Balancing on the Backs of Children:
A Contemporary Theoretical Examination of
Conflicting Claims to Educational Authority

Philip P. Kelly
Boise State University

     In an era of increasing educational accountability and economic demands, failure of a child to receive an adequate education generates tremendous costs both for the child and the larger society. Since the mid 19th century, it has been the responsibility of states to ensure that all students meet compulsory education requirements.  Currently, even with our country focused on the federal policy No Child Left Behind, most states cannot identify all of their students. Of the approximately 49 million school-aged children for each state that exist in the 2003 federal census data, over 1.7 million children cannot be identified with any educational institution. This accounts for 3.5% of the compulsory school age population of the nation (Kelly, 2005). This finding calls into question the role of governmental entities in ensuring the education of all citizens.
     Further complicating the accounting of children being educated within our nation is the long-standing tradition of home-based education or “home schooling.” State departments of education vary widely in their ability and/or responsibility to account for, or monitor, students being educated outside state-accredited institutions.  While the National Center for Education Statistics (2004) estimates a home-educated population of 2.2% or 1.1 million children, state departments of education only record 365,129 home-educated children.  Fifteen states record no home-educated children at all.
     This paper examines the theoretical and legal underpinnings of the phenomenon of “missing children” of compulsory school age within the United States.  As a representative democracy, theoretically state governments within the United States are charged with ensuring that all children are educated.  The purpose of this paper/session is to spark a discussion about the proper balance between governmental and parental authority in American education.  The full report upon which this paper is based can be located at
http://csi.boisestate.edu/edneglect.htm.
Compulsory Education Laws
     Compulsory educational laws have a very long and checkered history in the United States. The first attempt to address compulsory education and educational neglect came from Puritan elders in 1642 when “taking into consideration the great neglect of many parents…in training up their children in learning,” mandated that elders “take account from time to time…of (children’s) ability to read and understand the principles of religion and the capital laws of this country” (in Katz, 1976, p.11). This edict was soon followed by the Old Deluder Satan Act of 1647 which stated in part,

It being one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures, … that so that at least the true sense and meaning of the original might be clouded and corrupted with false glosses of saint-seeming deceivers; and to the end that learning may not be buried in the grave of our forefathers, in church and commonwealth, .... It is therefore ordered that every township in this jurisdiction, after the Lord hath increased them to fifty households shall forthwith appoint one within their town to teach all such children as shall resort to him to write and read, whose wages shall be paid either by the parents or masters of such children, or by the inhabitants in general, … And it is further ordered, that when any town shall increase to the number of one hundred families or householders, they shall set up a grammar school, the master thereof being able to instruct youth so far as they may be fitted for the university,…

     At best, the Old Deluder Satan Act met with mixed results regarding the enforceability of a compulsory education law in colonial America. However, as Kotin and Aikman (1980) note, in conjunction with compulsory education acts from 1642 and 1648, these laws established many of the fundamental principles upon which compulsory education in the United States still stands:

1. The education of children is essential to the proper functioning of the state.
2. The obligation to furnish this education rests primarily upon parents.
3. The state has a right to enforce this obligation.
4. The state has a right to determine the type and extent of education.
5. Localities may raise funds by a general tax to support such education. (p. 19)

