. Article 26 in its entirety reads:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

The context for this third provision is particularly interesting, especially given the question of homeschooling in Germany. Johannes Morsink, professor or of Political Philosophy at Drew University, explains the history of that very provision in his book The Universal Declaration of Human Rights: Origins, Drafting, and Intent:

Article 26 (on education) is one of the articles most clearly shaped by the experience of [WWII]. This article has three paragraphs, a nuts-and-bolts paragraph that is a standard constitutional item, a goal-and-purpose paragraph, and a paragraph that gives parents a prior right in deciding what kind of education their children shall have. The second and third paragraphs were put in the article as a way of condemning what Hitler had done to Germany’s youth and of making sure that it would never happen again….

The War Crimes Report that the Secretariat had drawn up for the Human Rights Commission explained to the delegates, as if they needed to be told, that “‘in order to make the German people amenable to their will and to prepare them psychologically for war,’ the Nazis reshaped the educational system and particularly the education and training of German youth, imposed a supervision of all cultural activities, and controlled dissemination of information and the expression of opinion within Germany as well as the movement of Intelligence of all kinds from and into Germany.” The second and third paragraphs of Article 26 were written in direct reaction and opposition to this Nazi abuse of state power. Paragraph 2 of the article states: “Education shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”

The first draft of Article 26, paragraph 2 was placed on the drafting table by Bienenfeld of the World Jewish Congress because his organization felt that there was a need to spell out both the goals and the spirit of educational institutions so as to avoid all kind of brainwashing the Nazi state had engaged in. Article 26’s third paragraph was added for the same reasons. Both the Dutch and the Lebanese delegations submitted amendments about parental rights. It being the shortest one, the Lebanese amendment was adopted after a vigorous discussion. The defense again was that the Nazis had usurped the prerogative of parents when they demanded that all children enroll in poisoned state-controlled schools, the paragraph was especially necessary because the word “compulsory” had been used in the first paragraph. [internal citations omitted]

Citing Morsink, Harvard Law professor Mary Ann Glendon also made the same point in her book on the Universal Declaration.

Given this explicit wording and direct context to compulsory attendance laws, it is difficult to say that Article 26 does not permit parents to opt out of said compulsory attendance laws and seek alternative forms of providing for their children’s education.

Those alternative methods would include homeschooling.

Furthermore, similar wording identifying this prior right of parents appears in other human rights treaties. For example, the International Covenant on Civil and Political Rights, art 18(4), states that “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” The International Covenant on Economic, Social and Cultural Rights, art. 13(3) declares “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.”

Even the oft-criticized Convention on the Rights of the Child, art. 29(2) cautions that no educational goals “shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.”

All of these, while recognizing the authority of the state to set minimum standards, protect the rights of parents, either individually or collectively, to determine the methods of education for their children.

The government’s role is secondary—to ensure that the parents fulfill their obligation to the children; but the obligation (and corresponding ability) is first and foremost on the parents. In this sense, they resemble Blackstone’s description of parental responsibilities and rights in education.

The last duty of parents to their children is that of giving them an education suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well observes, it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child by bringing him into the world, if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children.

* * *

The power of parents over their children is derived from the former consideration, their duty: this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it. And upon this score the municipal laws of some nations have given a much larger authority to the parents than others. The ancient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away. But the rigour of these laws was softened by subsequent constitutions; so that we find a father banished by the emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that “patria potestas in pietate debet, non in atrocitate, consistere.” But still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them, for his life.

Notice how both Blackstone and the human rights documents connect the parental power to parental responsibility, placing responsibility first. A failure of the responsibility can certainly lead to a forfeiture of the power, but that failure must be demonstrated before the forfeiture takes place.

Consequently, even though the right to select the education for one’s child is a human right inherent in parenthood, it is not absolute (a point parental rights advocates often miss, and I suspect, the larger point Ryan was trying to make in his original article).

No human right is absolute.

Free speech does not include libel, and it subject to neutral time, place, and manner restrictions. The consensus is that even life itself can be taken under the right circumstances, as demonstrated by the permission of the death penalty and abortion. Likewise, this parental right does not include the right to deprive a child of education (which should be self-evident, since the parental right stems from and is related to the child’s right to an education.).

As with other rights, it can be subjected to reasonable minimal regulation, as well as forfeited under certain circumstances.

But in those instances, the burden of proof is on the state to show why the interference with the parent-child relationship is necessary.

Absent that, the parental right wins.

The Fundamental Reality of The Family Is Not Just Amorphous “Rights” Language

September 28, 2013May 11, 2020HA Editorial Team2 Comments

The Fundamental Reality of The Family Is Not Just Amorphous “Rights” Language, By Virgil T. Morant

Virgil T. Morant is a lawyer in northeastern Ohio. He practices civil litigation and criminal defense, as well as corporate law, and his work includes representation of clients in disputes over education and child custody. He is also a member of the International Law Section of the Cleveland Metropolitan Bar Association. His personal blog is Lasseter’s Lost Reef.

*****

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

That’s article 16(3) of the Universal Declaration of Human Rights, one part of the International Bill of Rights from the United Nations. While one does not need an especially fertile imagination to think of a good many people whose disdain for the U.N. (or suspicion at the least) would give little consideration to the authority, and while ordinary people don’t typically go around citing U.N. resolutions, that statement transcends legal controversy or political debate: it states a principle that is widely shared.

It is not just a statement about the organization of society: it is an affirmation of how people generally feel about the dignity and centrality of home and family. Indeed even many of those who likely would have no truck with the United Nations and no love for International Law virtually quote that article word for word every day when they’re arguing about matters of home and family, and probably most of them scarcely even realize it. When we talk about rights, however precisely or imprecisely, we are talking about things that people feel very deeply about, things that give their lives meaning and purpose.

