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In a recently-published law review article, Harvard Law School’s Elizabeth Bartholet calls for the banning of homeschooling.
You will find a copy of her article, published in the Winter 2020 issue of the Arizona Law Review, as a PDF at this link. It’s a big deal and, once post-pandemic politics returns to a semblance of normalcy, you’ll be hearing a lot about the topic.
Since the time Marx published The Communist Manifesto the left has understood that to prevail against the civilization of the West — made strong by the organic relationships we generally describe under the rubrics of faith and family — it must seize control of the minds of children at the earliest possible time. Parental control of schooling, either by supervising how others educate their children or by doing it themselves, is a major obstacle to this prime tyrannical goal.
Ms. Bartholet’s article lays out a roadmap for the left to attack parental authority in general by means of a frontal assault on home-schooling.
In this tour d’horizon she marshals every argument, including (1) the asserted inferiority of home-schooling against the governmental product; (2) the asserted roots of the modern home-schooling movement in racism and religious benightedness; (3) home-schooling as a mask for child abuse, including child sexual abuse; and similar horribles.
She seeks to awaken and mobilize every constituency that would join the battle against parental authority and home-schooling, including public sector (teachers’) unions, which have direct financial stakes in forcing children into government schools; child-protection advocates; opponents of racism, religion, particularity of every stripe, and binary sexual worldviews; and progressives in every category.
She is not content to argue that, in protecting parental authority and the rights of home-schoolers, American courts have lately misinterpreted and misapplied the provisions of the United States Constitution. Her enterprise is far more ambitious than that. She proposes to take on the evil United States Constitution itself, and to use home-schooling as a good battleground on which to launch that war.
The heart of her legal argument will be found on page 59: “The U.S. Constitution with its negative rights structure is an anomaly, outdated and inadequate by the standards of the rest of the world.” In two or three rather clear paragraphs on that page she makes her case against the American constitutional tradition and sets her gunsights squarely on the Constitution itself, hoping to overturn it by using the case for “affirmative rights” of children to education free of parental domination (and thus, of course, open to domination by someone else!). To this end, then, she marches off to praise foreign constitutional traditions, even of other democracies, that Americans have rejected since founding modern constitutionalism in the 18th century.
Elizabeth Bartholet, who is 80ish, is a product of Radcliffe College and Harvard Law School in the 1960s. She has been a highly visible litigator in left-wing causes for many years, and a strong advocate of abortion and of left-wing feminism. She was rewarded after 15 years or so of field labor with a sinecure and pulpit and Harvard Law School where she has taught since 1977. Her primary target for the last 20 years has been parental rights in all fields, especially in education.
This article was meant to be a clarion call to arms, seeking to mobilize her radical confreres in all Marxist domains and the progressive left in general. The article is being widely touted throughout the legal and academic communities. It is already on the nightstands of teachers’ union presidents, leftist community organizers, mainstream media editorial writers, and crafty plaintiffs’ lawyers from coast to coast. Once the pandemic ends, the 2020 elections are held, and State legislatures convene for their 2021 sessions, leftist think tanks will spoon-feed cookie-cutter legislation to “progressive” State senators and representatives to begin the long project of abolishing home schooling, by overburdening it with regulation to the point that parents collapse of exhaustion, or by outright prohibition, if necessary.
The publication of Ms. Bartholet’s article in a law journal, even an obscure one, gives it a veneer of “mainstream” legal scholarship. I have no doubt that she will soon have a publisher for a full-length, less technical version of the article as a book meant for a wide general readership.
The drumbeat of anti-home-schooling editorials will being in the editorial pages of The New York Times and The Washington Post within months, and certainly in time to attempt to set agendas across the land in the 2021 State legislative season and thereafter.
As I was preparing this bulletin I was contacted by the intrepid Laurie Higgins of the Illinois Family Institute. Ms. Higgins had been led to the Bartholet law review article by a Harvard magazine article by Erin O’Donnell that appeared to recognize the Batholet salient for what it is. In conferring with Ms. Higgins I shared with her an early draft of this message which, with my permission, she quoted in her own essay that was published yesterday by the Illinois Family Institute. You will find Ms. Higgins’s take on the matter linked and set forth below. You will excuse me for the sin of citing an article that has the merit of quoting me; it is to Ms. Higgins’s lucid analysis — which apart from concurring with my own has the greater virtue of being right — to which I wish to call your attention.
