Saturday, April 05, 2008

Yoder and Pierce

Doug Newman has just written on the ultimate reason why government education fails and has reminded me that I haven't blogged on the recent California court ruling against home schooling (In re Rachel L.).

The case has incited many comments (e.g., Malkin, CATO, Vin S., Greenhut), but what I find most interesting in the court's decision (which I admit I haven't thoroughly read as yet) is the use of a 1925 U.S. Supreme Court case which has long been seen as a great bulwark of parental liberty (Pierce v. Society of Sisters, 268 U.S. 510) (see also the case of Wisconsin v. Yoder, 406 U.S. 205, usually cited along with Pierce, and cited by Rachel's parents "as a basis for their contention that their religious beliefs entitle them to refuse to send their children to [a government-operated] school").

These cases have been aptly described as "Educational Bait-and-Switch."

These cases exemplify what James Madison described as the difference between "tolerance" and "liberty." "Tolerance" is when the government says, "We'll let you do that -- for now." "Liberty" is the idea that the government has no right to say anything about the subject, period. The courts have longed claimed that there are three parties to every marriage: the husband, the wife, and the State, and that children belong to the State as much as to the parents. So the California court cited Pierce and concluded:

"A primary purpose of the educational system is to train school children in good citizenship, patriotism and loyalty to the state and the nation as a means of protecting the public welfare."

This is fascism.

It was probably 25 years ago that I wrote about the Yoder case, and how home school defense associations were leading home-schoolers like Rachel's parents into a trap by relying on that case. My analysis is here:

There is no U.S. Supreme Court case which truly protects the Liberty of parents to educate their children. The protection lies in the Constitutional doctrine of "enumerated powers," which was long ago repudiated by the Courts.

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