Before I get to the heart of my newsletter, let me start with a quick legal analysis. Late yesterday, President Trump announced that he would be signing an executive order temporarily suspending immigration:
Immediately after the tweet, I received a number of messages from folks asking whether he had the legal authority to keep his promise. The response is twofold. First, the tweet isn’t the order. Later reporting indicated that the ban may be less than total and exempt a number of classes of immigrants who are deemed “essential workers.” I’ll wait on the order to make a definitive analysis.
Second, however, the president’s authority to restrict immigrant entry is quite broad and was recently reaffirmed by the Supreme Court. While it seems like ancient history, remember the travel ban litigation? In 2018 the Supreme Court upheld Trump’s executive order restricting entry from a number of countries that were deemed to have inadequate vetting processes to screen for terrorists or other dangerous visitors and immigrants. Most (but not all) of the countries on the list had majority-Muslim populations.
The Trump administration relied on a statute that is almost breathtaking in the discretion it grants the president. Here’s the relevant text:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
As Justice Roberts noted in his majority opinion, “By its terms, [the statute] exudes deference to the President in every clause.” Yes it does. And it’s likely the president will rely on that statute again if he further restricts immigration during the pandemic.
I’m certainly open to the idea that further restrictions are prudent (I’ll have to see the order itself to opine on its merits), but the statute itself is yet another instance of the sheer breadth and depth of the congressional abdication of authority to the executive. It also demonstrates that the problem is hardly new. This law was enacted in 1952, the last year of the Truman administration.
Will Congress start to claw back its powers after Trump leaves office? I’m not optimistic. Both parties enjoy executive authority when their own man is in office. And so long as one party is happy (and one party almost always is), reform is nearly impossible.
Now, on to the heart of the newsletter …
Late last week, the social conservative side of the internet erupted in concern over a broadside against homeschooling. It came from Harvard Magazine and one of my old professors, Elizabeth Bartholet. The article art was particularly inflammatory—portraying a child looking at other children running and playing from inside a house-prison made of books that said, “reading,” “writing,” “arithmetic,” and “Bible.”
So much for nuance.
In the article, Bartholet argues that homeschooling exposes students to abuse and religious indoctrination, and that it represents a threat to democratic values. “From the beginning of compulsory education in this country, we have thought of the government as having some right to educate children so that they become active, productive participants in the larger society,” she argues. Moreover, according to Bartholet, “[I]t’s also important that children grow up exposed to community values, social values, democratic values, ideas about nondiscrimination and tolerance of other people’s viewpoints.”
(As an aside, “tolerance of other people’s viewpoints” was not the hallmark of my experience at Bartholet’s Harvard.)
The article also links to a much longer law review article by Bartholet, which contains these interesting paragraphs:
The legal claim made in defense of the current homeschooling regime is based on a dangerous idea about parent rights—that those with enormous physical and other power over infants and children should be subject to virtually no check on that power. That parents should have monopoly control over children’s lives, development, and experience. That parents who are committed to beliefs and values counter to those of the larger society are entitled to bring their children up in isolation, so as to help ensure that they will replicate the parents’ views and lifestyle choices.
This legal claim is inconsistent with the child’s right to what has been called an “open future”—the right to exposure to alternative views and experiences essential for children to grow up to exercise meaningful choices about their own future views, religions, lifestyles, and work.
I have many thoughts. Let’s start with the practical, move to the legal, and end with the philosophical. As a practical matter, I find that public school advocates often stand behind an idealized view of public education and argue against a caricatured version of homeschooling (you can see signs of this in Bartholet’s emphasis in retelling a fringe story about a particularly isolationist homeschool family). And yes, I know that homeschool advocates often idealize homeschooling while they sneer at public schools. But let’s avoid ideals and talk reality.
In our many years of schooling our three kids, we’ve been in virtually every educational system the American mind has conceived. My oldest daughter attended a public school, a public charter school, a private Christian school, and now goes to a state university. My son attended private Christian school, graduated from a public high school, and now attends the same university as his older sister. (Go Vols!)
