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Parents do not have a right to homeschool under the US Constitution, says Supreme Court Justice Antonin Scalia.
Scalia also believes there is no right to school choice within the Constitution.
The conservative justice often is a favorite among those on the right and even among those within the homeschool community, but on these two issues, he strongly differs.
“The notion that everything you care a lot about has to be in the Constitution is a very dangerous notion,” Scalia said during an appearance at Georgetown University. “Because it begins with stuff we all agree upon, ‘Oh, sure, we ought to be able to educate our children the way we want.’ That was one of the early substantive due process [cases] — don’t get me going on substantive due process.”
Parental choice in education is among the important rights not guaranteed in the Constitution, Scalia told the law students at Georgetown University in mid-November, Education Week reported.
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The Constitution is “not a perfect Constitution,” and many “important rights are not contained there,” he said. For example, “my right to raise my children the way I want. To teach them what I want them taught, not what Big Brother says. That is not there.”
Educational choice is “simply not in the Constitution” and “I will not enforce it from the bench,” he said.
The Supreme Court did uphold parental choice in two cases in the 1920s with which Scalia seems to disagree. In a case called Pierce vs. Society of Sisters in 1925, it struck down an Oregon law that mandated public school attendance. In another case called Meyer v. Nebraska in 1923, it overturned a state law banning the teaching of foreign languages to children.
“Justice Scalia’s comments show that homeschoolers—and every single family—cannot fear attacks on parental rights solely from the left, but also from the right,” William A. Estrada, the director of federal relations for the Home School Legal Defense Association (HSLDA) wrote on the organization’s website.
Estrada noted that Scalia, who is regarded as a conservative, has been asserting this position for years. Scalia made his position clear in a 2000 case called Troxel v. Granville.
“Our U.S. Constitution was drafted by our Founders to limit the role of the federal government, and to leave fully protected every fundamental right, including the right of parents to direct the education and upbringing of their children,” Estrada wrote.
HSLDA chairman Mike Farris wrote a 2006 article in which he said his fear is that a future Supreme Court might use Scalia’s logic to justify a ruling against homeschoolers.
“In short, Scalia believes that no right is protected unless it is expressly stated in the text of the Constitution,” Farris wrote. “While most of us like this theory if it is used to reverse Roe v. Wade, we would be quite alarmed if parental rights were suddenly no longer a protected constitutional right.”
The next President could appoint as many as four Supreme Court Justices, Washington Times writer Dave Boyer recently noted. Boyer pointed out that three justices – Scalia (80), Anthony M. Kennedy (80) and Ruth Bader Ginsburg (83) – will be at least 80 when the next president takes office. A fourth, Stephen G. Breyer, will be 78.
“Justice Scalia’s recent comments are a sobering reminder that we do indeed need an amendment to the U.S. Constitution that enshrines the current Supreme Court precedent protecting parental rights in the black-and-white text of the U.S. Constitution,” Estrada wrote.
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