The Urban Lawyer

The Homeschooled Child’s Right to Attend Public School: Is Judicial Bypass a Solution?

by Desiree Walden

Desiree Walden is a J.D. Candidate, May 2018, University of Missouri-Kansas City. The author would like to thank the many generous educators who are a source of continued inspiration and guidance. She would also like to thank her mom, Joy Alderson, for her steadfast support and unwavering patience.

“Democracy must be born anew in every generation, and education is its midwife.”1

THE NOTION THAT AN EDUCATED POPULACE IS NECESSARY to maintain a well-functioning democracy is largely accepted as true. When a system of government vests power in its people, it follows that those people must be able to understand and interact with that system in order for it to have any efficacy. Therefore, our democracy’s prerequisite education means nothing without ensuring the adequacy of that education, begging questions of proper method, acceptable content, and the use of regulatory oversight. Likewise, when there is a failure to provide adequate education, the question turns to one of remedy.

Using Missouri as an example, this article suggests that state education laws can and, in fact, do fail citizens by permitting unregulated education in homeschools. This article raises a possible remedy for that failure: Can a child who receives an inadequate education through homeschooling attend public school without parental consent? The heart of the controversy is found outside the scope of education law.  The focus extends beyond the simple question of how we educate future generations, but raises “the more profound question of to whom the child belongs.”2 That is to say, the relationship between a child’s education, the state’s role in ensuring the adequacy of that education, and parental rights in protecting and directing the child creates a state-endorsed loophole allowing parental rights to override the right of the child to receive an adequate education.3

This result is not surprising considering that these issues are primarily explored in case law surrounding compulsory attendance statutes — the state’s method of mandating education.4 In the two landmark education cases, Meyer5 and Pierce,6 the United State Supreme Court emphasized the fundamental nature of parental rights when weighed against state interests in protecting the child. In both cases, the courts held that the state abused its discretion.7

In this sense, the right of a student to receive an adequate education, which is mired in a conflict between the state interest in the child and the fundamental rights of the parent, parallels federal constitutional analysis of the right to an abortion.8 The implementation of a judicial bypass procedure, similar to the one required in cases in which minors seek an abortion, shows promise as a potential solution to close the education loophole that the United States currently faces.9 The judicial bypass procedure encounters roadblocks, however, based on the differences between the procedure’s use in the abortion context and its application in the education context.10 The bypass procedure is also not likely to be of use without state court intervention that interprets state constitution provisions relevant to education with more weight than has explicitly been used in the past.11 These difficulties, combined with lobbyists and advocacy groups working against protection and regulation efforts, shine light on the problematic situation many homeschooled students face.12

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