My youngest daughter has attended private Christian school, was homeschooled for a year, and now attends a secular private school. And before you say anything, we know we’re privileged. I prefer to call it blessed. But we know that we’ve been able to give our kids the advantages of a remarkable degree of school choice, and we availed ourselves of those choices.
Why? Because kids are different. Not only are kids different, but kids change. There are kids who can sail through the bullying that bedevils all too many public schools. Some kids cannot. Some kids thrive in a smaller private school environment. Some children do not. And there are kids who truly shine in homeschool. Others are stifled and need to be elsewhere. One size does not fit all.
Moreover, educational success isn’t measured merely by test scores. I grow weary of the endless effort to dunk on school choice (or needlessly denigrate public schools) with the countless number of achievement test studies. If my child is thriving as a person and growing in personal character, am I rending my clothes and gnashing my teeth if he’s theoretically 5 percentile points behind where he’d be at the school where his peers just bullied him into misery?
That’s how parents make decisions. Note the key word, parents.
This brings us to the law. In 1923, the Supreme Court heard a challenge to a law prohibiting instruction in any language other than English (though students could learn “ancient or dead languages” like Latin, Greek, and Hebrew). In response, the court recognized the broad constitutional liberty interest protected by the 14th Amendment:
Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
Moreover, this liberty interest could not be overcome by the state’s interest in establishing a common culture:
The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every characteristic of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the State and conflict with rights assured to plaintiff in error.
The court distinguished American liberty from ancient systems (like Sparta’s) that treated children essentially as wards and instruments of the state. This principle was reaffirmed in Pierce v. Society of Sisters when the court’s words were even more clear:
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. (Emphasis added).
And we can’t forget Wisconsin v. Yoder, when the Supreme Court upheld the right of the Old Order Amish to provide informal vocational education to their children rather than send them to public schools. Again, the language was similar:
Indeed, it seems clear that, if the State is empowered, as parens patriae, to “save” a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will, in large measure, influence, if not determine, the religious future of the child . . . therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
Now let’s contrast these statements with Bartholet’s argument above, where the primacy of the child’s alleged right of an “open” future (as the state defines it) should trump the parent’s right to direct their child’s education. Make no mistake, this argument—if adopted—would turn American law upside down.
For what purpose? The very standardization and homogenization that the Supreme Court has decried for almost 100 years.
No one doubts that abuse occurs in homeschools. It happens. No one should also doubt that abuse occurs in public schools. I’ve seen that with my own eyes in my public school childhood. The law prohibits abuse in both contexts, and it is imperfect in preventing it in both contexts. But it is simply not true that anyone—in home-schools or public schools—has true “monopoly” control over children. Abuse is unlawful wherever it occurs, and when it does occur the state has the authority to step in—not as a true parent, but as a protector.
Finally, I want to crib from my colleague Jonah Goldberg and note a very simple, plainly true philosophical reason for the superiority of parents in determining the education of their children. Parents love their children. The state does not. This means that parents pursue their child’s best interests, while the state (aside from its protective function) pursues its own.
The beauty of school choice—including the choice to homeschool—lies not in test scores (though sometimes test scores can be dazzling), but rather in granting loving parents a better range of options as they seek to raise their children. They are not trapped with the bullies. They can find the place where their child has a better chance to thrive—in mind, body, and spirit.
I’m grateful for my Kentucky public school experience. Truly, I am. While not all my teachers were good, some were outstanding. Some seemed to like me a great deal. There were a few who might have even loved me. But not one of them cared for me, loved me, and sought my best interests like my own mother and father. And when it comes to directing the education of our children, it is the loving parent who should maintain control.
One last thing …
French Press readers know that LeBron is the GOAT, but if you’re not watching The Last Dance, the ESPN documentary on the second-greatest player in the history of basketball and his last season with the Bulls, you’re missing out on greatness. This part, about Jordan’s 63-point game against the 1986 Celtics is just fantastic:
Photograph of a father teaching guitar by Shawn Patrick Ouellette/Portland Press Herald/Getty Images.
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