The Right To Association and Education Are Fundamental.
Updated: Jun 10, 2021
With the political environment being what it is today, many are questioning whether the state can mandate their child’s education outside of a public school (homeschooling).
Although a few states are considering or have passed bills in an attempt to regulate the parents homeschooling, that doesn’t mean it’s entirely legal for them to do.
For almost 100 years the U.S. Supreme Court has had a sometimes-difficult responsibility of determining where individual rights, as guaranteed by the U.S. Constitution within the Bill of Rights, end and States rights begin.
The State has a duty to the people of that state and as such, the state has rights. The balance between them is not often an easy to navigate decision. As a result, in the United States, people do not have the absolute rights that most believe we do. According to long settled case law, the State has the power to diminish an individual’s rights for the good of the State however any legislation to diminish those individual rights must be worded so that the infringement is minimal and only allows for diminishment as far as it allows the state to fulfill their duties to the people. As a result, certain rights, mostly within our first and fourth amendments, are considered fundamental rights, meaning they cannot be diminished or infringed upon while others guaranteed by our Bill of Rights can be diminished for the good of the state, and the people.
Two of these rights which are considered fundamental are the right to assemble (right of association) and the right to an education. In with the right to an education is the right of the parent to direct that education. Although that right can be waived by entering into a licensed marriage upon the issuance of a marriage license, that's an entirely different matter. Even in the case where the state has been contractually granted authority over our children, statutes still dictate what conditions would allow the interference with that right and under what conditions the state may have the ability to deny the right to direct that education. Those situations are not typical and generally require extreme circumstances to exist before the state can interfere.
The Court created an explicit hierarchy of rights and tests for determining whether laws justifiably restricted different constitutionally protected rights, such as freedom from self-incrimination and unreasonable search and seizure. For constitutionally protected liberty, the Court recognized that some aspects of liberty, such as freedom from arbitrary detention and bodily intrusion, are more important than others, such as freedom to use property or money. The most important, which were deemed “fundamental,” were subjected to the “strict scrutiny” test: the Court determined (1) whether the government could prove that challenged law served a purpose so “compelling” that it was justified in taking action and (2) whether what the law required or forbade was “narrowly tailored” to achieve that purpose and did so with as little interference with individual liberty as possible. Few rights qualify as fundamental. They include freedom of speech and association, voting, freedom from arbitrary physical restraint, and decisions about marriage, contraception, procreation, family relationships, child rearing, and education.
The right to an education as a fundamental right and the right of the parent to guide and direct that education is reinforced many times in case law such as Pierce v Society of Sisters, 268 US 510, 535 (1925)., Meyer v Nebraska, 262 US 390 (1923)., and in San Antonio Independent School District v Rodriguez, 411 US 1, 102–3 (1973).
The state clearly has the right to regulate and mandate the operation of their own schools (public education) and the state has a right to regulate private schools to a point since those schools are Licensed by the state and as a part of licensing they have agreed to operate with the states permission and under the states regulation.
Relying upon 2 of these fundamental rights, the right to associate and the right to education (as directed by the parent), the parents have the right to take their own childs education outside of the jurisdiction of the state to regulate. Operating a private association (no licensing or permission from the state or agreement to comply with state regulation) is a fundamental right. The private association simply needs to be founded in a manner that does not give jurisdiction to the state.
As long as parents continue to voluntarily allow the state to diminish or regulate even your fundamental rights, they will continue to do so. This allowance will continue to diminish your rights until those rights have simply gone away. You still have the power in the private domain. Maybe you should consider using it to exercise your rights.