When "I do" becomes "you won't!" - preserving the right to home school after divorce.

• Author: Kolenc, Antony Barone

INTRODUCTION

Like all couples in love, Brenda and Martin Kurowski said, "I do" in the hope of a happy life together. (1) But their marriage could not survive the test of time. They divorced shortly after the birth of their daughter Amanda. The divorce decree provided for Amanda's joint legal custody, but she lived in her mother's home. When it came time to send her to first grade, Brenda tried home schooling. Martin objected and sued in a New Hampshire family court, where the parents sparred for three years over various child-rearing decisions. Amanda's home schooling continued, supplemented by piano lessons, theater group, and three classes at the local public school. By all accounts Amanda--now ten years old--was a successful, sociable girl who performed at or above her academic grade level.

In June 2009 the family court finally held a hearing to decide the home-schooling dispute. The judge noted that Brenda and Amanda were "rigidly" Christian and that Martin's reaction to their beliefs was a source of strife within the family. Despite four years of successful home schooling, the court ordered Brenda to enroll Amanda in the local public school for the 2009-2010 academic year--a decision which attracted national news media attention. (2) The New Hampshire Supreme Court affirmed that decision as a reasonable exercise of the trial court's discretion.

With home schooling on a sustained, dramatic-growth curve, the Kurowski case is not unique. Indeed, home-schooled families cope with divorce and single parenting like the rest of society. And when separated couples disagree about the decision to homeschool, thorny issues arise, fanned by deeply-held beliefs and strong emotions. This Article will address those issues and explore how courts decide if home schooling is in a child's best interests. Part I of the Article will examine two crucial defenses raised by home-schooling parents in these cases: a fundamental parental liberty interest, and the right to freely exercise one's religion under the First Amendment. Part II will consider the "best-interests-of-the-child" standard and critically analyze six key factors that drive court decisions in these tough custody cases. The Article will discuss strategies used to convince courts to treat home schooling with the same deference as the decision to send a child to public or private school.

1. TWO FUNDAMENTAL DEFENSES: IS HOME SCHOOLING "UNTOUCHABLE" BY THE COURTS?

   In the first 300 years of its colonial and early history, America's predominant educational choice was to homeschool, producing such figures as George Washington, James Madison, Benjamin Franklin, Abraham Lincoln, Mark Twain, Andrew Carnegie, and Thomas Edison. (3) Though compulsory education laws existed as early as 1642, they did not spread until the mid-Nineteenth Century, when the immigrant population exploded, creating a need to "assimilat[e] new Americans into society." (4) Public schools existed, but they were merely one option for parents. (5) In the early Twentieth Century, as mandatory public schooling took hold, home schooling fell by the wayside. But in the 1950s--the dawn of wide dissatisfaction with public schools (6)--parents returned to home schooling for an alternative. (7) Over the next forty years the movement expanded, with almost two million students homeschooled in the United States today. (8) This remarkable growth, coupled with an unfortunately high divorce rate in society, will continue to produce the kind of home-school-specific custody disputes discussed in this Article.

   Home-school advocates have championed a two-pronged defense to fight these custody cases. They hope these two strategies will raise the level of judicial oversight to the "strict-scrutiny" standard, (9) which could make a parent's decision to educate their children at home nearly untouchable by the government. The first prong relies on Supreme Court precedent that establishes a fundamental right of parents to rear and educate their children. (l0) The second prong invokes the protections of the First Amendment's Free Exercise Clause. (11) This section of the Article will evaluate the merits of those defenses.

   1. Is There a Fundamental Parental ?Right?

      When family courts order home-schooling parents to enroll their children in public school, the first line of legal defense is to assert a fundamental right belonging to parents. Advocates of home education believe the right to rear and educate one's children--the Parental Right, if you will--is merely delegated to the government by parents when they desire state assistance. (12) Thus, the State cannot intrude on parental decisions regarding education, at least not without passing strict scrutiny. This level of review applies equally to a judge-fashioned custody order that interferes with a parent's right to homeschool. (13)

      At its very core the Parental Right originates in both natural and common law. (14) The famous jurist William Blackstone deemed the parent-child relationship "universal," and English common law saw it as a "sacred right with which courts would not interfere." (15) Indeed, this right was so revered that it went virtually unchallenged for centuries. (16) Finally, in the 1923 case of Meyer v. Nebraska, (17) the U.S. Supreme Court had its first chance to define the right. The Court called it a "fundamental" substantive due process liberty right protected by the Fourteenth Amendment--a person's individual right to "marry, establish a home and bring up children[, and] ... give his children education suitable to their station in life....". (18) Two years later in Pierce v. Society of Sisters, (19) the Court declared, "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." (20) Unfortunately, neither of these cases defined the level of scrutiny courts should use when the Parental Right is at stake. (21) Yet over the next 80 years the Court continued to recognize it as a "fundamental" liberty interest. (22)

      In 2000 the Supreme Court made its most recent pronouncement on the subject in Troxel v. Granville, (23) calling the Meyer-Pierce Parental Right "perhaps the oldest of the fundamental liberty interests recognized by this Court," and confirming that "there is a constitutional dimension to the right of parents to direct the upbringing of their children." (24) Though every Justice acknowledged the importance of the right, only Justice Thomas was willing to suggest that strict scrutiny is required when the right is invoked. (25) Still, after Troxel it is at least clear that some heightened scrutiny applies. (26) Indeed, in an abundance of caution, some judges today will default to strict scrutiny to resolve these parental-rights claims. (27)

   2. The Free-Exercise-of-Religion Defense

      Although not every family homeschools for spiritual reasons, many families view religion as the driving force of that decision. Some see it as a parental duty to provide their children a complete (i.e., "godly") education, or at least one that is free from a public school environment "destructive to their beliefs." (28) To such parents, a family court's order to attend public school places their children's tender faith in jeopardy--much like the seeds in Jesus' parable that fell among thorns and were choked by the hostile plants. (29) These parents invariably turn to the First Amendment's Free Exercise Clause to defend their right to pass on their religion to their children. But due to nebulous Supreme Court precedent, it is unclear just how much protection that clause actually provides.

      Scholars used to believe the Supreme Court would apply the highest level of review to government actions that infringed the free exercise of religion. (30) For instance, in Wisconsin v. Yoder (31) the Court had applied strict scrutiny to exempt Amish children from a compulsory high school education law. (32) But all that changed in 1990 when Justice Antonin Scalia penned the majority opinion in Employment Division v. Smith. (33) That revolutionary case "clarified" that strict scrutiny was not the proper standard to use in free-exercise cases; instead, some lesser scrutiny was to be employed against a "neutral, generally applicable law" that in no way targeted religion. (34) In other words, neutral laws--such as compulsory education statutes--might only need to pass a "rational basis" judicial review, which is easily satisfied. (35)

      But after Smith, religious home schoolers continued to argue that strict scrutiny should apply to their cases, based on a loophole left open by the Court. Specifically, the majority opinion had carved out what became known as the "hybrid rights" exception to its holding:

      The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as ... the right of parents, acknowledged in Pierce v. Society of Sisters, to direct the education of their children ... The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. (36) The Parental Right, when combined with a free-exercise claim, was specifically singled out by the Court as a "hybrid right" worthy of strict scrutiny. (37) Not all lower courts agree, however, and there is a split within the Circuit Courts of Appeals on the application of this theory. (38) Despite strong policy reasons to apply strict scrutiny in these situations, (39) it is uncertain today what standard any given court will use.

   3. Are These Defenses Effective?

      The previous two sections of the Article outlined the first lines of defense for home schoolers when courts order their children into public...