Furthermore, these principles illustrate the inherent tension within compulsory education laws resulting from the convergence of three conflicting views of educational authority, that of the state, the parents, and the students themselves. Each party can, and has, offered legitimate arguments to educational authority. As will be demonstrated later, how these competing claims reach a state of balance often depends upon where a student finds him or herself.
Educational Authority
     The state’s claim to educational authority lies in its obligation to the overall well being of society. In early America, a diverse group of political leaders advocated for state intervention into the arena of education to instill republican values and provide the intellectual skills necessary to contribute in a democratic society (Benavot, James and Tyack, 1987). However, throughout the history of compulsory education numerous points of contention have arisen with state control; distrust of powerful centralized government, dislike of forced association with other ethnic groups or classes, and allegations of infringement upon parental rights to guide or control the future of their children.
     In competition to states’ educational authority are parental claims to the same, or superior, authority to guide a student’s development. Their argument is based upon the precept that parents possess the natural right to educate their children, “thereby predisposing their children, through education, to choose a way of life consistent with their familial heritage” (Gutmann, 1999, p. 28). Additionally, advocates of parental educational authority appeal to the argument that parents, above all others, hold the student’s best interests at heart and will act accordingly (Yudof, Kirp, Levin, and Moran, 2002, p. 4). Any infringement upon this process by the state constitutes a violation of this parental right.
     The third claim to educational authority arises from the fundamentally American notion of individualism.  John Stuart Mill (1869) summarized the position well, writing “All attempts by the state to bias the conclusions of its citizens on disputed subjects are evil” (On Liberty, ch. 5, para. 13).  Individuals deserve the right to freedom of choice as opposed to indoctrination by a third party. In a society containing very different conceptions of the good life and right and wrong, children, as young citizens, deserve freedom of educational choice to determine their own moral, political, and social positions.
     Clearly, locating educational authority solely within any one of these three parties is suboptimal. No one entity should assume sole responsibility for the moral, social, and political education of a nation’s children. Ideally, in a democratic society educational authority should be shared amongst each of the three competing interests, creating a democratic state of education (Gutmann, 1999). This system of shared educational authority, then creates a system of checks and balances in which no one group’s interest dominates those of another. Throughout the history of compulsory education law, the tensions inherent within this system have played out in legislation and the courts.
Legal Precedents
     A few court cases provide a quick review of the major issues involved in compulsory education.  First, Pierce v. Society of Sisters (268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 1925) addressed Oregon’s state law requiring all children of compulsory age to attend public schools.  The Society of Sisters, a Catholic order operating elementary schools, sued the state as a matter of due process under the 14th Amendment.  The court upheld the challenge, writing in part

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

While the court affirmed parental rights to choose the form of education, its opinion also upheld the fundamental right of the government to compel education of all children.  Writing for the court, Justice McReynolds stated

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school…that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

     The state’s power was further limited in 1972 in the landmark case Wisconsin v. Yoder (406 US 205, 92 S.Ct. 1526, 32 L.Ed.2d 15).  An Amish community challenged the breadth of Wisconsin’s compulsory education law on the basis that it interfered with their First Amendment right to the “free exercise” of their religion.  Specifically, the plaintiffs argued that participation in public education beyond basic schooling affected their children in such a manner as to interfere with their religiously-based lifestyle.  In the majority opinion, the Supreme Court agreed that “formal high school education beyond the eighth grade is contrary to Amish beliefs” and that the informal vocational education offered to Amish children as members of their community sufficiently met the standard of compulsory education as defined in Wisconsin.  Thus, Amish children were exempted from participation in formal schooling to meet the mandates of compulsory education statutes.
     A further broadening of parental educational options came from the 1967 State of New Jersey v. Massa (95 N.J.Super. 382, 231 A.2d 252).  Previously, law suits brought against parents who educated their children at home where decided in favor of the state upon the grounds that educating children at home inhibited their social development due to lack of interaction with other children (Kotin and Aikman, 1980, p. 146). However, in the Massa case, Justice Collins and the court discerned, “the intent of the Legislature as requiring only equivalent academic instruction,” thus “the only remaining question is whether the defendants provided their daughter with an education equivalent to that available in the public schools.”  This decision, in conjunction with other various other cases increased the permissibility of home education as a viable parental option, leading to the eventual permission of home education in all fifty states.
     The rights of parents, however, are not insuperable. In the 1901 State of Indiana v. Bailey (157 Ind. 324, 61 N.E. 730) the Indiana Supreme Court ruled that; “provision of and control over education is a valid state function because education is necessary to the welfare of the state. The Court confirmed the right of the state of compel a child’s attendance despite the ancient common law rights of the parent, on the theory that those rights do not include the right to deprive a child of the advantages of education.”
     As compulsory education has progressed, struggles between the state and parents over the right to educational authority have established a system with some balance. While the voice of the individual student is limited, parents and the state hold established roles that complement each other, albeit contentiously. The state requires, enforces, and to some extent regulates education. However, parents hold the ability to choose from a limited range of alternative educational arrangements, providing the opportunity to educate their children in a manner compatible with their lifestyle and/or belief system. Thus, compulsory education laws have and continue to evolve toward a more democratic state of education in which all interested parties control a sphere of educational authority.
Compulsory Education – A National Perspective
     Compulsory education statutes mandate a range of ages during which a child must be educated.  The age range during which compulsory education statutes apply varies from state to state.  Beginning ages range from five to eight years old, while ending ages vary between 16 and 18 years old.  Thus, the number of years of education required of students can vary from nine to thirteen years.  See Table 1 below for an analysis of the ages and years required by compulsory education laws.  The mean number of years required is 10.42, with a standard deviation of 1.25 years.  The median and mode are ten years.  The most common arrangement is to begin at six years old and finish at 16, thus providing ten years of education.

