Sunday, December 21, 2008

Evidence for Homeschooling

Evidence for Homeschooling: Constitutional Analysis in Light of Social Science Research
Dumas, Tanya, Gates, Sean and Schwarzer, Deborah,Evidence for Homeschooling: Constitutional Analysis in Light of Social Science Research (December, 17 2008). Widener Law Review, Forthcoming.

Available at SSRN:

Article co-author Deborah Schwarzer shares (on a homeschooling list I'm on):

I wrote a paper about homeschooling with two of the other pro bono counsel from the in re Rachel L. Case (Sean Gates of Morrison & Foerster and Tanya Dumas of Bingham McCutchen). The paper is based largely on the brief that we wrote and submitted about the efficacy of homeschooling; our clients were Ann Zeise, Martin Forte, Diane Flynn Keith, Gifted Homeschoolers Forum, Wes Beach's school, Arbor Academy and a support group for African American homeschoolers.

Sean, Tanya and I really wanted the information in the brief to be available to the wider world (since none of the briefs filed with the case can be published anywhere under the juvenile court's confidentiality rules). We thought it would be best if it were published in some sort of scholarly journal, and we submitted it to several. We learned a month or so ago that our paper was selected for publication in the fall 2009 issue of the Law Review of the Widener School of Law (Widener is in Delaware) . Getting published in a law review is sort of a big deal, and papers in law reviews can be found by people using legal search tools.

Several people knew we were turning it into a paper and wanted a copy, but I couldn't give it out since it was being published and we had promised not to give it to anyone. But something cool just happened. The Law Review has agreed that it can be posted at the Social Science Research Network, a website that collects scholarly papers. So anyone who wants the link to the paper just needs to go to

If you go there and see the abstract, there is a button for downloading, and that takes you to the complete paper. You are welcome to cite to the paper in anything you are posting or writing, but you need to give proper mention of where it is being published. They give you a suggested way to cite to the paper at the SSRN website. It is possible or even probable that there will be some edits before the paper finally appears next fall, but Widener must have felt confident enough about it to let it get out now in draft form.

Isn't that neat? I've taken the liberty to copy and paste the article's abstract. Access the link at the SSRN URL above.

Homeschooling is a time-honored and widespread practice. It often presents, however, a conflict between the constitutional right of parents to direct the education of their children and the State's right to impose regulations in the interest of ensuring an educated citizenry. The Supreme Court has made it clear that any regulation impacting this constitutional right must be "reasonable." The courts have therefore generally resolved homeschooling cases by examining whether state regulation of homeschooling places an unreasonable burden on the rights of parents. The courts, however, have altogether failed to address another, more fundamental question: whether the state regulation in fact advances the State interest. A regulation that fails this criterion cannot be "reasonable." Using the vehicle of a recent California appellate court case, in which the court initially held that a regulation prohibiting parents from homeschooling their children unless they first obtained a state teaching credential, we show how recent social science research should impact the analysis. Instead of assuming away the issue of whether the regulation in fact advances the State interest, we show that this type of empirical research will allow courts to be able to answer this threshold question.


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