Posted by Eugene Volokh:
Preference for Public School Over Homeschooling -- and Maybe Private Schooling
-- Because It Provides "Exposure to Different Points of View"?
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251405593
That's what this [1]New Hampshire trial court decision, in In re
Kurowski & Voydatch seems to say. The 10-year-old daughter lives
during the week with her mother, Ms. Voydatch, who homeschools her.
The father, Mr. Kurowski, objected to the homeschooling, and the court
adopted the father's proposal that the girl be sent to public school,
apparently for largely these reasons:
[The daughter] appeared to reflect her mother's rigidity on
questions of faith. [The daughter] challenged the counselor to say
what the counselor believed, and she prepared some highlighted
biblical text for the counselor to read over and discuss, and she
was visibly upset when the counselor (purposely) did not complete
the assignment....
The Guardian ad Litem ... concluded that the daughter would be best
served by exposure to different points of view at a time in her
life when she must begin to critically evaluate multiple systems of
belief and behavior and cooperation in order to select, as a young
adult, which of those systems will best suit her own needs....
[T]he Guardian ad Litem [also] echoed her previous concerns that
Amanda's relationship with her father suffers to some degree by her
belief that his refusal to adopt her religious beliefs and his
choice instead to spend eternity away from her proves that he does
not love her as much as he says he does....
[T]he Court is guided by the premise that education is by its
nature an exploration and examination of new things, and by the
premise that a child requires academic, social, cultural, and
physical interaction with a variety of experiences, people,
concepts, and surroundings in order to grow to an adult who can
make intelligent decisions about how to achieve a productive and
satisfying life.
The parties do not debate the relative academic merits of home
schooling and public school: it is clear that the home schooling
Ms. Voydatch has provided has more than kept up with the academic
requirements of the [local] public school system. Instead, the
debate centers on whether enrollment in public school will provide
[the daughter] with an increased opportunity for group learning,
group interaction, social problem solving, and exposure to a
variety of points of view.... [T]he Court concludes that it would
be in [the daughter's] best interests to attend public school....
In reaching this conclusion, the Court is mindful of its obligation
not to consider the specific tenets of any religious system unless
there is evidence that those tenets have been applied in such a way
as to cause actual harm to the child. The evidence in this case
does not rise to that level, and therefore the Court has not
considered the merits of [the daughter's] religious beliefs, but
considered only the impact of those beliefs on her interaction with
others, both past and future. The Court declines to impose any
restrictions on either party's ability to provide [the daughter]
with religious training or to share with [the daughter] their own
religious beliefs.
The decision is just about home schooling by one divorced parent,
where the other parent wants the child sent to public school. But it
would in principle also apply to similar disputes over private
religious schooling (or private ideologically grounded schooling),
since there too the other parent might complain that the schooling is
too limited in the "points of view" to which the child is exposed. (Of
course, some public schools might be quite limited in the points of
view that they teach, and even in the points of view expressed by most
students; but my guess is that few courts would be willing to say so.)
The broad principle might also apply beyond divorced families. To be
sure, in practice American courts rarely intervene in the educational
decisions of intact families, at least absent some evidence of
significant abuse. Likewise, the legal standard for such intervention
in intact families is much more demanding (requiring some showing that
the parents' approach risks causing imminent harm to the child, and
not just a judgment that departing from the custodial parent's
approach would be in the child's best interests).
But if the legal system becomes genuinely concerned about the supposed
lack of "different points of view" to which a child is exposed, that
concern should if anything be greater when the child is in an intact
family -- where both parents are likely to be exposing the child to
the same viewpoint -- than when the child is in a divorced family in
which the parents have different viewpoints. At least in this case,
the father could expose the daughter to viewpoints other than the
mother's (though that might be quite hard given the daughter's
pushback, which in turn seems likely to stem in large part from the
mother's greater time with the daughter). In an intact family that
homeschools a child or sends the child to private school, the child
might not get any "different points of view" from any trusted adult or
even from other children. So the logic of this decision, if accepted,
might well eventually carry over to decisions about intact families,
too.
And the decision strikes me as constitutionally troublesome, whether
implemented in broken families or in intact families. It may well be
in the child's best interests to be exposed to more views in public
school -- or it may well be in the child's best interests to avoid the
views that public school will expose her to. Those are not judgments
that courts should generally make given the First Amendment.
That's especially since it's hard to imagine courts actually adopting
a facially supposedly viewpoint-neutral approach that "exposure to
more viewpoints is better." I take it that if a racist parent was
complaining that the other parent wasn't exposing their daughter to a
wide range of viewpoints on the subject of racism, a judge wouldn't
consider that; likewise for a wide range of other views. Likewise, the
judge seems to have been moved by the conclusion that the daughter was
"rigid[] on questions of faith"; presumably if the mother were
teaching the child less "rigid" views about religion, the judge would
not have been as troubled (though some other judge might have been
more troubled). Judges' decisions that more viewpoints are better will
almost always be based on an evaluation of what those viewpoints are
likely to be, and what viewpoints the child is being taught.
This having been said, the court decision asserts that the parents --
who do have "joint decision-making responsibility" -- had never agreed
on the public schooling vs. homeschooling question, and "reserved for
the Court the issue whether Amanda would attend public school for the
2009-2010 school year, or continue to be home schooled by Ms.
Voydatch." Nor is the case like a normal [2]parental speech dispute,
in which, absent court action, both parents would be free to say
whatever they wanted to the child. Here, a choice must be made between
home-schooling and public schooling; the child can't do both. (The
child could of course go to public school and learn more at home, but
that would obviously be different from a standard home-schooling
approach.) Nor is there an obvious neutral principle that could be
followed here, for instance the child's likely academic success in
either approach -- it looks like the daughter is doing very well with
home-schooling, but there seems to be no evidence that she won't do
roughly as well with public schooling in this district. Nor can one
have a preference for continuing the child's pre-divorce education;
the parents had been divorced for pretty much the daughter's whole
life.
My inclination, though, is that a court should generally try to choose
some neutral basis for the decision that would not require it to
evaluate the merits of various viewpoints, or to evaluate whether the
daughter needs exposure to more viewpoints of the sort she's likely to
get in public school. Even a preference for the choice of the primary
residential custodian, however imperfect this might be, would at least
keep courts out of deciding when a child's religious views are too
"rigid." Government decisions about which school children should go,
or what they should be taught, shouldn't be based on judges' views
about which views are unduly rigid, or [3]atheistic, or [4]racist, or
[5]pro-gay-rights, or [6]anti-gay, or what have you.
The [7]Alliance Defense Fund has more on this case, including pointers
to its filings in the case; I would of course also be glad to include
links to the other side's filings, when and if such links become
available. Thanks to Duncan Frissell for the pointer.
References
1. http://www.telladf.org/UserDocs/KurowskiOrder.pdf
2. http://www.law.ucla.edu/volokh/custody.pdf
3. http://www.volokh.com/posts/1125342962.shtml
4. http://www.volokh.com/posts/1134599822.shtml
5. http://www.volokh.com/posts/1170792679.shtml
6. http://www.volokh.com/posts/1170792679.shtml
7. http://www.adfmedia.org/News/PRDetail/2950
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