Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.
Here is that continuing analysis:
Article 13, part 1: Homeschooling Illegal?
This week, we continue our series on the UN Convention on the Rights of the Child by considering Article 13, which states that “the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.”
The crux of this article is the child’s “right to information.” Children access information through what they are taught and what they discover on their own. This week, we will consider the Convention’s implications on what children are taught.
Article 13 is far more sweeping than any right articulated by our Constitution or Supreme Court, guaranteeing all children the right to seek information of all kinds. International author and commentator Marian Koren explains that although the state should generally refrain from interfering in the family, “the State also has a positive obligation in supporting the possibilities for children to seek information or to express their views.” Ultimately, “it is the duty of the State to respect the rights of the child and his freedom to thought, conscience, belief, expression and opinion.” (emphasis in original)
Although the United States has not yet ratified the CRC, there is a growing sentiment that the state should bear the responsibility for ensuring that children are “properly educated,” instead of parents. A striking example occurred this past February, when a California court declared in In Re Rachel L. that “parents do not have a constitutional right to home school their children,” unless they are certified by the state to teach. In so ruling, the court declined to follow the Supreme Court’s 1972 decision in Wisconsin v. Yoder and its 2000 ruling in Troxel v. Granville, which guarantee parents the fundamental right to direct the upbringing and education of their children.
Rachel L., like Article 13, presumes that it is ultimately the state’s duty to ensure that the child’s right to information is respected. The California court quoted repeatedly from an earlier California decision in 1952, which concluded that children must be educated in traditional public or private schools, subject to state standards and regulations: anything less would “take from the state all-efficient authority to regulate the education of the prospective voting population.” (emphasis added)
The language of “all-efficient authority” is not the language of liberty. According to Dr. Martin Guggenheim, Professor of Law at New York University, “our future as a democracy depends on nurturing diversity of minds. The legal system’s insistence on private ordering of familial life ultimately guards against state control of its citizens.” There may be questions over the “best way” to educate children, but according to Guggenheim, the American answer is that “unless the answers are so clear that there is no room to disagree, parents are free to decide for themselves what they believe will best serve their children.”
Thankfully, the public outcry to this decision led California courts to decide to rehear the Rachel L. decision this summer, allowing parents – at least for the moment – to continue teaching their children at home. But only time will tell whether the California courts will have a change of heart, or whether the damaging decision will simply be repeated. The strong words of the first Rachel L. decision suggest that this is a real possibility.
America’s legal heritage has consistently held that parents, not the state, have the right to decide whether their children would best benefit from public schooling, a private school, or even learning at home, but this recent decision from California highlights just how tenuous this freedom can be. If we wish to secure these freedoms, we must act now to place parental rights beyond the reach of judges</U? by protecting them within the Constitution.
Article written for ParentalRights.org by Peter Kamakawiwoole, April 21, 2008.
Marian Koren, “The Right to Information: Too Vague to Be True?” in Monitoring Children’s Rights, Eugeen Verhellen, ed. (The Hague: Martinus Nijhoff Publishers, 1996): 675.
In Re Rachel L., 73 Cal.Rptr.3d 77 (Ca.App. 2008)(VACATED)
Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 24-27, 43.