Parent, Child, and State: Regulation in a New Era of Home Education

With the explosive growth of homeschooling in the wake of the Covid-19 pandemic and cultural debates over school curriculum, greater public scrutiny of the practice is coming. What it will reveal is a fundamental divide not only over the law and efficacy of homeschooling but also the nature of parental rights. The academic debate over homeschooling, however, is not new. Critics of home education have long called for more stringent regulation of the practice and recently for its presumptive ban while advocates argue homeschooling should be recognized as a parent’s fundamental right.This Article adopts a novel approach by arguing that the question of how homeschooling should be regulated ultimately depends on the bounds of parental versus state rights over children. The philosophical foundations of Troxel v. Granville, the Court’s most recent parental rights case, suggest an answer: states should recognize the weighty interests of parents in their children’s education by affirming the pre-political status of parental rights. Under that standard, states should adopt a presumption of legitimate homeschooling while addressing the reasonable concerns of homeschooling’s critics by increasing parents’ accountability for their children’s education.