That quote right there about the family says it.

Now, in ordinary speech as well as the commonplace discourse of journalists and editorialists (“bloggers” too of course), any talk of rights is inevitably amorphous and indicative more of feelings and desires than it is of well-defined or cognizable rights. So, frequently when someone says that a right has been violated, what he really means is that he has been offended in some way. In everyday speech, and even in garden-variety “professional” commentary, that is fine—people who are talking casually or writing frequently will resort to such boilerplate, and there is little sense in crying about it—but, if we wish to step away from casual usage, we are likely best served by using the language of rights in two ways: (1) if the right is legally cognizable, then by reference to the authority that defines it or (2) if we are making a case for a right, then by setting out our definitions, argument, and authority.

In his recent article, R.L. Stollar—who graciously invited me to write my reply to him as a guest post—actually used precisely these methods in order to make the case that homeschooling was not a right. Turning, however, to the authority he used and considering his argument, I have to disagree with his conclusion.

The chief authority Mr. Stollar uses is Article 26 of the Universal Declaration of Human Rights (UDHR). After the prior sections of that article deal with an individual’s right to an education, what level of education should be mandatory, and some discussion of the social purposes of education, UDHR art. 26(3) states, “Parents have a prior right to choose the kind of education that shall be given to their children.”

As I noted in my comment to Mr. Stollar’s post, this language both gives a priority to parents in the determination of their children’s education and states it in terms of an act that is compelled: the children shall be educated, and the parents have the prior right to choose the kind of education. Some portion of Mr.Stollar’s post got bound up in the notion that a human right cannot be controlling over another person, but the very language he quoted seems to dispel that by granting parents what it unambiguously calls a right to make determinations for other human beings (parents choosing for their children).

On top of this, it is not difficult to think of a number of other rights that involve and even require the cooperation, restraint, or compulsion of other human beings.

I noted the right to counsel in criminal proceedings in my comment on his post. How about also the right to reasonable working hours (UDHR art. 24), which places limits on how much an employer can demand of his employees and requires him to provide reasonable leave, or the right to one’s reputation (UDHR art. 12), which limits freedom of speech from, say, defamation? These are just two examples.

Rights place obligations upon the state to vindicate them, but they also often entail a restraint on individual human beings as well as granting the capacity for one human being to impose restraint upon another (as in parents making decisions for their children) or to seek redress for a violation (as when one sues for defamation).

If we want to look to concrete authority to argue whether homeschooling is a right, by the way, why stop with the UDHR?

Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESC) make favorable reference to the “liberty of parents.”

They, together with the UDHR, belong to that International Bill of Human Rights mentioned above. Consider the full language of ICESC art. 13 ¶ ¶ 3-4:

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Paragraph 3 states its “respect” for parental liberty in school choice—even choices besides public school—and paragraph 4 puts some teeth to this by forbidding the instrument from being interpreted to interfere with the individual’s liberty to establish educational institutions. Make of that what you will.

If, then, what remains of the argument against homeschooling being a right comes down to the travel by horse analogy (see Mr. Stollar’s essay for this), then my response is:

Traveling by horse, if you have one, actually is a right, and it falls within the right to freedom of movement.

Of course it is not a right to take someone else’s horse or to be given a horse, but the right to travel is one primarily cognizable in not being restrained from travel, and surely no state should have the right to stop you, under normal circumstances, from hopping on your horse and going where you will. Just the same, if a parent has a right to determine his child’s type of education, and, if we are agreed that whatever form of homeschooling we are talking about is a legitimate type of education, then surely the parental right includes the right to school the child at home.

Of course, at some point in narrowing rights down to specific examples, it would become absurd to insist that they all be found in a United Nations convention. But a good many of the things we value as rights (in some proper sense of the word) are actually spelled out in writing in statutes and case law, which constitute an overwhelming number of words and pages. If there is any uncertainty about whether something should be legally protected—such as the right to school one’s children at home—then off to court one goes, where lawyers will find the citations and make the arguments.

It’s all quite entertaining for pundits and ordinary people to complain about “rights” being violated, but rights don’t mean much of anything in a society of laws until their existence is tested and proven through law.

Sometimes too, by the way, the universality of a norm is well demonstrated by the states that violate the norm against the greater consensus. So, however the current business in Germany, for instance, shakes out, and whatever may be adjudicated in the Unites States or anywhere else, for my own part, I just cannot fathom educating one’s children at home as not being a right—or, if you prefer (but I think this is hair-splitting), as squarely fitting within the right to choose the education of one’s children.

We get emotional about our rights. We get emotional about these homeschooling rights in particular, because, as with any human liberty, they are subject to abuse, and by “abuse” I mean to say the kinds of acts that take us squarely outside the realm of rights. The abuses of homeschooling are famous in the portion of the blogosphere where I am writing now. And then there is the hazy realm of, let’s call it, “indoctrination”: why, with some of the more scandalous examples of homeschooling, what sorts of things are they teaching those children! A false history or poor science or just a pathological contempt for this segment of society or that or for society on the whole, perhaps?

Let’s don’t forget, though, even when children go to public schools, their primary role models remain their parents. Even when children go through their rebellious phases, reckon themselves independent and free-thinking as adolescents will do, if they live in a home with parents, their parents are their principal models of how life is. Their chief guides, even if the parents don’t know it or don’t want it. No one can jack you up worse early in life than mom and dad, and nobody can guide and protect you better either.

The family is the natural and fundamental group unit of society.

That’s not just legal jargon, and it’s not just amorphous “rights” language. It’s the fundamental reality of parents and their children.