SEE TABLE 1

     Forty-eight of the 50 states require the local school district to report violations of compulsory education statutes.  Hawaii and Mississippi relieve the local districts of this duty by locating primary reporting responsibility at the state level, within their respective Departments of Education.  When shifting focus from reporting to enforcing, a different grouping of 48 states locate primary responsibility within Departments of Education, while Kansas and North Carolina rely upon their Departments of Health and Human Services. However, all states allow exemptions to compulsory education requirements for a multiple of reasons, with medical exemptions being the most common, found in 62% of the states.

SEE FIGURE 1

HOME-BASED EDUCATION – A National Perspective
     Home-based education or home schooling is a growing phenomenon within the United States.  Current estimates place the number of home-educated children at approximately 2.2% of the population or 1,096,000 (National Center for Educational Statistics (NCES), 2004).  For the year 2003, the NCES figure of 1.1 million is reduced to 985,361 children within compulsory education ages.  In our effort to identify all educated children, our research team used the counts of home-educated children published by the fifty state departments of education for the same year, resulting in a count of 365,129 students.  These counts are shown below.

SEE TABLE 2

     Home education is a way for parents to exert more influence in the education and development of their children.  It constitutes one way in which the educational authority may be shared between the state and the parents.  However, fifteen state departments of education do not report home-educated children in any manner.  This greatly inflates the number of children unaccounted for within officially recognized, or accredited educational institutions. 
     A review of legal code and home schooling statutes paints a different picture than that gleaned from departments of education.  According our review of the relevant statutes, only 12.0% or six states do not provide oversight of home educated students.  Over half of the states report multiple levels of oversight.  Another 18.0% of states require registration with either the local district (16.0%) or the state (2.0%).

SEE FIGURE 2

Home Education Laws
     A wide range of options are available to state policymakers when addressing the issue of balance between home education and compulsory education. While drafting and enforcing stricter home education laws can assist the state in monitoring the education of all children, policymakers must be careful not to be overly intrusive in the parent-child relationship.  Figure 3 demonstrates the potential range of options, from no oversight to banning home education.  While it is useful to know the range of options within which a state may operate, state-level policymakers must be mindful of balancing the freedom that comes with home-based education with the democratic responsibility of providing educational oversight.  Four state models (ID, IN, OR, GA) with differing home education laws representing different points along this continuum are described below.

SEE FIGURE 3

Least Restrictive – Idaho
Idaho Code 33-202. School attendance compulsory.
Statute text

The parent or guardian of any child resident in this state who has attained the age of seven (7) years at the time of the commencement of school in his district, but not the age of sixteen (16) years, shall cause the child to be instructed in subjects commonly and usually taught in the public schools of the state of Idaho. Unless the child is otherwise comparably instructed, the parent or guardian shall cause the child to attend a public, private or parochial school during a period in each year equal to that in which the public schools are in session; there to conform to the attendance policies and regulations established by the board of trustees, or other governing body, operating the school attended.

