The United States has long embraced a tradition of strong parental involvement in the educational development of our children, and it is not surprising that the concept of homeschooling is as old as the nation itself. However, as the existence of the homeschooling movement demonstrates, Americans have widely divergent views about what is important in education. Parents decide to homeschool their children for a variety of reasons, but, certainly, all who do so would agree that they homeschool because they desire the best educational experience for their children. In recognition of this goal, the United States Supreme Court and all states recognize the right of parents to homeschool their children.1 This recognition has facilitated an exponential growth in the number of children being educated at home, and statistics indicate this number will increase.2
Although homeschooling is on the rise, some homeschoolers have found that they lack certain benefits of public education. Chief among them is participation in interscholastic athletics. Stark disagreement exists as to whether the voluntary decision to homeschool should bring with it a forfeiture of the opportunity for involvement in public school athletics. The question is certainly one of controversy as parents who support participation may ultimately have to submit to some form of educational oversight, which undermines the reasoning behind the decision to homeschool. In fact, full-time enrollment requirements for athletic participation may compel some parents to abandon homeschooling altogether. At the same time, school administrators express financial, academic, and ethical reasons for disallowing students, who are not enrolled, to represent the school in athletic competition.
The pivotal issue in this ongoing controversy is whether restricting homeschooled students' eligibility is acceptable under the Constitution. Parents have a protected liberty interest in the upbringing and education of their children.3 However, homeschooled students argue that they have a right guaranteed by the federal or their respective state's Constitution to participate in interscholastic athletics and any infringement of this right violates their due process rights.
A. Due Process
When bringing a substantive Due Process Clause claim, the Court will decide whether the proper standard of review is strict scrutiny or rational basis.4 The Court will apply a strict scrutiny analysis if it finds that the state's action infringes on a fundamental right but will apply only rational basis analysis if no fundamental right is involved.5 The Supreme Court has firmly rejected the notion that participation in interscholastic athletics is a fundamental right.6 However, a conclusion that a right is not fundamental under the federal Constitution does not automatically preclude it from being considered fundamental under a state's constitution.7
The constitution of every state provides for a system of public education,8 and several states have concluded that education is a fundamental right under their respective constitutions.9 Homeschoolers argue that this right to an education encompasses the right to participate in interscholastic athletics. Yet, even where the right to education has been deemed fundamental, the right has not been extended to include participation in interscholastic athletics.10 Participation is uniformly considered to be merely a privilege." Therefore, while the importance of participation in interscholastic athletics requires scrutiny as a matter of law, only a rational basis for excluding homeschooled students must be demonstrated.12 In order to be upheld, there must only be a rational relation between the ban and a legitimate state objective.13 Under this deferential standard of review, courts have routinely refused to allow homeschooled students access to public school athletics.14
The question still remains whether this is the correct conclusion. …