Part-Time Public School Attendance and the Freedom of Religion: Yoder's Impact upon Swanson

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Part-Time Public School Attendance and the Freedom of

Religion: Yoder's1 Impact Upon Swanson2

I. Introduction

The law has generally established that parents have a right to home-school their children. However, barring overt interference with intrinsic religious beliefs, states and local school districts are free to reasonably regulate the education of home-schooled children within their jurisdictions. Reasonable regulation may include limited home visits, testing, requiring certification of the home-schooler, or a combination of the above. 3 Recently, the issue of whether home-schooled students may return to the public system on a part-time basis has arisen. The question is whether there is a legitimate constitutional claim under current case law to challenge the state and local school board policies that forbid part-time attendance in public schools. It seems that there are two incompatible ideals at odds here. On the one hand, there is the desire to educate one's own children for religions or ideological reasons. On the other hand, many parents are recognizing that the public school systems offer institutional advantages that they cannot (i.e. athletic programs, specialized courses, social events, etc.). To obtain the former, is it necessary for homeschoolers to sacrifice the latter?

This Chalk-Talk addresses the litigation giving rise to the right to homeschool and the emerging right of home-schooled children to attend public schools on a part-time basis. It will evaluate the case of Swanson v. Guthrie Independent School District against the only Supreme Court ruling on the right to home-school, Wisconsin v. Yoder, in an attempt to discern whether the holding in Yoder is flexible enough to support parents' rights to have access to public schools on a part-time basis. The holdings seem irreconcilable.

II. The Right To Home-School

As early as the 1600's, the state has maintained a fundamental right to educate its citizenry. 4 The policy for this fundamental claim to educate the citizenry was based in the concept of parens patrice, the traditional role of the state as guardian of juveniles and the insane, 5 and in the need to raise children who could read and understand the bible and the religious laws codified therein. However, there were two cases in the 1920s that challenged the state's right to have sole dominion over education: Meyer v. State of Nebraska 6 and Pierce v. Society of Sisters. 7

In Meyer, a teacher was convicted of violating a Nebraska statute that outlawed the teaching of any language other than English prior to the eighth grade. The legislative intent was to homogenize the children of immigrants into American culture. The court reaffirmed the "power of the state to compel attendance at some school and to make reasonable regulations for all schools" and to establish curriculums, including requiring instruction in English. 8 Nevertheless, the court established the limit that statutes regulating education may not be "arbitrary and without reasonable relation to any end within the competency of the state." Finding this to be the case, the court overturned the Nebraska statute. 9 In Pierce, two separate schools, the Society of Sisters of the Holy Names of Jesus and Mary (Society of Sisters) and Hill Military Academy (Hill), challenged Oregon's Compulsory Education Act of 1922. The Act required any person having control of a child between the age of eight and sixteen to send that child to the public school located in the district where the child resided. The Act was held to "unreasonably [interfere] with the liberty of parents and guardians to direct the upbringing and education of [their] children ...." 10 This case thus established that parents and guardians have the right to decide how to educate their children. Regardless, of the importance of such a right, both of these cases, Meyer and Pierce, were state decisions. The Supreme Court of the United States did not rule on the role of the state in education until fifty years later in Wisconsin v. …