     Idaho has a very hands-off approach to home educators, requiring almost no oversight of students participating in home education.  Typically, the parents of a home-educated child need only inform the local school to have their child removed from enrollment records.  No standardized collection of this data occurs within Idaho.  Idaho Code 33-202 only requires that parents “shall cause the child to be instructed in subjects commonly and usually taught in the public schools...”  This allows parents providing home education to their children a great deal in latitude. 
     In the 1990 Fourth District Court decision, In the interest of Patterson, the court decided that Idaho school districts, not parents, have the burden of proof regarding the compliance of home education with the compulsory education law, Idaho Code 33-202.  In the decision, Judge Dutcher wrote,

... the state must prove lack of comparable instruction ... and the burden does not shift to the defense (home educators) to affirmatively defend, or prove compliance, since the full panoply of criminal procedural due process applies to juvenile prosecutions. (in Home School Legal Defense Association, 2007, p. ID-1)

     Further strengthening the position of home educators, another 1990 Fourth District Court decision, Welker v. Independent School District of Boise City No. 1, ruled that home educators need not provide any information requested by a school district.  Judge McKee concluded,

While the parents have objected to answering the questions on constitutional grounds, in practicality they could have simply discarded the document (questionnaire) without comment.  There is no statute or rule which compels them to answer, and there is no direct sanction provided for any refusal to do so. (in Home School Legal Defense Association, 2007, p. ID-1)

 As a result of not monitoring home education at all, Idaho currently has more than twice the national average of children officially unaccounted for in any educational institution. For the 2003-2004 academic year, Idaho’s educational system was missing 13,965 children or 6.5% of the children identified in the census.
Minimally Restrictive - Indiana
     Indiana Code allows home educators to designate themselves as private, unaccredited schools which are “not bound by any requirements set forth in Indiana Code 20 or Indiana Code 21 with regard to curriculum or the content of educational programs offered by the school” (I.C. 20-8.1-3-17.3). However, all Indiana schools must maintain accurate attendance records, “solely to verify the enrollment and attendance of the particular child upon the request of the state superintendent ... or the superintendent of the school corporation in which the private school is located (IC 20-8.1-1-3-23).
Moderately Restrictive - Oregon
    Oregon statute 339.030 (1)(d) exempts Oregon children from public schooling if they are “being educated in the children’s home by a parent or legal guardian.” Citizens of Oregon may establish and operate a home school rather freely.  Attendance, subjects to be taught, qualifications, and record keeping are not required.  However, the local district must be notified in writing when children are being taught at home. Furthermore, children must participate in an approved comprehensive test in grades 3, 5, 8, and 10 administered by a qualified neutral person.  If a child withdraws from school a test must be administered within 18 months of withdrawal.
     Oregon allows tremendous flexibility to home educators. The only interaction between home educators and the state are 1) initial notification of home education and 2) periodic standardized testing in grades 3, 5, 8, and 10.  As long as children score above the 15th percentile on the assessments, the state will not interfere with the parent-child educational process.
Strongly Restrictive – Georgia
     The state of Georgia requires multiple levels of oversight and monitoring of home education (O.C.G.A. § 20-2-690.1).  Every parent must complete and comply with the Georgia Declaration of Intent to Utilize a Home Study Program to legally home educate their children.  The declaration describes in detail regulations for parents wishing to home educate.  Chief among these are:

1. Parents or guardians must provide written notice of intent to enroll their child in a home study program;
2. The home study program shall provide an educational program that includes reading, language arts, mathematics, social studies, and science;
3. The home study program must provide instruction each 12 months to home study students equivalent to 180 school days of education (810 hrs);
4. Attendance records for the home study program shall be submitted at monthly to the school superintendent of the local school district; and
5. Students in home study programs shall be subject to an appropriate nationally standardized testing program at least every three years beginning at the end of the third grade.

