It's All About the Children

A few weeks ago I posted here about an article by former colleague Louis Hensler, The Legal Significance of the Natural Affection of Charlie Gard's Parents. To my satisfaction Hensler demonstrated that the common law (and, to a lesser extent, its statutory successors) presume that parents have a divinely-instilled natural affection for their children that immunizes them (and not others) from claims for actions that could otherwise amount to tort. Natural affection generally warrants deference to parental choice not because children are their property--they aren't--but because for all their foibles and limitations parents' hearts and intentions are for their children. This seems especially the case when compared to any plausible substitute such as a state-run child welfare and educational systems that are chronically underfunded and under-staffed.

For another point of view go here to read Homeschooling: Choosing Parental Rights Over Children's Interests. Cribbing from the abstract:

Homeschooling, the most extreme form of privatization of education, often eliminates the possibility of the child gaining the resources essential for success in adult life. It sacrifices the interests of the child to the interests of the parents, allowing them to control and isolate the child’s development. In addition, homeschooling frustrates the state’s legitimate interest in the child’s receiving a sound, diverse education, so that the child can achieve her potential as a productive employee and as a constructive participant in civic life. ... For all of these reasons, homeschooling should be prohibited, as it is in many other countries.

Where to start? How about, for instance, the fatuous nature of the assertion that homeschooling "often" (how's that for a wiggle word?)  "eliminates the possibility of success"? Seriously, as one who sees more and more law school resources devoted to remediation of the deformities caused by our "no child left behind" approach to primary and secondary education (which has slithered into undergraduate education as well), I can't imagine how the authors believe that homeschooling is so much worse.

But here's the real howler: homeschooling "frustrates the state's interest" in turning kids into "productive employees" and "constructive" citizens. Sheesh. And here I thought that education was to train children in virtuous truth-seeking. Silly me.

For yet a third hand, one that frames the issue separating Hensler and homeschooling-phobes, go here to read an essay by Bruce Ledewitz, Is Religion a Non-Negotiable Aspect of Liberal Constitutionalism? Spoiler alert: yes. In Ledewitz's words: " I aim to challenge the question’s implicit privileging of secularism as a constitutional norm by returning to the American experience." Unlike the authors of Homeschooling, Ledewitz is as open to the question of whether religion should tolerate secularism as vice versa. Of course, privileging one's preferred take, e.g., secularism uber alles, makes winning an argument much easier but hardly does service to honest academic inquiry.

In any event, Ledewitz demonstrates that there can be thoughtful discussion of the fraught issues in American social and political life.

And one more thing: Enjoy a blessed Advent.