As a result of monitoring home education closely, Georgia is one of the few states in the survey of unaccounted for children that actually produced a surplus of children in schools that did not exist in the census. For the 2003-2004 academic year, Georgia’s educational system had an additional 17,258 children, or 1.2% of the children identified in the census (http://www.doe.k12.ga.us).  While any discrepancy indicates an error in the accounting for students, Georgia’s error is toward the overcounting of students rather than not accounting for them.
A Balancing Act
     A review of the last century of legal precedents and current state-level policies clearly demonstrates the complex nature of the balance of authority between parents and the state when addressing the education of children.  While parental authority of children must be honored and respected, the state has an obligation to ensure that all children are educated in a manner conducive to a democratic society.  Conversely, while the state can claim regulatory authority over all citizens, it cannot violate the special parent-child relationship.
     Before drawing any conclusions or offering policy recommendations, it is useful to review the basic principles informing the debate about educational authority.  They include

1. The education of children is essential to the proper functioning of the state.
2. The obligation to furnish this education rests primarily upon parents.
3. The state has a right to enforce this obligation.
4. The state has a right to determine the type and extent of education.(Kotin and Aikman, p. 19)

Before a state can begin to fulfill its obligation to uphold these principles, it must be able to account for all of its citizens, including children.  Thus, the discrepancies between the census count for children within the compulsory education range for each state and its actual enrollment figures should be addressed.

Policy Recommendation One

Identify all children within the compulsory education age range through registration with Department of Education.
      It is the constitutional duty of the states to ensure that all children are provided with an adequate education.  Registering with the Department of Education is minimally invasive and allows the state to account for the education received by home educators.  Furthermore, to maximize registrations, this process should be allowed to occur either locally through a public school or directly through the state offices.   However, it is imperative that records are maintained accurately and within a centralized location.  Centralization of this data will allow the state to better meet its democratic obligation to ensure that all children are provided with an education.

Policy Recommendation Two

Require periodic standardized assessments of academic progress for all children in grade equivalents 3 through 10.
     Beyond just providing an education, most state constitutions make reference to the relationship between an educated citizenry and the health of the republic.  Thus, the obligation of the state extends to oversight of the content of the education of its citizens to ensure that they are properly equipped for effective participation in our democracy.  If we truly believe that no child should be left behind, then standardized assessments of academic progress can help to ensure that all children learn within broad common curricular areas and achieve at academically appropriate levels.  The frequency and format of such assessments should be determined at the state level to allow for proper alignment to state standards.

References

Benavot, A., James, T. and Tyack, D. (1987). Law and the shaping of public education, 1785-1954. Madison, WI: University
       of Wisconsin Press.
Gutmann, A. (1999). Democratic education. Princeton University Press: Princeton, NJ.
Home School Legal Defense Association. (2007) Home schooling in the United States: A legal analysis.  Retrieved January 29,
       2008 at http://www.hslda.org/laws/analysis/Idaho.pdf.
Idaho Code 33-202 (2007)
Indiana Code 20-8.1-3-17.3 (2006)
Katz, M. (1976) A history of compulsory education laws. Bloomington, IN: Phi Delta Kappa.
Kelly, P. (2006) Educational neglect & compulsory schooling: A status report. Boise, ID: Center for School Improvement
       & Policy Studies.
Kotin, L., and Aikman, W. (1980). Legal foundations of compulsory school attendance. Port Washington, NY: Kennikat Press.
Mill, J. (1869/1975) On Liberty. New York: Penguin Books.
National Center for Educational Statistics. (2004). 1.1 Million Homeschooled Students in the United States in 2003. Washington,
       D.C.: Author.
Official Code of Georgia Annotated § 20-2-690.1 (2006)
Oregon Statute 339.030 (2006)
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary. (1925) 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070
State of New Jersey v. Massa (1967). 95 N.J.Super. 382, 231 A.2d 252
State of Indiana v. Bailey (1901). 157 Ind. 324, 61 N.E. 730
State of Wisconsin v. Yoder (1972). 406 US 205, 92 S.Ct. 1526, 32 L.Ed.2d 15.
Yudof, M., Kirp, D., Levin, B. and Moran, R. (2002) Educational Policy and the Law.  Belmont, CA: Wadsworth.

Table 1
Compulsory Education Age Ranges

Figure 1

Table 2
Home-based Education Enrollment

Figure 2

Figure 3
Oversight Continuum for Home-based Education

Least Restrictive	No oversight
	Students register with local school or district
	Students register with state
	Instructional time requirements
	Progress monitoring through assessment data
	Curricular oversight
	Teacher certification
	Multiple oversights
Most Restrictive	No Home Education